Feargal Quinn (Independent)

I move amendment No. 7:

In page 6, subsection (1), line 12, to delete "equipment." and substitute the following:

"equipment, or

(c) interferes in any way, without due authorisation, with the software used or intended for use in a voting system in the State, including any such interference that occurs during the development or deployment of such a system.".

I am not so sure amendments Nos. 7 and 8 are related and I would prefer to take them separately. However, I will speak on amendments Nos. 7 and 8 although I do not believe they are related.

I hope the Minister of State will pay attention to amendment No. 7 because there is a flaw in the legislation, which is encompassed by the amendment. I recall the occasion on which Senator Ross discovered a flaw in a previous electoral Bill which meant the Bill had to be withdrawn. I am concerned about the risk that we will define offences under the legislation so narrowly that particular types of offence would escape altogether.

Senators may remember a case which arose some years ago of a young student in the Philippines who wrote and disseminated a computer virus which caused untold havoc around the world wherever computers were used. It flourished for only a few weeks but the virus caused an enormous amount of economic damage in many countries. Although the perpetrator of the virus was eventually tracked down and caught thanks to some excellent and sophisticated detective work, in the end it proved impossible to prosecute him because there was no offence in the law of his country to cover the writing and dissemination of a computer virus.

This was the nightmare scenario which occurred to me as a possibility when I read section 2 of this Bill. While I accept that my previous amendments were tabled to improve the Bill and were not essential, I am very serious about this amendment. In the section, the word "software" is not specifically mentioned although it is mentioned in the relevant paragraph of the explanatory memorandum. The startling feature is that it is not actually stated in the legislation.

It is against the software rather than the hardware that the most serious offences are likely to occur. A person who wanted to wreck the voting process would perhaps take a hammer to the hardware but a person who wanted to interfere with the voting and affect the outcome of the voting would have to target the software for interference. The wording of the section mentions two terms — a different one in each subsection. The first subsection refers to "any voting system equipment" while the second refers to "any voting machine equipment". Neither of these terms is defined in the Bill except in section 4, where the definitions are stated to apply only to Part 2 of the Bill, which does not include the section we are now discussing.

Even if we moved section 4 back into Part 1 of the Bill and made it clear that the definitions applied to whole Bill instead of just to Part 2, the outcome would not fulfil the need to spell out that software is included within the scope of the offences being captured. In another context, Senators will be familiar with the long-standing controversy over whether the intellectual property of software should be protected under present law or under copyright law, which point we discussed with the Taoiseach in the Joint Oireachtas Committee on European Affairs. Unless we specifically spell out what we are talking about and that we are including software, I can foresee a great deal of legal dispute in future arising from the issue of whether the terms "equipment" or "apparatus" can be extended to include software.

I am sure the Minister of State has a briefing note which argues that there is no possible doubt that the section as drafted includes software. However, with the greatest possible respect, I submit that we cannot be legally certain in that regard. Why should we take a chance when we could so easily put it beyond any doubt whatsoever?

We need to specify software, beyond any possible doubt, as being within the scope of the offences captured under this legislation. The second deficiency in the Bill is that the definition of offences appears to be too restrictive in terms of time. It seems to focus on interference which takes place during the actual course of an election, disregarding any interference which might take place in advance of an election during the development or deployment of the system which must take place ahead of time.

The people who have knowledge of the possibilities have pointed again and again to the possibility of the software being interfered with by an insider, in other words, by a person employed by the developers of the software itself. This becomes a greater possibility as the present system is based on proprietary software rather than open source software. The software we are talking about is a jealously guarded trade secret.

Even the Commission on Electronic Voting ran into difficulties in getting access to the software. In these circumstances it is much easier for fraud to occur within the development process itself because the end product is such a big secret. I am not seeking to cast aspersions on anybody, least of all the producers of this system, but however trustworthy that firm may be, what company could vouch for every single one of its employees? It is far from beyond the bounds of possibility that a disgruntled employee or enthusiastic hacker in the employment of the company could secretly introduce into the software an element that could interfere with the results produced by the system. When we introduce the possibility of bribery as a motivation for interference of this kind, which is a real change, the scenario becomes even more likely and becomes a probability rather than a possibility. If that ever happens and we are lucky enough to detect it and track down the culprit, then we should at least be able to prosecute the person or persons concerned. We should define the offence in the legislation broadly enough to capture something that happens in those circumstances, unlikely though that may be in practice.

Only if we are prepared to guarantee that such interference could never happen, and I do not see how we could possibly guarantee any such thing, should we fail to allow for such a possibility when defining offences under this Bill. This amendment addresses both of the issues I have raised; on one hand, the additional subsection I propose specifically includes interference with software as an offence, and on the other hand it extends the definition of interference with software to include any such interference that takes place during the development or deployment of a voting system, as well as during the electoral process itself.

Without this amendment or some equivalent measure we run the risk of being unable to prosecute a serious offence. I cannot imagine anything more likely than that to bring the whole system into disrepute. I strongly commend amendment No. 7 about which I feel very strongly. The Bill is flawed by the omission of the term "software" as words such as "apparatus" and "equipment" exclude software. Also, this section only deals with events during an election rather than prior to the election.

Amendment No. 8 deals with the seriousness with which we treat the electoral process. That seriousness is not reflected in the schedule of penalties in the legislation, although the matter at hand goes to the very heart of our democracy. Nothing could be more important in the running of the State as the way in which we regulate our electoral process. It follows that offences against that electoral process are or can be very serious matters.

Where electronic voting is concerned, we must allow for the possibility of the most serious offences being committed. The nature of what we are discussing allows for the possibility that a person or persons may make a large scale attack against the integrity of the system, as opposed to a single, isolated attempt on an individual voting machine, which is covered in the legislation. Such isolated incidents could be dealt with summarily, just as individual cases of personation can be dealt with summarily. However, a widespread attack on the integrity of the system is a totally different matter.

It is essential we foresee the possibility of such an attack and provide for it in the schedule of penalties. We must allow for the possibility of offences being committed that are so serious that treating them summarily is not appropriate. Offences of that level of seriousness should be prosecuted on indictment with an appropriate range of penalties to match. The Bill as drafted does not allow for any prosecutions on indictment, providing only for offences which are dealt with summarily. I was astonished when I first read the Bill to find that offences were being dealt with in so offhand a manner.

To proceed in this way would be a grave mistake. The summary offences set out in the Bill would be no deterrent to a determined person setting out to commit a very serious offence against the electoral system itself, as such a person would regard that as no more than a slap on the wrist rather than an effective deterrent. This becomes all the more evident when one considers the possible influence of large scale bribery in any such offence. In these circumstances, the size of the fine proposed or the length of the imprisonment would be considered laughable by any determined criminal.

I tabled this amendment because I concluded that in drafting the Bill the Government had made a fundamental mistake as to the potential seriousness of offences under the legislation. I was strengthened in that conclusion when I looked at other Bills before the Oireachtas for the sake of comparison.

I refer to the Garda Bill 2004, which has not yet been debated in either House, and which sets out a range of offences and penalties. Section 53 states that a person is guilty of an offence if he or she impersonates a member of the Garda Síochána or makes any statement or does any act calculated falsely to suggest that he or she is such a member. A person guilty of an offence under that section is liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding six months or both. On conviction on indictment there is a difference — the fine should not exceed €50,000 or imprisonment for a term not exceeding five years, or both.

Section 21 of the Civil Liability and Courts Bill 2004 sets out a series of offences applying to a person who gives false evidence in a personal injury claim, stating that if, after the commencement of the section, a person gives or dishonestly causes to be given or adduces or dishonestly causes to be adduced evidence in a personal injury action that is (a) false or misleading in any material respect and (b) that he or she knows to be false and misleading, he or she shall be guilty of an offence. Section 21(2) states that if, after the commencement of the section, a person gives or dishonestly causes to be given an instruction or information regarding a personal injury action to a solicitor, a person acting on behalf of a solicitor or an expert that is false or misleading in any material respect, and that (b) he or she knows to be false or misleading, he or she shall be guilty of an offence. That Bill also provides for both summary conviction and conviction on indictment. In the case of conviction on indictment the penalties are a fine of up to €100,000 or ten years imprisonment or both.

The Public Services Management (Recruitment and Appointments) Bill 2003 lays down offences that applicants for jobs in the public service may commit in making a false declaration in the course of their application. Section 56 of the Bill states that in respect of a competition for a position within the public service a person shall not (a) knowingly or recklessly make an application that is false and misleading in a material respect for the position; (b) in purported compliance with the requirement for the position, knowingly or recklessly provide any information or documentation that is false or misleading in a material respect; (c) canvass any person with or without inducements on his or her own behalf or on behalf of a candidate for the position; (d) personate a candidate at any stage of the recruitment and selection process concerned; (e) knowingly or maliciously obstruct a person engaged in the conduct of the competition or otherwise interfere with the general conduct of that competition; (f) knowingly and without lawful authority take any action which could result in the compromising of any test material or any evaluation of it; and (g) interfere improperly with the competition process or competition records so as to confer an advantage or disadvantage on any candidate.

Section 57 then specifies the penalties for the offences. Both summary prosecution and prosecution on indictment are provided for, and in the case of conviction on indictment there is a fine of up to €10,000 or imprisonment for up to two years, or both. These three Bills do not deal with particularly heinous offences, yet all three specify that those offences can be tried summarily or on indictment. Why are we treating this Bill differently? Is it that the Government considers the offence of interfering with the electoral process as less serious than impersonating a member of the Garda Síochána, giving false testimony in a personal injuries action, or making a false representation in applying for a job in the public service? I do not believe anybody could come to that conclusion, nor do I believe the Government has come to such a conclusion. I prefer to believe it is an honest mistake. However, it is a mistake that cannot be allowed to stand because of the wrong signal it would send to the world about the seriousness which we attach to our electoral process and the tenacity with which we will defend attacks on its integrity. We can undo this mistake by accepting the amendment which I commend to the House. I regret those two amendments which are different are being taken together. What is being provided for here is to tackle a person who is cheating the voting system. What has not been provided for is one who attacks the system. It was not necessary under the old system. An attack on the software could damage the whole electronic voting system. We are all aware of what happened in Florida during the last presidential election and that was not an attack on the system. It would be easy to attack the software here. If a person attacks the software, the only crime of which they can be found guilty is the same as if they impersonated their vote. Both amendments are worthy of consideration, but particularly No. 7, otherwise the Bill is flawed.