EFF Looks To Block Diebold Threats

The ISP Online Policy Group (IOPG) will find out later today whether a
San Francisco 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.

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 Electronic
Freedom Foundation (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,” said Wendy Seltzer, one of the attorneys representing
IOPG said in a statement Monday evening. “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.

Diebold officials were unavailable for comment at press time.

The judge will rule on the cease-and-desist order as early as 10 a.m.
Pacific Standard Time Tuesday.

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