EFF Case Vs Diebold Stalls
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The ISP Online Policy Group (IOPG) will have to wait a little bit longer to find out whether a judge will approve its restraining order against Diebold Inc., which has been sending the non-profit company cease-and-desist orders over publication of vulnerabilities in Diebold e-voting machines.
The e-voting machine flaws, which allow hackers to change vote tallies through Microsoft Access, have been published on several Web sites; Diebold has sent cease-and-resist orders to the ISPs hosting these Web pages, as well as ISPs who host Web sites that provide a link to the e-voting machine weaknesses.
Federal district court judge Jeremy Fogel will hear testimony from both sides of the table Nov. 17 in San Jose
"We are pleased that the court has recognized the urgency of our case against Diebold with an expedited schedule," said Wendy Seltzer, an Electronic Frontier Foundation staff lawyer representing IOPG, in a statement Tuesday evening. "Diebold must not be permitted to use unfounded copyright claims to stifle public debate over the accuracy of electronic voting machines."
Diebold would not return repeated phone calls for a comment.
The ruling will be the first test for ISPs who refuse to comply with the "safe harbor" measures provided in the 1998 Digital Millennium Copyright Act. The provision in the Act frees ISPs of liability over its customers publishing copyrighted material if they take down the site within 10 days of getting a cease-and-desist order from copyright holders.
The safe harbor clause has already been upheld by the California courts as recently as May. The creator of a documentary on Charles Manson filed a cease-and-desist order against Amazon.com and others who were publishing illegal copies of the film (on their automated platform) on their Web sites. The judge ruled against Amazon.com.
What makes this ruling so tricky are the issues surrounding the restraining order. The DMCA was a law passed to protect copyright holders from having their digital assets disseminated via the Internet, i.e., music and movie files.
Diebold's claim is a little more tenuous. Though the information being published on the Web involves proprietary information on Diebold's e-voting machines, the sites in question are only posting known and documented vulnerabilities in the machine, not something like the source code.
The issue's cloudy enough to gain the attention of the EFF and two students at Stanford's Law Clinic. Both will represent the IOPG in the court room.
"Diebold's blanket cease-and-desist notices are a blatant abuse of copyright law," Seltzer said. "Publication of the Diebold documents is clear fair use because of their importance to the public debate over the accuracy of electronic voting machines."
The political element surrounding the case might have ramifications that will be felt in elections for years to come. If the San Francisco judge ruling on the restraining order today finds against the ISP Online Policy Group, the ISP and many others will be forced to stifle any mention of the machine's flaws.
With no incentive to fix the machines vulnerabilities, Diebold might not, giving every election day loser a way to contest the validity of the votes. It'll be a revisitation of the "hanging chad" fiasco during the Bush-Gore elections.
"Instead of paying lawyers to threaten its critics, Diebold should invest in creating electronic voting machines that include voter-verified paper ballots and other security protections," said Cindy Cohn, EFF legal director, in a statement.