They ain't gonna kiss you just because you're a whistleblower. No matter that you exposed wrongdoing and struck a blow for fair elections. The larger good isn't always obvious to the powers that be.
So Steve Heller, a Los Angeles-based actor whose day job is doing temporary office work, faces three felony charges, all of which are a stretch: felony access to computer data, commercial burglary and receiving stolen property. The Los Angeles County District Attorney's office says he's a thief, an Internet criminal, and that's that. And, oh yeah, he violated attorney-client confidentiality, and cost a big law firm a million dollars in lost business.
Serious stuff. And if the DA's office has its way, this is all the judge and jury will look at: the law in its narrowest sense, as though ethical issues aren't sometimes murky and enormously complicated.
Indeed, this is the story of a 44-year-old man who had a problem in practical ethics fall into his lap a little over two years ago, when he was temping in the word-processing center of Jones Day, a major Los Angeles law firm. Among the firm's clients was Diebold Election Systems, the largest manufacturer of electronic voting machines and voting machine software in the U.S. - and probably the most controversial.
Diebold machines are notoriously hackable and unreliable, and the company itself is as secretive as it is politically connected. The company is in the forefront of the spread of unverifiable ("trust us") electronic voting across the country, a phenomenon that many computer experts and fair-election advocates find utterly terrifying.
"In connection with his duties on Jan. 29, 2004, suspect Heller was given an assignment to work on a Jones Day document regarding Diebold voting machines," Heller's arrest warrant attests. "After completing that assignment, suspect Heller, without authorization, accessed and printed 107 Jones Day documents concerning their representation of Diebold."
What the arrest warrant leaves out is that, in 2004, Diebold machines were going to be used in a number of California counties in the March primary and the November general elections, and the machines' questionable reliability was in the news a lot. And indeed, Diebold machines did malfunction in the March elections. But they didn't malfunction in November because by then they had been decertified by California Secretary of State Kevin Shelley - thanks in large part to Heller's actions.
The documents Heller, the temp word processor, happened upon and subsequently printed out revealed a potential crime in progress. Here's where the ethics become urgent. He could either ignore what he saw or, at considerable personal risk and with nothing to gain except clarity of conscience, take action. He took action.
He gave the documents to election-reform advocates, who got them into the hands of the media and state officials. Because he did, data concerning Diebold's use of uncertified software, which was supposed to remain private, became public knowledge. "In one memo," the Los Angeles Weekly wrote, "the law firm warned Diebold, before the March primary, that its use of uncertified vote-counting software in Alameda County, starting in 2002, violated California election law and broke its $12.7 million contract."
And election-reform advocate Peter Soby wrote on Huffington Post: "So in a nutshell, Diebold was defrauding the state government and taxpayers of California, and disenfranchising the voters of California. And the documents prove it."
Many of the documents were ultimately published online by the Oakland Tribune and, through Black Box Voting, a Seattle-based organization that has been a longtime critic and monitor of electronic voting, brought to the attention of Secretary of State Shelley. Diebold was eventually decertified and became the subject of both criminal and civil proceedings. While the criminal investigation was ultimately dropped, Diebold settled its civil suit with the state out of court in November 2004 for $2.6 million.
Meanwhile Heller, whose home was raided by police in August 2004, faces almost four years in jail if convicted on all counts. There are those who think the main point of the DA's case against him is to put a chill in the hearts of potential whistleblowers out there who have access to dirty corporate secrets that affect the public welfare. Sandi Gibbons, a spokesman for the DA's office, called such charges "ridiculous."
Maybe so, but I cringe at what seems like misplaced outrage. I cringe to watch the machinery of "justice" grind up a little guy who was faced with a terrible ethical choice and chose not to play it safe or dumb, but instead acted for the greater good.
It's just about democracy is all. How rare, how amazing, to learn that ordinary citizens are still sometimes capable of pulling it from the clutches of big-money cynicism. As Steve Heller goes to trial, I guess we'll find out what kind of price is now being exacted for such heroism.
© Robert C. Koehler