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EFFector - Volume 16, Issue 35 - Op-Ed: Voting for Fair Use


EFFector - Volume 16, Issue 35 - Op-Ed: Voting for Fair Use

EFFector       Vol. 16, No. 35       December 15, 2003

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 274th Issue of EFFector:

Support EFF This Holiday Season

EFF Needs You!

Your contribution today helps us continue to champion online freedom. Every day, EFF attorneys, activists and volunteers defend your basic rights and freedoms by:

  • Protecting your right to democratic speech: After leaked documents revealed flaws in Diebold, Inc.'s electronic voting technology, the company sent cease-and-desist letters to ISPs demanding that the documents be removed from the Internet. EFF is supporting those who refuse to comply, fighting for your right to speak publicly about the very mechanism of our democracy.
  • Defending you from overreaching government surveillance: In the aftermath of 9/11, Congress gave the government broad new surveillance powers - and at the same time removed many of the traditional checks and balances that rein in abuse. EFF is working to ensure that government does not go unchecked.
  • Ensuring your right to privacy: Libraries, schools, the government and private sector businesses are adopting radio frequency identification tags, or RFIDs - a technology that pinpoints the physical location of whatever item the tags are embedded in. While this may seem like a convenient way to track items, it's also a convenient way to do something less benign: track people and their activities through their belongings. EFF is working to ensure that embrace of this technology does not erode your right to privacy.
  • Protecting your right to privacy and due process: The recording industry is turning its crosshairs on the 60 million people who use peer-to-peer file-sharing programs, launching lawsuits nationwide with special subpoenas that do not require a judge's oversight. EFF is defending those mistakenly caught in the industry's dragnet, standing up for your right to be treated as innocent until proven guilty.

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Details are available at:

Your support of EFF enables us to continue the fight to secure online freedom for all. And don't forget to tell your friends and family to join, too! Thanks, and here's wishing you and yours a joyful holiday season.


Op-Ed: Voting for Fair Use

By Ren Bucholz
Electronic Frontier Foundation

.(Note: this op-ed also appears in Silicon Valley Biz Ink)

A 19th century voting expert said that voting machines should "protect the voter from rascaldom and make the process of casting a ballot perfectly plain, simple and secret." But what if the rascal *is* the voting machine?

That question is being asked more frequently as the public learns about the risks of electronic voting (e-voting). Unfortunately, answers are hard to find. Voting companies don't release their code for public security reviews. The machines are certified in independent labs, but the reports are sealed. Election officials get to look under the hood, but they are gagged by nondisclosure agreements. The next presidential election is on the horizon, but voters are in the dark.

One thing we do know is that many e-voting machines are simply PCs. Fortunately, we understand PCs: we understand that users break them, evil-doers break into them, and sometimes they malfunction without anyone's help. Ignoring this is naive at best.

But what about unscrupulous vendors who not only ignore this, but also attack whistle-blowers with groundless legal threats?

That's exactly what Diebold Election Systems - America's largest voting machine supplier - did this September when an embarrassing email archive was published by citizen activists. In response, Diebold sent over a dozen threatening letters, forcing many Internet service providers (ISPs) to take down information about security flaws in Diebold voting machines.

Why was Diebold able to keep these important documents out of the public eye? Diebold found a surprising tool: copyright - a set of laws that is supposed to reward creativity.

At least that's what copyright used to stand for. However, since the passage of the 1998 Digital Millennium Copyright Act (DMCA), copyright has another purpose: suppressing dissent and silencing criticism. At issue is the DMCA's "notice and takedown" procedure. Under this procedure, anyone can write to an ISP claiming to be an infringed-upon rights holder and the ISP is encouraged, by a limitation on liability, to "expeditiously remove" the disputed material. No judicial review, no court order. The result is the same in almost every case: censor first, ask questions later. These tools - wrought by Hollywood lobbyists - are just as effective for companies like Diebold.

Some of Diebold's targets, however, are fighting back. Two Swarthmore College students and a San Francisco ISP (with representation from EFF and Stanford Law School) are suing Diebold for misusing copyright. We're fighting for the overwhelming public interest in the integrity of our elections through the fair use doctrine, the First Amendment's home in copyright.

Diebold is already backing down. Two weeks after our first court appearance, Diebold told the judge that it will stop sending threatening letters and withdraw its current threats. EFF continues to press its case to show Diebold, and other companies thinking of following in its footsteps, that the law has penalties for such abuses. This is the kind of signal that would give other would-be censors second thoughts.

EFF's pro bono representation of Diebold's victims helped ensure the open discussion of voting machines. With your help, we'll be back to save the day next time as well. EFF is a member-supported nonprofit. Get more information about how you can support EFF's work at

Come visit EFF at Macworld '04!

EFF will be at Macworld Conference & Expo in San Francisco on January 6-9. We'll have a booth with a wide range of EFF paraphernalia and other goodies, and we'll be spreading the message to all attendees. We hope to see you there!

Macworld Conference & Expo

Got Junk? Help EFF by Selling It on eBay!

MissionFish, together with eBay Giving Works, has launched a new program to help people who sell items on eBay donate to their favorite nonprofit organizations.

Here's how it works:

  1. Nonprofits sign up with MissionFish.
  2. eBay sellers pick a nonprofit and a percentage to share for each sale.
  3. Once the nonprofit accepts, bidding begins on eBay.
  4. The seller gets paid by the buyer and ships the item - same as always.
  5. MissionFish collects the donation, pays the nonprofit and provides a tax receipt.

EFF is now one of the nonprofits to which you can give through the program - check it out!

Deep Links

Deep Links features noteworthy news items from around the Internet.

  • SCO to IBM: I'm Rubber and You're Glue
    SCO's anti-Linux lawsuits recently took a turn for the juvenile when it submitted code to IBM on one million sheets of paper.
  • Rethinking Net Governance
    The UN's World Summit on the Information Society (WSIS) seeks to bridge the digital divide and balance ICANN's - and America's - influence in governing the Net.
  • RIAA Can Now Legally Shoot Self in Foot
    The RIAA has tapped the former director of the DOJ's Bureau of Alcohol, Tobacco, Firearms and Explosives to head its Anti-Piracy Unit.
  • Cell Phone Cameras Banned in CA Theaters, Chicago Locker Rooms Neither regulation provides guidance for locker rooms that also screen movies:
    Sacramento Bee (registration unfortunately required.)
    NYT (registration unfortunately required.)
  • Microsoft Throws Rocks at Lindows' European Market
    The Redmond giant is pursuing trademark claims against the Linux software vendor in several European venues.
  • Hermano, Can You Spare a Dime? And the Jaws of Life?
    New Spanish telephone kiosks have "anti-theft" hardware that prevents people from "stealing" their own hands.
  • Nevada Requires Paper Trail for E-Voting Machines (Registration unfortunately required.)
    The second best part is that the state decided against Diebold machines because they failed an official review - by the state's gambling machine experts.
  • Stupid Patent Tricks (Washington Post; registration unfortunately required.)
    The Washington Post's Jonathan Krim with an eye-opening report on over-broad patent claims.
  • Freedom Make You Nervous?
    Then you'll love trusted computing. Steven Levy with a cautionary tale about the technologies of control.
  • Standardize Once, Control Everywhere?
    A consortium that includes Microsoft and VeriSign proposes to develop standards for content protection using "data packages that uniquely identify content and the context in which it will be used":
  • Gag Me with a TOS Agreement (Salon; ad view nonsense required.)
    A weblog writer who reports on the fictional happenings in a Sims Online town urged game owners to notify local police authorities of an in-game report of child abuse. Now his Sims account has been deactivated.
  • Miramax Has Weak Kung Fu
    The company recently threatened a movie review site for linking to importers of martial arts films:
    Verified Voting Bill Gets Senate Companion (Registration unfortunately required.)
    Senator Bob Graham's Voter Verification Act would require paper audit trails for e-voting machines.
  • CALEA for VOIP (Washington Post; registration unfortunately required.)
    No, we didn't find that etched in a heart on the side of a spaceship. It's shorthand for "The FBI wants to listen in on your Net phone calls".
  • Why Doesn't Diebold Offer Paper Printouts for E-Voting Machines?
    After all, it provides them for its ATMs, self-checkout kiosks, and subway ticket machines:

  • EFF Court Docket

    • January 12 - Newmark v. Turner
      U.S. District Court, Central California
      225 East Temple street
      Los Angeles, CA.
      10:00 a.m.
    • February 3 - MGM v. Grokster
      Ninth Circuit Court of Appeals
      125 South Grand Avenue
      Pasadena, CA.
      9:00 a.m.
    • February 9
      OPG v. Diebold
      U.S. District Court, Northern California
      280 South 1st street
      San Jose, CA.
      9:00 a.m.

    Staff Calendar

    For a complete listing of EFF speaking engagements (with locations and times), please visit:

    • January 10 - Lee Tien speaks on RFIDs at ALA Intellectual Freedom Committee
      San Diego, CA.
      10:00 a.m. - 11:00 a.m.


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