David Schaich '06, who found the documents online, posted the material. Most of the memos seemed innocuous, but a few revealed questionable practices within the company, including the modification of certain voting software without prior notification of state officials. "Most of them were basically useless … but some of them were interesting in that they were employee discussions about bugs, security flaws and violations of state laws," Schaich said.
Schaich posted the memos, dating from 1999 to February of this year, on his College-provided webspace after hearing that Diebold had demanded similar postings be removed from other websites, many of which were also served by institutions of higher education.
"There are basically two issues. The first is election security. I ... wanted to publicize potential flaws in election systems in order to avoid repeats of the 2000 fiasco," Schaich said. "The second issue, which is perhaps more important to me personally, is Diebold's abuse of copyright law, specifically the Digital Millennium Copyright Act (DMCA), to try to suppress this information."
On Oct. 28, Diebold's lawyer sent a notice to the College claiming that the website had violated the company's copyright. "The website you are hosting infringes Diebold's copyrights because the Diebold Property was reproduced, placed on public display, and is being distributed from this website without Diebold's consent," the letter stated.
According to Schaich, the DMCA specifies that an Internet Service Provider (ISP) must take down a website upon receiving notice that the website has engaged in copyright infringement. Schaich thinks the memos are in the public domain, while Diebold contends they are private property.
As a result of the notice, the College has taken action to avoid legal liabilities. "With advice from the College's attorney and in compliance with the Digital Millennium Copyright Act, we disconnected the files [Schaich] had established to provide Internet access to the Diebold documents. I met with [Schaich] to explain the complaint and our response to it," said Librarian Will Bridegam, the College's DMCA officer. "I also sent [him] a letter informing him that his website had been partially disabled as a result of the notice received from Diebold, and I told him how, under the Digital Millennium Copyright Act, he could request the reconnection of his files through an appropriate counter-notice."
"Filing a counter-notice says, 'I don't think I'm breaking any laws, and if you do think I'm breaking laws, sue me,'" Schaich said. If Schaich were to file a counter-notice, the College could restore access to his website 10 days later without incurring liability.
Schaich has not yet decided whether he will take action against Diebold. He is hesitant because doing so may leave him vulnerable to a lawsuit. "Many people, myself included, aren't able to afford lawsuits, even frivolous ones, in terms of time and money," he said. "Thus, by threatening to sue, Diebold can basically bend us to its will, because we know we won't have the resources to resist if they do."
Diebold faces legal action from others as well. The Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School are seeking a court order to make the memos public on behalf of two Swarthmore College students who first posted the information online and a nonprofit ISP Online Policy Group, according to the EFF's website.
"We have sued Diebold, with the intention of making them stop their misuse of intellectual property law to terrorize students across the nation who care about the state of the democratic process in our country," said Swarthmore sophomore Nelson Pavlosky, co-founder of the Swarthmore Coalition for the Digital Commons, which was required to take down its links to websites bearing the memos. "Copyright wasn't meant to silence free speech."
Pavlosky expressed concerns similar to Schaich's. "I think the memos have to be available to the public because they are vital to the discussion surrounding electronic voting, and I think they clearly demonstrate the need for a transparent voting system," he said. "The only way that we can really trust our voting machines is if one, they are open source, so that we can see for ourselves whether the software is secure instead of relying on a company to report flaws in its own product, and two, if they leave a voter-verified paper trail, so that a recount is possible if necessary."
Pavlosky gave some excerpts from the Diebold memos. "I need some answers!" read one. "Our department is being audited by the County. I have been waiting for someone to give me an explanation as to why Precinct 216 gave Al Gore a minus 16022 when it was uploaded. Will someone please explain this so that I have the information to give the auditor instead of standing here 'looking dumb.'"
Schaich was careful to point out that his actions do not represent civil disobedience. "This has been called electronic civil disobedience," Schaich said. "Our actions are protected under the Fair Use Guidelines of the DMCA. Civil disobedience implies you're deliberately breaking an unjust law, and we aren't breaking any law. It's a catchy phrase, but not well thought-out."