Major Comelec Violations of the Law in Implementing the Aes

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TABLE I. MAJOR COMELEC VIOLATIONS OF THE LAW IN IMPLEMENTING THE AUTOMATEDELECTION SYSTEM (AES)

MAJOR CRITERIA COMELEC

PERFORMANCE

ASSESSMENT

1. Republic Act 93691.2 Sec 6. Use of AES"for the regular national andlocal election, which shall beheld immediately aftereffectivity of this Act[approved Jan 23, 2007], theAES shall be used in at leasttwo highly urbanized cities andtwo provinces each in Luzon,

Visayas and Mindanao ..."

"In succeeding regular nationalor local elections, the AES shallbe implemented nationwide."

The AES contracted byComelec in July 2009was not used in twourbanized cities andtwo provinces each inLuzon, Visayas andMindanao prior to the2010 national and localelections.

The AES wasIMPLEMENTED LIVENATIONWIDEimmediately in the2010 elections, after anationwide preparationperiod of 8 months.

Comelec's non compliance with the law resulted ina completely untested and unaudited system. Theonly testing made was at the precinct level and used inconjunction with sporadic voter training. No systemtesting was made with the Boards of Canvassers for themunicipal, city, provincial and national levels. No testingwas also made to determine whether the votingcontinuity and contingency measures were realizable.

As a result, it led to the following problems,diiculties, irregularities and inaccuracies duringthe elections:1. Long queues of voters waiting to vote for more than

3 hours in order to locate their precincts, resulting in 3to 5 million disenfranchised voters.

2. Erroneous count of 253 million registered voters inthe Server of the House of Representatives.

3. Failure to read 3 to 4 million null votes recordednationwide.

4. Printed election returns containing dates before,

during and after 10 May 2010 and printed on creditcards thermal papers.

5. Many election returns showed only 10 votes fromabout 500 to 600 actual voters, indicating that thesereturns were based on test ballots prior to FinalTesting and Sealing of the PCOS machines.

6. Electoral protests at various levels in 41 provincesand cities.

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The congressional inquiry at the House ofRepresentatives (Locsin hearing) showed that therewas electoral fraud committed, and substantiatedby documentary evidence, with Comelec andSmartmatic, keeping the public in the dark about themany ways one could cheat through the machines, themany irregularities and last minute changes in orderscoming from Comelec that provided many opportunitiesto cheat and manipulate the votes for favoredcandidates.

(Please see more details in the following itemsbelow.)

SEC. 7. Section 7 of Republic

Act No. 8436 is herebyamended to read the follows:

"SEC.6. Minimum SystemCapabilities. - "The automatedelection system must at leasthave the following functionalcapabilities:

(a) Adequate security againstunauthorized access

Comelec provided in itsTechnicalSpecifications aspart of its Contract,Section VII, withSmartmatic thefollowing provisions:

Component 1B:PCOS Specifications15. The system shallbe able to detect andreject fake or spurious,and previouslyscanned ballots.

POINT 1. The PCOS machine uses an Ultra Violet (UV)Security Mark Sensor to determine the genuiness of a

ballot. Prior to the elections, this UV Sensor was disabledby Comelec.

The Locsin hearing confirmed that SMARTMATICprovided all the paper, UV ink, and several printingmachines for National Printing Office (NPO) to print theballots. Ms. Grace Enriquez of NPO and Mr. Flores ofSmartmatic confirmed that the PCOS cannot read the UVink printed ballots because of the lessened density of theUV ink due to the heightened printing speed to meet the

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(b) Accuracy in recording and

reading of votes as well as inthe tabulation,consolidation/canvassing,electronic transmission, andstorage of results;

10 The [PCOS] systemshall count the votersvote as marked on theballot with an accuracyrating of at least99.995 %.

printing deadline.

Instead, Comelec immediately purchased some 76,000+handheld UV readers that were not used during theelections.

POINT 2. In the Locsin hearing, it was confirmed thatthe Compact Flash (CF) cards of the PCOS can allowthe reinsertion and acceptance of already scannedballots. Later, both Ms. Quimson of NavigationInformation and Mr. Flores said that scanned orpreviously read ballots can be re-fed into thecomputers even without a change of CF card .

There was no way to know whether the ballotsread during the elections were genuine or fake.

POINT 3. The Joint Forensic Team, commissioned by theJoint Canvassing Committee reported June 9, 2010 thediscovery that the PCOS machines have a controllingCONSOLE PORT which allowed the unsecuredvulnerability of the PCOS machines to manipulation andopen to malicious control and electoral fraud.

Through an unsecure (that is, with no username andpassword) connection of a laptop, the laptop was able to

access the operating system of the PCOS machine.Smartmatic was not able to offer a technical explanationto this major security breach loophole.

The Namfrel terminal report, released July 2, 2010, saidthe random manual audit of certain precincts showedthat the degree of variance was less than what was therequired 99.995 percent accuracy. The overallperformance of the machine is 99.35 percent accuracy,which was below the required 99.995 percent.

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Corollary provision:1.11 Sec 18 and 19 ElectionreturnsB. Electronic Transmission"The election returns

transmittedelectronicallyand digitally signedshall beconsideredas officialelection results and shall beused as the basis for thecanvassing of votes andthe proclamation of acandidate."

SEC. 25. "Authentication ofElectronically TransmittedElection Results. - The mannerof determining the authenticityand due execution of thecertificates shall conform withthe provisions of Republic ActNo. 7166 as may besupplement or modified by theprovision of this Act, whereapplicable, by appropriateauthentication and

certification procedures forelectronic signatures asprovided in Republic ActNo. 8792 [ElectronicCommerce Act] as well as therules promulgated by theSupreme Court pursuantthereto."

22. The system shall,before transmission,require the electronicauthentication andcertification of the

election returnsthrough a securemechanism by at leasttwo BEI members.

23. The system shalltransmit digitallysigned and encryptedelection resultsandreports enabled bypublic/private keycryptography toprovide authenticity,integrity and non-repudiation utilizing atleast 128-bit encryptionscheme.

Component 1C.Consolidation/Canvassing System (CCS)

1.12 Allow the BOCsto digitally sign allelectronic results andreports beforetransmission;

========================

Extrapolating this percentage to 76,340 precincts, it willamount to about 345,000 ballots inaccurately read.

The digital signature is the primary feature to

determine the authenticity and verifiability of theelection returns from the precincts. Thus, the Contractspecified these as the second main deliverable ofSmartmatic.

POINT 1. Comelec issued Resolution 8786 March 4,2010 that no longer required the use of digitalsignatures. The Resolution stated:

"WHEREAS, there is a need to amend or revise portionsof Resolution No. 8739 in order to fine tune the processand address procedural gaps;SEC. 40. Counting of ballots and transmission of results

f) Thereafter, the PCOS shall automatically countthe votes and immediately display a message"WOULD YOU LIKE TO DIGITALLY SIGN THETRANSMISSION FILES WlTH A BEI SIGNATUREKEY?", with a "YES" or 'NO" option;g) Press "NO" option.

The PCOS will display "ARE YOU SURE YOU DONOT WANT TO APPLY A DIGlTAL SIGNATURE?" with

a "YES" and "NO" option;h) Press "YES" option."POINT 2. The Locsin Report stated: 14. The digitalsignatureonly of a particular PCOSand not of the BEIperson herself was conceded as being, for practicalbut not legal purposes, sufficient compliance with theintent of the E-Commerce and Automated Election laws.The Chair argued that a PCOS [or machine] digitalsignature serves equally as the digital signature of the

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With regards to theSchedule ofRequirements of theContract, Section VI:1.2 Digital signatures

[for all users of PCOS,CCS and variousservers--- 257,425 tobe delivered byNovember 11, 2009]

BEI who has custody of the machine because it ispossible to link one to the other.

POINT 3. The Joint Forensic Report however proved thatsuch practical purposes was not true, as there were no

such digital signatures. The Report stated:

Absence of Machine Digital SignaturesExamination o the PCOS machines revealed that therewas no evidence ound to prove the existence of digitalcertificates in the PCOS machines, contrary to the claimsof Smartmatic. The technicians o Smartmatic were notable to show to the forensic team the machine version ofthe digital signature, alleging that they do not have thenecessary tools to show the same. More so, they wereat a quandary as to how to extract the said machinesignatures--- to the dismay of the forensic team.

If there are digital certificates, then these were supposedto be revealed. The forensic team tried to extract thedigital signatures but to no avail. Hence, the forensicteam is of the opinion that there exists no digitalsignature in the PCOS machine.

POINT 4. Without the digital signatures (whether that ofthe PCOS or the BEI), there is no way to check in the CCS

servers in the municipality, city, province and national toknow which PCOS machine (authorized or unauthorized)is transmitting to their CCS servers.

This is crucial with the discovery of 60 PCOS machinesand 2 Broadband Global Area Network (BGAN) inAntipolo in the house of a Smartmatic technician (whocould not show any authority for safekeeping, back upand to which CCS he is transmitting), and the subject ofthe Forensic teams investigation.

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(e) Provision for voter verifiedpaper audit trail;

(n) Provide the voter a systemof verification to find outwhether or not the machinehas registered his choice

(f) System auditability whichprovides supportingdocumentation for verifyingthe correctness of reportedelection results;

Comelec announcedthe capability for the

voter to verify his votechoices after his ballotwas read by the PCOS.

Later, this voterverifiability feature wasdisabled. Only theword"CONGRATULATIONS"was shown in the PCOSLCD after the votersballot was read.

No receipt was printedto be given to the voterfor the voter to checkwhether his choiceswere actually read andrecorded by the PCOSmachine.

Only a printed ElectionReturn tape wasprepared after thecounting.

In the consolidation andcanvassing centers, theoutputs are theStatement of Votes andthe summarized

POINT 5. As proven above, there were no digitalsignatures used in all level of the AES. Therefore, theBoard of Canvassers themselves, from the municipal,city, provinces and national canvassing centers, cannot

authenticate, duly execute and certify the Certificates ofCanvass they transmit electronically to the higher levelsof canvassing.

Thus, all the BOC proclamations are null and voidfrom the beginning.

The voter had no way to check whether the PCOScorrectly read and recorded his vote choices.

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1.13 Sec. 24 Random ManualAudit

Where the AES is used, thereshall be a random manualaudit in one precinct percongressional district randomlychosen by the Commission ineach province and city. Anydifference between theautomated and manual countwill result in the determinationof root cause and initiate amanual count for thoseprecincts affected by thecomputer or procedural error."

Certificates of Canvass.

A Random Manual Audit

was conducted for 5precincts for eachcongressional district ora total of 1,145 of the76,340 precinctsnationwide.

No Statement of Votes (SOV) accompanied theCertificates of Canvass (COC). The SOV is the details ofthe votes by precincts (indicated in the election returns)by which the summary votes of each candidates in theCOC can be verified and checked.

Comelec stated that it will take some time to print10,000 SOV recorded in the CCS servers of the Board ofCanvassers.

The results of 30 RMA precincts were released andannounced as of 15 May 2010.

Last 20 May, Comelec announced results of about 300RMA precincts were completed with few discrepancies.

In the Locsin hearing, Amb. de Villa of PPCRV reportedthe partial results of the RMA. Out of the 1,145 randomlyselected precincts, 845 precincts have already submittedreports, 15 precincts results were in transit leaving 285precincts with no results yet.

As of this writing, Comelec has not published theresults of this Random Manual Audit.

SEC. 11. Functions of theTechnicalEvaluation Committee.The Committee shall certify,through an establishedinternational certificationentity to be chosen by theCommission from therecommendations of theAdvisory Council, not later

Comelec commissionedSysTest Lab of the USAto review the sourcecode.

SysTest Lab submitted a report with some 4,000comments for action by Comelec. No officialannouncement by Comelec whether these SysTestcomments were addressed.

The lack of transparency by the Comelec made theSupreme Court to order Comelec to produce the relevantdocumentation on these items.

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than three months before thedate of the electoral exercises,categorically stating that theAES, including its hardwareand software components, is

operating properly, securely,and accurately, in accordancewith the provisions of this Actbased, among others, on thefollowing documented results:

1. The successful conduct of afield testing process followedby a mock election event inone or morecities/municipalities;

2. The successful completionof audit on the accuracy,functionally and securitycontrols of the AES software;

5. A certification that thesource code reviewed is oneand the same as that used by

Bid Specifications"Annex E" stated that"There shall be asmany field tests as maybe necessary until therequirements for thetests have beensatisfied provided thatthe tests shall not gobeyond December 5,2009. All systems shallbe tested on site, i.e. inselected locationsnationwide coveringdifferent test votingcenters, testconsolidation sites, andtest canvassing sites.The test shall alsoinclude livetransmission of precinctresults. COMELECpersonnel shall operateall systems in the test.

Tests were conducted only at precinct level, none at themunicipal, city, provincial and national.

The Joint Forensic Team reported that the hash codesfor the firmware residing in the 6 PCOS machines foundin Antipolo have the same SMA256 output ... However, athorough comparison with the official document postedin the Comelec website revealed that the published hashcode is not the same as the extracted one [from thePCOS machines.

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the equipment; andThis indicates that the computer programs in thePCOS machines have been altered.

HREAs of 03 July 2010

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Major Comelec Violations of the Law in Implementing the Aes

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