TanDem - Response to Comelec and JCOC Reports

8/2/2019 TanDem - Response to Comelec and JCOC Reports

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Website: www.tandem.org.ph

Email: [email protected]

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TANGGULANG DEMOKRASYA (Tan Dem)

Tan Dem is a multisectoral alliance of civil society leaders, civic organizations, networks and institutions -- committed to

protect democracy from fraudulent electoral exercises.

Bangon, Bayan!

27 February 2012

This Document is the response of Tanggulang Demokrasya (TanDem) to the Reports of theCommission on Elections to the President and the Congress of the Philippines on the Conduct ofthe Automated 2010 National and Local Elections and the Comelec Advisory Council to the JointCongressional Oversight Committee on the same subject.

TanDem finds these two Reports self-serving as a narration of events and incomplete as to theauthencity, verifiability and validity of the results of the 2010 National and Local Elections.

1. TANDEM CITES JUST THE FIRST THREE REASONS WHY:

ONE. The voter had no way of verifying if his votes were recorded by the PCOS. The law required that the PCOSminimum capability include a vote verifiability list. This capability to show the vote was shown during the PCOS publicdemonstrations but was disabled during the elections. The voter was only notified by a message in the PCOS screenstating Congratulations. You have voted!

TWO. There is no way to check the authenticity of the ballot. The PCOS ultraviolet (UV) scanner was disabled and laterreplaced by handheld UV scanners, which were harldy used in the elections.

THREE. The Election Returns (ER) from the precincts, and the Certificates of Canvass from the municipalities, cities,provinces and national did not bear DIGITAL SIGNATURES, hence these are UNVERIFIABLE AND CANNOT BEAUTHENTICATED.


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2. THE DIGITAL SIGNATURES, WHICH ACCORDING TO LAW SHALL BE AFFIXED BY THE BOARDOF ELECTION INSPECTORS IN THE PRECINCTS, AND BY THE BOARDS OF CANVASSERS INTHE MUNICIPALITIES, CITIES, PROVINCES, COMELEC AND CONGRESS, WERE DISABLED,AND THE ILLEGAL CHARACTER AND HARMFUL EFFECTS OF DISABLING THE DIGITALSIGNATURE FEATURE WERE COVERED UP.

RA 9369 (the election law)states Sec 18 and 19 - Election Returns,B. Electronic Transmission. ,

"The election returns transmittedelectronically and digitally signedshall be consideredas official election resultsand shall be used as thebasis for the canvassing of votes and the proclamation of a candidate."

SEC. 25. "Authentication of Electronically Transmitted Election Results. - The manner of determining the authenticity anddue execution of the certificates shall conform with the provisions of Republic Act No. 7166 as may be supplement ormodified by the provision of this Act, where applicable, by appropriate authentication and certification proceduresfor electronic signatures as provided in Republic Act No. 8792 [Electronic Commerce Act] as well as the rulespromulgated by the Supreme Court pursuant thereto."

The digital signature is the primary feature to determine the authenticity and verifiability of the election returns from theprecincts. The election law (RA 9369) requires it, Electronic Commerce law requires it, and this same requirement wasrequired by Comelec in its Contract with Smartmatic. To quote:

Schedule of Requirements of the Contract, Section VI: 1.2 Digital signatures[for all users of PCOS, CCS and various servers---

257,425 to be delivered by November 11, 2009]


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POINT 1. BUT COMELEC DELIBERATELY DISABLED THE DIGITAL SIGNATURES.

Comelec issued on Resolution 8786 March 4, 2010 that no longer required the use of digital signatures. The Resolution,addressed to the Board of Election Inspectors (BEI) stated:

"WHEREAS, there is a need to amend or revise portions of Resolution No. 8739 in order to fine tune the process and address

procedural gaps;

SEC. 40. Counting of ballots and transmission of results

f) Thereafter, the PCOS shall automatically count the votes and immediately display a message "WOULD YOU LIKE TO

DIGITALLY SIGN THE TRANSMISSION FILES WITH A BEI SIGNATURE KEY?", with a "YES" or 'NO" option;

g) Press "NO" option.

The PCOS will display "ARE YOU SURE YOU DO NOT WANT TO APPLY A DIGlTAL SIGNATURE?" with a "YES" and "NO" option;

h) Press "YES" option."

THEREFORE, THERE WERE NO DIGITAL SIGNATURES IN THE ELECTION RESULTS.

The Board of Canvassers in the municipality and/or city receiving the Election Returns have no means of tracing wherean ER came from and from whom, and no way to AUTHENTICATE AND VERIFY THE RESULTS OF THEELECTRONICALLY TRANSMITTED ERs from the precincts.


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Comelec Resolution No. 8609, General Instructions to the Board of Canvassers, did not have any mention of using digitalsignatures in their electronic transmissions of the Statements of Votes and Certificates of Canvass to the provinces,Comelec and Congress (House of Representatives and Senate).

POINT 2. Comelec Chairman Melo, and Exec. Director Tolentino ADMITTED that Comelec disabled the digitalsignatures and cited their reasons.

In the Committee on Suffrage and Electoral Reforms in the House of Representatives, May 20, 2010.

What prompted the change in the instructions to the BEI? Mr. Jose Armando R. Melo, Chairman, Comelec,offered an

explanation:

Yes, sir. When we were talking about this, the signature of the BEI chairman and the other members it came aboutthat... we were saying that the BEI people may be threatened or some of them may not report at all. So what will happento the transmission? So we limited it to the actual signature of the Chairman. And the other members, we did not askthem to have a signature anymore because it will... the cost will come out to a more than a billion altogether.

The fears expressed by Chairman Melo that the BEIs might be threatened or might not show up are realities that electionworkers, watchers, and other parties had experienced in previous elections. These do not justify requiring them not todigitally sign the election returns. The matter can be addressed with careful, meticulous planning, including the provision

of the backup actions in the event members of the BEI do not show upon on election day.

When did Comelec make the determination that it will save at least P1 billion by limiting the digital signature to the BEIchair? If the determination was made before the bid, then Comelec had already chosen the technology to be used for the2010 Elections. If it made the determination during the implementation of the chosen technology, shouldn't the contractprice be reduced to P6.2 billion?


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By the way, there were NO digital signatures of the BEI Chair in the electronically transmitted Election Returns. Thedigital signatures of the entire set of the Board of Election Inspectors, including the Chair, were all disabled and not used.

2nd Admission: Comelec Director Tolentino in the same Congressional Committee Hearing

Exec Director Tolentino stated that automation law did not actually say that the BEIs should have their own digitalsignatures to digitally sign the ERs. It was enough if the PCOS yielded its own digital signature, which served as thedigital signature of the BEI assigned to that particular PCOS.

NOTE 1: This is an after-thought when many learned about the Comelec en banc Resolution 8786, where they disabledthe digital signature.

Director Tolentino did not state RA 9369 has a specific provision referring to the Electronic Commerce Act 2000, asfollows:

SEC. 25. A new Section 30 is hereby provided to read as follows:

Sec. 30. Authentication of Electronically Transmitted Election results The manner of determining the authenticity anddue execution of the certificates shall conform with the provisions of RA7166, as may be supplement or modified by the

provision of this Act, where applicable, by appropriate authentication and certification procedures for electronic signaturesas provided in RA 8792 (the Electronic Commerce Act 2000) as well as the rules promulgated by the Supreme Court (SCRules on Electronic Evidence) pursuant thereto.

NOTE 2: The above provision was not mentioned because he will be caught deliberately not telling the truth because theRA8792 was very specific when it comes to electronic signatures:


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Sec 5.e. Electronic Signature refers to any distinctive mark, characteristic and/or sound in electronic form,representing the identity of a person and attached to or logically associated with an electronic data message.

Sec 8. Legal Recognition of Electronic Signatures An electronic signature on the electronic document that shall beequivalent to the signature of a person on a written document .

Sec 9. Presumption Relating to Electronic Signatures in any proceedings involving an electronic signature, it shall bepresumed that:

a. The electronic signature is the signature of the person to whom it correlates

POINT 3. The Locsin Report tried to COVER UP THE ILLEGALITY AND HARMFUL EFFECTS OF THE LACK OFDIGITAL SIGNATURES when it stated:

14. The digital signatureonly of a particular PCOSand not of the BEI person herself was conceded as being, for practical but not legal

purposes, sufficient compliance with the intent of the E-Commerce and Automated Election laws. The Chair argued that a PCOS [or machine]

digital signature serves equally as the digital signature of the BEI who has custody of the machine because it is possible to link one to the

other.

BUT, the Joint Forensic Final Report of June 9, 2010 by the Forensic Team to the Senate President and Speaker of theHouse stated, in relation to the investigation and initial forensics of the 60 PCOS machines discovered in an Antipolohouse of a Smartmatic Technician, stated that such practical purposes was not true, as there were no such digitalsignatures. The Report stated:


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Absence of Machine Digital Signatures

Examination o the PCOS machines revealed that there was no evidence found to prove the existence of digital certificates in the PCOS

machines, contrary to the claims of Smartmatic. The technicians of Smartmatic were not able to show to the forensic team the machine version

of the digital signature,alleging that they do not have the necessary tools to show the same. More so, they were at a quandary as to how to

extract the said machine signatures--- to the dismay of the forensic team.

If there are digital certificates, then these were supposed to be revealed. The forensic team tried to extract the digital signatures but to no

avail. Hence, the forensic team is of the opinion that there exists no digital signature in the PCOS machine.

POINT 4. The contention of Comelec that the machine digital signature (whatever this is) is sufficientalternative to the true digital signatures required by law, is patently UNTRUE.

ITEM 1. Comelec and Smartmatic-Tim CANNOT show a machine (or PCOS) digital signature.

Up to now, 17 months after this Forensic Report, Comelec nor Smartmatic-Tim CANNOT SHOW any evidence of aPCOS machine digital signature.

ITEM 2. There HAS BEEN NO IMPLEMENTATION in any computer system (in government institutions orbanks) using such concept of authenticating via machine digital signatures.

ITEM 3. Such a computer system standard of the claimed machine digital signature for authenticatingelectronic transmissions, is non-existent not only in the Philippines but in the world.

Try looking up machine digital signature in Google or Wikipedia and you will not get any article stating such exists toauthenticate electronic transmissions.


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ITEM 4. The claimed use of machine digital signatures (if ever there is one) is a very inferior way ofauthenticating critical electronic data transmission.

In the case of the 2010 elections, anybody (BEI or non-BEI or anyone) who has access to a PCOS machine (whether thePCOS is in the precinct, somewhere near as a back-up or in the Smartmatic warehouse or in Antipolo, as found out)CAN SEND an Election Return to a Board of Canvassers (BOC) Canvassing Computer in the municipality. Themunicipal BOCs would have NO WAY to know where the ER (or the SOVs and COCs in the case of lower level BOCs) iscoming from.

And the succeeding BOCs, from the cities to the provinces to Comelec, Senate and Congress have no way to trace,authenticate and check the due execution of the Certificates of Canvass coming from municipalities.

As proven above, there were no digital signatures used in all levels of the 2010 elections. The Board ofCanvassers, from the municipal, city, provinces and national canvassing centers, CANNOT AUTHENTICATE,DULY EXECUTE AND CERTIFY THE CERTIFICATES OF CANVASS THEY TRANSMIT ELECTRONICALLY TO THEHIGHER LEVELS OF CANVASSING.

THE ONLY CONCLUSION ONE CAN MAKE IS THAT IN THE 2010 ELECTIONS, ALL BOARD OF CANVASSERSPROCLAMATIONS OF WINNERS SHOULD HAVE BEEN NULLIFIED.


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3. THIS VIOLATION OF THE LAWS ON DIGITAL SIGNATURES WERE INDICATED IN TWO CRITICALPROTESTS, THAT UP TO NOW, COMELEC HAS NOT DECIDED ON:

3.1 The Lone District of Biliran Protest

Congressman Glenn Chong filed a protest that showed, because there were no digital signatures, the followinghacking and cheating have been committed. This incidents have been reviewed by the Philippine ComputerSociety and a corresponding report has been submitted to the Comelec.

SOURCE: Audit trails of PCOS machines in the precincts and Audit trails of Municipal Board of Canvassers(MBOC) Canvassing and Consolidation Server (CCS)

INCIDENT 1. MBOC Server received election results for the SAME precinct from several PCOS machines --bearing different results. Seven instances.INCIDENT 2. Server can accept transmissions outside the normal range of time allowed for a reasonable delay inthe transmission (e.g., past midday of May 11 or about 29 hours after precinct opened.This long gap in transmission may have been used to alter the authentic elections results for pivotal precincts.

INCIDENT 3. Server received elections returns from PCOS machine different from the PCOS assigned toprecincts already closed. This different PCOS machine has a different Internet address.

Receipt of 1st set of election results. Precinct closed.


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Receipt of 2nd set of election results a few hours LATER, SAME precinct but ANOTHER internet address,and DIFFERENT results from the first.

3.2 The Protest of Mayor Atienza in Manila

The results showed significantly that because there were no digital signatures, there were election results fromprecincts that were transmitted to the Board of Canvassers, after the closing of precincts in the May elections. Thefollowing charts will indicate these situations, which are very similar to the Biliran protest.

Clustere

d

Establish

ed

Vote

s

Timesta

mp

Precinct PrecinctsCandidate

Web

Ballot

Physical

Number Numbers ERBoxER Count

7832222A,2222B, Lim 190

191

191

May 22,20106:14:54PM

1.Transmissions shouldhave beenmade

2223A Atienza 7070

70

afterprecinctclosing.

8112300A,2301A, Lim 385 389 387

May 22,2010


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2301B, 6:14:53PM

2301C,2302A,2303A Atienza 120 120 120

2. Done 12days afterelections.

993

2716A,2716B,2716C Lim 212

390 390

May 22,20106:02:49PM

3. Way pastafter Limwasproclaimed.

Atienza 7891 91

253

0485A,0485B,0486A, Lim 246

248 246

May 22,20106:02:39PM

0486B,0486C Atienza 125

125 125

219

0418A,0418B,

0418C, Lim 394

248 248

May 22,20116:02:45

PM0419A,0419B,0420A Atienza 135

103 103


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4661057A,1057B, Lim 164

186 186

May 22,20116:07:58PM

1058A,1058B Atienza 109

50 50

10102749A,2749B, Lim 175

381 381

May 22,20116:08:43PM

2750A,2750B Atienza 148

64 64

Should perfectly match because they

come from the same PCOS machine


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As a summary, there were almost 94% of Manila precincts that have submitted their election results on May 22and 24, way beyond the closing of precincts.

# of days

Transmission date Count Percentage past May 10

May 9, 2010 43 2.98 negative 1

May 14, 2010 1 0.07 4

May 22, 2010 1,049 72.80 12

May 24, 2010 321 22.28 14

No trans data 26 1.80 -

TANDEM THEREFORE CONCLUDES THAT THERE HAVE BEEN NOT ONLY VIOLATIONS OF THEELECTION RESULTS IN THE ELECTION LAW BUT MORE IMPORTANTLY, THESE VIOLATIONS LEAD

TO NOT AUTHENTICATED AND NOT VALID RESULTS OF THE ELECTIONS.

Annexes:1. Annex 1. Legal basis for Digital Signatures2. Annex 2. Specific situations in the Biliran Protest

TanDem - Response to Comelec and JCOC Reports

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