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?
And what sort of relief was Jones Day asking for?
"They asked for an order directing the defendants to return all copies of what they're calling protected documents in whatever form they exist, and all notes, summaries, digests and other recordings of the documents," said Jean-Paul Jassy, the attorney representing MediaNews Group and Hoffman.
"They were also asking for a restraining order preventing any further use of the documents for any purpose ... but about halfway through the hearing they said they were no longer asking for that second point."
That last point, which Jones Day apparently dropped, is known as a prior restraint and is severely frowned upon by the First Amendment - something the judge apparently understood. However, the paper was required to turn over everything they possessed:
In a three-hour hearing Tuesday evening, [Los Angeles Superior Court Judge Dzintra] Janavs said she wouldn't prevent future stories from being written about the documents. In a one-page, handwritten order, she directed the defendants to turn over to her "all copies of Jones Day documents marked 'attorney work product, privileged and confidential' whether on Jones Day letterhead or not, forthwith."
The order to turn over the documents is being appealed and I certainly hope they succeed. Unless there has been criminal action by the reporter to obtain the documents (and even then one should only sue on the illegal action), newspapers must be free to report on such documents when they come to light. If a newspaper can publish the Pentagon Papers, I don't see why a newspaper can't publish some legal memos regarding our voting system.
However, there was a major exception to the order:
"This order does not apply to replicas of such documents already published on defendants' website," the judge concluded.
Bravo judge! The cat's out of the bag ... why should Jones Day get to stuff it back in when the Pentagon couldn't?
Of course, one might note that bloggers would have been much more likely to publish a story based on the memos and publish all the memos simultaneously. There would be nothing left to return to Jones Day under the judge's order; it all would have been published on the internet. By trying to maintain an exclusive, the newspaper has created the possibility that the documents will be suppressed.
The documents that were published on the internet are:
ACTION AND BUDGET ESTIMATES: TWO MONTH PLAN [PDF]
Comprehensive Position Paper: This would be a synthesis of the above analysis plus additional factual and legal development. This would be the basis for white papers, responding to subsequent developments, persuading prosecuting authorities not to bring criminal charges, defending the False Claim Case, reports to board, press releases, governmental and media inquiries and filings. This is recommended given the exposure but is a decision for the client. [emphasis added]
Summary for Two Month Estimate: $535,000 -$925,000
My summary: Money on lawyers is apparently money better spent then money spent on fixing the actual problems.
DIEBOLD ELECTION SYSTEMS Re: Alameda County Agreement [PDF]
This is a great 10-page document:
This memorandum briefly discusses the applicable California law regarding certification of voting systems and identifies provisions of the Agreement that Alameda County might contend were breached if it was provided with an uncertified voting system. This memorandum does not analyze potential defenses or counter arguments that can be made by Diebold ( e.g., the Secretary of State's failure to establish or enforce specific regulations requiring certification of new versions, etc.). Instead, the memorandum focuses on the potential arguments that might be made by Alameda County.
Here is a sample:
A. Issue: Whether the use of an uncertified voting system is illegal? Short Answer: Yes. All voting systems must be approved by the Secretary of State before use in any election. See Cal. Elec. Code § 19201.
B. Issue: Whether Diebold breached the Agreement if it provided Alameda County with an uncertified voting system? Short Answer: Most likely. If Diebold provided Alameda County with an uncertified voting system that was used in an election, then Diebold most likely breached provisions of the Agreement requiring Diebold to comply with all applicable laws. [emphasis in original]
DIEBOLD ELECTION SYSTEMS, INC. Re: Issues Regarding California Secretary of State Investigation [PDF]
This document has a more detailed analysis of issues specific to the California Secretary of State:
A. Issue: Whether the California Secretary of State can issue a conditional certification of a voting system ( or, of a modified version of a voting system that was previously certified)? Short Answer: Probably not. The Secretary of State Procedures for certifying voting systems ("SSP") permit conditional certification, but if the SSP are invalid and without legal effect, the Secretary of State must rely on the California Elections Code, which does not contain any provision allowing for conditional certification. The California Elections Code contains explicit procedures for examining and certifying voting systems. The Secretary of State must examine every voting system submitted by vendors without undue delay and issue a report within 30 days after the examination stating whether the voting system is accurate and efficient and can safely be used in elections. See Cal. Elec. Code §§ 19202 & 19207. If the Secretary of State's "report states that the voting system can be used, it shall be deemed approved by the Secretary of State and machines or devices of its kind may be adopted for use at elections." Cal. Elec. Code § 19208. [emphasis in original, footnotes omitted]
More good stuff:
A. Issue: Whether a California State approved voting system may be modified for experimental use without the Secretary of State's approval? Short Answer: Probably not. The California Elections Code provision allowing for experimental use of a voting system in an election without Secretary of State certification most likely only applies to new and uncertified voting systems. See Cal. Elec. Code § 19211. Once a voting system has been approved by the Secretary of State, any change or modification to the system must be approved by the Secretary of State before it may be used in an election. See § 19213.3 [footnotes omitted, emphasis in original]
This time the discussion includes some of Diebold's potential counter arguments:
DESI may, however, argue that it did not need to obtain approval from the Secretary of State for its changed or modified voting system if the system is considered a new voting system. DESI's argument would be that the change was not a modification of an approved system, but instead was a completely new system. A "system" includes any combination of any mechanical, electromechanical, or electronic system and its software. See § 363. Under this broad definition, even a change to part of voting system may constitute a new system under certain circumstances. Still, DESI would probably need the local governing board to affirm that its use of DESI's new or changed system was for experimental use. [footnotes omitted, emphasis in original]
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.
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.
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.
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]."
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.
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).
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.
First, let me note that Hodder's post was factually correct. However, it was rather short and didn't note what some would consider the more important aspect of the ruling (though you likely would have to be a lawyer to know this). Still, a blog doesn't get a news posting the way John prefers and suddenly an entire institution is called into question? Get a grip, John.
The problem seems to be that John, in a common error, expects too much from blog postings:
With all your [Hodder's] talk about "creating discussion" and "evolving the discussion" and "foster[ing] the iteration of what we know about something," you seem to have forgotten the basic rules of journalism, i.e., don't publish before you know the relevant facts.
If blogs always waited to post until they had all the relevant facts, there would be many fewer blogs. There would be much less journalism in general. This is not to denigrate the gathering of all relevant facts, but simply to note that publishing on a timely basis sometimes prevents one from gathering every relevant fact.
In any case, unlike much traditional journalism, blogs provide something better than waiting for all the relevant facts ... they provide links that let readers do their own research and investigation to verify what the blog is saying. Let's remember that Hodder's post was factual and provided a link to EFF's document archive, where (as soon as it was posted) one could read the order itself (Order to Show Cause Re Preliminary Injunction and Denying Temporary Restraining Order [PDF]). Hodder may not have seen all the relevance of the accelerated schedule re the TRO, but she pointed interested parties to the sources where one could get more information.
So, in fact, John's argument is not particularly on point. Hodder had the facts right. What she didn't have was the subjective interpretation of the facts. If you are going to condemn journalists for getting subjective interpretation of facts wrong, then instead of saying "So much for Berkeley's journalism school" you should say "So much for journalism itself."
Of course, blogs have advantages when it comes to interpretation error. You get the meaning of the facts wrong (or even the facts themselves), you can update a blog and respond much quicker, just as this discussion has developed over the past 24 hours. A letter to the editor for a newspaper story would still be in the post office while this conversation has already developed quite substantially. As Hodder notes, blogs are iterative; they're not the "first draft of history," they are the "rough scribbled notes of history." Blogs are quick to err and quick to correct. Anyone who reads my blog postings knows that I often provide caveats based on a "quick reading" or "as the facts are currently known." If you are reading blogs for the definitive story, you've got the wrong medium.
The fact that you blame your ignorance on the EFF's web site is really telling (and so is the fact that your headline nearly mirrors theirs); they are a zealous, biased interest group whose statements should be subject to a high degree of skepticism, as should the statements of all such partisan groups. Or do such rules of fairness and accuracy not apply in the "blogosphere"?
John makes a big point about EFF being a "zealous, biased interest group." Interestingly, we know nothing about John's biases. We know he claims to be a lawyer, but that is all. For all we know, John represents Diebold. Who is John Simpson and what are his biases?
Moreover, Hodder wasn't hiding where she got her information from. It is sad that Diebold is not hosting a similar resource to EFF's or releasing alternative press releases, but I'm sure if they did Hodder would have linked to them as well.
In any case, bIPlog doesn't claim to be "objective." The mission of bIPlog is "to advance the debate over intellectual property by aggregating noteworthy, factual information with thought-provoking commentary." I know that bIPlog tries to be fair and accurate, but that doesn't mean unbiased. Of course, being opinionated means that sometimes you are wrong. It isn't the end of the world when that happens.
You are at a journalism school! Practice some journalism! Call the lawyers -- on BOTH sides. Call the court -- try to get a copy of the order. Ever heard of "shoe leather"? "Pounding the pavement"? Or is that considered old-fashioned in the blessed "blogosphere"? If this is what they teach at journalism schools these days, Lord help us all.
John's complaint is that a blog at a journalism school doesn't practice traditional journalism. It is a blog, John, not a newspaper. The rules haven't yet been set in concrete, but they probably don't include treating posts the same way one would treat an article in the newspaper. Blogs are quick and dirty, with lots of links. This doesn't mean that you won't sometimes practice traditional journalism (I've been known to make a few phone calls myself and go to courthouses), but most people I know expect blogs to rely more on secondary sources then primary ones.
This doesn't justify "inaccuracy, unfairness, or, frankly, laziness," but one has different expectations for a blog than one has for a newspaper, just as one has different expectations for a law journal article as opposed to a legal newspaper.
Anyway, John's problem with Hodder's post wasn't that she had the facts wrong, but that she didn't interpret them in a way that John thought proper. Memo to John: Non-lawyer journalists frequently misinterpret legal holdings (that is why they are journalists, not lawyers). It isn't a good thing, but it is hardly cause to cry "Lord help us all." The polite way of responding to journalists who lawyers believe have misinterpreted a legal holding is to simply point out a better interpretation - without essentially calling the blogger an embarrassment to journalism or denigrate the "blogosphere."
As far as the substantive aspects of John's arguments, I agree that EFF is stretching their legal arguments (EFF, Stanford Support Diebold Countersuit). However, I also have to disagree with John's prediction:
I am fairly confident that the judge will NOT issue the order requested by the EFF, i.e., one forbidding Diebold from issuing C&D letters. I predict that the judge will find that such an order would be clearly barred by the First Amendment.
I predict that the judge will NOT have to reach constitutional issues to deny EFF their requested relief. I predict that the judge will be able to deny the order on grounds other than the First Amendment.
Siva Vaidhyanathan has been blogging up a storm on the latest news on e-voting and the Diebold scandal (California panel delays certifying electronic voting equipment) (Breaking News: Electronic Voting Problems in Houston) (WNYC Covers Electronic Voting ... Badly).
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.
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.
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.
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.
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.
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).
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).
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]
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.
There is a nice little satire of the Swarthmore/Diebold link scandal being hosted on a Georgetown server (The Diebold Memos are NOT here).
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:
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.
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).
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).
Why War? reports that students from eight universities are now participating in the electronic civil disobedience campaign against e-voting machine manufacturer Diebold (Targeting Diebold with Electronic Civil Disobedience).
The mirrors are (when this was posted) here: USC, MIT and here, Purdue, University of Texas–Pan American, Amherst, Hampshire, RIT, Univ. of Evansville
Previous stories:
Swarthmore Actively Opposes E-Civil Disobedience Campaign
(Electronic) Civil Disobedience at Swarthmore
Swarthmore Crackdown on Protesting Students Reaches New Low
Reimerdes and Linking Re: Swarthmore
Finkelstein to Swarthmore - Don't Give in to Chilling Effects
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.
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.
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.
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.
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!
