Judge Needs Time For E-Voting Decision

A federal judge Monday said he needed more time before
making a decision on a restraining order request made
by an ISP against e-voting machine maker Diebold.

Getting approval for the restraining order filed by
the Online Privacy Group (OPG), a non-profit Web
hosting company and ISP out of San Francisco, is the
legal first step to determine whether Diebold has the
constitutional right to make an ISP shut down a
customer’s Web site because it contains information
that highlights the vulnerabilities of its e-voting

Officials originally thought a ruling would be made
the first
week of November
, but the case was moved to the
San Jose district.

The judge is expected to make a ruling sometime next

For the past two weeks the two sides have been
readying for Monday’s court date, to persuade Judge
Jeremy Fogel to their side. While the judge saw the
need for a hasty resolution to the debate, said Cindy
Cohn, EFF legal director, he rightly felt the decision
shouldn’t be rushed.

“While we’re obviously a bit impatient, you really
want to make sure the judge writes a careful
decision,” she said.

The Web site in question was run by two students at
Pennsylvania’s Swarthmore College, who are also being
served with cease-and-desist orders from the
manufacturer. Both the students and OPG are being
represented by the Electronic Frontier Foundation
(EFF) and Stanford’s Center for Internet and Society
Cyberlaw Clinic.

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

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,” that seems to indicate
widespread vulnerabilities in today’s e-voting

And in the State of California, officials have halted
certification on Diebold’s line of machines in its
state after hearing about the allegations surrounding
the e-voting machines. They will be audited before
Diebold certification can continue.

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