Months before Fox News, HBO aired voting machine allegations in a documentary. It wasn’t sued

While Dominion Voting Systems is suing Fox News for $1.6 billion for defamation for reporting on allegations its voting machines were hacked and flipped election results in the 2020 presidential election, the company hasn't taken legal action against HBO for a 2020 documentary detailing the alleged vulnerabilities of its machines.

HBO's "Kill Chain: The Cyber War on America's Elections" includes interviews with politicians, cybersecurity experts and hackers discussing issues with voting machines. Released in March 2020, the documentary is still available to watch on HBO Max.

One of the hackers interviewed, Harri Hursti, successfully hacked a Diebold Election Systems voting machine in a 2005 test and changed the votes in one step without a trace, according to an April 2020 Forbes article about "Kill Chain." 

A 2006 documentary called "Hacking Democracy," which showed Hursti's hack, aired on HBO multiple times, according to the 2006 film's website. The documentary was nominated for an Emmy award in 2006.

Before the documentary's premiere, Diebold asked HBO to pull "Hacking Democracy" from its schedule or, failing that, prominently run a 30-second disclaimer with each airing acknowledging that HBO had not verified the accuracy of the film's claims and referring viewers to a Diebold rebuttal on the HBO website. Diebold said Hursti's purported hack of one of its machines had been proved to be a "complete sham."

Diebold was bought by ES&S in 2009, and then Dominion in 2010. 

"None of the vulnerabilities found by Hursti were ever fixed" after Dominion bought Diebold, wrote Forbes contributor Jody Westby, noting that those "same machines" were "planned for use in 20 states in the 2020 election."

The 2020 documentary covers various ways an election can be tampered with, including machine malfunction, changing votes and voter registration records, and causing issues with voter check-in equipment, according to the Forbes article.

According to Forbes' review of "Kill Chain," former Air Force cyber analyst Jake Stauffer, who tested ES&S and Dominion voting systems for the state of California, says in the film that he found that Dominion's Democracy Suite voting equipment has vulnerabilities that allow for off-line ballot tampering, denial of service attacks, and remote code execution. "How can a vendor sell a voting system with this many vulnerabilities?" he asks.

On Dominion's fact-check page, it cites a claim by the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency that there "is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised" in the 2020 election.

Despite the many allegations of Dominion machines' vulnerabilities leveled in HBO's "Kill Chain," Dominion never filed a lawsuit against HBO.

Dominion declined to comment.

HBO didn't respond to a request for comment.

Meanwhile, in Dominion's ongoing legal battle with Fox News, the media outlet and its parent company Fox Corporation this week filed their opposition briefs to Dominion's summary judgment motion, arguing the plaintiff is attempting to redefine the First Amendment.

"Dominion's lawsuit has always been more about what will generate headlines," Fox News said in a statement Monday, "than what can withstand legal and factual scrutiny, as illustrated by them now being forced to slash their fanciful damages demand by more than half a billion dollars after their own expert debunked its implausible claims.

"Their summary judgment motion took an extreme, unsupported view of defamation law that would prevent journalists from basic reporting and their efforts to publicly smear FOX for covering and commenting on allegations by a sitting President of the United States should be recognized for what it is: a blatant violation of the First Amendment."

Dominion filed its own opposition brief on Monday to a motion for summary judgment filed by Fox News, and responded to the media company's First Amendment claims in a statement.

"Dominion is a strong believer in the First Amendment and its protections," according to Dominion's statement on Monday. "As long-settled law makes clear, the First Amendment does not shield broadcasters that knowingly or recklessly spread lies."