To amend the Help America Vote Act of 2002 to prohibit the use in any election for Federal office of any election-dedicated voting system technology which has not been certified for use in the election by the State which will administer the election and to establish the standards under which such technology and information regarding the technology may be disclosed, and for other purposes.

Summary: Election Software Disclosure Act of 2008 - Amends the Help America Vote Act of 2002 to prohibit a voting system used in a state in a federal election from containing or using any election-dedicated voting system technology: (1) which has not been certified by the state for such use; and (2) which has not been deposited with the appropriate state and local election officials to be held in escrow and disclosed in accordance with this Act.

Requires a state or local election official with whom an election-dedicated voting system technology has been deposited to: (1) hold it in escrow; and (2) disclose information regarding it to a qualified person who has entered into a nondisclosure agreement meeting certain requirements with respect to the technology, or if state law requires such disclosure.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Election Software Disclosure Act of 
2008''.

SEC. 2. PROHIBITING USE OF UNCERTIFIED ELECTION-DEDICATED VOTING SYSTEM 
              TECHNOLOGIES; DISCLOSURE REQUIREMENTS.

    (a) In General.--Section 301(a) of the Help America Vote Act of 
2002 (42 U.S.C. 15481 et seq.) is amended by adding at the end the 
following new paragraph:
            ``(7) Prohibiting use of uncertified election-dedicated 
        voting system technologies; disclosure requirements.--
                    ``(A) In general.--A voting system used in an 
                election for Federal office in a State may not at any 
                time during the election contain or use any election-
                dedicated voting system technology--
                            ``(i) which has not been certified by the 
                        State for use in the election; and
                            ``(ii) which has not been deposited with 
                        the appropriate State and local election 
                        officials to be held in escrow and disclosed in 
                        accordance with this paragraph.
                    ``(B) Requirement for and restrictions on 
                disclosure.--A State or local election official with 
                whom an election-dedicated voting system technology has 
                been deposited shall--
                            ``(i) hold the technology in escrow; and
                            ``(ii) disclose technology and information 
                        regarding the technology to another person if--
                                    ``(I) the person is a qualified 
                                person described in subparagraph (C) 
                                who has entered into a nondisclosure 
                                agreement with respect to the 
                                technology which meets the requirements 
                                of subparagraph (D); or
                                    ``(II) the official is required to 
                                disclose the technology to the person 
                                under State law, in accordance with the 
                                terms and conditions applicable under 
                                such law.
                    ``(C) Qualified persons described.--With respect to 
                the disclosure of election-dedicated voting system 
                technology by an election official under subparagraph 
                (B)(ii)(I), a `qualified person' is any of the 
                following:
                            ``(i) A governmental entity with 
                        responsibility for the administration of voting 
                        and election-related matters for purposes of 
                        reviewing, analyzing, or reporting on the 
                        technology.
                            ``(ii) A party to pre- or post-election 
                        litigation challenging the result of an 
                        election or the administration or use of the 
                        technology used in an election, including but 
                        not limited to election contests or challenges 
                        to the certification of the technology, or an 
                        expert for a party to such litigation, for 
                        purposes of reviewing or analyzing the 
                        technology to support or oppose the litigation, 
                        and all parties to the litigation shall have 
                        access to the technology for such purposes.
                            ``(iii) A person not described in clause 
                        (i) or (ii) who reviews, analyzes, or reports 
                        on the technology solely for an academic, 
                        scientific, technological, or other 
                        investigation or inquiry concerning the 
                        accuracy or integrity of the technology.
                    ``(D) Requirements for nondisclosure agreements.--A 
                nondisclosure agreement entered into with respect to an 
                election-dedicated voting system technology meets the 
                requirements of this subparagraph if the agreement--
                            ``(i) is limited in scope to coverage of 
                        the technology disclosed under subparagraph (B) 
                        and any trade secrets and intellectual property 
                        rights related thereto;
                            ``(ii) does not prohibit a signatory from 
                        entering into other nondisclosure agreements to 
                        review other technologies under this paragraph;
                            ``(iii) exempts from coverage any 
                        information the signatory lawfully obtained 
                        from another source or any information in the 
                        public domain;
                            ``(iv) remains in effect for not longer 
                        than the life of any trade secret or other 
                        intellectual property right related thereto;
                            ``(v) prohibits the use of injunctions 
                        barring a signatory from carrying out any 
                        activity authorized under subparagraph (C), 
                        including injunctions limited to the period 
                        prior to a trial involving the technology;
                            ``(vi) is silent as to damages awarded for 
                        breach of the agreement, other than a reference 
                        to damages available under applicable law;
                            ``(vii) allows disclosure of evidence of 
                        crime, including in response to a subpoena or 
                        warrant;
                            ``(viii) allows the signatory to perform 
                        analyses on the technology (including by 
                        executing the technology), disclose reports and 
                        analyses that describe operational issues 
                        pertaining to the technology (including 
                        vulnerabilities to tampering, errors, risks 
                        associated with use, failures as a result of 
                        use, and other problems), and describe or 
                        explain why or how a voting system failed or 
                        otherwise did not perform as intended; and
                            ``(ix) provides that the agreement shall be 
                        governed by the trade secret laws of the 
                        applicable State.
                    ``(E) Election-dedicated voting system technology 
                defined.--For purposes of this paragraph:
                            ``(i) In general.--The term `election-
                        dedicated voting system technology' means the 
                        following:
                                    ``(I) The source code used for the 
                                trusted build and its file signatures.
                                    ``(II) A complete disk image of the 
                                pre-build, build environment, and any 
                                file signatures to validate that it is 
                                unmodified.
                                    ``(III) A complete disk image of 
                                the post-build, build environment, and 
                                any file signatures to validate that it 
                                is unmodified.
                                    ``(IV) All executable code produced 
                                by the trusted build and any file 
                                signatures to validate that it is 
                                unmodified.
                                    ``(V) Installation devices and 
                                software file signatures.
                            ``(ii) Exclusion.--Such term does not 
                        include `commercial-off-the-shelf' software and 
                        hardware defined under under the 2005 voluntary 
                        voting system guidelines adopted by the 
                        Commission under section 222.''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
apply with respect to each election for Federal office held after the 
date of the enactment of this Act.