• clunky, arcane, and opaque registration systems,
• clunky, arcane, and opaque adminstration technology, and
• voting systems that don’t accurately record votes.

(The latest in the latter saga of woe is NY state BoE’s report from an investigation of how the “phantom vote” phenomena manifested itself in voting systems that recorded votes not actually cast by anyone.)

Specifically for voter registration, among the many needs is one at the front end of the process: just getting people to fill out the administrative forms that are required for voting “eligibility management:

• register to vote,
• update a voter record,
• request an absentee ballot or absentee status,

or the even more arcane forms that overseas and military voters use for

• the same purposes but with different administrative rules, plus varying state-specific requirements.

The good news for citizens of the Commonwealth of Virginia is that help is on the way, with a new voter service that will step a voter through each of several complex and VA-specific application forms and combinations — and produces properly formatted paper documents that regular people can actually understand, both voters before they sign and mail the forms, and local election officials who process them.

But what about other states and localities that don’t have the resources for the type of comprehensive project that the VA SBE has undertaken with OSDV and other participants? The good news for them is that there is a middle way. We took the first step a couple of weeks ago when we went live with a new release of the “Rocky” OVR assistance system operated by RockTheVote and hosted by Open Source Labs. The main feature of the new release was a web service application programming interface (API) that provides access to all of the Rocky functions. However, rather than via a browser of a user, the API provides those functions to other web sites.

How is that a benefit to elections officials, and a public benefit to voters? Sorry to make this post a cliff-hanger, but the explanation of the API will have to wait for next time. Stay tuned, it’s worth it!

– EJS

* (As some readers may have figured out already, even-numbered years to focus on registration and reporting as the voter-visible bookends of an election, while odd-numbered years have more focus on the mechanics of casting and counting ballots and data interperability to enable public transparency.)

After the ceremony, I saw a real distinction between two groups of people. One group was clearly enthusiastic about voting as a benefit of their new citizenship. Some had already filled out the somewhat cramped and confusing voter registration application form from the packet of many administrative documents they were handed earlier. Others very sensibly got some help in filling out the forms by walking up the the table where the elections division folks were offering to help people with the form. Either way, most of them were very appreciative of the elections folks being there to help and to make sure that the completed forms got to the right place quickly.

Another group was markedly un-interested, despite the encouragement to vote, in the dealing with yet another form, more government officials, and an additional disclosure of personal info to yet another part of the government. I found it sad but understandable. But for part of this group I also felt frustrated, because I was seeing right in front of me a form of barrier to franchise, albeit largely unintentional. The enthusiastic group tended to be younger, more voluble and confident speaking English (for most of the new citizens, English is a second or third language – about 2/3 of the new citizens that day were born in El Salvador, Mexico, or the Philippines), and more technologically literate (if fiddling with a smart phone is a sign of that). The rather sizable less enthusiastic group had a lot of grandparents being assisted by younger family or friends.

For these people, the application form might well be daunting: two pages of instructions in small font in addition to a form with little boxes that are hard to read for anyone, much less a user of reading glasses. And for those who actually read the instructions, there is some real confusion over whether you can vote if you lack a driver’s license or SSN. (I expect that some people lacked one or maybe both.) More vexing, the elections department people told me how conscious they were about people’s need for help in doing the application form correctly, and having to deal with more paperwork, and having to take the initiative to walk over to speak to more government people, in order to get the help.

In fact, one of them said that they wished they had the voter registration form on an iPad, and each of them could work the crowd with iPad in hand to get people filling the form with as large print as needed, in whatever language was convenient, with as much online assistance as possible, and no pages of daunting instructions. That really great idea really got to me, because I had 90% of it on my laptop in my backpack. I could have pulled out the laptop, which like an iPad, could be used for browser access the online voter registration assistance service that’s operated by RockTheVote, with OSDV/TrustTheVote technology that I helped build. We were so close to what the elections folks needed to be more helpful to the people standing right there!

But even with a few iPads and a printer and wireless network to connect them, the elections department folks would not quite have had what they need: an online voter registration (OVR) assistance system that is used by the government, not by an NGO that might (incorrectly) be construed as partisan. Particularly in the setting of the citizenship oath ceremony — outside, a madhouse of partisan political organizations clamoring for attention — the government folks need to be using government systems.

And they don’t have it, at least not most elections folks, even though it is so close.

So what we need to do is get this OVR technology delivered in a way that lots of elections officials can adopt quickly, adapt and localize quickly and easily, and get into production operation quickly and easily without having to spend a bunch of money, with all the government procurement hassles that that would entail.

We need to do that; the citizenship ceremony experience made that plain, as well as the government officials’ need, and so … well, so we are doing that, specifically, right now. More on details next time.

– EJS

I’ve just witnessed a naturalization ceremony where 994 people (one of them very special to me) from 104 nations have taken an oath to become citizens of the United States of America. It’s impossible for this to sound other than trite, but it’s true: these people worked hard — some of them very hard indeed — to reach this point, while all I had to do was be born. It is so inspiring that I think everyone should witness one of these ceremonies, to really get a feeling for what it is like to choose to be an American.

And (no surprise) for me a big part of being American is voting. That’s why I was so pleased and thrilled with the amount of time in this ceremony devoted to voting rights and elections and participation. But just as gratifying to me was the presence of election officials from the San Francisco elections division, who briefed the audience in 3 languages on how they should register to vote. And the easiest option that they offered — and kudos to them for it — was to fill out the voter registration form that was already in their hands, and bring it to their table in the lobby. There, the elections division folks made sure the form was complete and correct, and took the completed forms right then and there, no mailing required, even for other counties than San Francisco. They even let me help pass out forms to people in line, in case they didn’t get one.

My personal experience was great, but also a cause for some reflection on the experience of others present in the theatre. But because this has been a great day, I’ll save those reflections, including a technology angle of course, for a better time to consider room for improvement via technology.

– EJS

Just a quick post to suggest an interesting report out this afternoon on the TechPresident blog.  The move to consolidate the efforts of Civic Commons (home of Open311.org) and Code For America (CfA), notwithstanding the likely trigger being Civic Common’s leader, Nick Grossman moving on, actually makes sense to us.  CfA’s  Jennifer Pahlka’s write up is here.

Recently in a presentation, I was asked where our work fits in to the whole Gov 2.0 movement.  It seems to us that we are probably a foundational catalyst to the movement; related, but only tangentially.  To be sure, we share principles of accuracy, transparency, verification and security in government information (ours being elections information).  But Gov 2.0 (and its thought leaders such as CfA) is a considerably different effort from ours at the TrustTheVote Project.  That’s mainly because the backbone of the Civic Commons, Open311.org, and CfA efforts is Web 2.0 technology (read: the social web and related mash-up tools).  There is nothing wrong with that; in fact, its downright essential for transparency.

But to keep the apples in their crate and the oranges elsewhere, our work is about a far heavier lifting exercise.  Rather than liberating legacy government data stores to deliver enlightened public information sites, or to shed sunlight on government operations, we’re building an entirely new open source elections technology stack from the OS kernel up through the app layer, with particular emphasis on an open standards common data format (more news on that in coming posts).

Ours is about serious fault tolerant software architecture, design and engineering with stuff built in C++, Objective C, even dropping down to the machine-level, potentially as far as firmware if necessary, but at the app layer higher level programming tools as well including frameworks like Rails, and UX/UI delivery vehicles like HTML5 and AJAX (to the extent of browser-based or iOS5-based applications).

And that point is the segue to my closing comment:  the Gov 2.0 movement is smartly delivering Government information via the web; the social web in particular.  That’s huge.  By contrast, remember that a good portion of our work is focused on purpose-built, application-specific devices like Optical Scanners to “read” ballots, devices to mark a ballot for printing and processing, or mobile tablets to serve as digital poll books.  Sure, the web is involved in some voter facing services in our framework, like voter registration.  But unlike the Gov 2.0 effort, we have no plans leverage the web or Internet in general for anything (save a blank ballot delivery or voter registration update).

So by contrast, we’re in the rough, while Code for America is on the putting green.  And as such, you should have a look at the TechPresident article today.
Cheers
GAM|out

This post was catalyzed by chit-chat at dinner last evening with an energetic technical talent who is jacked-up about the notion of elections technology being an open source infrastructure.  Frankly, in 5 years we haven’t met anyone who wasn’t jacked-up about our cause, and their energy is typically around “damn, we can do this quick; let’s git ‘er done!“  But it is about at this point where the discussion always seems to get a bit sideways.  Let me explain.

I guess I am exposing a bit of old school here, but having had the formal training in computer systems science and engineering (years ago) I believe data modeling — especially for database-backed enterprise apps — is an absolute imperative priority.  And the stuff of elections systems is serious technology, containing a significant degree of fault tolerance, integrity and verification assurance, and perhaps most important a sound data model.  And modeling takes time and requires documentation, both of which are nearly antithetical in today’s pop culture of agile development.

Bear in mind, the TTV Project embraces agile methods for UX/UI development efforts. And there are a number of components in the TTV elections technology framework that do not require extensive up-front data modeling and can be developed purely in an iterative environment.

However, we claim that data modeling is critical for certain enterprise-grade elections applications because (as many seasoned architects have observed): [a] the data itself has meaning and value outside of the app that manipulates it, and [b] scalability requires a good DB design because you cannot just add in scalability later.  The data model or DB design defines the structure of the database and the relationships between the data sets; it is, in essence the foundation on which the application(s) are built.   A solid DB design is essential to achieve a scalable application.  Which leads to my lingering question:  How do agile development shops design a database?

I’ve heard the “Well, we start with a story...” approach.  And when I ask those who I really respect as enterprise software architects with real DB design chops, who also respect and embrace agile methodologies, they tend to express reservations about the agile mindset being boorishly applied to truly scalable, enterprise grade relational DB design that results in a well performing application, and related data integrity.

Friends, I have no intention of hating on agile principles of lightweight development methods — they have an important role in today’s application software development space and an important role here at the Foundation, but at the same time, I want to try to explain why we cannot simply just “bang out” new elections apps for ballot marking, tabulation, or ballot design and generation in a series of sprints and scrums.

First, in all candor, I fear this confusion rests in the reality that fewer and fewer developers today have had a complete computer science education, and cannot really claim to be disciplined software engineers or architects.  Many (not all) have just “hacked” with, and self-taught themselves, development tools because they built a web site or implemented a digital shopping bag for a friend (much like the well intentioned developer my wife and I met last evening).

Add in the fact, the formality and discipline of compiled code has given way to the rapid prototyping benefits of interpreted code.  And in the processes of this new modern training in software development (almost exclusively for the sandbox of the web browser as the UX/UI vehicle) what has been forgotten is that data modeling exists not because it creates overhead and delays, but because it removes such impediments.

Look at this another way.  I like to use building analogies — perhaps because I began my collegiate studies long ago in architectural engineering before realizing that computer graphics would replace drafting.  There is a reason we spend weeks, sometimes months traveling by large holes in the ground with towers of re-bar, forms, and concrete pouring without any clue of what really will stand there once finished.  And yet, later as the skyscraper takes form, the speed with which it comes together seems to accelerate almost weekly.  Without that foundation carefully laid, the building cannot stand for any extended period of time, let alone bear the dynamic and static weights of its appointments, systems, and occupants.  So too, is this the case with complex, highly scalable, fault tolerant enterprise software — without the foundation of a sold data model, the application(s) will never be sustainable.

I admit that I have been out of production grade software development (i.e., in the trenches coding, compiling; link, load, dealing with lint and running in debug mode) for years, but I can still climb on the bike and turn the pedals.  The fact is, data flow and data model could not be more different.  The former cannot exist without the latter.  It was well understood and data modeling has demonstrated many times that one cannot create a data flow out of nothing.  There has to be a base model as a foundation of one or more data flows, each mapping to its application.  Yet in our discussion punctuated by a really nice wine and great food, this developer seemed to want to dismiss modeling as something that can be done later… perhaps like refactoring (!?)

I am beginning to believe this fixation of modern developers with “rapid” non-data-model development is misguided, if not dangerous for its latent time shifted costs.

Recently, a colleague at another Company was involved with the development of a system where no time whatsoever was spent on data model design.  Indeed, the screens started appearing in record time.  The UX/UI was far from complete, but usable.  And the team was cheered as having achieved great “savings” in the development process.  However, when it came time to expand and extend the app with additional requirements, the developers waffled and explained they would have to recode the app in order to meet the new process requirements.  The data was unchanged, but processes were evolving.  The balance of the project ground to a halt in the dismissal of the first team over arguments about why requirements planning up front should have been done, and they figured out who to hire in to solve  it.

I read somewhere of another development project where the work was getting done in 2 week cycles. They were about 4 cycles away from finishing when on the tracker schedule a task called “concurrency” appeared for the next to last (penultimate) cycle.  The project subsequently imploded because all of the code had to be refactored (a core entity actually was determined to be two entities.)  Turns out that no upfront modeling led to this sequence of events, but unbelievably, the (agile) Development Firm working on the project, spun this as a “positive outcome;” that is they explained, “Hey, its a good thing we caught this a month before go-live.”  Really?  Why wasn’t that caught before that pungent smell of freshly cut code started wafting through the lab?

Spin doctoring notwithstanding, the scary thing to me is that performance and concurrency problems caused by a failure to understand the data are being caught far too late in the Agile development process, which makes it difficult if not impossible to make real improvements.  In fact, I fear that many agile developers have the misguided principle that all data models should be:

create table DATA
 (key INTEGER,
 stuff BLOB);

Actually, we shouldn’t joke about this.  That idea comes from a scary reality: a DBA (database architect) friend tells about a development team he is interacting with on an outsourced State I.T. project that has decided to migrate a legacy non-Oracle application to Oracle using precisely this approach.  Data that had been stored as records in old ISAM type files, will be stored in Oracle as byte sequences in Blobs, with an added surrogate generated unique primary key.  When he asked what’s the point of that approach, no one at the development shop could give him a reasonable answer other than “in the time frame we have, it works.”   It begs the question: What do you call an Oracle Database where all the data in it is invisible to Oracle itself and cannot be accessed and manipulated directly using SQL?  Or said differently, would you call a set of numbered binary records a “database,” or just “a collection of numbered binary records?”

In another example of the challenges of agile development in a database-driven app world, a DBA colleague describes being brought in on an emergency contract basis to an Agile project under development on top of Oracle, to deal with “performance problems” in the database.   Turns out the developers were using Hibernate and apparently relied on it to create their tables on an as-needed basis, simply adding a table or a column in response to incoming user requirements and not worrying about the data model until it crawled out of the code and attacked them.

This sort of approach to app development is what I am beginning to see as “hit and run.”  Sure, it has worked so far in the web app world of start-ups: get it up and running as fast as possible, then exit quickly and quietly before they can identify you as triggering the meltdown when scale and performance start to matter.

After chatting with this developer last evening (and listening to many others over recent months lament that we’re simply moving too slowly) I am starting to think of Agile development as a methodology of “do anything rather than nothing, regardless of whether its right.“  And this may be to support the perception of rapid progress: “Look, we developed X components/screens/modules in the past week.“  Whether any of this code will stand up to production performance environments is to be determined later.

Another Agile principle is of incremental development and delivery.   It’s easy for a developer to strip out a piece of poorly performing code and replace it with a chunk that offers better or different capabilities.  Unfortunately, you just cannot do this in a Database.  For example: you cannot throw away old data in old tables and simply create new empty tables.

The TrustTheVote Project continues to need the kind of talent this person exhibited last evening at dinner.  But her zeal aside (and obvious passion for the cause of open source in elections), and at the risk of running off the (Ruby) rails here, we simply cannot afford to have these problems happen with the TrustTheVote Project.

Agile methodologies will continue to have their place in our work, but we need to be guided by some emerging realities, and appreciate that for as fast as someone wants to crank out a poll book app or a ballot marking device, we cannot afford to short-cut simply for the sake of speed.  Some may accuse me of being a waterfall Luddite in an agile world; however, I believe there has to be some way to mesh these things, even if it means requirements scrums, data modeling sprints, or animated data models.

Cheers
GAM|out

On the eve of 2012 we so need to check in here and let you know we’re still fighting the good fight and have been totally distracted by a bunch of activities.  There is much to catch you up on and we’ll start doing that in the ensuing days,  but for now we simply wanted to check in and wish everyone a peaceful and prosperous new year.  And of course, we intend that to “prosper” is to enrich yourself in any number of ways, not simply financially, but intellectually, physically, and spiritually as well… how ever you chose to do so

Looking back while looking ahead, as this afternoon before the new year urges us all to do, we are thankful for the great headway we made in 2011 (and we’ll have much more to say about those accomplishments separately), and we are energized (and resting up) for the exciting and intense election year ahead.  And that brings me to two thoughts I want to share as we approach the celebration of this New Year’s Eve 2011.

1. A Near #FAIL

First, if there was one effort or project that approached “#fail” for us this year it was our intended work to produce a new open data, open source elections night reporting system for Travis County, TX, Orange County, CA and others.  We were “provisionally chosen” by Travis County pending our ability to shore up a gap in the required funding to complete some jurisdiction specific capabilities.

We approached prospective backers in addition to our current ones and unfortunately we could not get everyone on board quickly enough, and tried to do so on the eve of their budgetary commitments being finalized for other 2012 election year funding commitments, mostly around voter enfranchisement (more on that in a moment.)  We were short answers to 2 questions of Travis County, the answers to which well could have dramatically reduced the remaining fund gap requirement and allowed us to accelerate toward final selection and be ready in time for 2012.

For unexplained reasons, Travis County has fallen silent to answer any of our questions, respond to any of our inquiries, or even continue to advance our discussions.  We fear that something has happened in their procurement process and they simply haven’t gotten around to the courtesy of letting us know.  This is frustrating because we’ve been left in a state of purgatory — really unable to determine where and how to allocate resources without this resolved.  The buck stops with me (Gregory) on this point as I should’ve pushed harder for answers from both sides: Travis on the technical issues and our Backers on the funding question.

I say this was a “near #fail” because it clearly is unresolved: we know Orange County, as well as other jurisdictions, and media channels such as the AP remain quite keen on our design, the capabilities for mobile delivery, the open data, and of course the open source alternative to expensive (on a total cost of ownership or “TCO” basis) proprietary black-box solutions.  Moreover, the election night reporting system is a “not insignificant” component to our open source elections technology framework, and its design and development will continue.  And perhaps we’ll get some clarity on Travis County, close the funding gap, and get that service launched in time for next Fall’s election frenzy.  Stay tuned.

So, that is but one of several distractions that allowed this vital blog to sit idle for the last half of summer and all of the Fall.  We’ll share more about the other distractions in  upcoming posts as we get underway with 2012.  But I have a closing comment about the 2012 election season in this final evening of 2011.

2.  The 2012 Battles on the Front-lines of Democracy Will Start at the Polling Place

Millions of additional Americans will be required to present photo ID when they arrive at the polls in four states next year.  Kansas, Rhode Island, Tennessee and Texas will require voters to prove their identities, bringing the total number of States to 30 that require some form of voter identification, this according to the National Conference of State Legislatures.

This is an issue that has reached the boiling point and we predict will set off a storm of lawsuits (and they are happening already).  It ranks very close to redistricting in terms of its impact on voter enfranchisement according to one side of the argument.  Opponents also argue that such regulations impose an unfair barrier to those who are less likely to have photo IDs, including the poor and the elderly.  The proponents stand steadfast that the real issue is voter fraud and this is the best way to address it.  Of course, the trouble with that argument is that after a five-year U.S. DoJ probe lasting across two different administrations found little (53 cases) discernible evidence of widespread voter fraud.   And yet, there are also reasonable arguments suggesting that regardless of voter fraud, there seems to be no difficulty in our elderly, disabled or poor obtaining ID cards (where required) in order to enable them to obtain Medicare, Medicaid and food stamps.

To be clear: the Foundation has no opinion on the matter of voter ID.  We see arguments on both sides.  Our focus is simply this: any voter identification process must be fair, not burdensome, transparent, and uniformly applied.  We’re far more vested in how to make technology to facilitate friction-free access to the polling place that produces a verifiable, audit-ready, and accountable paper trail for all votes.  We do believe that implementing voter ID as a means to restrict the vote is troublesome… as troublesome as preventing voter ID in order to passively enable those who are not entitled as a matter of citizenship to cast a ballot.

Regardless of how you come down on this issue, we believe it will be where the battles begin in the 2012 election season over enfranchising or disenfranchising voters begins.

And with that, we say, 2012: bring it.  We’re ready.  Be there: its going to be an interesting experience.  Here we go.
Cheers
Greg

That’s when the old recovering IP lawyer in me had an “ah ha” moment.   And that’s what this long-winded post is about—something that actually should matter to you, a reader of this forum about our on-going effort to make elections and voting technology critical democracy infrastructure.

You see, in America, innovation has long been catalyzed by intellectual property law, specifically patents.

And as you probably also know, patent law is going through major reform efforts in Congress as you read this.  Now here is what you may have missed, which in my reflecting on this Fourth of July holiday, the efforts of the TrustTheVote Project, and innovations in voting technology, dawned on me: there is a bad ingredient to the current patent reform legislation that threatens to not only undermine the very foundations on which patent law is used to catalyze innovation, but equally has the potential to undermine some very basic ideals our founding fathers had in mind as this nation was born.  Bear with me while I unravel this for you; I think it will grab your attention.

So it starts with Members of Congress debating patent reform through the America Invents Act (H.R. 1249).  You see, few may be aware of the role that business method patents (BMPs) play in the political process, especially during elections.  BMPs have been used to protect innovations designed to improve the operation of the political process.   And it is not unreasonable to assume that the TrustTheVote Project itself is working on innovations that should well qualify for patent protection resulting in patents we would assign ownership in to the general public.  Weakening the protection for such innovations may in turn reduce the motivation for companies and individuals to continue innovating in these technologies.  And it certainly could impact our work as well.  But this is exactly what Section 18 of H.R.1249, the America Invents Act of 2011, as currently drafted would likely do.

There is a long history of inventors using BMPs to protect their innovations related to voting systems.  As such systems have developed, from paper voting, to electronic voting, to on-line voting, companies both large and small have continued to innovate, and to protect their new technologies via the patent system, often through the use of BMPs.  Let’s look at just two major areas.

1. Electronic Voting Systems – it is estimated that between 20% and 30% of American voters now cast their ballots electronically, chiefly via Direct Recording Electronic (DRE) systems. Yet these systems have encountered many problems related to their ability to record votes accurately, verifiably, and securely.  In effort to remedy these problems (but largely to no demonstrative gain), companies have developed technologies designed to overcome these shortcomings, and have protected these technologies with a series of patents, many of which are classed as BMPs. Organizations with numerous BMPs related to improving electronic voting systems include large companies such as IBM, Accenture and Pitney Bowes, and smaller specialist companies such as Hart InterCivic, Avante International and Smartmatic.
2. Internet Voting Systems – in DRE systems, voters typically have to be physically present at a polling station in order to cast their ballots.  The next logical progression is for voters to cast their ballots remotely, for example via the Internet.   For reasons repeatedly explained here and elsewhere, this is just not a good idea given today’s “Internet.”  But in any event, such ill-advised efforts require a whole new level of network security, in order to ensure that the votes are recorded both accurately and in a verifiable fashion (both being extremely difficult to do, and its unclear any system exists patented or not that can do so, but bear with me for the sake of argument).   A search of the patents in this area, however, reveals that companies such as Accenture, Hart InterCivic, Scytl, and Avante have BMPs describing so-called Internet voting.  These BMPs sit alongside their earlier BMPs covering DRE systems, as these companies develop successive generations of voting technology.

In short, Companies are continuing to seek patent protections for innovations in this sector and business methods continue to be a vehicle for so doing.

Section 18 of H.R.1249, the America Invents Act of 2011, aims to give one special interest—banks—a “get out of jail card.”  As I read it, the provision does this:  If you sue a bank for infringement of a business method patent the bank can stay the court litigation and take your patent to the USPTO for a special post-grant review or PGR process.  If the Bank loses the first round at the office they have an automatic appeal to the board in the office.  If they lose they have another automatic appeal to the Court of Appeals for the Federal Circuit (CAFC), the sole circuit or appeals court for patent cases.  This process takes between 4-7 years based on the existing reexamination systems at the office.  This process is special in that the bank can bring in additional forms of prior art not permitted for other reexamination systems.

There is a good reason why the range of prior art that can be used in court to challenge a patent is not available in the office.  A judge, jury, rules of evidence, cross-examination and other time-tested features of court do not exist at the Patent and Trademark Office.  A patent examiner does not have the experience, procedures, institutional knowledge or time to ascertain the veracity or fraud of the prior art.  More importantly, they do not have the resources to deal with the increased volume of art. Worse, Section 18 can be conducted regardless of whether the patent has already been deemed valid in a prior proceeding.  

And on this Independence Day Holiday, it occurs to me this violates separation of powers and should be unconstitutional.

Before I explain how I can envision this impacting what we’re doing, let me state that I will not delve into the debate over BMPs because it devolves into a religious war, and one that I as both a computer scientist and an IP Lawyer have actually shifted view points from on side to the other over the years.  But suffice it to say that there are examples of useful business method patents that would be eliminated by Section 18 of the patent reform legislation winding its way through Congress.  We are all very familiar with one example: SSL.  Indeed, secure sockets layer is comprised of two BMPs.  Everyone in the world, each day, touches this patented innovation.  If Section 18 were law in 1995 then Visa and Mastercard with their SET proposal could have stalled Netscape and SSL in the USPTO for many years.  Microsoft and CommerceNet with SHTTP could have done the same.  The world would be worse off with competing security protocols. Ecommerce itself may not have taken off at all; at the very least its growth would have been stunted.

It is worth noting that since about year 2000 the U.S.P.T.O has employed a “second pair of eyes” process to examine BMP applications twice.  Moreover, given the public acrimony over BMPs, the U.S.P.T.O is very slow to grant BMPs and the allowance rate is 20% lower than other art areas.  And recently the Supreme Court in their Bilski decision affirmed the patentability of BMPs.

Yet, in spite of the acrimony and higher threshold to get a BMP, many companies large and small innovate and invest in BMPs.  The top 20 owners of BMPs are Fortune 100 companies and or respectable startups. Non-practicing entities comprise a very small portion of the ownership pool of BMPs.  And in considering the innovations resident in the open source elections technology framework we’re developing, we too may find ourselves in the middle of the BMP and Section 18 crossfire.

The challenge is, as a non-profit (pending 501.c.3) organization, we cannot and do not engage in the political process of legislation or lobbying.  Yet, we’re wary of where this is going, I think you should be too.  You see, policy makers don’t often have the time to consume, absorb and digest the data.  They prefer anecdotes, headline grabbing stories, one-page summaries, and talking points.

So let me turn to our thinking about BMPs and the impact of Section 18.

As mentioned above, without debating the basis for BMPs we at the TrustTheVote Project have come to accept that they are an essential part of technology IP.  One reason is that the scope for IT innovation far exceeds the scope for inventing new
technology, and includes innovation in the use of existing technology for new purposes.  That’s been increasingly true for some 20 years, with the scope of the online world coming to encompass so many areas of human activity.  One of the more recent advances is the use of IT innovations for public benefit.  I’ll explain that in terms of elections and political activity, but first let me give a general idea and one specific existing example.

In our experience with IT IP, a BMP can be used as a way to make a claim that “X has been used for many things before, but not in the area of Y; here is a way to use X for a particular purpose in the area of Y; this enables a new human activity Z.”  Now, I could forgo that claim and limit myself to a claim about Y-inspired extension of X that might be a sufficiently significant extension to warrant a patent for a technical innovation; or it might not.

If I limited myself that way, then another party could claim the innovation of using that new method for a particular purpose Z.  So in general, I want to claim both, to protect the right to use X in Y for Z.

Here’s a big idea: “Protect” in the public benefit world means “anyone can do so, not limited by a private or for profit IP holder.” That applies whether or not my extension of prior X is sufficiently innovative by itself.

As an example of this idea, let’s return to SSL, the subject of very well known and high quality BMPs.  When SSL was invented, the use of cryptography for communication security was already well established, including the use of digital certificates to establish (a chain of) trust in the identity of parties communicating.  In fact, there were many examples of cryptographic protocols and communication protocols.  So for X, let’s say “use of cryptographic protocols and communication protocols together for communication with security properties.”

Now, SSL as a protocol may well have been sufficiently innovative to warrant patents of algorithms. But whether or not that was true, SSL was used for several purposes, including a particular kind of communication in which one party trusts a
third to vouch for the second party’s identity as being sufficiently established for a financial transaction. That’s Y.  Z is “digital commerce” meaning financial transactions performed as part of exchange in which one party pays another party for goods and services – including digital goods and digital services.  Without X used for Y, digital commerce wouldn’t exist, and many forms of digital services and digital goods simply would not be provided. With X used for Y, Z is enabled for the first time.  And I view Z — digital commerce — as a major public benefit, even if it was primarily for private for-profit commercial transactions.

The public benefit is a larger economy with the addition of digital commerce.

So far so good, but let’s revisit the value of the BMP.  If it didn’t exist, the holders of patents for X could effectively block Z, or prevent intermediation and insert themselves into every use of X in Y for Z or X in A for B — any use. For example, IBM holds many patents on cryptographic protocols.  I don’t know if those protocols and patents were sufficiently broad to cover the SSL protocol as an algorithm or apparatus.  But if that were so, and BMPs didn’t exist, then IBM could have insisted that it be a party to every digital commerce transaction, only allowing transaction services by parties that made payments to IBM on terms dictated by IBM.  Any other parties would be barred from digital commerce.  Of course, that public benefit may be a matter of opinion on which many people would differ.

In elections and politics, public benefit may be clearer.

For a first example, consider technical innovations for online voter registration. Such innovations might include the use of a “forms wizard” to help people follow complicated rules for filling out voter registration forms; digital means for capturing a signature for the form; digital transmission of the form itself, or its data; and there are more.  All these techniques have been invented before and used in other areas of human endeavor. Adapting them for use in voter registration is probably not an adaption that qualifies as an innovation. But if one wants to ensure that the public be able to use IT implementations of online voter registration, a BMP can cover the use of forms wizards (or other X) for online voter registration (Y) to enable more rapid and more widespread ability of citizens to vote (Z).  Many people would definitely regard that as a public benefit.  The BMP protects that benefit when the BMP holder permits anyone to use the business process, barring a patent holder for X (the specific IT technique) from claiming that online VR implementations infringe their patent.

I don’t know who, if anyone, holds a patent relevant to the technology of the types of innovation in online VR that I refer to here.  However, I suspect that many would regard it as a public detriment for citizens to have to pay a for-profit company for the right to use an online VR service; or for local or state governments to have to pay for privilege of operating such a service.

Other examples lie in the activities around political campaigns to form communities of supporters, organize volunteers, raise money, etc.  The use of social media and other online technology has and I expect will continue to increase in use, enabling more citizens to more easily participate in the political process. As in elections technology, such innovation is often the application of established technology for new purpose.

BMPs can protect the right of political organizations to use such established technology.  I can easily imagine a PAC or other issues-based political organization building a membership organization that includes online interaction with members, including gaining and retaining credit card information for future contributions to the organization, or directly to a candidate or campaign. If I were a member of such an organization, I might expect to get an email about a new set of candidate reviews for candidates in an upcoming election.  I could go to the organization’s web site and read up on candidates.  I could choose to make a donation directly to the candidate’s campaign, immediately, with a single click of a “give $100″ button in the candidate review.

Suppose that there were a private company with a patent on making payment in digital commerce using a similar method.  Without a BMP for the process of a citizen contributing to a campaign as part of a Web session with a web site of an issues based voluntary membership association, that patent holder could insist that it be the sole conduit of such contributions.  I suspect most people would view it as a public detriment to either pay a for-profit company for the privilege of a quick and easy campaign contribution, or use a more cumbersome and error prone method for free.

Worse, one could imagine selective enforcement of the patent, or selectively preferential licensing agreements, to make the quick and easy contribution method available only to political campaigns that the patent holder favored.

The same selective approach could be applied to any part of the political process.  Back to voter registration, it’s possible that a patent holder would choose to license its innovations selectively, only to those local election officials in locales where the majority of unregistered voters are perceived as friendly to the politics of the patent holder.

A selective approach could also be applied for disputes.  For example, if a financial transactions company were able to stop a political campaign for collecting online contributions in a certain manner, during the time in which the dispute is resolved. If the time frame stretches long enough, it doesn’t matter if the campaign wins the dispute—the election will already be over and the opportunity to raise and use funds will be gone.

And these types of scenarios could fit pretty much any use of social media technology, where a patent holder of a purely technical patent could assert the right to constrain the use of the technique in any field of human activity, including elections or politics.

These examples may be fanciful, or not based on a real scenario where an election-relevant or politics-relevant technology-using process is the subject of a BMP that involves a particular use of a particular underlying technology for enabling or automating the process.  But I believe that the general benefit of BMPs would apply to real cases.

This may be a new idea—organizations with a public-benefit motivation wanting to ensure general use of technology-enabled innovations in electoral or political processes, rather than trying to control or reserve or profit from BMPs.  And it is certainly not what BMPs might have been intended for.  But I believe that BMPs could be used—and for all I know are already being used—for electoral or political
processes.  It would be a shame, and a public detriment, if BMPs became less useful, either in general, or less useful in disputes with a particular class of organizations. This might be counter intuitive, but as we see the growth of digital democracy, open government, online activism, and the like, it shouldn’t come as a surprise that these new forms of technology-enabled human activity also create new uses for pre-existing IP protections that pre-date the existence of these evolving activities.

Setting aside the efficacy of BMPs and the related religious debates, I bet we can all agree that without BMPs, Goliath—IBM in my perhaps fanciful example above—can block the public, especially the little guy.  Section 18 in the patent bill gives banks a new tool, unique for banks, to stop David from getting their idea to the market.  And this troubles me for it moves us toward that proverbial slippery slope.

At the end of the day, Section 18 of H.R.1249, the America Invents Act of 2011 is frankly, akin to a government regime not granting a permit to open a business simply because one is from the wrong caste or religion or political party… and that’s not the government regime of this nation, who independence we celebrate today. Yet it appears some special interests in patent reform may have an otherwise misguided view to the contrary.

Your ball
GAM|out

So, the news from a couple of days ago (I’m just catching up) is that the process of re-counting is complete, but the resolution of that close election may not be.  The re-counting did not change which candidate is leading, and apparently expanded the margin slightly.

Trailing candidate Joanne Kloppenburg explains her motivation for the recount in a newspaper letter to the editor, building on the old but true assertion that, “One may be entitled to their own opinions, but they are not entitled to their own facts.”

We steer clear of political food fights, and I have no opinion on her motivation. But we are all about transparency and transparency should not have any political agenda attached.

To that end, what Kloppenburg does point about some of the irregularities, problems, and issues with the re-counting process (which are not the same as the problems with the original count), including lack of physical security on ballots, and uncertainty as to whether the re-counted ballots were the same ballots as the originally counted ones — are reasonable questions about transparency.  More importantly, Kloppenburg offers some reflections about the re-count that are important and correctly apolitical:

When races are this close, there is a significant public interest established both by statute and by common sense in determining that votes were counted and counted accurately.

This election was close, and there were many who have expressed doubts about whether it was clean. The right to vote is fundamental. It is a right that courageous people fight and die for every day.  In America, that right carries with it a promise: that elections are fair and open, that election results are untainted by deceit or fraud, and that the electoral process provides every eligible voter with an equal opportunity to privately and independently cast a ballot.

In order to make that promise real, there are appropriate and established steps that help make sure the outcome of elections, when in doubt, can withstand scrutiny. That, no more and no less, is exactly why this recount is so important.

That is, in fact, a fine description of the purpose of a recount.

It’s unfortunate that in this particular case, the re-count process seems to have a similar or greater level of problems that cast doubt on the result.  We can only hope that the full scope of the process, warts and all, becomes transparent to the public.

For me, I find that regardless of candidate or political preferences, there is a point couched in the last two sentences excerpted from her letter that matters most:

…there are appropriate and established steps that help make sure the outcome of elections, when in doubt, can withstand scrutiny

Transparency in process.  There should be nothing political about that.

GAM|out

In the “open data” approach, you do not need to have integrated reporting features as part of a voting system or election management system. Instead, you can choose your own reporting system, hook it up to your open database of election data, and mine that data for whatever reports you want. And if you need help, only a few days of a reporting-systems consultant can get you set up quite quickly. The same applies to what we used to call “ad hoc querying” in the olden enterprise IT days, and now might be “data mining”. Well, every report is the result doing one or more database queries, and formatting the results. When you can do ad hoc creation of new report template, then an ad hoc query is really just a new report. With the open-data approach, there is no need to buy any additional “modules” from a voting system vendor in order to be able to do querying, reporting, or data mining. Instead, you have ready access to the data with whatever purpose-built tools you choose.

Election Reporting? got an app for that ...

Today, I want to underline that point as applied to mobility, that is, the use of apps on mobile devices (tablets, smart phones, etc.) to access useful information in a quick and handy on-the-go small-screen form factor.  Nowadays, lots of folks want “an app for that” and election officials would like to be able to provide. But the options are not so good. A proprietary system vendor may have an app, but it might not be what you had in mind; and you can’t alter it. You might get a friendly government System Integrator to crack open your proprietary voting system data and write some apps for you, but that is not a cheap route, either.

What, in contrast, is the open route? It might seem a detour to get you where you want to go, but consider this. With open data, there is no constraint on how you use it, or what you use it with. If you use an election management system that has a Web services API, you can publish all that data to the whole world in a way that anyone’s software can access it– including mobile apps– including all the data, not just what happens to be available in proprietary product’s Web interface. That’s not just open-source and “open data” but also “complete data.”

Then for some basic apps, you can get friendly open-gov techies to make something simple but effective for starters, and make the app open source. From there on out, it is up to the ingenuity of the tens of thousands of mobile app tinkerers and good government groups (for an example, read about one of them here, and then try it the app yourself) to come up great ideas about how to present the data — and the more options there are, the more election data, the public’s data, gets used for the public good.

I hope that that picture sounds more appealing than closed systems. But to re-wind to Proprietary Election Technology Vendors’ (PETV) offerings to Local Election Officials (LEO), consider this dialogue as the alternative to “open data, complete data.”

LEO: I’d like to get an election data management solution with flexible reporting, ad hoc querying, a management dashboard, a nifty graphical public Web interface, and some mobile apps.

PETV: Sure, we can provide it. We have most of that off the shelf, and we can do some customization work and professional services to tailor it to your needs. Just guessing from you asked for, that will be $X for the software license, $Y per year for support, $Z for the customization work, and we’ll need to talk about yearly support for the custom stuff.

LEO: Hmmm. Too much for me. Bummer.

PETV: Well, maybe we can cut you a special deal, especially if you lower your sights on that customization stuff.

LEO: Hmmm. Then I’m not really getting all I asked for, but I am getting something I can afford. … But will you all crack open your product’s database with a Web services API so that anybody can write a mobile app for it, for any mobile device in the world?

PETV: Wow! That would be some major customization. I think you’ll find our mobile app is just fine.

LEO: What about cracking open the database so I can use my choice of reporting tools?

PETV: Ah, no, actually, and I think you’ll find our reporting features are really great.

I’ll stop the dialogue (now getting painful to listen to) and actually stop altogether for today, leaving the reader to contrast it with the open-data, complete-data approach of an open election data management system with core functions and features, basic reporting, basic mobility, and above all the open-ness for anyone to data-mine or mobilize the election data that is, in fact, the people’s information.

– EJS

Back then, the normal thing was to have a core technology with some primary value, a road map of a couple major extensions of the core technology, and a product roadmap for adding functions and features. Of course we wanted our customers to want more of our stuff as time went by, and we wanted to support our pricing model with customer options for this growing set of features.

A Typical Product Road Map

And one more-or-less knee-jerk response was an expanding feature set for “reporting.” The idea was familiar: the vendor lets you, the customer, use their software; the software builds up a valuable base of information (a proprietary information base) about its history of use and what it can tell you about your IT usage; so the software should be able to prepare you reports that tell you various kinds of juicy information nuggets.  And the big assumption was that only that software had the smarts to do so.

And that went double for the cases where a few “reports” were small enough in scope but commonly enough used that it was better to present a handful of them as graphics on a single administrative screen. Thus, the “management dashboard” and new spin on higher product value.

Rewind to the present day, and I found it curious that this mindset is still around, including among adopters of election technology. But in election-land, there is huge missing concept here: Inside of election technology, the data is not proprietary, not specific to a vendor.  Sure, a closed system vendor may make data format(s) proprietary, but the data of elections, contests, candidates, ballots, voters, vote totals — all that and more is by rights public data.

Now, here is the “open” factor: In an open system, all that public data is freely available.  Anyone, or anyone’s code, can access the data. Take the example of the TTV Election Manager and TTV Tabulator working to consolidate vote counts. The Election Manager’s database is an ordinary database with a public schema. If an election official wants some specific reports generated, it is only one option to ask for Election Manager or Tabulator features to slice and dice the data and prepare nifty tables and graphics. And it is tempting to want that in the same Web application interface of the Election Manager. That temptation is underlined because existing proprietary EMSs do have the “you can only get reports from me” concept — though seemingly to not able please all users with one set of limited reporting features.

Typical Reporting Package with Database

But a better option is to recognize that all the data is there already, sitting in a publicly documented database which can be accessed directly by any purpose-built reporting system. Get the reporting system of your choice  — there are tons of them ranging from the grand-daddy of them all Crystal Reports (now offered by software giant SAP) to the reporting offering of venerable open-source project GNU. Hook up the reporting system to your database of election data (yes, that can be a real election management database in the picture above), and design and generate reports to your hearts’ content. And even better: a purpose-built reporting package probably has many more handy features than either a product manager or a customer of a voting system product would think of.

And that’s the power of “open data,” using the best tool for each job — an election data management system to manage election data, a voting system to collect votes, and a reporting system to generate a wide variety of customizable reports. And that power creates options and trade-offs, which are essential in funding-constrained U.S. election-land. It’s tempting to want one vendor to have a completely integrated product of everything, but it may well be more cost-effective — and ultimately more useful — to have  a collection of packages each of which has your best bang-for-the-buck for each task you need automated.

– EJS

PS: Next time on “Detours” — mobile computing as another example of a detour from traditional proprietary-IT-think in election-land.