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About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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Category Archives

May 31, 2005

April 23, 2004

A New Pentagon Papers Case - Newspapers, Blogs and the Diebold/Jones Day Memos

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Posted by Ernest Miller

On April 20th, the Oakland Tribune published a story regarding Diebold's alleged use of uncertified voting software in violation of California state law (Diebold knew of legal risks). The article cited and focused on internal legal memos from the Jones Day law firm showing that Diebold's own lawyers had warned of some of the possible illegalities. Online, the Oakland Tribune posted the documents in addition to the article. That afternoon, the Trib's parent company and the reporter were sued by Jones Day to have the documents returned. The judge ordered the documents returned, except for those already published on the internet (Judge: Tribune must turn over legal memos):

Jones Day's lawsuit claimed the documents were protected under California law as attorney-client communications and attorney work product, and that the defendants "improperly, and possibly illegally, secured, maintained possession of and refused to return" the documents despite the firm's demands.

Read on...

UPDATE More memos here: The inside story on California Diebold decertification -- Next: Ohio?

...continue reading.

Comments (2) + TrackBacks (0) | Category: E-Voting | Freedom of Expression

March 03, 2004

Avi Rubin's Day as an Election Judge

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Posted by Ernest Miller

Johns Hopkins University Computer Science Professor Avi Rubin is a bete noir of the e-voting industry, having been one of the authors of a famous dissection of the security flaws of one e-voting vendor's machines (Analysis of an Electronic Voting System). He has been criticized for not knowing much about the actual process of voting, being an academic and all. So, to quench the ill-founded criticism and perform his civic duty, he volunteered to be an election judge for yesterday's ballot (though he had to make a great deal of effort - apparently volunteers are not encouraged). His insightful account of the experience can be found here: My experience as an Election Judge in Baltimore County. Extremely valuable stuff for anyone interested in e-voting.

However, Ed Felten notes that (Avi Rubin's Election Judge Experience):

It must be noted that the polling place where Avi worked was not typical. Everybody seemed to know in advance who he was. One of the other poll workers just happened to be an experienced Diebold trainer. Very senior Diebold executives just happened to show up before the polls opened to make sure everything was okay.

Comments (0) + TrackBacks (0) | Category: E-Voting

November 20, 2003

Slater Wins One @ Harvard

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Posted by Ernest Miller

Derek Slater fights the good fight and wins a round (Update: Diebold, Harvard, and Me). Slater was one of the citizens engaged in e-civil disobedience against e-voting machine manufacturer Diebold's mendacity. He posted a mirror of the infamous Diebold memos, excerpts of which can be found on Rep. Kucinich's website here: Voting Rights. For his trouble, Slater received a notice-and-takedown letter from Diebold, via Harvard. Consequently, Harvard (following their own policy) entered a black mark in Slater's record for being a copyright infringer. One more notice-and-takedown letter addressed to him and Slater would lose access to Harvard's network for a year. Slater protested this policy, arguing that he shouldn't get a black mark due to civil disobedience (and the fact that his posting of the memos had a strong, although not invulnerable, fair use defense). Harvard has, in Slater's case, agreed. However, this was an ad hoc decision. Now, Harvard should revise its policy so that there is a procedure for challenging the black mark, in addition to the statutory procedure for challenging the notice-and-takedown letters themselves.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

November 19, 2003

Kucinich Posts Diebold's E-Voting Memos

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Posted by Ernest Miller

Donna Wentworth points out (Kucinich Posts Excerpts from Diebold Memos) that Representative (and Presidential Candidate) Dennis Kucinich (D-OH) has now posted excerpts of the infamous Diebold memos on his website on a page devoted to voting rights (Voting Rights). It should be noted that Diebold is now claiming that the juiciest excerpts from the leaked memos are copyright violations as well (Letter from Cindy Cohn to Judge Fogel [PDF]). While Diebold might have a colorable claim that posting all the memos is a copyright violation, there is no reasonable claim that publishing the excerpts is not fair use. It will be interesting to see how Diebold responds to Kucinich's postings.

Kucinich also condemns Diebold's use of the DMCA to silence those who have posted these memos:

Diebold has been using coercive legal claims to intimidate internet service providers and even universities to shut down websites with links to its memos and remove the memo content. Under copyright laws, however, universities are exempt, and posting links to the memos is not considered a violation of the law. By abusing the Digital Millennium Copyright Act, Diebold has intimidated numerous internet service providers to comply with its requests. The damage is two-fold: 1) limiting the public’s information about the security of its voting machines, and 2) expanding corporate control over our most free medium of expression, the Internet.

Right on, Kucinich! Will any other presidential candidates or representatives join the campaign against Diebold? Let's hope so!

UPDATE 1745 PT

Doug Simpson brings up some good points on his Unintended Consequences blog (Congressman Posts Diebold Document Excerpts). He discusses the "Speech and Debate" clause of the US Constitution (U.S. Const. art. I, § 6, cl. 1):

The Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, beprivileged from Arrest ... and for any Speech or Debate in either House, they shall not be questioned in any other Place.

And notes the analogies of the present case with Brown & Williamson Tobacco Company v. Williams 62 F.3d 408 (D.C. Cir 1995), a case involving tobacco industry documents leaked to Congress. The case is a very good introduction to the issues involved in the "Speech and Debate" clause. I second Doug's comment that, "I'd like to be a fly on the wall when those [a notice-and-takedown letter] arrive[s at house.gov's ISP]."

Comments (2) + TrackBacks (0) | Category: Civil Liberties | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

November 10, 2003

Slater's Civil Disobedience in the Harvard Crimson

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Posted by Ernest Miller

The Harvard Crimson does a pretty good write up on Derek Slater's recent notice-and-takedown message from Diebold for posting the e-voting memos (Student Accused of Violating Copyrights). Here's hoping that Harvard removes the accusation from Derek's permanent record. Seriously, Harvard needs to revisit its DMCA policy. Two strikes and you lose access to the network for a year might be reasonable for flagrant infringers, but in disputed cases, especially those involving political speech (such as Derek's), the policy is clearly draconian.

via A Copyfighter's Musings

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

November 09, 2003

NY Times Looks at Diebold

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Posted by Ernest Miller

The New York Times (reg. req.) has a decent summary of the many issues, controversies and scandals regarding Diebold's e-voting machines (Machine Politics in the Digital Age).

Comments (0) + TrackBacks (0) | Category: E-Voting

November 07, 2003

Who is John Simpson? Journalism, Lawyers and Blogging

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Posted by Ernest Miller

There has been an interesting discussion on the bIPlog regarding Mary Hodder's posting of news regarding the status of the Online Policy Group v. Diebold, Inc. case. The original post is here: Diebold Case Gets Accelerated by Judge. The comments are here: Comments: Diebold Case Gets Accelerated by Judge.

The interesting discussion starts with a "John Simpson" pointing out that while the case was accelerated, the request for a temporary restraining order was denied:

You, like everyone else in the "blogosphere" that I've seen, fails to note that the judge DENIED THE TRO!!!! That's the story, certainly more than the fact that the case was "accelerated."

A valid and worthwhile point. Probably all would have been fine if John had stopped there. Unfortunately, John begins to go off the track when he continues:

So much for Berkeley's journalism school.

...continue reading.

Comments (2) + TrackBacks (0) | Category: Blogging and Journalism | E-Voting

November 04, 2003

Siva Tracking Latest E-Vote News

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Posted by Ernest Miller

Comments (0) + TrackBacks (0) | Category: E-Voting

Harvard's Unjust Application of the DMCA

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Posted by Ernest Miller

Derek Slater hosted one of the mirrors of the Diebold memos on a Harvard server (Diebold, Harvard, and Me). Soon thereafter, Harvard received a notice-and-takedown from Diebold targeting Slater's mirror. Derek has taken the mirror down, and will not be contesting Diebold's actions (he is busy with other projects). However, Harvard has a policy of terminating network access for a year for people who have have received two notice-and-takedown letters (Even Harvard's Dean Misreads the DMCA Safe Harbor). The letter from Diebold would count as Derek's first strike. This two-strikes (without further investigation) and you're cut-off policy is bad in and of itself. However, as applied to Derek it is certainly unjust. Harvard should revise its "repeat offender" DMCA policy and not count Derek's actions as those of a repeat offender.

Good luck, Derek!

UPDATE 1205 PT

Derek writes to inform that he has not actually taken the materials down and has not yet decided on a plan of action.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

EFF, Stanford Support Diebold Countersuit

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Posted by Ernest Miller

Copyfight had the first news and a collection of interesting links for EFF's and Stanford's Cyberlaw Clinic's support for a lawsuit against Diebold (EFF, CIS Seek Court Order Against Diebold). The documents filed in the case can be found here (EFF Archive: Online Policy Group v. Diebold, Inc.).

While I applaud the efforts to shut down Diebold's attempt to silence the publicizing of evidence justifying the complaints of Diebold's critics, I'm not sure how viable some of the legal arguments being made are. Some are certainly stronger than others, but it will not be an easy case to win. For example, while I certainly think that publishing the memos is fair use, I don't think the case for fair use is so clear that Diebold "knew" that the copyright claims were false. On the other hand, Diebold certainly should have known that linking to documents hosted on another site is not covered by the DMCA notice-and-takedown claims. The misuse of copyright argument is clever, and I hope it succeeds, but it will be tough going as the doctrine isn't quite clear and most cases deal with issues relating to anti-trust, not political expression.

At the very least, however, the lawsuit should force Diebold to actually litigate the issues rather than merely rely on the notice-and-takedown provisions. Moreover, the arguments in the case will certainly be precedent-setting and very interesting.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 31, 2003

An E-Voting Machine Goes "Boo!"

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Posted by Ernest Miller

What is more frightening on Halloween than an attack on the reliability of our voting system? This is the question cartoonist Tom Tomorrow asks in an episode from his comic strip This Modern World (This Modern World: Something Truly Terrifying). See, my E-Voting Archives for more info on how truly scary this is.

via Copyfight

UPDATE 1200 PT

Siva Vaidhyanathan reprints an article from the The Chronicle of Higher Education on the additional notice-and-takedown letters Diebold has been sending to universities whose students are standing up against Diebold's bullying (3 More Colleges Receive Cease-and-Desist Letters From Maker of Voting Machines). Of course, the article is already seriously out of date. See, the Why War? website for an update list, but at least three more universities (in addition to the one's in the article) have received notice-and-takedown letters as well (Targeting Diebold with Electronic Civil Disobedience). Of course, this won't get Diebold very far ... mirrors are appearing much faster than letters being sent.

On a personal note, a friend of mine was the intended target of one of the notice-and-takedown letters. More later when he has decided how he intends to respond.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | E-Voting | Halloween | Oddities

October 29, 2003

Civil Disobedience to Diebold Moves onto P2P Networks

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Posted by Ernest Miller

bIPlog which had a great set of links on the Diebold/Swarthmore scandal yesterday (Cease and Desist Me, Babe) and was Slashdotted this morning (Diebold Chases Links To Leaked Memos), points to an interesting /. comment (/. Comments):

Yea, that's right, go on kazaa and type in Diebold and you'll find the mail....on over a hundred different hosts with quick speedy downloads to par!

Same's true for all the p2p apps, even the waste network I'm on! Sorry Diebold, I'm not gonna stop hosting your memo's until your entire goddamn corperation is taken down and the lie is revealed.

When will companies learn that often times the best way to solve a problem is to ignore it? Diebold's heavy-handed efforts to stamp out the distribution of the memos is only increasing their distribution and public awareness.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | File Sharing | Freedom of Expression

Diebold Protest Growing

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Posted by Ernest Miller

WIRED is continuing coverage of the Swarthmore/Diebold scandal and gets some quotes from Swarthmore's Dean Gross (E-Vote Protest Gains Momentum). However, the issue of taking down links to sites that link to the memos is not directly addressed:

However, Gross said that the cease-and-desist letter specified taking down links to the memos, and school lawyers felt they had to comply.

But the issue isn't direct links to the memos (though the EFF is challenging that), but links to sites that have direct links to the memos.

In another update, the Why War? website now shows nineteen active mirrors for the memos and three mirrors shutdown due notice-and-takedown letters from Diebold (Targeting Diebold with Electronic Civil Disobedience). Students from a total of twenty schools are participating.

bIPlog has a good round up of stories and cheekily requests a cease-and-desist letter (Cease and Desist Me, Babe).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 28, 2003

Diebold Countering Civil Disobedience with More Notice-and-Takedown Letters

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Posted by Ernest Miller

Why War? reports that two of the universities (Amherst and MIT) which have students engaging in electronic civil disobedience by hosting the infamous Diebold memos have received notice-and-takedown letters from Diebold. On the other hand, students at three more universities have joined the protest (Targeting Diebold with Electronic Civil Disobedience). The student at MIT who was the indirect target of the letter has his homepage here (C. Scott Ananian).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Swarthmore's Professor Burke on the Diebold/Swarthmore Scandal

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Posted by Ernest Miller

Prof. Timothy Burke of Swarthmore's History Department has a thoughtful post on the Swarthmore/Diebold scandal (Caveat Emptor). While appalled by Diebold's actions and proud of the students who have revealed the mendacity of Diebold, he finds fault with some of the students' tactics and defends Swarthmore's response. Much of his argument is well-taken and provides good guidance for civil protests on college campuses (such as, don't ask /. readers to email the Dean en masse).

However, I do take exception to the claim that I and others "[repeat] what they’re finding at the Why War? website as if it’s the absolute gospel truth, and [exhibit] zero curiosity about the totality of the story." I do not believe that accurately characterizes my following of the story. For example, in this post (Swarthmore Crackdown on Protesting Students Reaches New Low), I am clearly skeptical of the claims of the Why War? website:

Now, Swarthmore is allegedly terminating the internet connection of any student who links to the Why War? website .... If the allegations are true, this is a tremendous violation of freedom of expression and academic freedom. [emphasis added]

In accordance with my skepticism, I actually tracked down, telephoned, and spoke with two principles of the story, a student whose website was shut down and a member of Swarthmore's IT department. I hardly think making phone calls to confirm the posting is "exhibiting zero curiosity."

I'll also note that as a followup, I spoke with a member of Swarthmore's IT department again yesterday. The linking policy is, as of last night and according to this individual, unchanged. Students may have a text-based link to the Why War? site, but not an active HTML link to the site.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

This is not the Link You're Looking For

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Posted by Ernest Miller

There is a nice little satire of the Swarthmore/Diebold link scandal being hosted on a Georgetown server (The Diebold Memos are NOT here).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression | Oddities

October 27, 2003

Diebold Filing False Notice-and-Takedown Claims?

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Posted by Ernest Miller

SiliconValley.com is running an AP wirestory on the Swarthmore/Diebold scandal (Diebold threatens publishers of leaked electronic-voting documents). Perhaps this story is finally going to break in the mainstream press and get the attention it deserves.

Of particular interest in this story are the following paragraphs:

Company spokesman Mike Jacobsen said the fact that the company sent the cease-and-desist letters does not mean the documents are authentic -- or give credence to advocates who claim lax Diebold security could allow hackers to rig machines.

"We're cautioning anyone from drawing wrong or incomplete conclusions about any of those documents or files purporting to be authentic," Jacobsen said.

Hmmmm ... Well, according to the DMCA, a proper notice-and-takedown letter must include (among other things) the following:

  • Sufficient information to identify the copyrighted works [17 USC 512(c)(3)(A)(iv)]
  • A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [17 USC 512(c)(3)(A)(v)]

If the documents aren't authentic, then how can Diebold meet these burdens?

Unfortunately, this isn't as clear cut an issue as it should be, since one doesn't have to be too specific about which documents need to be taken down. Diebold can essentially claim that most of the documents (the non-incriminating ones) are copyrighted and that they don't have to show which specific documents need to be taken down, particularly if the archive file contains many documents. However, if various individuals post only a handful of the most incriminating documents ... then Diebold would be forced to claim that the documents were authentic, if they want those specific documents removed.

Comments (2) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

The Chronicle on the Swarthmore Controversy

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Posted by Ernest Miller

The Chronicle of Higher Education has an article on the electronic civil disobedience ongoing at Swarthmore and (now) eleven other colleges. Unfortunately, I can't link to the article on the Chronicle's site because a subscription is required. Fortunately, you can read the whole thing on Why War?'s site (Swarthmore Shuts Down Web Sites of Students Publicizing Company's Voting-Machine Memos).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Swarthmore Civil Disobedience Campaign Growing

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Posted by Ernest Miller

Why War? reports that three more schools have joined the electronic civil disobedience campaign, bringing the current total to eleven schools (Targeting Diebold with Electronic Civil Disobedience).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 25, 2003

Electronic Civil Disobedience Spreads - Students from 8 Universities Participate

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Posted by Ernest Miller

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Finkelstein to Swarthmore - Don't Give in to Chilling Effects

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Posted by Ernest Miller

Seth Finkelstein has published an email he has sent to Swarthmore's Dean Gross, asking him to resist the fear of liability and take a stronger stand in defense of freedom of expression (My letter to Swarthmore supporting fight against Diebold):

Yet I would say that Swarthmore, as an educational institution, is in fact extremely well-positioned to fight against Diebold. Though I'm not a lawyer, I'd claim that courts are generally extremely well-disposed to colleges in a situation such as this. The public interest and educational purpose aspect weigh very heavily, formally in a fair use copyright defense, and also informally in terms of making for a sympathetic presentation.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 24, 2003

Reimerdes and Linking Re: Swarthmore

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Posted by Ernest Miller

Seth Finkelstein pulls out the quotes on the legality of linking from the Universal v. Reimerdes (DeCSS) case in light of the recent decision by Swarthmore to stop all student webpage links to Why War? (Diebold memos and linking prohibitions at Swarthmore). This points out once again the large amount of foolishness in the Reimerdes decision. Nevertheless, Reimerdes was concerned with whether or not linking to a page that links to an anti-access control circumvention device was trafficking or not, and did not squarely address the issue of whether linking to a page that links to infringing content was actionable.

It would be quite a stretch to hold that linking to a page that links to infringing content is actionable, especially in case such as Diebold's memos where there are strong fair use and public policy arguments defending the posting of the allegedly infringing content itself. In any case, there is no justification whatsoever for Swarthmore to take down student websites that link to Why War? If courts could find ISPs liable for hosting third-party websites that link to a page that links to infringing content, what ISP wouldn't be liable? Swarthmore has gone far beyond simply being risk adverse.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 23, 2003

Swarthmore Crackdown on Protesting Students Reaches New Low

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Posted by Ernest Miller

According to the Why War? website, Swarthmore's crackdown on students engaging in Electronic Civil Disobedience has reached a new low (Targeting Diebold with Electronic Civil Disobedience). Now, Swarthmore is allegedly terminating the internet connection of any student who links to the Why War? website, which links to sites hosting the Diebold internal company memos. They are not only terminating the accounts of students who host the files, or the accounts of students who link to the files, but terminating the accounts of students who link to a political protest site that links to the files.

If the allegations are true, this is a tremendous violation of freedom of expression and academic freedom. Swarthmore should be deeply, deeply ashamed.


Previous stories:

Swarthmore Actively Opposes E-Civil Disobedience Campaign
(Electronic) Civil Disobedience at Swarthmore

UPDATE 1745 PT

EFF responds to one of Diebold's notice-and-takedown letters (Re: Diebold’s Copyright Infringement Claim). via Copyfight

UPDATE 2 1840 PT

It Gets Weirder

I have spoken with the student whose website was shutdown. According to the student, his website was redirecting to the Why War? website before it was taken offline. After it was taken offline, he was informed by a member of the Swarthmore IT department that it was the new policy of Swarthmore that students were no longer permitted to link to the Why War? website using HTML anchor tags. However, they could point to the Why War? with plain text, as so: http://www.why-war.com/

See the current page of the student here.

UPDATE 3 1900 PT

I have spoken with a member of Swartmore's IT department and can confirm that two student pages have been shutdown for linking to a page on Why War?'s website that linked to the Diebold files. Swarthmore is currently re-evaluating its linking policy, but until they are satisfied that they cannot be held liable, students are asked to only post plain text that points to the Why War? website.

Comments (2) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Swarthmore Actively Opposes E-Civil Disobedience Campaign

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Posted by Ernest Miller

As noted yesterday ((Electronic) Civil Disobedience at Swarthmore), students at Swarthmore have begun an electronic civil disobedience action to keep on hosting internal memos about the security failings and knowledge of same from the electronic voting machine manufacturerer Diebold. Diebold has been waging a DMCA-based notice-and-takedown campaign to keep those damning memos off the internet. Students at Swarthmore have attempted to defeat this campaign by playing an organized game of whack-a-mole, as volunteers take over hosting once a current host receives a notice-and-takedown letter.

Yesterday afternoon, the students met with Swarthmore's Dean. Rather than provide support for, or at least take no action against, the students, Swarthmore has decided to cooperate with Diebold. According to the (Campaign Update: Day Two), it seems that Swarthmore is pre-emptively disabling the network accounts of any student hosting the files. Although the post is somewhat unclear it seems that Swarthmore intends to shut down all network access for a student hosting the files, even if that particular student has not yet been challenged by Diebold. This seems to be a very risk adverse position for the university to take and counter to its academic mission. Certainly, the university is under no obligation to shut down all network access to the protesters, but merely remove the offending files. Multiple violations by the same individual could be a different concern, but this is not what is being alleged. Furthermore, it is not clear to me that Swarthmore has a legal obligation to actively take down websites prior to notification by the alleged copyright holder. I can't say for sure without some more review, but I believe the DMCA safe harbor provisions would provide plenty of protection if the university merely waited for the inevitable notice-and-takedown letters to arrive before taking action.

In any case, in response, the two student groups behind the protest, Why War? and Swarthmore Coalition for the Digital Commons (which no longer appears to be functioning), have decided to take two different paths. Why War? will continue hosting the files, while the SCDC has taken down the files but will face Diebold in court.

This looks to be a very interesting action on both sides.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting

October 22, 2003

(Electronic) Civil Disobedience at Swarthmore

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Posted by Ernest Miller

WIRED reports on the clever and brave Swarthmore Students who have vowed to keep electronic voting machine maker Diebold's internal memos concerning security flaws in their systems online despite a rash of cease and desist orders (Students Fight E-Vote Firm). The memos, which detail some shady goings on at Diebold concerning their selling of insecure systems to various states, were leaked (or illicitly taken from a Diebold server by a hacker) and provided to e-voting activists and journalists. Subsequently, Diebold has been prolifically sending out notice-and-takedown letters under the DMCA claiming copyright violation in publishing the memos.

Most respondents, unable to contest a copyright suit, have taken down the memos, although one ISP has refused to comply with a notice-and-takedown letter regarding a page that didn't host, but linked to the memos (ISP Rejects Diebold Copyright Claims Against News Website). Now, however, students from Why War?, a nonprofit student organization at Swarthmore, and the Swarthmore Coalition for the Digital Commons (which is modeled on and inspired by the EFF), have developed and are implementing a clever (if not entirely legal) way to get around the DMCA's notice-and-takedown provisions, which they call an "electronic civil disobedience campaign".

Essentially, the students are playing an organized game of whack-a-mole. Each time one of the students receives a notice-and-takedown letter, they move the memos to another student's machine. The memos can always be found through links on the Why War? and SCDS websites.

The only real way for Diebold to stop this is to start suing students. Though Diebold might be successful in a lawsuit (though that isn't guaranteed, there are some decent fair use defenses here), they would certainly lose in the court of public opinion.

Slashdot readers comment on the Swarthmore students' press release (Swarthmore Students Keep Diebold Memos Online).

The students will apparently be meeting with Dean Robert Gross this afternoon, according to this comment on how to help the students (How to Help Us - 3 Steps).

Go Swarthmore Students!

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting