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BY MATTHEW FITTING

In print | October 30, 2003

In the past week, computer users at 30 other colleges and universities have broken the law by possessing more than 13,000 potentially damaging memos written by employees of a national voting machine corporation, all following the initial example set by a student at Swarthmore.

In that same week, Swarthmore itself has taken further steps to comply with the Digital Millennium Copyright Act (DMCA), of which it found itself in violation last week when it received two cease-and-desist orders sent from Diebold Election Systems Inc., a voting machine firm.

The orders demanded the removal of more than 13,000 memos taken from an internal Diebold Web site that was accessible to the public. Diebold, in the order, claimed that possession of the memos constituted copyright infringement.

A user at the college, who is also a member of the organization Why War?, had gained access to the memos and had stored them on his hard drive.

The college disconnected that user’s computer from the network last week, complying with DMCA safe harbor guidelines, which protect the college legally in possible cases of copyright infringement. But the memos are still available on the group’s Web site, www.why-war.com, and have been for the three weeks.

The college has also taken steps to ask any user providing a link to the Why War? Web site to remove it, a move that Dean of the College Bob Gross ‘62 said was recommended by the college’s legal advisers.

Group member Micah White ‘04 characterized the move as ridiculous. "That’s the whole point of the Internet, is linking. It’s our college basically going as far as possible to take a stand on these memos," he said.

Even so, White said, in the past week, when it became known that the college user and Why War’s Web site carried the memos, more than 20,000 to 30,000 users worldwide have downloaded the entire archive of communication between Diebold employees. That amounts digitally to more than 11 megabytes. Users at 30 other schools, by downloading the memos, have now raised the risk for their institutions of facing a similar order, and four already have.

“What’s really interesting is, as far as I know, there’s very few examples of mirroring controversial materials across colleges and universities,” White said.

Why War? members, however, expect that their server will be likewise receive a cease-and-desist letter within the week. White said they were unsure how the server managers would respond. “Our host has told us that they believe mirroring [of the memos] is legal,” he said.

National media, including The New York Times and MSNBC, have been questioning the corporation more and more in the past few months regarding the quality of its product, which is used by roughly 52 percent of polling places in America. The company’s chairperson has aroused concern by raising $9,000 for President Bush personally and raising more than $100,000 from other donors for the President’s re-election campaign.

At their most potentially damaging to Diebold, the memos state that a smart card available for purchase to the public could change the number of votes registered by a machine. They also reveal that in one precinct in Florida in the 2000 Presidential elections, Al Gore received negative 16,000 votes, an impossibility on a paper ballot.

White continued to criticize the college’s refusal to take a stand on the issue, but he said there was hope for a change. “We’re not giving up on Swarthmore,” he said. “We think Swarthmore still has the chance to change its decision and support legal voting. One thing we think people don’t realize is, if someone doesn’t stand up, this issue won’t get resolved until after President Bush’s re-election. It’s a necessity. Someone’s got to take a stand.”

Though Gross said the college was unwilling to engage in an act of civil disobedience and allow the memos on its server, White said there were other options. One possibility would include forming an ad hoc committee to investigate the potential educational value of the memos, which would involve students and faculty members reading all of the more than 13,000 documents.

The University of California at San Francisco in 2001 set a precedent by doing just that when several of its students obtained memos potentially harmful to several large tobacco companies. Though the companies brought legal action, the university ultimately won the case that questioned its decision to form a committee, which took place in the United States Supreme Court.

Gross did not rule out this or other future options, all of which are currently under discussion. “I wouldn’t say that’s out of the question, but [Why War? is] asking us for an immediate decision, and this is something that requires a deliberative process,” he said, adding that such a process would have to involve the Board of Managers.

“I’m not familiar with the UCSF situation, but it may have taken them a little time too,” the dean added. “I think it’s something we should look into. We’re not in a position to say the Digital Millennium Copyright Act is wise or even that the orders we’ve received from attorneys are compliant [with the DMCA].”

Gross received about 300 to 400 e-mails before last Wednesday’s public meeting in Parrish Parlours, where the dean and the head of Information Technology Services answered the college’s questions about the situation. All the e-mails praised him for protecting the user who was holding the possible illegal memos.

After the meeting, the college announced it would disconnect that user’s computer, but support any counter-notice sent to Diebold questioning whether possession of the memos was, in fact, copyright infringement, as Diebold charged in its cease-and-desist order.

After the meeting, and in the week since, Gross said he has received “another few hundred calling me a coward.”

Swarthmore will soon issue a statement explaining its actions to the community, the dean added. “So far, the characterization of the college’s reaction is [solely] from Why War?” he said, implying a dissatisfaction with that situation.

Though the college has not heard from the 30 others now, according to Diebold, in violation of the DMCA, Gross said Swarthmore welcomes discussions on the subject. “We’d be happy to engage with others in seeing this about,” he said. “We’d certainly like to see the [legal] substance of the letter[s] examined publicly.”

Swarthmore Coalition for the Digital Commons, a student group which considered filing a counter-suit against Diebold, would not comment on the situation.

As of yesterday evening, memos were hosted by students at schools including Amherst, Boston University, Duke, Harvard, MIT, Princeton, UC Berkeley, University of Chicago, University of Pennsylvania, University of Southern California and Yale. A cease-and-desist order was sent to MIT on Tuesday and UPenn on Wednesday.

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