For example, suppose:
I'm an election official who's signed a non-disclosure contract with a
voting machine vendor.

I agree to a clause that prohibits me from examining any of the voting
machine's inner workings or allowing someone else to examine them.

I later discover that computer security experts have discovered major
security flaws in similar machines that appear to have been
intentionally designed.  As a result, I now believe that entering into
this non-disclosure contract was detrimental to the general public
interest.

Does this have any potential affect on the enforceability of the contract?

---

Clarification of Question by baselnovo-ga on 03 Jul 2006 23:37 PDT

You're both right: I mis-categorized the agreement as a
"non-disclosure" agreement - my fault.  I think the question was
otherwise stated correctly though: the election official signs an
agreement to not examine how the voting machine works or allow anyone
else to examine this.  Btw, vendors of touchscreen voting machines do
require most election officials to sign such an agreement.

---

Clarification of Question by baselnovo-ga on 04 Jul 2006 00:00 PDT

To be clearer on this, the laws that are currently used to prevent
election officials from escaping their obligations under an agreement
of this kind are called "proprietary secret" laws.

---

Clarification of Question by baselnovo-ga on 04 Jul 2006 08:37 PDT

Myoarin,

Glad you find the question interesting.  My experience has been that
the more closely you investigate this, the more interesting it gets. 
For example, as soon as you ask why "the maker can require election
officials to sign such a contract", it raises a lot of other concerns
about, e.g., the appropriateness of affording vendors the right to
both use proprietary (rather than open-source) technologies and /also/
require secrecy protection for them during an election.  This
predictably has the effect of obscuring what should be - and could
otherwise be - a transparent vote counting process, so

* Why were vendors allowed to use proprietary technologies in
supposedly democratic elections the first place?
* What was the basis for giving priority to protecting the secrecy of
vendor technologies over election transparency?
* Why was there no public debate over the decision to do so?
* Were there wrongful or illegal collaborations between the
responsible government agencies and the voting machine vendors?

and so on...

---

Request for Question Clarification by hagan-ga on 05 Jul 2006 08:45 PDT

Baselnovo, I think I can answer your question, but for specific
information on the applicable law I will need to know the jurisdiction
you're interested in.

---

Clarification of Question by baselnovo-ga on 06 Jul 2006 14:12 PDT

Hagan,

The specific case that I'm asking about is in CA. Since, as far as I
know though, election officials in every state that uses touchscreen
voting machines must sign essentially the same agreement, I'm more
interested to know about the legal principles that apply here.  How
would a judge think about deciding a case where an election official
had one of these voting machines examined to verify, e.g., that it
reliably recorded all votes accurately and always printed the same
results that it recorded?

Anyway, the underlying question - maybe the one that I should have
asked instead - is: Can the policy of requiring the use of protected
proprietary technologies in public elections be successfully
challenged on the basis that it mandates a vote counting process
that's essentially unknowable by the voter?  Is there any rational
defense for this policy?

baselnovo-ga,

As a general rule, contracts that are a breach of public policy are void.

So, on the one hand, the clear-cut reply to the topic of your
question:  "Enforceability of a contract that's harmful to the general
public interest" is that such a contract may well be deemed
unenforceable.

The trick to this, of course, is clearly defining "public policy" and
clearly establishing that a given contract provision is in breach of
public policy.

In the example you gave, of an election official signing a non-examine
agreement, I'm not sure the example would rise to the level of a
voidable contract, due to a breach of public policy.

Your example included the specific situation that, having signed the
agreement:  "I later discover that computer security experts have
discovered major security flaws in similar machines that appear to
have been intentionally designed...".


The discovery of flaws in similar machines certainly should raise
alarm bells.  The question is, who is the appropriate authority to
respond to the alarm, and what, if anything, should be done with the
machines under your direct jurisdiction.

In California, the Secretary of State has the overall responsibility
for the valid operation of the voting process, including the security
and operation of voting machines.

There is nothing in your contract that would prevent you from bringing
any concerns you may have to the office of the Secretary of State (and
if there were such a clause, it would most certainly be invalid). 
That certainly strikes me as the most direct and most appropriate
course of action.

However, I believe it would be very hard to make the case that your
agreement is invalid since it is a breach of public policy.  Nothing
has surfaced (if I understand your scenario correctly) to call into
question the validity of your particular machines.

Nor is it clear that examining the machines in some unspecified, and
non-standardized fashion would help matters at all.  Quite the
contrary, the examination could well be construed as an attempt at
tampering, and leave you subject to all sorts of troubles in that
regard.  The unsupervised examination may be more of a breach of
public policy than the machines themselves!

This is probably a good time to point out the disclaimer at the page
bottom.  Google Answers is not substitute for professional legal
advice, so take all this with the appropriate grains of salt.

But from where I sit, I cannot see any legitimate reason for
invalidating the non-examine clause of the agreement.


You also raised an interesting question about the vote-counting
process being esentially "unknowable" to the voter.

I would venture to guess that this is almost always the case, whether
votes are counted by machine or by hand -- how many voters were aware
of hanging chads prior to the elections fiasco in 2000?  No individual
can track vote counting procedures throughout an entire state or
county, and in that sense, some part of the process is always
unknowable.  Therefore, a government agency -- in most states, the
Secretary of State -- has the overall responsibility for the
reliability and security of the election process.
 

Here are some links to further sources of information on this topic,
which may give you some deeper insight into the matter.



http://www.lectlaw.com/files/bul03.htm
Contract Basics

...The last requirement of a valid contract is that its provisions be
legal. If a purported contract requires an illegal act, the result is
a void contract...

...Not only are contracts requiring criminal acts illegal, so are
contracts requiring commission of a TORT (a breach of civil law such
as misrepresentation or trespass) or those in breach of public policy.
Although public policy is difficult to define, it includes some
serious breaches of conventional morality or ethics...




http://www.ss.ca.gov/elections/elections_vs.htm
California Secretary of State
Voting Systems -- Certification 

...Section 19201 of the California Election Code specifies that no
voting system may be used in a California election until the Secretary
of State approves that system. Further, no jurisdiction may purchase a
voting system that has not been approved by the Secretary of State.



http://www.aroundthecapitol.com/code/code.html?sec=elec&codesection=19200-19215
CALIFORNIA ELECTIONS CODE 

19200. The Secretary of State shall not approve any voting system, or
part of a voting system, unless it fulfills the requirements of this
code and the regulations of the Secretary of State.

19201. (a) No voting system, in whole or in part, shall be used unless
it has received the approval of the Secretary of State prior to any
election at which it is to be first used.

(b) No jurisdiction may purchase or contract for a voting system, in
whole or in part, unless it has received the approval of the Secretary
of State.


19203. The Secretary of State may make all arrangements for the time
and place to examine voting equipment proposed to be sold in this
state. He or she shall furnish a complete report of the findings of
the examining engineers to the Governor and the Attorney General.



I trust the information and links above fully meet your needs
regarding the interesting questions your raised.

But if there's anything more you need, please let me know by posting a
Request for Clarification, and I'm at your service.


All the best,

pafalafa-ga


search strategy -- Google searches on:

contract law

ca secreatary state

election law

---

Request for Answer Clarification by baselnovo-ga on 08 Jul 2006 01:51 PDT

> Nor is it clear that examining the machines in some unspecified, and
> non-standardized fashion would help matters at all.

This statement seems to contradict itself: since I didn't specify
anything about the method of examining the voting machine, how to
interpret your characterization of that examinination method as
"non-standardized"?  It's also unclear to me what "non-standardized"
or "standardized" would even mean in the context of voting machine
testing.


> You also raised an interesting question about the vote-counting
> process being essentially "unknowable" to the voter.
>
> I would venture to guess that this is almost always the case, whether
> votes are counted by machine or by hand  -- how many voters were aware
> of hanging chads prior to the elections fiasco in 2000?

If what you're saying here is that the state of recent voting
technologies somehow represents the best or most effective or most
transparent possible methods of vote counting, then I don't think a
defensible case can be made for this.  As far as I can see, the
limitations of currently available vote counting technologies are due
to some combination of failure of imagination, lack of public
awareness of - or interest in - extremely serious issues of computer
security flaws and most of all, blind trust in the *unknown* group of
people responsible for final tabulations of our votes.


> No individual can track vote counting procedures throughout an entire 
> state or county, and in that sense, some part of the process is always
> unknowable.

This is true, but it's unclear what's implied by "some part of the
process is always unknowable" or why you don't state what you think
this implies.  You /seem/ to be suggesting that the degree of
transparency is unimportant as long as some part of that process is
obscured.

I read in this an assumption that observation of each phase of the
vote count has equal importance and that every phase must be
_completely_ observed for election transparency to have any usefulness
_at all_.  There's nothing to suggest that you got the significance of
public observation of vote counting procedures at the lowest
(neighborhood) level.  Without understanding that point, of course you
won't appreciate why the policy of using protected proprietary
technologies in public elections removes the most fundamental
protections against election fraud.

The real question here is: 'What part(s) of the vote counting process
are essential for voters to observe?', i.e., 'How much transparency is
enough?'.  There's a defensible answer to this and it isn't "complete
transparency" (impossible, as you say); it's "enough transparency to
support verifiable recounts at the neighborhood level" (which is very
possible).  This is the minimum standard for adequate election
transparency.  Thus, wherever the /possibility/ of a recount at the
neighborhood level is removed, there's no evidential basis for either
validating or invalidating any given election outcome.  Unfortunately,
a huge amount of evidence suggests that the policy of using protected,
proprietary voting technologies was mandated for exactly this reason.

The unavoidable conclusion is that a policy that mandates the use of
protected proprietary voting technologies guarantees the impossibility
of validating local vote counts and removes any rational basis for
confidence in any election outcomes based on those vote counts.


> Therefore, a government agency -- in most states, the
> Secretary of State -- has the overall responsibility for the
> reliability and security of the election process.

True, but is this appropriate, for example, in a case where the
Secretary of State is presented with a conclusive demonstration of a
security flaw in a voting machine that enables its vote count to be
easily manipulated to produce any desired outcome, yet that Secretary
of State certifies that machine anyway?
Unfortunately, this isn't hypothetical.  A similar demonstration is
described in the first reference below.

--------
Re: your answer, you skillfully retrieved relevant information in a
comprehensive way.  Your answer was clearly designed to be helpful and
informative.  You organized information across a wide range of topics
in a readable way.  When I first glanced over it, I was impressed. 
But as I read it more closely, I noticed that some of your conclusions
didn't follow logically from the facts presented as their basis, or
else weren't stated clearly.  Part of the problem was that many of
your facts weren't specific enough to the question to support
meaningful conclusions.  This question called for a fair amount of
familiarity with current election practices, not just as defined by
"official" administrative documents, but as they actually work (or
don't) in the real world.  It also called for a fair amount of insight
into the predictable consequences of /how/ these practices work (or
don't).  For future questions, I hope you'll give more attention to
the range and kind of information needed for an answer, e.g., broad
and shallow, or specialized and in-depth or ...?  An analysis may be
needed of not just how policies and practices are defined, but how
they're /not/ defined; who wins and who loses as a result, etc..


relevant links: voting machine security flaws and election fraud

Finnish computer security expert Harry Hursti demonstrates
reproducible security flaws in touchscreen voting machines
http://www.votetrustusa.org/index.php?option=com_content&task=view&id=798&Itemid=51

Streaming video testimony of govt officials, vendors, computer
scientists, et.al. on electronic voting machine fraud, analysis of
security flaws in voting machines in current use
http://www.votergate.tv/movie_links.html

---

Clarification of Answer by pafalafa-ga on 08 Jul 2006 05:09 PDT

baselnovo-ga,

Thanks for your very interesting follow-up comments.

Your initial question was really about the enforceability of
contracts, with voting machines as an example.

It sounds to me as if you have additional questions about voting
machines and the whole topic of the voting process itself.  My
comments about non-standardized testing, or about the apparent
unknowability of the process, are perhaps ripe for follow-up, but
aren't really central to the issue of whether a contract is voidable
or not.

As to my comment on testing, I only said that it's "not clear" that
testing would help matters, and could actually be detrimental if it
has the appearance of tampering.  Of course, that all depends on the
specifics of the situation, which are unknown to me in this
hypothetical example.

As to the unknowability of the process, I personally feel that
transparency is very important, and I'm sure it can be improved beyond
the current state of affairs in the voting process.  I didn't mean to
imply otherwise.

You may want to consider posting another question (or questions) to
Google Answers specifically on the topic of voting machines, so that a
researcher can dig into the pertinent issues for you.

In the mean time, if you feel there's anything more I can do for you
on the topic of contracts, please let me know...and thanks again for a
very intriguing question.

Cheers,

paf

Greetings,
The situation seems to me unrealistic.  I would have assumed that the
choice of election machines would be made by the administration and
approved by the lawmakers at whichever level the decision were made. 
Consequently, that an election official would not be contact with or
enter a contract with the vendor.

But maybe this assumption is wrong.

You speak of a non-disclosure clause and then describe it as one
prohibiting you or your allowing someone else to examine the workings
of the machines.  Assuming that I was wrong on the first point, and
that an election official was for some reason asked to sign such a
contract, as such, I would be very leary of such a clause (admittedly,
maybe only now that you have raised the question) on the grounds that
my only responsibility is to assure a fair election with no
restrictions by anyone.

Even if the election official had signed such a contract, if someone
independently discovered shortcomings in the security of the machines,
I cannot see how that clause has any pertinence.  The official could
and should call attention to the matter and would not be disclosing
information secured by a breach of the clause.

Please let me know if the situation described in your question is a real one.
I certainly hope not, and am very curious.

This is a free comment, not an "answer" to your question.

Regards, Myoarin

As a public official you are exempt from prosecution for duties
performed in your office unless they are criminal.

Non-disclosure does not apply to illegalities. You cannot contract an
illegal action or prevent someone from reporting a crime (USA Patriot
Act rules aside).

It seems to me that having non-disclosure AND a "no peek" rule doesn't
make legal sense. If you aren't looking, what are you prevented from
disclosing? If you aren't disclosing, whay can't you look?

Thanks for the clarifications.

Mark's first sentence seems very pertinent, whereby I see that
breaching Trade Secrets Laws is a criminal offense.

I cannot see what recourse the maker would have if you whistle-blow
based on independently discovered shortcomings.
I also seriously have to wonder that the maker can require election
officials to sign such a contract  - on the assumption that the state
or county buys the machines, and that the officials are not parties to
that purchase agreement.

It would seem that the Trades Secrecy Laws would apply without such a
contract, even with the purchasing government agency.  Is the maker,
himself, demanding the contract; or is the agency requesting the
election officials to sign it?

As persons appointed to be neutral and independent of outside
influence, what right does the maker have to request their signing the
contract; would the maker or government agency be in a position to
void the person's appointment if he or she refused to?

A very interesting question, and for me a new perspective of the
election problems in the States.

Basel,
Thanks for the clarification.  Worrisome!  I expect there has been a
lot of thoughtless acquiescence to the vendors' demands  - at least, I
hope it is just this and not collaboration.

I hope that a Researcher will attempt to answer your question.

Regards, Myoarin

NPR had an interesting article this morning about Diebold's voting
machines and the lack of a paper trail in those A9and otehr)
electronic voting machines. Scary.