Which Code is Law?

Today North Carolinas State Board of Elections has included Diebold to the list of recommended manufactures of voting maschines. This ruling comes despite the fact that Diebold denies public access to the source code of the maschines and is also unwilling to name the programmers that contributet to the codebase. Both is required by the new laws for electronic voting maschines in North Carolina. The ruling is astonishing and needs to be reversed.

Voting maschines are a prime example where code becomes law. Similar to law the code included in this maschines should serve the public interest and implement precautions that prohibit behavior against it.Without public access to the source codes of voting maschines it cannot be guaranted that the maschine is free from bugs, partisan- or third party interests that effect the votecount. Effectively this means that closed source voting maschines are not viable in a democratic society since their legitimacy cannot be proven.

The same holds true for all applications of code in the public sector. If the code gains regulatory power and is meant to contribute to the public good it needs to be accessible and disputable just like the law is readable and disputable (at least by lawyers;).

Microsoft recently seems to have grasped this and currently tries to figure out which code is law and therefore needs to be opened. In the case of document formats they already moved to a more open model under the pressure of the Open Document Format. Also their proposed Identity Metasystem activly embraces open sources approaches in order to gain legitimacy.