A civil rights group fears legal threats from an electronic voting company are having a "chilling effect" among Internet service providers, students and voting rights advocates.
Cindy Cohn, legal director for the Electronic Frontier Foundation, argued in court Monday that Diebold Inc. should be legally barred from sending cease-and-desist letters to activists, who are publishing links to leaked documents about alleged security blunders at one of the nation's biggest e-voting companies.
U.S. District Judge Jeremy Fogel is expected to issue a ruling on the request for an injunction as early as this week.
Free speech advocates at San Francisco-based EFF compare the case to the groundbreaking Pentagon Papers lawsuit. The secret government study of U.S. involvement in the Vietnam War was leaked to The New York Times, sparking a 1971 Supreme Court battle pitting the government against the media.
"I'm not making a judgment about which is more important, Vietnam policy or the future of voting in a democracy," Cohn said after the hearing in federal court in San Jose. "But this is important to the public debate ... and you can't squelch it."
Computer programmers, ISPs and students at least 20 universities, including the University of California, Berkeley, and the Massachusetts Institute of Technology, received cease-and-decist letters. Many removed links to Diebold documents, but some - including San Francisco-based ISP Online Policy Group - refused, and sued Diebold.
They say the leaked documents raise serious security questions about Diebold, which controls 50,000 touch-screen voting terminals nationwide. They argue they have a right to publish the data under the "fair use" exception of the Digital Millennium Copyright Act.
Looks as if they may pull it off, but not just yet
It's a politically charged topic: Diebold says the Web site contains proprietary information about its intellectual property, subject to the 1998 Digital Millennium Copyright Act (DMCA); the Electronic Frontier Foundation (EFF), which is helping defend the ISP in court, said the only thing being published are the weaknesses of the machine used in the democratic process.
At question is the issue of fair use of intellectual property -- what can be used from a product without triggering the restrictions placed by the DMCA -- and how it affected a citizen's rights under the First Amendment. What the judge will need to decide upon is the limits of fair use and whether the students stepped beyond those limits.
"(The judge) said it was clear fair use was being used here and that a lot of the information ought to be made public," Cohn said. "His main concern was whether all of it should."
The Library of Congress recently published a report, "Election Reform and Electronic Voting Systems: Analysis of Security Issues," [pdf format] that seems to indicate widespread vulnerabilities in today's e-voting machines.
The Help America Vote Act (also in PDF format here) would address the security issues inherent in these machines by forcing a paper trail on active voting machines.
Need some resources?
Black Box Voting: Ballot - Tampering in the 21st Century
Bev Harris' one-stop center for news and information about insecure elections and what you can and should do about it.
A backup site, just in case Diebold manages to get the main BlackBox site shut down again.
A nice set of clear explanatory essays at The Agonist:
Diebold Machines and Diebold Machines and Your Vote: Part II
A position paper from the U.S. Public Policy Committee of the Association for Computing Machinery
Support and activism suggestions on HAVA (currently being blocked by Republicans in congress assembled) from EFF and the League of Women Voters
Coverage from Body and Soul, Wired News, Mark A. R. Kleiman, Seeing The Forest, and Calpundit (search for Voting Machine)
via Electrolite, the kind of thing that can happen if we don't fix this
I'll be posting a link to all of this on my sidebar (why yes, I do have one), just in case you don't have the eight or ten hours to forge your way through this just now.
This is no way to play heads or tails, let alone choose who gets to send our children off to die.