Tuesday, March 14, 2006

More news on the case against Diebold whistleblower

Yesterday's Oakland Tribune features this article by Ian Hoffman about Stephen Heller, the former employee of Diebold's law firm, Jones Day. Mr. Heller leaked Diebold's legal documents to the Oakland Tribune in 2004, and he is now being prosecuted by Los Angeles District Attorney Steve Cooley. Excerpts from the article are featured below.


One night early in 2004, a few weeks before the presidential primary, a Van Nuys actor making ends meet temping as a word processor listened on headphones as a young lawyer laid out a defense for Diebold Election Systems Inc.'s use of unapproved voting software in Alameda County.

Sitting at a computer terminal on the 45th floor of a Los Angeles skyscraper, Steve Heller transcribed the lawyer's taped memo suggesting that Diebold could claim the software was a new, "experimental" voting system, even though it had handled two Alameda County elections in 2003.

Heller led a quiet life in the San Fernando Valley with his wife, dog and an occasional supporting role in film, TV or commercials, usually cast as someone's neighbor or dad, which is what he looks like. He was an "experienced and competent" word processor but no "heavyweight" in the eyes of his night-shift supervisor, who doubted Heller knew his computer commands were recorded.

Heller is a self-confessed "news junkie." In an interview, he declined to talk about the case but said, "I would not describe myself at all as an activist" on electronic voting or anything else.

Yet the night after hearing the Diebold defense proposal, according to investigators who recreated his actions from computer logs, Heller went back to work inside the word processing center at the law firm Jones Day and began printing every document he could access that its attorneys had created for Diebold - 107 memos, charts, actions plans and e-mails.

One memo warned that Diebold could be prosecuted for illegally handling votes on Election Day. In a draft letter, Jones Day attorneys studiously avoided telling California elections officials of Diebold changes in a voting system component that ended up failing in presidential elections. In one e-mail, Jones Day advised Diebold of the need for sweeping civil and criminal defenses, billed at up to $450,000 a month.

In a meeting in a Ventura County park, the documents landed in the hands of Diebold's most vociferous critics at BlackBoxVoting.org. From there, some were faxed to a documentary filmmaker for attempted hand-delivery to then-California Secretary of State Kevin Shelley in Manhattan.

The Oakland Tribune reported on the memos, and almost overnight they appeared on Web sites from Washington to California to New Zealand, then elsewhere. Two weeks later, Shelley withdrew his earlier approval of Diebold's flagship touchscreen voting system, calling the firm's behavior "fraudulent" and "despicable." It took more than two years and numerous improvements before Diebold again could sell its electronic-voting products in California.

Heller himself remained largely unknown until two weeks ago when the Los Angeles District Attorney's Office charged him with a computer crime, second-degree burglary and receiving stolen goods — offenses carrying up to four years in prison - and propelled him to folk hero status among voting reform advocates, computer scientists and critics of electronic voting.

The case poses the value of whistleblowing about an industry that zealously guards its secrets and counts the nation's vote against a bedrock principle of the legal profession, the sanctity of confidentiality that allows clients to share their troubles with their lawyer.

Publication of Jones Day's confidential Diebold work, firm lawyers told investigators, was "a grievous violation" that damaged a top 25 client worth millions of dollars a year in billings.

The Electronic Frontier Foundation and some leaders of the Association of Computer Machinists, the nation's oldest group of computer engineers and scientists, are seeking pro-bono defense for Heller.

"He found evidence that the problems that people were complaining about, and that Diebold was belittling, were real and that Diebold was skirting the rules," said EFF legal director Cindy Cohn.

"I think people are really heartsick," she said. "This is a guy who the people of California should be thanking and yet he's facing litigation titled 'People vs. Heller.'"

Protest e-mails and phone calls have been pouring into the offices of the Los Angeles district attorney, most of them from outside California.


Officials at the district attorney's office say Heller has no criminal record and probably would get probation if convicted. But he would lose his right to vote.

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