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BY MATTHEW FITTING

In print | October 23, 2003

More than 13,000 pages of internal memos filed by employees of voting machine maker Diebold Election Systems have, in the past two days, served as the center of a controversy that has the potential to be legal, political and national.

At their most eye-raising, the memos include excerpts that admit that a precinct in Florida in the 2000 presidential elections gave Al Gore minus 16,022 votes when uploaded into the county tally — more than the number of votes by which Gore lost the presidency. Another admits that a generic Smart Card, available for purchase by the public, could attain administrative status on a voting machine — and thus change the number of votes counted — simply if someone inserted it into that machine.

Downloaded from an internal Diebold Web site that could be accessed publicly, the memos came into the possession of a college network user, who is also a member of the organization Why War? How Diebold knew the memos were on the user’s computer is unclear, though Why War? posted the memos on its Web site two weeks ago. According to Wired magazine, the corporation has asked half a dozen other people hosting the memos in the United States, Canada, Italy and New Zealand to take the material down. It did the same Tuesday, contacting Information Technology Services and ordering the college to cease and desist in providing a server for these memos.

Micah White ‘04, a Why War? member, said the group’s Web site would maintain that availability in an act of electronic civil disobedience, especially in light of the college’s decision yesterday to shut down network access for the user’s computer that contained the memos. Meanwhile, the Swarthmore Coalition for the Digital Commons (SCDC) will consider pursuing a legal approach against the order and Diebold.

Swarthmore, according to Dean of the College Bob Gross ‘62, will not take an official position on the issue, as that it is unrelated to the college’s educational goals “The college is an institution,” he said. “It is not its position to take a stand on an issue that does not directly relate to its mission.”

Diebold’s order, and the college’s submission to it, was in accordance with the Digital Millennium Copyright Act (DMCA) and its safe harbor guidelines. The DMCA, essentially, says that, though most issues of copyrighted material usually involve only one responsible party, those such as this recent controversy have two: the user and the server.

Under the DMCA, an ISP must comply with a cease-and-desist order automatically to be in accordance with safe harbor provisions, said Branen Salmon ’04, who described himself as a legal consultant to SCDC. “[Diebold is] taking advantage of the good faith lack of judicial review in the safe harbor provisions of the DMCA in order to threaten people without any legal basis,” he said. “This is a profoundly effective tool for intimidation, because Diebold can issue these orders … without even getting a legal team involved.” Salmon has been in contact, on behalf of SCDC, with the Electronic Frontier Foundation, a legal group that may represent those involved in any resulting legal action.

But, according to Judy Downing, director of ITS, for the college there was no other course of action. “What we have said to the world is, in good faith, here is what we are doing,” she said. “We’re not going to play a cat-and-mouse game — we’re going to have integrity when we say these are the steps the college has taken.” Complying with safe harbor guidelines, according to Gross, is the only way the college can avoid legal liability.

Gross declined to comment on what action the college might take should it receive another cease-and-desist order.

Diebold did not return phone calls and has refused to comment to other news organizations.

Looking ahead to legal issues

“The question of whether Diebold has a copyright on these items — that’s not a question,” Salmon said. Diebold does, in fact, hold such a copyright on these items. “The question is whether reproduction of these memos is a fair use of that copyrighted work.” Using the memos in the context of discussion and publicity, as Why War? hopes to do, is legal, in the opinion of Salmon and the EFF.

Four criteria generally determine fair use: first, the purpose of reproducing such a work; second, whether the work is factual or fictional; third, the amount and substantiality of the excerpts from the work; fourth, whether the fair use has a negative impact on the marketability of the copyrighted works.

First, according to Salmon, these memos are critical to a national, political discourse, a purpose protected by copyright provisions. Second, factual works, as the memos undoubtedly are, are accorded more leeway than fictional works. The third criteria, as well, is generally applied to fictional works. It applies here because the memos do not constitute a substantially expressive work; they are a collection of facts, rather than a cohesive, creative effort, but they are still less likely to fall on legal ground. In terms of the fourth criteria, since there was never a market for these memos to begin with, their value is not adversely affected by their reproduction.

Salmon said at yesterday’s public meeting, hosted by Gross and Downing, that, based on his knowledge of the company’s history, especially regarding copyrighted material, the cease-and-desist order amounts to a bluff. Research done in the past at Rice and Johns Hopkins Universities has resulted in Diebold threatening legal action; when groups at both schools protested, Diebold backed down.

SCDC is considering a counter-notice against Diebold. If one is filed, the corporation will have 14 days to file a court order in which they would argue that their cease-and-desist order is legally justified. Both Gross and Downing said the college was ready to support such a counter-notice, but Salmon said it would depend on whether legal representation, preferably of a pro bono nature, could be secured. Currently, SCDC is looking for a more local group than EEF for legal representation.

“These memos are primary evidence of gross criminal negligence on the part of Diebold, and, if publishing them is not fair use, if talking about them is not legal under copyright law, then we’re left in a position where we can’t talk about a fundamental failing in the electoral process,” Salmon said. “For them to suggest that this is not fair use is ridiculous; this is exactly what fair use was designed to protect.”

Why War? responds

Should the counter-notice fail, one idea discussed at yesterday’s public meeting in Parrish Parlours was to keep the memo going by passing it from one user to another. This would leave the college’s ISP not liable, since it would have no knowledge of the infringement. As SCDC member Luke Smith ‘06 said, "We can’t control the behavior of individual users."

White, adamant that Why War? would continue to make the memos available, disagreed with the college’s decision to take no official stance on the matter. “Why is Swarthmore so concerned with staying on the side of the law while being anti-democratic in the process?” he asked. “I don’t really care whether or not it’s copyright. If someone’s copyrighted the fact that Al Gore got negative 16,000 votes, then I think democracy trumps copyright.”

In addition, only a small fraction of the more than 13,000 pages of memos have been examined. “There’s so much in here that we haven’t found yet that it’s a necessity that we keep them up, so people can look through them,” White said. “[The content of the memos] seriously calls into question democracy in America,” he said, adding that it was sad that in the present political climate, “even Swarthmore will back down over this issue.”

Why War? will stay out of the legal situations that may emerge from this because, White said, they miss the point. “If anything warranted civil disobedience, it’s this action.”

The dean insisted the college would take no further steps. “The bottom line is, we feel the students have legal recourse to achieve their objectives and a good chance of succeeding,” Gross said. “We hope they will act in good faith to not jeopardize that success.”

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