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the CPSC may compel the manufacturer to stop distribution; notify those involved in the transport,distribution, or sale of the product by mail or other means; provide public notice on the Internet, TV,and radio; and/or mail notice to all known purchasers of the product. 243The CPSC has the authority to determine the form and substance of any such notice, 244 but the lawprovides some guidelines for manufacturers. Unless the CPSC rules otherwise, all notices must contain,among other things, (1) identifying information such as a model number and photograph of theproduct; (2) a description of the action taken to remedy the defect or noncompliance; (3) a descriptionof the hazard caused by the product; (4) a number and description of injuries and deaths caused bythe product; (5) a description of available remedies and how to avail oneself of them; and (6) retailinformation concerning the product. 245Finally, the FDA requires all manufacturers of all drugsmarketed under an approved FDA application to report tomandatory vendor reporting ofthe FDA all serious, unexpected adverse drug experiencesfailures to a searchable database associated with the use of their drug products. 246 The FDAmandates that the manufacturer submit to it, within fifteenwould incentivize those vendors days of learning of the adverse drug experience, a form 247that contains: (1) a description (i.e., sex, age, weight,to enhance internal controls.height) of the patient that took the drug; (2) the outcomesattributed to the adverse event; (3) the date of the event;(4) the date of the report; (5) a description of the event; and (6) various information regarding theproduct suspected to be the cause of the event. 248D. Key BenefitsMany of the benefits of mandatory vendor reporting of machine failures and vulnerabilities are the sameas those of the proposed database (e.g., assisting election officials in identifying and resolving problems,aggregating information in a timely and organized manner, and allowing election officials to comparethe performance of voting systems); below we detail some additional benefits that are particular to theproposed vendor reporting requirements.Incentivizes Vendors to Enhance Internal ControlsVendors will presumably want to minimize the number of reports that they must make to the appropriategovernment agency. One way that they will be able to do this is by enhancing their own testing andinternal standards to avoid any late-stage defects that would trigger a requirement to make a report tothe appropriate government agency.Ensures Maximum Disclosure of Information by VendorsAs we detail above, Congress passed the TREAD Act and established these “early warning” reportingrequirements, in part, because investigations in the wake of the Firestone tire recall revealed that “bothFirestone and Ford knew that there were problems [with the tires] years before they told [NHTSA] or theAmerican public.” 249 The case studies in Part III of this report show that, at the very least, many electionofficials and other concerned citizens worry that voting system vendors have sometimes taken too longto acknowledge and publicize problems with their systems. This provision would require vendors to take34 | Brennan Center for Justice

affirmative steps to increase their transparency and would ensure, among other things, that at the very least,election officials and the appropriate government agency will have access to problems soon after vendorsdiscover them.3. A Federal Agency with Investigatory PowersA. Provision DetailsIf this new regulatory structure is going to be effective, a federal agency must have adequate enforcementauthority. The most logical model would allow the appropriate federal agency to initiate an investigationafter reviewing any of the information posted to the database and determining that a machine failureor vulnerability potentially exists.In order to facilitate these investigations, new legislation should provide the appropriate federal agencywith the power to issue subpoenas and include a provision that would require vendors of electronicvoting machines to maintain records, reports, and other information to enable the agency to determinewhether there is compliance with other provisions of the legislation.B. Responsible AgencyThe EAC already has some investigatory powers related to its federal certification program. Specifically,manufacturers who register to have new voting systems federally certified by the EAC must, pursuant tothe EAC’s VSTCPM (discussed previously at page 8), 250 agree to “[c]ooperate with any EAC inquiries andinvestigations into a certified system’s compliance with VVSG standards and the procedural requirementsof this Manual . . . .” 251 While the VSTCPM does not currently require vendors to report all of the typesof problems we have detailed (see supra pp. 8 - 9) to a centralized database (none currently exists, ofcourse), we could imagine an amendment to the VSTCPM which would require such reporting as partof the Voting System Testing and Certification Program, and require manufacturers to cooperate with anyinvestigations into their compliance with such mandates. Of course, as previously noted in this report, theEAC is currently limited to investigating manufacturers registered under the Voting System Testing andCertification Program, and who stay registered under that program. 252 For this reason, Congress mightneed to explicitly empower the EAC to employ these investigatory powers as applied to problems arisingwith non-EAC certified systems. It would also probably need to provide the EAC with extra funding, asthe EAC has previously stated that even if given this power, it does not have the resources to track andresolve problems related to non-EAC certified systems. 253Alternatively, the GAO regularly conducts investigations in support of its mission. 254 As discussed in greaterdetail below, the GAO is almost certainly constitutionally barred from taking enforcement action againstvendors or others, but as a legislative agency, it should have the power to investigate and gather information. 255Consequently, if the GAO is given responsibility for creating and maintaining the database, it might wellmake sense to also give it explicit investigatory powers necessary to ensure that the database is accurate.Finally, it may make sense to vest investigatory powers with the Department of Justice, an agencywith a substantial infrastructure to conduct investigations and bring enforcement actions, wherenecessary. 256 The Voting Rights Section of the Civil Rights Division at the Department of Justicehas a long history of taking enforcement actions under a variety of federal laws relating to voting,including voting machines, and also has experience administering complex statutory schemes. 257 TheBrennan Center for Justice | 35

the CPSC may compel the manufacturer to stop distribution; notify those involved in the transport,distribution, or sale of the product by mail or other means; provide public notice on the Internet, TV,and radio; and/or mail notice to all known purchasers of the product. 243The CPSC has the authority to determine the <strong>for</strong>m and substance of any such notice, 244 but the lawprovides some guidelines <strong>for</strong> manufacturers. Unless the CPSC rules otherwise, all notices must contain,among other things, (1) identifying in<strong>for</strong>mation such as a model number and photograph of theproduct; (2) a description of the action taken to remedy the defect or noncompliance; (3) a descriptionof the hazard caused by the product; (4) a number and description of injuries and deaths caused bythe product; (5) a description of available remedies and how to avail oneself of them; and (6) retailin<strong>for</strong>mation concerning the product. 245Finally, the FDA requires all manufacturers of all drugsmarketed under an approved FDA application to report tomandatory vendor reporting ofthe FDA all serious, unexpected adverse drug experiencesfailures to a searchable database associated with the use of their drug products. 246 The FDAmandates that the manufacturer submit to it, within fifteenwould incentivize those vendors days of learning of the adverse drug experience, a <strong>for</strong>m 247that contains: (1) a description (i.e., sex, age, weight,to enhance internal controls.height) of the patient that took the drug; (2) the outcomesattributed to the adverse event; (3) the date of the event;(4) the date of the report; (5) a description of the event; and (6) various in<strong>for</strong>mation regarding theproduct suspected to be the cause of the event. 248D. Key BenefitsMany of the benefits of mandatory vendor reporting of machine failures and vulnerabilities are the sameas those of the proposed database (e.g., assisting election officials in identifying and resolving problems,aggregating in<strong>for</strong>mation in a timely and organized manner, and allowing election officials to comparethe per<strong>for</strong>mance of voting systems); below we detail some additional benefits that are particular to theproposed vendor reporting requirements.Incentivizes Vendors to Enhance Internal ControlsVendors will presumably want to minimize the number of reports that they must make to the appropriategovernment agency. One way that they will be able to do this is by enhancing their own testing andinternal standards to avoid any late-stage defects that would trigger a requirement to make a report tothe appropriate government agency.Ensures Maximum Disclosure of In<strong>for</strong>mation by VendorsAs we detail above, Congress passed the TREAD Act and established these “early warning” reportingrequirements, in part, because investigations in the wake of the Firestone tire recall revealed that “bothFirestone and Ford knew that there were problems [with the tires] years be<strong>for</strong>e they told [NHTSA] or theAmerican public.” 249 The case studies in Part III of this report show that, at the very least, many electionofficials and other concerned citizens worry that voting system vendors have sometimes taken too longto acknowledge and publicize problems with their systems. This provision would require vendors to take34 | Brennan Center <strong>for</strong> Justice

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