Smartmatic’s deception exposed

Strategic Perspective
René B. Azurin

Posted on November 22, 2012

SMARTMATIC INTERNATIONAL’S lawsuit -- filed in a Delaware, USA court -- against Dominion Voting Systems International Corp., the supplier of the automated election system technology licensed by Smartmatic for use in our 2010 elections and our upcoming 2013 polls, exposes the extent of the deception being visited on the Filipino people. Dr. Pablo Manalastas, computer science professor and a co-convener of the multi-sector citizens’ election watchdog group AES Watch, rightly points out that the suit "constitutes an explicit admission by Smartmatic of the ‘failure of its system to function fully, resulting in glaring errors, most of which were documented’ by [Diliman policy group] CenPEG and AES Watch in 2010."

This is made clear. In its suit, Smartmatic charges Dominion with having "breached its obligations under the License Agreement by... failing to deliver fully functional technology for use in the 2010 Philippines national election;… failing to provide Smartmatic with information relating to the Licensed Technology, including new developments to the Licensed Technology;… [and] failing to place in escrow the required source code, hardware design, and manufacturing information." Those are admitted failures.

Dr. Manalastas asks, "Doesn’t Dominion’s failure automatically imply Smartmatic’s failure to do the escrow [of the source code] required by the election law (RA 9369)?" It will be recalled that source code review was a contentious pre-election issue because Smartmatic put up all sorts of barriers to prevent this from being done properly by local IT experts and political parties, notwithstanding the fact that this was required by the terms of Smartmatic’s contract with the Commission on Elections. Well, it now appears that Smartmatic couldn’t actually make the source code available despite its having committed to do so. So, Dr. Manalastas wonders, "Do these actions by Smartmatic constitute a criminal intent to cheat, a criminal intent to avoid its contractual obligations with Comelec and with the Filipino people?" The reasonable answer would be yes.

Indeed, Smartmatic deliberately hid the fact that it was not the owner of the technology it was providing for our 2010 automated polls. Had it divulged the information that it was only a licensor of the technology, it would have been necessary to include Dominion (as the technology provider) as a party to the contract with the Philippines’ Comelec in order for certain contract provisions and warranties to be enforceable.

In its complaint, Smartmatic admitted its functional failures during the 2010 Philippine elections, but blamed Dominion’s technology for these. It also blamed Dominion for the occurrence of the massive counting and recording errors that necessitated the nationwide recall and replacement of the flash data cards just a week before the May 2010 polls.

In its response, Dominion revealingly states, "To the extent that Smartmatic is seeking damages for alleged functionality problems with Dominion voting machines in the 2010 election in the Philippines, any damages are attributable to Smartmatic’s negligence in failing to conduct standard and routine industry-wide testing of the machines prior to deployment, despite the fact that Dominion International had advised Smartmatic to consider such testing…."

The dispute between Dominion and Smartmatic stems basically from Smartmatic’s non-payment of the amounts due to Dominion under the licensing agreement. In its countersuit, Dominion says, "Pursuant to the License Agreement and the initial SOW [Statement of Work], Dominion International was to be paid for each voting machine sold to Comelec within five days of payment by Comelec… Nonetheless, Smartmatic International failed to remit payment to Dominion International as required…." As a consequence, Dominion has refused to release critical know-how and technology to Smartmatic and has formally terminated its licensing agreement with it.

In a press statement released by AES Watch, CenPEG policy studies director Bobby Tuazon notes that, "This termination denies Smartmatic access to technical support and assistance as well as to Dominion’s proprietary source code and other ‘escrowed materials’ which are vital to correcting and ‘enhancing’ the PCOS [Precinct Count Optical Scanner] system." Prof. Tuazon adds that this "explains why Smartmatic can no longer correct the PCOS errors and defects that are causing erratic counting, among other problems."

Tellingly, in justifying the rammed-through purchase of Smartmatic’s PCOS machines by Comelec in March this year, both Smartmatic and our ever-willing-to-cooperate Comelec commissioners claimed that all the software bugs and technology glitches seen during the 2010 polls had already been fixed and that "enhancements" had even been added. This is now revealed to be a blatant falsehood. Obviously, given the on-going dispute between Dominion and Smartmatic, nothing could have been "fixed" or "enhanced." How could that have been possible when it was Dominion, and not Smartmatic, who possessed the software source code and exclusively owned the legal right to change (fix) anything in it?

Notably, Dominion’s legal brief also states that, "The initial SOW did not apply to any elections held in the Philippines after 2010… and did not permit Smartmatic to license any Dominion technology to Comelec after the 2010 election." Such being the case, what then did Smartmatic propose to supply Comelec for the 2013 elections? And what the heck did Comelec Chairman Sixto Brillantes and his complicit fellow commissioners agree to buy at the Filipino people’s expense? The deception unravels.

AES Watch stresses, "Failure to correct the PCOS system’s program errors and bugs may doom the coming 2013 midterm elections." More accusingly, Prof. Tuazon declares that "Smartmatic is now vulnerable to being charged with perjury for lying through its teeth." He raises the question, "What other truths is Smartmatic hiding from Filipino voters?"