Diebold Folds In DMCA E-Voting Lawsuit

sunbird writes "Diebold has filed a responsive pleading (PDF) in the lawsuit brought by the Electronic Frontier Foundation to challenge Diebold's practice of using the DMCA to suppress discussion of the critical flaws with electronic voting. Diebold states that it has "decided to withdraw its existing DMCA notifications and not to issue any further ones . . . ." Other recent developments include: this transcript of the court hearing on EFF's application for a preliminary injunction and Dennis Kucinich's linking to Diebold memos from his webpage at the U.S. House of Representatives. Stay tuned- the judge has scheduled a status conference for this Monday in the case."

hooray!

win for the good side!

Re:hooray!

It's not a win unless the EFF wins the actual case. Although the main intent behind the suits was to stop Diebold from issuing any more takedown letters citing copyright, a successful injunction against Diebold would have sent a very strong message against any future abuses of copyright in ways contrary to the public good (ie, interference with 1st amendment protections.)

If the judge allows dismissal, the EFF misses a slam dunk chance to nibble away at corporate abuse (ie, the DMCA stands, Diebold gets away with saying "Oops, we really didn't mean to stifle free speech. We promise not to do it again *crossing fingers*" While OGP will probably be relieved that they won't have to go to the time and expense of trial, we're just postponing the inevitable courtroom clash between individual freedom and corporate manipulation of federal law.

it's a win, a very big win

It's not a win unless the EFF wins the actual case.

I think maybe you are confusing this with IBM's countersuit against SCO. In this case, there was no precident that could be set either way. (AFAIK, IANAL)

What happened at the hearing was that the judge made it clear that he was going to provide declarative relief in favor of the plaintiff, although not an injunction on the question of the fair use of all 13,000 emails. It isn't always as crystal clear from the hearing what the judge will do, but check out this comment from the Judge:

[page 4-5:] THE COURT: What if [plaintiffs] ... can show that they are suffering some type of collateral damage while the DMCA [process is] taking place? In other words, what OPG alleges here is that simply taking advantage of the safe harbor [provisions] isn't an adequate remedy ... for a number of reasons that they identify.... and I think I agree with them....

You can see how he's not going to go for an injunction if you read the whole hearing transcript. [eff.org]

One very importaint thing, it became clear that because of precidents set in the Scientology case, if Diebold had sued, the court was going to have to go through all the emails and decide on a case-by-case basis which of them are subject to fair-use protections and which aren't because they contain no public-interest material or contain an overwhelming abundance of "how-to/how-not-to" information with commercial value. From a technical perspective, of course, we have already seen how some of the source code with respect to weak encryption has some of the most importaint public-interest information. There is no way any judge would be savvy enough to catch that on the first go-round, and so this would have been a real money-loser for the good guys.

So, I am very glad this didn't go to trial.

Re:hooray! [a bit too early to say]

It's not a win unless the EFF wins the actual case.

If the judge allows dismissal [...]

Yes -- and I was just now trying to puzzle out just where the two recent papers leave this case (transcript of hearing for an injunction, and Diebold's new document, see links in the main article).

Hopefully somebody with better insight into the procedure here will say more, but first it looks to me as if the parties had been waiting for the judge to decide, after a hearing, whether to grant an injunction against Diebold. (Was I the only one that found the hearing transcript obviously garbled in places, and the dialogue hard to decipher? I wonder how the judge manages to make use of such scrambled text?!)

It looked as if Diebold tried to pre-empt the next step, and the upcoming decision, by filing the paper with its concessions -- as if Diebold privately reckoned after the hearing that it would likely be on the losing side.

It looks as if the ball is now at least partly with EFF on what step to try next. The Diebold paper attempts to deal with the possibility that EFF might try to find a basis on which to persist in the suit for its 'test case' value, in spite of Diebold's concessions. Clearly Diebold hopes that its concessions took away enough of the 'sting' of injury caused by its DMCA activities, to leave the plaintiffs with nothing more to sue about, and to 'kill' the case before there is an adjudication that would likely make life harder in future for Diebold and other potential DMCA claimants.

I would guess EFF is now busy in legal conference and research to see if the case really is effectively dead beyond recall. (Go EFF!) Maybe we can still hope they will identify a way to take the case forward to an adjudication that could be of value, as a precedent to limit the scope for mischievous abuse of the DMCA in future. But I suppose it is possible no way will be found.

Re:hooray!

It's not a win unless the EFF wins the actual case.

Screw the EFF case, the one that really matters is whether we get fair votes or not.

Down in Florida they showed just what the GOP is capable of, forget the recount. Before the poll even took place the Republicans disqualified over 150,000 voters, mostly black on bogus grounds. One man was disqualified because of a conviction in 2007!

The 'scrub' list was compilled by a GOP connected firm, despite the fact that their bid was $2.5 million rather than the $57 thousand one of the other companies bid. The list was compiled by matching the first four letters of the voters name, the date of birth and the race of the voter. This is how the poll was fixed, a white voter would not lose their vote because of a black convict still in jail in Texas.

There were also tricks played with the voting machines, not just the mechanical chad ridden ones. The optical scanners can be configured to reject a ballot if an error is detected or to silently consume it. The error can be voter error or machine error.

Well guess what? In the white areas the GOP configured the machines to give the voter another try if there was a problem. In the black areas the exact same machine was configured to silently eat the ballot. That is why the rates of miscounts were so much higher in the black areas (12%) than the white areas (1%). Easy when you know how.

Click on my sig and read the Pallast article which gives the blow by blow account. And before you squeak "bias" - the inquiry vindicated every one of the NAACP allegations. Only by that time Katherine Harris and the GOP had got away with it.

Re:hooray!

Better yet, make the voting machines dispense cash, and the ATMs to let you vote.
That should increase voter turnout.

DMCA - how can i abuse thee, let me count the ways

Talk about a poorly crafted piece of legislation. There are so many ways to abuse this ridiculous thing. It really needs to be amended to get rid of all of these legal like mechanisms that do not involve the courts. You should have to get a judge to issue an injunction to take material offline, not just say "You have to do it".

Diebold's defense that the plantiffs "did not suffer irreparable harm" because Diebold didn't actually sue them is outrageous. The threat to sue, especially by a party with deep pockets vs a small party definitely causes a chilling effect on free speech. If Diebold had not intention to sue, why did they ask for the material to be removed?

Re:DMCA - how can i abuse thee, let me count the w

Agreed. Just look at the RIAA uses the DMCA [riaa.com] - "The copyright owner may then present a subpoena request to the Clerk of the Court that requires the user's ISP to identify the person who was using the particular IP address when the copyright owner observed the copyright infringement. " - and this is based on a good faith belief that the person has committedd copyright infringement. Then the case goes to civil trial. Completely bypasses the bill of rights.

Good Faith... RIAA/MPAA.. truly a disconnect. Nasty

Re:DMCA - how can i abuse thee, let me count the w

Take a look at The Register's [theregister.co.uk] article as mentioned a few days ago here in regards to the MP/RIAA seeking anti-trust exemption...

"Hatch said the big studios and major record labels need the exemption because of "market realities...The bill authorizes appropriations to ensure that all Department of Justice units that investigate intellectual property crimes have the support of at least one agent specifically trained in the investigation of such crimes," he said last week."

Why isn't the DOJ doing this? I'm sure that the DOJ and the FBI have models in place for persuing internet fraud and cracking cases (yes I know this is not the best comparison theft vis a vis copyright infringement), so until the DOJ gets Copyright agents, the RIAA/MPAA is acting as an affiliate of the government and conducting searches without due process.

Anyway, this is my take on it
-B

Who'd have thought reason would prevail?

Now it's time for the substantive discussion of how best to tally the votes and ensure it is done accurately and impartially. This needs to be done in open public discussions by people who really know how to design and peer review such systems.

Re:Who'd have thought reason would prevail?

Unfortunately I have my doubts as to whether Diebold or any of the other voting-machine manufacturers would be particularly willing to go forward with such a process. As much as many of us (myself at times included) might like to believe that this is fueled by a massive right-wing conspiracy, the real fact is that it's just not their usual MO.

Prior to entry into the voting-machine market, Diebold's primary presence in computing has been in manufacturing ATMs. A brief consideration (disclaimer: I didn't research this and won't be held responsible if it turns out to be dead wrong) suggests that these are, by design, pretty much turnkey systems in which a large amount of the security is provided by an extremely limited user interface. There aren't a lot of branches in the ATM flowchart, and the necessary local configuration is probably minimal.

Now compare this to the requirements of a voting system. Because ballots vary greatly from one precinct to the next, each voting machine must store considerably more local configuration. With this comes a much more complex UI and many more opportunities for security to be compromised. If this is a first foray into a system this complex, it may be a simple underestimation of the requirements. When one considers that the operation of the Diebold voting machine as discussed in the Johns Hopkins paper is not unlike that of an ATM, it's easy to see where someone may have seen elections as just another nail to hit with their particular hammer. Little did they know that the demands are so different.

Re:Who'd have thought reason would prevail?

Prior to entry into the voting-machine market, Diebold's primary presence in computing has been in manufacturing ATMs. A brief consideration (disclaimer: I didn't research this and won't be held responsible if it turns out to be dead wrong) suggests that these are, by design, pretty much turnkey systems in which a large amount of the security is provided by an extremely limited user interface. There aren't a lot of branches in the ATM flowchart, and the necessary local configuration is probably minimal.

The local configuration may be minimal but it may be enough to rig the vote.

What we need to do is to make sure that the configurations of the machines are identical. The trick used in Florida was to program the machines differently in white and black areas. In the black areas the machines were set to silently disqualify any ballot that had a problem of any kind anywhere. In the white areas the machines were set to give an error when there was a problem and the voter could try again.

That is the reason why the error rate was 12% in the black areas and 1% in the white. It was not as the GOP shills tried to claim that the voters were stupid, the machines had been rigged. These facts were all corroborated in the enquiry.

Re:Who'd have thought reason would prevail?

Paper ballots, which are fed into a simple optical reader at the polling station. The ballot is then dropped into a locked ballot box. The result can be counted instantly by the machines, but there is a good old-fashioned paper trail which can be hand counted should there be any doubt over the outcome.

Wow!

I have to admit, I didnt expect THIS!

This is a very, very positive news!

(And some journalists say that only bad news are good news ;-D)

Maresi

Diebold folds?

Anyone else have visions of DMCA notification letters being folded into origami statues of liberty?

Same stale joke

I for one welcome our new EFF overlords!

Would anyone like to take any bets on how long it takes until the current administration "discovers" "evidence" that the EFF is channeling funds to "terrorists"?

In all seriousness, I'm glad to see this. If other legal fronts on the voting war go well, who knows, I might end up at the polls next November instead of scrawling in my entries via absentee ballot.

GO DAVE WEEKLY!

I'd like to take this moment to publically thank, congratulate, and otherwise embarass my illustrious former roommate, David Weekly [xeni.net]. Alot of people talk about problems, like how alot of people talk about "Gee, how tragic is Zero Tolerance for all these kids, oh look, another one just got expelled for learning the word 'Knife'!"

Most people don't do anything. David Weekly did.

He stepped up, fought back against Diebold, and brought justice -- not just for himself (he's the founder of the California Community Colocation Project [communitycolo.net], so the ISP takedown notices directly affected him), not just for the four college kids attacked by Diebold, but for all of us here and for everybody with a stake in the perceived integrity of the American vote.

That's some damn fine work, David. Thanks! And thanks to everyone at EFF and OPG who fought this battle with him too!

Yours Truly,

Dan Kaminsky
DoxPara Research
http://www.doxpara.com

i say

we /. effect the next vote. for president and Reps, vote for someone who will quash this crap peice of legislation. Either ammend it or completely repeal it. Writing your Congressman now wont work. You are the little person, you do not have money n their pocket. Let them know you dont want this crap, use the voting power. That means those that do not vote, should. This DMCA evokes such a crap fight here youd think someone would organize a massive campaign against it. Whoever is in Oren Hatchs district should really organize a campaign to do so, he has to go. Look at the campaign contribtions [opensecrets.org] enough is enough. vote! for the love of cthulu, VOTE!

Re:The Problem:

The Republicans are firmly in the pockets of Computer Hardware and Software manufacturers that want to keep the DMCA to prevent competitors from copying products and making compatable ones.

The Democrats are firmly in the pockets of the RIAA and MPAA that want to keep the DMCA to help them keep their strangleholds in thier markets.

Everyone else has an icecube's chance in hell of getting in regardless of who funds their habits.

It is worth mentioning Mr. Kucinich [opensecrets.org] is trying to get the presidential nomination and has very little financial contamination from the formentioned industries. $36,275 from TV, movies, and music industry and $25,590 from the computer industry out of $3,399,709 total.

My Theory

I don't think that their systems are faulty really. I think they work exactly as designed.

There was ir-repairable injury

Thanks to Diebold, Florida was called for Bush. Bush pissed away $9 trillion of projected surpluses, got the whole world mad at us, lost 7.5 millions compared to what was needed to sustain current employment rates. I think we should sure Diebold for $10 trillion. That ought to get their attention.

I highly reccomend people start acting on this now

Now they won't be sueing everyone under the sun, that if you can, throw it up on p2p services and help get a bittorent of the file circulating. The documents can be found on kazaa if you type in diebold, as you can with any other app. I suggest shareaza, which is a spywareless free P2P app that handles and allows for hosting and downloading from multiple network protocols (gnutella, bittorent, edonkey to name a few) and can be found at

http://www.shareaza.com

. If you're just interested in reading documents, another good read at

http://www.blackboxvoting.com

for those of you who don't want to sift through hundreds of e-mails in the archive but want the good stuff(downloads are at the right side of the page). Of course, they probably can't get slashdotted to horribly without going under, and therefore, if you can download the files and throw them on a p2p app such as shareaza you'll be doing everyone a big favor or if you can download them off of a p2p app that works well too to make sure their website's bandwidth bill isn't horrendous.

Additionally, if you do nothing else and live in the US, goto the EFF's webpage and fill out their form and fax or e-mail it to your legislature (which is all nicely automated for you).

http://action.eff.org/action/index.asp?step=2&item =2821

This way, if congress gets millions of documents stating we know and we don't like the sharade, they'll have to pull it and may even throw a few congressman on the legal fire to keep us satiated.

Beginning of DMCA downfall?

I just read this in conjunction with the story on Best Buy and FatWallet, and I can only hope, maybe people are finally seeing the DMCA the way we see it. Here we have two cases against major companies challenging the DMCA for its chilling effects. How long before it works its way up to the Supreme Court?

Too bad they folded.

the best possible outcome would have been for this to go to court, for shoddy proprietary voting systems to appear on the evening news, and for the DMCA to be publicly humiliated for the piece of shit that it is.

from the company's perspective, i'd FIRE the dimwit who championed this strategy.

Fair thanks

Hi,

sticking to the relevant way of using the 'fair' mechanism, I'd like to thank those two students, and the whole bunch of people who fought Diebold's obnoxious use of the DMCA.

You did a fucking awesome job. And you proved that personal actions really matter in this deincarnated world.

This is no time to loosen the backlash ; Dieblod may ask for some 'mediation', my advice would be not to give them any relief. They *must* pay for what they've done.

Regards,
Jdif

Open source democracy

If ever there was a case for open source this is it. Democracy is not democracy without transparency. For Diebold to deny the public the right to know how its votes are counted and how secure the process is by keeping its source closed is inexcusable.....

"the code, which Diebold refuses to allow the public to audit, was discovered unencrypted on a publicly accessible Diebold Internet FTP (file transfer protocol) site.

.... uuuuhhh, oops my bad!, they are open source after all.

But all fun aside, at least it can now be said to have been officially confirmed that one of the numerous things DMCA will not protect you against is your own stupidity and incopetence.

Re:Open source democracy

I suppose diebold is to blame, but what about our government? Why are our tax dollars going towards a product that is all wrong for the application?

The govt. should contract to have the voting software written, so it is govt. owned and open source. I don't want my tax dollars wasted pumping up Diebold from now until the rest of eternity, and more importantly I want vote integrity - not just actual integrity, but also public confidence. They should form an oversight committe for this voting software contract. Reputable scientists from academia and industry would come out of the woodwork to join the committee and help insure votes are counted right.

Denying the memos

It's not all good news. If diebold really went on claiming copyright over the memos, then it would in effect be suggesting that the memos were real. Now it can still claim that they are doctored, etc.

Giving the EFF this concession is quite sneaky, as it helps them deal with the memos.

this is not a win...

...it means either Diebold has some other nefarious move up their sleeves, or (more likely) instead of doing what many other companies do -make a big spectacle of themselves- they are hoping to disappear into the woodwork during the upcoming election season so as to "help their benefactors" my 2 paranoid cents

Can WE abuse the DMCA too?

There should be some sort of credo that when a system can't be fixed, it should be used/abused equally by everybody.

Surely there are enough correct-thinking corporations that we could begin to use the DMCA to begin to put pressure on certain groups. Then perhaps the government will begin to realize how asinine it is (the DMCA, not the... never mind.)

This is kinda like the putative holes in Diebold machines. If nothing can be done about them, surely they can be abused by everyone :)

Kucinich Blog on Election Activism

This is from the Kucinich Blog [denniskucinich.us] from June 20, 2003. Americans have become very sensitized to manipulation of the vote since the debacles in the 2000 presidential elections. All over america, people are expressing to me their concerns about honest elections, about election technologies, about the ownership of voting machine suppliers, about the potential for fraud...all of which can undermine our democracy. We need solutions. Here's what we can do: we can organize in every community across this country into citizen groups of individuals with technical expertise in computer programming, systems design, and working knowledge of elections. These precinct activists can begin immediately to create a template for securing the 2004 vote. The elements of such a program might include: taking action to gain access to inspect the technology, to learn what safeguards have been put in place to make sure that no coflicts of interests are involved, and to make sure there are no problems with the chain of custody. What I'm advocating is monitoring the vote. Maybe we should call it MTV2004...Monitor the vote 2004. Perhaps we could begin to post our ideas to the wiki www.civicactions.org [civicactions.org]. We will need to organize state by state or county by county. If anyone has any ideas, please go to the wiki and let's act collectively to ensure a fair election in 2004. (lifted from his Blog under his CC license).

Just last week, he blasted the FBI [kucinich.us] for stripping away the constitution. All from a man who 25 years ago, on Dec 25, 1978, refused to sell [denniskucinich.us] Clevelands municipal electric company under threat of political death. He stood by his principles and sacrificed his career. After a few years and hundreds of millions in savings, the people brought him back. If there is ever a candidate for president who supports rights of netizens, and "we the people", this is him. Consider a Thanksgiving day gift [kucinich.us] .

Theres always one way out

Maybe if everything goes tits-up for diebold they can sell their voting system to iraq, i heard they are in great shortage of working arcade machines.

After the ATM story

..about how Diebold cash dispensers were infected with the Nachi worm I think they were left with no choice.

Barratry?

Since Diebold has practically admitted to using the 'we're wrong but we've got more lawyers than you' approach, does what they did qualify as Barratry?

If so, let's hope the victims of Diebold's overzealous legal department strike back, recover their costs and have their moment of glory in public courts where the mass media will pick up on it?

Poor transcription quality

Was anyone else concerned about the poor quality of the transcript. Harper and Roe? Their for they're? Come on...doesn't anyone proof these things?

There is a serious side to this. The transcript is the official record of what happened in the case, and is quoted in appeals, future cases, etc. If this is an example of the quality of such things, how long before a substantive error of fact makes its way into one and becomes a part of our law.

I'd be embarrassed by this relase if I was the judge (or the transcriptionist).

Publication by Congress

No one has mentioned this, but members of Congress are immune to lawsuits like this. That's why it's useful, on major public interest issues involving documents, to get a member of Congress to put them into the record, as Kucinich has done here.

• "The Senators and Representatives shall ... in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place." -- U.S. Constitution

Any individual member of Congress has that privilege, and historically, it's been an important one. That keeps Ashcroft from harassing members of Congress, for example.

Donate

This kind of stuff is why I donate to the EFF and would recommend others to do the same. They're one of the best, if not only, organization out there looking out for our electronic rights. They make a difference and you can too by supporting them.

Link to their donation page. [eff.org]

KUCINICH FOR PRESIDENT! GROW SOME BALLS, PEOPLE!

Businessmen and investors know that sometimes you have to take some risks; you have to change and grow.

And we citizens own this countries. We have invested our lives in it. So why on earth are we afraid to vote for change? Why do we keep electing Republicrats?

Yes, of course, Kucinich will not be able to make all the changes he wants and that we need. But we need someone who will fight for the citizen against established power. Kucinich has already and repeatedly shown that he has a serious grudge against established power.

We already have 500 Republicrats in the House and the Senate. You have heard of "checks and balances"? Well, Kucinich is the check and balance we need.

GROW SOME FUCKING BALLS FOR ONCE!

corruption

The most important link [berkeley.edu]
in the whole article.

The Diebold employee Ken Clark admits that numerous state counties had requested the .mdb files to not have passwords.

What kind of commie...

...wants to suppress my rights as a red-blooded American to talk about any damn thing I want? If Diebold's election machines are crap and they've admitted it in speech that's reached the public, it smacks of authoritarian communism to try to undermine knowledge of it. I'm an American, damn it. We've got a little something called the U.S. Constitution that protects my right to criticize any business, politician, or organization any way I see fit! And if you don't like it when I have my say on Diebold, Microsoft, the Bush administration, the religious right, or anything else I choose to talk about... Well, you can just go right back to communist China or try to get the Soviet Union up and running again! America! Love it or leave it! ((My god, that felt good! I feel liberated! In fact, I feel liberal! And proud! I love this country!))

zerg

You mean we actually won one? Holy shit, someone pass around a hat so we can get everyone involved in the win some blowjobs and liquor!

good and bad news

Good News: They backed down, so complaints on their bad voting technology can go forward.

Bad News: This avoided a situation where the DMCA could have been challenged in court like it desperately needs to be.

Re:Kucinich

For God's sake, try to make some common sense...

Re:Who votes anymore?

Kucinich. Apearently the real question is who reads the slashdot article anymore since if you had read the post you would know who to vote for. :P

Don't forget Kucinich supports Slavery Reperations

that disqualifies the creep right there oh and he is a VEGAN!