Established practices, new rules and future perspectives

Last Sunday, 9 February 2014, is going to stay in Swiss voting history as the day when voters decided to put an end to the free movement of persons with the European Union (EU) thus provoking the reassessment of all bilateral agreements between Switzerland and the EU.

The close outcome and the clear division between western (pro EU) and eastern parts of the country (to the exception of Zurich) reminded of a certain 6 December 1992 when voters refused to join the European Economic Area (EEA). The 1992 outcome and last Sunday’s official (still provisional) results are exactly the same: 50.3% voted for a less open Switzerland. Participation was important in both cases. The 1992 vote marked a record high participation of 78.73%. Last Sunday’s one was a well-above-the-average 55.8%.

The results are abundantly commented in the social media (look for hashes #abst14 and #CHvote on Twitter). However, and despite their interest, they are not the subject of this post. So let’s return to our main subject which is the use of technology in votes. We’ll discuss here the most recent novelties. One of them was already available at last Sunday’s vote.

The abolition of the “Wassenaar clause”

A new policy rule on internet voting applies since last weekend’s vote: all expatriates in the e-voting cantons are allowed to vote via internet. Up to now the internet voting channel had been proposed only to expatriates living in Wassenaar Agreement countries which abide to certain communication standards. However internet voting being possible from almost everywhere in the world, such theoretical limitation does not guarantee that votes will effectively be issued only from Wassenaar countries.

One of the challenges associated with distant voting from abroad is the availability and integrity of the transmission channel (the postal or the Internet one) and the associated risks of censure, eavesdropping, impossibility to use certain forms of encryption etc. The transmission channel being partly beyond the Swiss authorities control, distant voting from abroad will thus always imply a certain amount of risk.

Expatriates have lobbied against the Wassenaar clause and should be satisfied with its abolition. They are specifically informed of internet voting associated risks and are asked to be attentive to standards of the country from which they vote. In return for abolishing the Wassenaar clause, they admit that federal authorities have no responsibility with regard to potential complications arising abroad as a result of the use of the internet voting channel. The change was much welcomed by the cantons as they no longer need to distinguish expatriates in relation to their country of residence when preparing voter registers.

A new internet voting regulation

The abolition of the Wassenaar clause was announced in the June 2013 report of the federal Government on internet voting. The same report outlined a proposed modification of the federal regulation on internet voting. This includes a thorough revision of the chapter on internet voting (articles 27a and ff.) of the federal Ordinance on political rights (OPR) which presents main requirements and a newly introduced Ordinnance of the Federal Chancellery on electronic voting (OVotE) which provides technical guidance for systems. After being submitted to public consultation, both texts were formally adopted last December. They entered into force on 15 January 2014 and will be progressively implemented in the coming months and years.

So, why an update of the regulation? The update comes twelve years after internet voting legislation was initially introduced. Taking stock of ten years of accumulated experience with a limited but binding use of internet voting for political votes and elections, the update was motivated by the need to reflect lessons learned, the current understanding of internet voting as well as recent advances of technology allowing for verifiable and more transparent schemes. Eventually the aim is to clarify internet voting prospects so that cantonal authorities can plan its development accordingly.

Internet voting regulation is part of the federal legislation on political rights. This is composed of a higher level layer which includes the Constitution and the federal Act on political rights (APR). Changes to both instruments are introduced by the Parliament and through initiative rights as far as the Constitution is concerned. Modifications are subject to referendum. But nothing has changed at this layer level of legislation. Article 8a APR continues to foresee the limited use of internet voting based on conditions and authorizations issued by federal entities.

Detailed legislation on internet voting is thus mainly to be found in two, lower level, texts that regulate the limited use of it. One text is the modified OPR, articles 27a to 27q. The OPR is approved by the federal Government. The other is the newly introduced OVotE of the federal Chancellery, approved by this specific governmental agency which covers political rights. The two following graphics represent internet voting regulation and its place in the system of political rights. Clearly lower level texts must respect higher level ones. In addition (not reflected in the graphics) there also exist cantonal implementing measures.

The main part of the internet voting regulation (OPR and OVotE) is responsibility of the Government and of the federal Chancellery. However the fundamental choices, namely the limited character or the (future) liberalization of internet voting are (to be) determined in the APR which is approved by the Parliament and is subject to referendum.

Well-established practices

Federal authorization is still needed for a canton to use internet voting in federal votes. However the process has been split in two steps. Federal Government approval – the most cumbersome procedure – is now issued for a number of votes during a period of time instead of being obtained before each and every vote. A specific approval from the federal Chancellery is however required before each vote. The federal Chancellery assumes thus a new role as an internet-voting-approving agency.

An external, independent service controls that the system fulfills the security requirements stipulated by the federal Chancellery and also makes sure that security measures reflect the state of the art. Again, the federal Chancellery should determine the criteria for appointing the appropriate external service as well as for evaluating the system. It’s up to cantons to chose the external service.

Internet voting outsourcing to another canton or to a private firm has been so far regulated through a three-party convention including the canton that buys the service, the private partner(s) or the canton that provides the service and the federal Chancellery. This practice is codified in article 27k of the Ordinance. The federal Chancellery is thus also part to the Internet voting service contracts.

A new approach to internet voting

To be authorized to offer internet voting, a canton and its chosen system must fulfill the conditions to be found in the OVotE and its annex[1]. Three levels of requirements are foreseen:

–          one applies to internet voting for maximum 30% of the cantonal electorate and less than 10% of the federal one (current level)

–          a second layer applies to internet voting for maximum 50% of the cantonal electorate and less than 30% of the federal one

–          the third group of requirements applies if internet voting will be used for more than 50% of the cantonal electorate.

A transitional period is foreseen till end June 2015. The detailed conditions are to be found in the annex to OVotE. The main ones are mentioned below.

–          To use internet voting for 30% to 50% of the electorate, systems must implement individual verifiability;

–          To offer internet voting to more than 50% of the electorate complete verifiability must be possible which includes individual and universal verifiability.

Both forms of verifiability, as well as their implementation, are described in the annex to the OVotE.

What to watch for ?

The new regulation is a big effort to codify the use of the third voting channel which, statistically speaking, has proved to be the favored channel of Swiss abroad. The work must be saluted as an important effort to take stock of a decade of experiences with internet voting in Switzerland and elsewhere and to introduce new technological solutions. For example the “Norwegian acquis” is now included in the Swiss regulation, of course after being adapted to the Swiss political rights system which, for example, does not allow for multiple voting.

However a few points still remain open to discussion. One is the multifunctional and ubiquitous role of the federal Chancellery which is the standards setting body, the coordinating and promoting agency, the controlling entity as well as the body approving internet voting use, all in one. A clear distinction needs to be made between these different facets and roles of the same entity.

Another important element of the system still open to discussion and decision is the certifying body. The competence to determine such a body is left to cantons. The condition is that the certifying entity must be approved by SAS, the office approving certification authorities in all kinds of fields. However it is not clear under which material conditions the SAS will judge and decide on the suitability of an internet voting certification body.

Also missing is the delimitation and clear description of the relation between certification, audits and verifiability. These concepts and their relation need even more clarity if one thinks of the growing importance of audits compared to complex and expensive certifications of voting systems as well as of the relative ignorance (in the public) of the (recently introduced) concepts of individual and universal verifiability.

The future development of internet voting under the new regulation will certainly inspire answers to these open questions.

Related posts:

Quid novi Juris? “Internet voting and federalism: the Swiss case” in RGDPC Legislation