I 112th CONGRESS 2d Session H. R. 6246 IN THE HOUSE OF REPRESENTATIVES August 1, 2012 Mr. Johnson of Georgia (for himself, Mr. Holt, Ms. Wilson of Florida, Mr. Hinchey, Mr. Conyers, Mr. Clyburn, Ms. Fudge, Ms. Edwards, Mr. Bartlett, and Mr. Van Hollen) introduced the following bill; which was referred to the Committee on House Administration, and in addition to the Committee on Science, Space, and Technology, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend the Help America Vote Act of 2002 to require the deposit in the National Software Reference Library of the National Institute of Standards and Technology of a copy of any election-dedicated voting system technology used in the operation of a voting system for an election for Federal office, to establish the conditions under which the Director of the National Institute of Standards and Technology may disclose the technology and information regarding the technology to other persons, and for other purposes.

1.

Short Title

This Act may be cited as the Verifying Official Totals for Elections Act.

2.

Deposit of Election-Dedicated Voting System Technology in National Software Reference Library

(a)

Deposit Required; Conditions for Disclosure

Section 301(a) of the Help America Vote Act of 2002 (42 U.S.C. 15481(a)) is amended by adding at the end the following new paragraph: (7)

Prohibiting use of election-dedicated voting system technologies not deposited with National Software Reference Library; disclosure requirements

(A)

Prohibition

(i)

In general

A voting system used in an election for Federal office in a State may not at any time during the election contain or use any election-dedicated voting system technology which is not deposited by the State (or, at the option of the State, by the vendor of the technology) with the National Software Reference Library of the National Institute of Standards and Technology prior to the date of the election, to be held in escrow and subject to disclosure in accordance with subparagraph (B). (ii)

Extension of deadline for deposit

If the chief State election official certifies to the Director of the National Institute of Standards and Technology prior to the date of the election that, because of a revision to the election-dedicated voting system technology which is made less than 30 days prior to the date of the election, the State or vendor is unable to deposit the technology in accordance with clause (i) prior to the date of the election, the voting system used in the election may contain or use the technology if— (I)the chief State election official approves the use of the technology for the election; and (II)the State or vendor deposits the technology in accordance with clause (i) not later than 1 week after the date of the election. (iii)

Enforcement of vendor responsibilities

If a State opts to require the vendor of election-dedicated voting system technology to deposit the technology in accordance with this subparagraph and the vendor fails to do so, the Attorney General may bring a civil action against the vendor in an appropriate district court for such relief as may be appropriate, including injunctive relief or an order for a civil penalty in an amount not to exceed $500,000. (B)

Requirement for disclosure and limitation on restricting disclosure

With respect to any election-dedicated voting system technology which is deposited under subparagraph (A), the Director of the National Institute of Standards and Technology shall— (i)hold the technology in escrow; and (ii)disclose technology and information regarding the technology to another person if— (I)the person is a qualified person described in subparagraph (C) who has entered into a nondisclosure agreement with respect to the technology which meets the requirements of subparagraph (D); or (II)the Director is permitted or required to disclose the technology to the person under the law of the applicable State, in accordance with the terms and conditions applicable under such law. (C)

Qualified persons described

With respect to the disclosure of election-dedicated voting system technology under subparagraph (B)(ii)(I), a qualified person is any of the following: (i)A governmental entity with responsibility for the administration of voting and election-related matters in elections for Federal office, for purposes of reviewing, analyzing, or reporting on the technology. (ii)If permitted under a court order, a party to post-election litigation challenging the result of an election or the administration or use of the technology used in an election, but only to the extent permitted under the terms and conditions of such court order. (iii)A person who reviews, analyzes, or reports on the technology solely for an investigation or inquiry concerning the accuracy or integrity of the technology pursuant to clause (i) or (ii). (D)

Requirements for nondisclosure agreements

A nondisclosure agreement entered into with respect to an election-dedicated voting system technology meets the requirements of this subparagraph if the agreement— (i)is limited in scope to coverage of the technology disclosed under subparagraph (B) and any trade secrets and intellectual property rights related thereto; (ii)does not prohibit a signatory from entering into other nondisclosure agreements to review other technologies under this paragraph; (iii)exempts from coverage both information the signatory lawfully obtained from another source and information in the public domain; (iv)remains in effect for not longer than the life of any trade secret or other intellectual property right related thereto; (v)prohibits the request or use of injunctions that bar a signatory from carrying out any activity authorized under subparagraph (C), including injunctions limited to the period prior to a judicial proceeding involving the technology; (vi)is silent as to damages awarded for breach of the agreement, other than a reference to damages available under applicable law; (vii)allows disclosure of evidence relating to possible criminal conduct or other violations of law, including in response to a subpoena or warrant; (viii)allows disclosures and testimony to legislative branch authorities, judicial proceedings, and executive branch investigations in response to a subpoena or warrant or as otherwise provided by law; and (ix)provides that the agreement shall be governed by the trade secret laws of the applicable State. (E)

Election-dedicated voting system technology defined

For purposes of this paragraph: (i)

In general

The term election-dedicated voting system technology means the following: (I)The source code used for the trusted build and the file signatures for the trusted build. (II)A complete disk image of the pre-build, build environment, and any file signatures to validate that it is unmodified. (III)A complete disk image of the post-build, build environment, and any file signatures to validate that it is unmodified. (IV)All executable code produced by the trusted build and any file signatures to validate that it is unmodified. (V)Installation devices and software file signatures. (ii)

Exclusion

Such term does not include commercial-off-the-shelf software and hardware defined under the voluntary voting system guidelines adopted by the Commission under section 222 which are in effect as of the date of the election involved. (F)

Trusted build defined

For purposes of this paragraph, the term trusted build means a witnessed software build in which source code is converted to machine-readable binary instructions (executable code) in a manner providing security measures that help ensure that the executable code is a verifiable and faithful representation of the source code. . (b)

Effective Date

The amendment made by this section shall apply with respect to elections occurring during 2013 or any succeeding year.

3.

Authorization of appropriations for national institute of standards and technology

There are authorized to be appropriated to the National Institute of Standards and Technology for each fiscal year such sums as may be necessary to enable the Institute, including the National Software Reference Library of the Institute, to carry out paragraph (7) of section 301(a) of the Help America Vote Act of 2002, as added by section 2(a).