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VVSG Comments Before the U.S. ELECTION ASSISTANCE COMMISSION In the Matter of ) COMMENTS SUBMISSION ) VOLUNTARY VOTING SYSTEM ) Pursuant to 84 FR 6775, Doc. No.: 2019-03453 ) GUIDELINES VERSION 2.0 ) Wednesday, May 29th, 2019 ) DEVELOPMENT ) EAC Offices, Silver Spring, MD PUBLIC COMMENTS SUBMISSION OSET INSTITUTE COMMENTS LED BY GLOBAL DIRECTOR OF TECHNOLOGY EDWARD P. PEREZ REGARDING THE VOLUNTARY VOTING SYSTEM GUIDELINES VERSION 2.0 PRINCIPLES AND GUIDELINES Comment #1 Issue: Principles and Guidelines vs. Functional Requirements Reference: Overall VVSG 2.0 Structure The OSET Institute applauds the U.S. Election Assistance Commission (hereinafter, “EAC”) for making efforts to ensure that the future Voluntary Voting System Guidelines (VVSG) certification program is more flexible and agile than it has been in the past. With increasingly faster advances of technology matched by newly emerging cyber-security threats, it is essential for the VVSG to support regular adaptation and modification. Toward that end, VVSG 2.0's initial distinction between "Principles and Guidelines" versus "Functional Requirements" is well placed and laudable. In order to deliver on the promise of such a distinction, the OSET Institute believes that the following programmatic requirements must be adhered to: • “Principles and Guidelines" reflect policy statements, and any modifications to the Principles and Guidelines should require approval of EAC Commissioners. • Functional Requirements (and VSTL test assertions) do not represent policy statements, and their modification should not require approval of EAC Commissioners. Functional Requirements are simply the technical means to operationalize or implement the achievement of policy goals represented in the Principles and Guidelines. • Functional Requirements must support the policy goals represented in the Principles and Guidelines. Comments Submission the U.S. Election Assistance Commission —29th May 2019 Page 2 • The OSET Institute's position on the above assertions is in agreement with the National Association of State Election Directors (NASED) and the Center for Democracy and Technology (CDT). Without these important programmatic distinctions between modifications of Principles vs. modifications of Requirements, the danger is that the VVSG 2.0 certification program will simply re-create the cumbersome scope, complexity, and dependencies that have led to relative inertia in the voting technology marketplace. This inertia has not served the needs of Election Officials or U.S. national security. • The OSET Institute believes that the programmatic distinctions recommended above are entirely consistent with the EAC’s own statement of “Roles and Responsibilities Of the Commissioners and Executive Director of the U.S. Election Assistance Commission” (https://www.eac.gov/assets/1/1/EAC%20Roles%20and%20Responsibilites.pdf): Issuance of Policy Directives: A policy directive is a document, which states agency goals and objectives or sets the scope of an EAC program. It is a means by which the commissioners may make a policy statement or determination in any area of EAC operations. A policy directive is a short, simple document that informs staff of the high- level goals or objectives for a particular EAC program or operation. This tool provides the commissioners with a means to set and document policy in a transparent way, which provides clear guidance to implementing staff. [Emphasis added] • None of the characteristics of policy could reasonably be said to apply to the Functional Requirements. They do not describe goals or objectives; they do not set the scope of the certification program; and their specifications are most certainly not “short,” or “simple.” However, Functional Requirements are a means to implement policy goals. • If and when the VVSG 2.0 Principles and Guidelines are initially voted upon by the Commissioners, the initial set of Functional Requirements associated with VVSG 2.0 Principles and Guidelines should also be voted upon at the same time, as part of the overall initial "package." (Note: The OSET Institute believes that Test Assertions for voting system test laboratories should be excluded from the initial “package” to be voted upon, and should never be required to be put to a vote.) • After the adoption of initial VVSG 2.0 Principles and Guidelines and Functional Requirements, the EAC should devise a process by which future modifications and/or re-interpretation of functional requirements can be administered based upon a joint voting process that includes the Technical Guidelines Development Committee (TGDC), the EAC Standards Board, and staff of the EAC Testing and Certification Program. The current process for Requests for Interpretation (RFI) of VVSG requirements might serve as a useful starting point for how changes could be considered and promulgated, provided that the TGDC and Standards Board have opportunities to provide feedback and to vote on new interpretations or new requirements. Comments Submission the U.S. Election Assistance Commission —29th May 2019 Page 3 • It should be emphasized that the OSET Institute does not believe that Functional Requirements should be capable of being officially changed solely by the staff of the EAC Testing and Certification Program. Furthermore, the OSET Institute also recommends that any time the TGDC, Standards Board, and staff are considering a change to Functional Requirements, input should also be solicited from EAC-accredited voting system test laboratories (VSTLs). • The OSET Institute recommends that, as part of the process by which the TGDC, Standards Board, and EAC staff consider changes to Functional Requirements, a process mechanism must also be put in place by which the joint body may vote to require consultation and approval from the Commissioners on selected requirement changes, in exceptional cases that are deemed to be particularly sensitive or consequential. • The authority to change the VVSG Principles and Guidelines or to introduce new ones preserves the EAC Commissioners’ essential role, notwithstanding the programmatic recommendations described above. Any time the EAC Commissioners fulfill their duty to promulgate important policy statements through the Principles and Guidelines, such will lead to cascading Functional Requirements for voting system technology, to meet newly-prioritized policy goals, and thereby impacting future voting technology development. The importance of this role should not be underestimated. • The OSET Institute believes that none of the recommended procedures above contravene the continuance of robust Roles and Responsibilities for EAC Commissioners. Indeed, the EAC’s “Roles and Responsibilities” document outlines important ongoing duties for Commissioners, including matters of strategic planning and agency objectives: https://www.eac.gov/assets/1/1/EAC%20Roles%20and%20Responsibilites.pdf Comment #2 Issue: Lack of Glossary Reference: Overall VVSG 2.0 Structure The 9.12.2017 version of the VVSG 2.0 Principles and Guidelines currently published on the EAC web site regarding the Public Comment Period lacks a Glossary. The OSET Institute recommends that prior to official adoption, the VVSG 2.0 Principles and Guidelines should formally incorporate a glossary that is also available for public review and comment. The OSET Institute strongly encourages that the VVSG 2.0 not “re-use” or “copy-and-paste” the existing glossary in VVSG 1.1. Precise definitions and re-assessment of essential terms are a critical part of securing the foundations of the VVSG 2.0 certification program. Comments Submission the U.S. Election Assistance Commission —29th May 2019 Page 4 Comment #3 Issue: Lack of definition of “voting system” Reference: Overall VVSG 2.0 Structure The VVSG 2.0 Principles and Guidelines frequently use the term “voting system,” although this phrase is not defined (see also Comment #2, supra). The OSET Institute strongly recommends that the EAC’s past understanding of “voting system” be re-assessed and modified to provide more flexibility and agility in the future. The Help America Vote Act of 2002 adopted a broad definition of “voting system” for legislative purposes, encompassing a total combination of a wide scope of components, functions, practices, and documentation in its description of the term. The OSET Institute believes, however, that that legislative definition was needlessly implemented by the EAC as an erroneous programmatic requirement that the EAC will test and certify only entire “total” system configurations. Notwithstanding typical practices from major voting system vendors and testing authorities in recent decades, we believe that the EAC has an important opportunity to consider the scope of “systems” and “components” to which the VVSG 2.0 requirements are applicable in a more flexible and nuanced way. More specifically, the OSET Institute recognizes that although past certification campaigns have been focused on “total” system configurations that include a comprehensive minimum set of end-to-end functions, there are alternative ways of defining a “voting system” in a manner that could still be consistent with HAVA’s definition. It is the OSET Institute’s view that few things have been more consequential for innovation and choice, or the lack thereof, than an exclusively “totalizing” conception of a voting system. The assumption that any manufacturer of a “voting system” to be certified must be able to provide all components that could potentially fall with HAVA’s broad description of a “voting
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