Internet Voting Waiting to Bloom

Two years ago, the Pentagon was poised to have 100,000 members of the military stationed overseas vote in federal elections over the Internet. The government canceled the plan, however, after it grew concerned it would not be possible to prevent hackers from affecting the results, that it could not examine the privately owned proprietary software that was to be used, and that there would not be a database of those who voted that it could check after the election.

Nonetheless, online voting seems to be slowly gaining in popularity.

New York City firefighters ' including some in the military serving in Iraq and Afghanistan ' voted through the Internet for their union representatives in an election held last year. And in October, the Baltic republic of Estonia, a tech-savvy country referred to by some as 'e-Stonia,' became the first country in the world to allow voters to cast ballots over the Internet in a nationwide election. See, Jari Tanner, 'Estonians Hold Election on the Internet,' Associated Press Financial Wire, Oct. 14, 2005.

Some conflate Internet voting with 'e-voting,' but Internet voting is only one type of e-voting. Simply put, e-voting, or electronic voting, is any system that eliminates the need to use traditional voting machines (such as optical readers or lever voting machines). Instead, e-voters cast ballots through an electronic interface, which may or may not be connected to the Internet, or a limited access Intranet, or it may even just result in the print out of a paper ballot to be deposited in an old- fashioned ballot box.

Backed by Congress

Despite serious concerns as to the security, reliability and verifiability of e-voting, including Internet voting, Congress has expressed its preference for its increased use as demonstrated by the enactment of the Help Ameri-cans Vote Act, and establishment of the Election Assistance Committee in 2004 to achieve that goal.

Unfortunately, a September 2005 General Accounting Office report on e-voting confirmed that it continues to be plagued by security and reliability issues, and election results that are either unverifiable or inaccurate. See, Jari Tanner, 'Estonians Hold Election on the Internet,' Associated Press Financial Wire, Oct. 14, 2005.

Potential Benefits

There are numerous potential benefits to Internet voting. For example, an Internet election may be less expensive compared to a standard voting machine election because the government will be able to hire fewer poll workers, have fewer polling stations, eliminate the cost of voting machines and save money on printing costs for ballots and voting lists.

Results are calculated by computers in an Internet election. Thus, if done properly, this can avoid the risk of human error and can significantly speed up the determination of results.

Proponents of Internet voting point to low voter turnout in U.S. elections, both on the local and national level. It is anticipated that Internet voting would increase voter participation, especially among younger people, who are familiar and comfortable with the Internet ' as demonstrated by their responsiveness to Internet campaigning in recent elections. Theoretically, Internet voting also should make it easier for people to vote who live in remote locations, or people such as the elderly and disabled who cannot get around so easily.

Possible Drawbacks

The key concerns about Internet voting are validity and safety. For example, there have been security concerns as to whether outside hackers ' and even the private companies whose proprietary software is used to conduct an election ' can influence the outcome by eliminating or distorting the number of votes cast for a candidate.

This type of deliberate interference could be achieved at the voter interface, at the tabulation stage or when local results are electronically sent to the central voting authority.

Also, there are problems that Web surfers face in other circumstances that could likewise be used in election contexts, such as 'phishing,' which can trap voters at sites that are intentionally set up to mislead.

More fundamentally, there are concerns about the ability to protect the sanctity of freedom of choice and one person/one vote when the act of voting occurs outside the supervision of poll watchers. For example, when someone goes to a polling place to vote, he or she has to sign the voting book in front of an election worker, provide identification (in some states) and then proceed to vote anonymously without obvious pressure and input from third parties at the moment of the vote.

Conversely, Internet voting would occur outside of the eyes of poll watchers, raising issues as to the actual identity of the person casting the vote and improper influence over that voter's choice if he or she is deprived of an opportunity to vote in strict privacy.

In other words, how can election officials know that the people who vote are who they say they are? How can one be certain that people who have died or moved do not vote? Certainly there might be similar problems with absentee ballots, but those typically do not comprise a large percentage of voters in any given election. An Internet election, by contrast, might consist completely of such 'absentee' voters.

Another issue of great concern is whether the 'digital divide' will actually result in disenfranchisement rather than increased voter participation by lower income, minority or rural voters who statistically have not enjoyed the same access to Internet technology as the rest of society.

How can those without computers or the Internet be guaranteed the right to vote? Is there any benefit to an Internet vote conducted in a public library or other polling place when compared to a traditional election? Indeed, even where a private computer is available, what happens if someone suffers a computer problem such as a hard disk crash on Election Day? What if there is a power outage? And what if a potential voter simply is unable to navigate the Internet voting process?

A person facing any of these problems might simply give up rather than ask for assistance from the government (or pay for it from a private consultant, if such help were available).

Credible Solutions

Advocates of Internet voting believe there are solutions, at least in theory, for all these problems.

For example, Internet access issues can be addressed by having voting occur at public libraries. The growth of wireless local area networks and Wi-Fi, including in areas sponsored by local governments, also can solve connectivity concerns.

Security problems require technological solutions, but would seem to be manageable. Encryption can prevent voting data from being accessed from the voter's computer to the government's server. Digital signatures can help to ensure ballot integrity and the secrecy of votes. A personal password or other identification system may prevent repeat voting and ensure that only eligible voters actually vote. It also is possible to require identifying information to electronically verify the identity of a voter and then to strip it from the ballot before the votes are tabulated.

Firewalls can examine each message sent and can block those that lack the proper security clearance. See, eg, PR Newswire US, June 14, 2005, supra. These and other security issues might make it more difficult for voters to cast ballots, but computer users already are becoming used to having passwords, not sharing them, installing anti-virus programs and the like.

Security measures for Internet voting would seem to be similar to what are now in use, not an overwhelmingly new burden, although it may be necessary to have a special Internet voting Web browser and a unique operating system to allow this to progress securely.

Finally, laws can be strengthened to punish harassment of Internet voters and to ensure that local area administrators do not breach the privacy of voters.

Studies on Internet voting, such as the California Internet Voting Task Force Report on the Feasibility of Internet Voting, issued in January 2000, suggest other statutory steps that might be needed (see the report at www.ss.ca.gov/executive/ivote/final_report.htm).

Conclusion

Internet voting has great potential for use, in the United States and around the world. It is likely that electronic voting, including Internet voting, will become a reality as security and identification issues are addressed, including perhaps a hybrid solution that combines Internet voting with a paper ballot or paper trail to confirm the result by traditional methods if necessary.

Whether Internet voting is likely to boom will depend in large measure on how technology can handle the concerns, and how comfortable that will make politicians, the media, and especially the public.

Shari Claire Lewis is a partner at Rivkin Radler, where she specializes in litigation in the areas of Internet, domain name and computer law as well as professional liability and medical device and product liability.

Two years ago, the Pentagon was poised to have 100,000 members of the military stationed overseas vote in federal elections over the Internet. The government canceled the plan, however, after it grew concerned it would not be possible to prevent hackers from affecting the results, that it could not examine the privately owned proprietary software that was to be used, and that there would not be a database of those who voted that it could check after the election.

Nonetheless, online voting seems to be slowly gaining in popularity.

New York City firefighters ' including some in the military serving in Iraq and Afghanistan ' voted through the Internet for their union representatives in an election held last year. And in October, the Baltic republic of Estonia, a tech-savvy country referred to by some as 'e-Stonia,' became the first country in the world to allow voters to cast ballots over the Internet in a nationwide election. See, Jari Tanner, 'Estonians Hold Election on the Internet,' Associated Press Financial Wire, Oct. 14, 2005.

Some conflate Internet voting with 'e-voting,' but Internet voting is only one type of e-voting. Simply put, e-voting, or electronic voting, is any system that eliminates the need to use traditional voting machines (such as optical readers or lever voting machines). Instead, e-voters cast ballots through an electronic interface, which may or may not be connected to the Internet, or a limited access Intranet, or it may even just result in the print out of a paper ballot to be deposited in an old- fashioned ballot box.

Backed by Congress

Despite serious concerns as to the security, reliability and verifiability of e-voting, including Internet voting, Congress has expressed its preference for its increased use as demonstrated by the enactment of the Help Ameri-cans Vote Act, and establishment of the Election Assistance Committee in 2004 to achieve that goal.

Unfortunately, a September 2005 General Accounting Office report on e-voting confirmed that it continues to be plagued by security and reliability issues, and election results that are either unverifiable or inaccurate. See, Jari Tanner, 'Estonians Hold Election on the Internet,' Associated Press Financial Wire, Oct. 14, 2005.

Potential Benefits

There are numerous potential benefits to Internet voting. For example, an Internet election may be less expensive compared to a standard voting machine election because the government will be able to hire fewer poll workers, have fewer polling stations, eliminate the cost of voting machines and save money on printing costs for ballots and voting lists.

Results are calculated by computers in an Internet election. Thus, if done properly, this can avoid the risk of human error and can significantly speed up the determination of results.

Proponents of Internet voting point to low voter turnout in U.S. elections, both on the local and national level. It is anticipated that Internet voting would increase voter participation, especially among younger people, who are familiar and comfortable with the Internet ' as demonstrated by their responsiveness to Internet campaigning in recent elections. Theoretically, Internet voting also should make it easier for people to vote who live in remote locations, or people such as the elderly and disabled who cannot get around so easily.

Possible Drawbacks

The key concerns about Internet voting are validity and safety. For example, there have been security concerns as to whether outside hackers ' and even the private companies whose proprietary software is used to conduct an election ' can influence the outcome by eliminating or distorting the number of votes cast for a candidate.

This type of deliberate interference could be achieved at the voter interface, at the tabulation stage or when local results are electronically sent to the central voting authority.

Also, there are problems that Web surfers face in other circumstances that could likewise be used in election contexts, such as 'phishing,' which can trap voters at sites that are intentionally set up to mislead.

More fundamentally, there are concerns about the ability to protect the sanctity of freedom of choice and one person/one vote when the act of voting occurs outside the supervision of poll watchers. For example, when someone goes to a polling place to vote, he or she has to sign the voting book in front of an election worker, provide identification (in some states) and then proceed to vote anonymously without obvious pressure and input from third parties at the moment of the vote.

Conversely, Internet voting would occur outside of the eyes of poll watchers, raising issues as to the actual identity of the person casting the vote and improper influence over that voter's choice if he or she is deprived of an opportunity to vote in strict privacy.

In other words, how can election officials know that the people who vote are who they say they are? How can one be certain that people who have died or moved do not vote? Certainly there might be similar problems with absentee ballots, but those typically do not comprise a large percentage of voters in any given election. An Internet election, by contrast, might consist completely of such 'absentee' voters.

Another issue of great concern is whether the 'digital divide' will actually result in disenfranchisement rather than increased voter participation by lower income, minority or rural voters who statistically have not enjoyed the same access to Internet technology as the rest of society.

How can those without computers or the Internet be guaranteed the right to vote? Is there any benefit to an Internet vote conducted in a public library or other polling place when compared to a traditional election? Indeed, even where a private computer is available, what happens if someone suffers a computer problem such as a hard disk crash on Election Day? What if there is a power outage? And what if a potential voter simply is unable to navigate the Internet voting process?

A person facing any of these problems might simply give up rather than ask for assistance from the government (or pay for it from a private consultant, if such help were available).

Credible Solutions

Advocates of Internet voting believe there are solutions, at least in theory, for all these problems.

For example, Internet access issues can be addressed by having voting occur at public libraries. The growth of wireless local area networks and Wi-Fi, including in areas sponsored by local governments, also can solve connectivity concerns.

Security problems require technological solutions, but would seem to be manageable. Encryption can prevent voting data from being accessed from the voter's computer to the government's server. Digital signatures can help to ensure ballot integrity and the secrecy of votes. A personal password or other identification system may prevent repeat voting and ensure that only eligible voters actually vote. It also is possible to require identifying information to electronically verify the identity of a voter and then to strip it from the ballot before the votes are tabulated.

Firewalls can examine each message sent and can block those that lack the proper security clearance. See, eg, PR Newswire US, June 14, 2005, supra. These and other security issues might make it more difficult for voters to cast ballots, but computer users already are becoming used to having passwords, not sharing them, installing anti-virus programs and the like.

Security measures for Internet voting would seem to be similar to what are now in use, not an overwhelmingly new burden, although it may be necessary to have a special Internet voting Web browser and a unique operating system to allow this to progress securely.

Finally, laws can be strengthened to punish harassment of Internet voters and to ensure that local area administrators do not breach the privacy of voters.

Studies on Internet voting, such as the California Internet Voting Task Force Report on the Feasibility of Internet Voting, issued in January 2000, suggest other statutory steps that might be needed (see the report at www.ss.ca.gov/executive/ivote/final_report.htm).

Conclusion

Internet voting has great potential for use, in the United States and around the world. It is likely that electronic voting, including Internet voting, will become a reality as security and identification issues are addressed, including perhaps a hybrid solution that combines Internet voting with a paper ballot or paper trail to confirm the result by traditional methods if necessary.

Whether Internet voting is likely to boom will depend in large measure on how technology can handle the concerns, and how comfortable that will make politicians, the media, and especially the public.

Shari Claire Lewis is a partner at Rivkin Radler, where she specializes in litigation in the areas of Internet, domain name and computer law as well as professional liability and medical device and product liability.