The FEC rules from 2002 are quite clear on the matter: Commercial, readily-available hardware devices (such as card readers, printers, or personal computers) or software products (such as operating systems, programming language compilers, or database management systems). These devices and software are exempted from certain portions of the qualification testing process so long as such products are not modified in any manner for use in the voting system.

see EAC doument Volume One, Appendix A

The premise of this exemption is that off-the-shelf software and hardware need not be inspected because they are not specifically made for elections — much in the same way that we trust manufactured parts we buy from the supply store for building. They have already undergone quality assurance by the manufacturer to perform as designed.

Customized software and hardware components for elections systems, on the other hand, are directly responsible for the capture and count of the votes and therefore must be inspected by ITAs, authorities who are independent of the manufacturer.

Among the customized components in question are core Windows CE components that are necessarily customized to run on the hardware on which the operating system is implemented. According to an internal memo, Diebold claimed that these files were exempt from inspection because they were a part of the operating system and therefore qualified as off-the-shelf components.

Senator Debra Bowen: ... It's not something that I uncovered. But I think it goes to the fact that Windows CE requires significant customization to work on a voting machine, such as a Diebold touch-screen. It's not "Commercial Off The Shelf Software." It won't work without being customized. Diebold has the source code for Windows CE and can modify core features and yet here they are basically writing saying "We don't want Wyle to be looking at the Windows CE 3.0 system" even though it could only run on a Diebold touch-screen if it were customized.


Rather than expressing concern about the ommission, as a third party, independent testing authority would be expected to do, Joe Hazeltine of Wyle agreed with Diebold's assertion.

Wyle (Joe Hazeltine): Well that's, you can read it that way, another way that you can read this is that Windows as a commercially off the shelf software does not require ITA certification.

From California Certification Hearing 3/27/06. Conversation was between Senator Debra Bowen and Joe Hazeltine of Wyle, the ITA for California certification.

You can find more details about this in the Windows CE Fraud walk-through by Jim March HERE