EFFector Vol. 17, No. 40 October 27, 2004
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 311th Issue of EFFector:
- EFF and Verified Voting at E-voting Ground Zero, November 2
- Look Before You Vote - Proof Your Ballot!
- EFF Launches "Paper or Plastic 2004" Campaign
- Sixth Circuit Court Protects the Right to Reverse Engineer
- EFF Challenges Secret Court Order: Motion Demands Information About the Seizure of Indymedia's Servers
- MiniLinks (15): John Kerry - DMCA Reformer?
EFF and Verified Voting at E-voting Ground Zero, November 2
Nationwide - EFF has been asked by the nationwide non-partisan Election Protection Coalition (EPC) to lead a team of technology lawyers who can serve as experts on November 2 if problems arise at e-voting "hotspots" around the country. Stationed in cities across the nation, these experts will be available to answer questions when people call the Election Protection Hotline at 1-866-OUR-VOTE with issues related to e-voting.
Also on Election Day, more than 1,300 technologist volunteers with the Verified Voting Foundation (VVF) TechWatch program will work with Election Protection hotline volunteers to chronicle and respond rapidly to election problems, providing detailed, accurate information for follow-on litigation and policymaking. Their activities will include poll watching, responding in cooperation with field attorneys, and recording any problems they find in the Election Incident Reporting System. (See http://www.verifiedvoting.org/eirs/.)
The two organizations will also hold a joint press tele-conference at 6:00 p.m. EST (3:00 p.m. PST) on Election Day to discuss the performance of e-voting machines and related issues. (Members of the press who would like to participate should contact Annalee Newitz at firstname.lastname@example.org)
Finally, in addition to the press conference, EFF will be reporting throughout the day on technology-related voting glitches at EFF's Deep Links weblog, responding to real-time, on-the-ground reports that come in through election incident centers and from voter protection activists observing the polls.
For the original press release:
Deep Links weblog:
Look Before You Vote - Proof Your Ballot!
Early voting has begun across the country and we're already seeing just how "touchy" some of the touchscreen voting machines can be.
Specifically, there are a number of reports that voters in New Mexico and Texas are trying to cast ballots for one candidate but finding that the machine lights up for another. This is happening to people regardless of whom they're voting for; voters who want Bush are getting Kerry and vice versa. Predictably, election officials seem to be blaming voters, claiming that they must have accidentally touched the wrong part of the screen or brushed up against it with their sleeves. But we've witnessed demonstrations of touchscreen e-voting machines, and the design of the machines themselves may have more to do with the problem than voting officials are willing to admit.
At this stage, it's impossible for us to know what's really going on. But even if what we're seeing is a pattern of voter error, we should be wondering why election officials have chosen machines vulnerable to this problem. You shouldn't have to have a surgeon's touch to vote in America.
Regardless of the long-term implications, the short-term response is clear: If you are voting using a Direct Recording Electronic (DRE) machine, you must proof your ballot. The major DREs being used in this election show you a "summary," "proof," or "review" screen before your vote is cast. If you see anything funny there, stop. DO NOT CAST YOUR VOTE. The machine will allow you to correct your vote at this stage; use this option. If it's not evident to you, ask a poll worker to give you directions.
It might also help for you to be prepared for what you will experience at the polls. Before heading out to vote, we advise that you print out a Voters Guide for the machine you'll be using, and take the guide with you to ensure that your vote is properly cast. To do so, visit the Verified Voting Foundation's (VVF) "Verifier," an online map where you can "drill down" to your particular county and find out what kind of voting machine you'll be using. It's quick, it's easy, and it may help you avoid the problems other voters are having.
For the original version of this piece online:
The VVF "Verifier":
Albuquerque Journal: "Some Early Voters Say Machines Mark
(Registration unfortunately required.)
EFF Launches "Paper or Plastic 2004" Campaign to Educate California Voters About Paper Ballot Option
San Francisco, CA - EFF launched a campaign Wednesday to inform California voters of their right to vote on a paper ballot in the upcoming election. The website and animation for "Paper or Plastic 2004" are available at:
Ten California counties - including Orange, Alameda, and Riverside - will use electronic voting machines on November 2, but these systems don't provide a voter-verified paper audit trail and therefore cannot be used in a meaningful recount. That's why Secretary of State Kevin Shelley ordered each of these counties to give voters a choice: on Election Day, voters can choose to forego an electronic ballot and instead vote on paper. However, election officials in at least three counties are instructing poll workers to keep this "paper or plastic" choice secret.
"Thousands of Californians fought for the option to cast ballots that can be verified, audited, and recounted, but these officials are trying to keep the public in the dark," said EFF Staff Attorney Matt Zimmerman. "Election officials in Alameda, Orange, and Santa Clara Counties are violating the spirit of Secretary Shelley's order by instructing poll workers to not tell voters about their rights or failing to instruct poll workers about the paper ballot option at all."
Napa, San Bernardino, Merced, Plumas, Shasta, Tehama, and Riverside Counties also use e-voting machines, but it is not clear whether their poll workers have been given similar instructions. The animation and website will also be released in Spanish, Chinese, and Tagalog later this week.
Paper or Plastic 2004:
For this release:
EFF Challenges Secret Court Order
Motion Demands Information About the Seizure of Indymedia's Servers
Texas - EFF attorneys have filed a motion to unseal a secret US federal court order that led to the seizure of two servers hosting several websites and radio feeds belonging to Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists. The motion seeks to discover which agencies and governments are responsible for the seizure in order to hold them accountable. In their motion, EFF attorneys argue that "the public and the press have a clear and compelling interest in discovering under what authority the government was able unilaterally to prevent Internet publishers from exercising their First Amendment rights." They argue further that secret court orders circumvent due process, undermine confidence in the judicial system, and deny an avenue for redress.
"When a secret order results in the unconstitutional silencing of media, the public has a right to know what happened," said EFF Staff Attorney Kurt Opsahl. "Freedom of the press is an essential part of the First Amendment, and our government must show it had a compelling state interest to order such an extreme intrusion to the rights of the publisher and the public."
EFF's motion to unseal was filed in the federal court in the Western District of Texas, where EFF believes the secret court order originated.
For the full press release:
EFF motion to unseal:
For background on the seizure:
AP: "Web Server Takedown Called Speech Threat":
(Registration unfortunately required.)
Sixth Circuit Court Protects the Right to Reverse Engineer
Big Win in Printer Cartridge Case Suggests Ways to Limit Use of DMCA
In a huge victory for consumers, the Sixth Circuit Court ruled this week that printer manufacturer Lexmark cannot use the controversial Digital Millennium Copyright Act (DMCA) to stop its competitors from creating and selling cartridges that interoperate with its printers. The decision lifts an injunction imposed by a lower court on the sale of Static Control Components (SCC) chips that allow any printer cartridge to work with Lexmark printers. Now, a company that wishes to compete with Lexmark in after-market cartridge sales can do so by using SCC chips in its products.
In the ruling, the judges state firmly, "We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case[.]"
The case, Lexmark v. Static Control Components, demonstrates one of the absurdities of the anti-circumvention clause of the DMCA. Congress intended the DMCA to thwart mass copyright infringement on the Internet, but some companies have been invoking the law to gain control over after-market competition. In this instance, Lexmark programmed its printers to require a digital "handshake" with cartridges, so that only authorized (read Lexmark) cartridges could be used. When Static Control started selling chips that allowed other companies to refill used cartridges and make them interoperable with Lexmark printers, Lexmark claimed it was engaging in unlawful reverse engineering and sued under the DMCA.
EFF filed a friend-of-the-court brief in the case, arguing that Static Control should be able to examine its competitor's technology in order to manufacture compatible cartridges without facing a copyright lawsuit.
"Reverse engineering drives competition and innovation in the technology sector," said EFF Staff Attorney Wendy Seltzer. "We're happy the court recognized it as an important practice that shouldn't be regulated by the DMCA."
This decision suggests that courts are losing patience with frivolous reverse-engineering suits under the DMCA that seem designed to crush competition rather than protect copyright. In a similar case, Chamberlain v. Skylink, a federal appeals court in Washington, DC, upheld a lower court ruling that allowed the marketing of "universal" remote controls for garage door openers.
For this release:
For the ruling:
ZDNet UK: "Lexmark's Loss Is Everyone's Gain":
miniLinksminiLinks features noteworthy news items from around the Internet.
Singapore to Start Jailing, Fining Copyright Infringers
And when it does, that bastion of liberalism could pull even with the US in terms of copyright extremism:
John Kerry - DMCA Reformer?
Declan McCullagh wonders whether a future President Kerry would defang the law:
Obscure Holiday Film to Be Released on Self-Destructing DVDs
Wow. We don't know if we've ever wanted to buy anything *less*:
Companies Join Forces to Stop EU Software Patents
The group, composed primarly of open-source businesses, may be the first collection of companies in Europe to oppose software patents as a rule:
Music Sales, File Sharing on the Rise
The Register puts it best: "Music Sales Rise Despite RIAA's Best Efforts":
What's in Echelon's Gadget Bag?
This article examines the technology behind Echelon, the world's largest surveillance project:
New MPAA Head Throws Lavish Party in France
French consumers pay a tax on blank audio, video, and CDs, so they're the ones who picked up the 300,000 Euro tab:
FL Judge Cuts Paper Trail Suit
The court squashed Rep. Robert Wexler's bid to get the state to require paper trails for e-voting machines:
(Washington Post; reg. unfortunately required.)
More on FL E-voting
This editorial ponders the question of whether e-voting will make Florida the next Florida:
MIT's LAMP Relights
This smart, novel project is a bright idea, but it had to be dumbed down before copyright lawyers would agree to back off. Check out this post from Ed Felten on LAMP and "regulatory arbitrage":
The Engadget Interview: Wendy Seltzer
EFF Staff Attorney Wendy Seltzer sat down with the fine folks at Engadget for this interview. Well, they actually conducted the interview over email, but we're pretty sure that both parties were sitting down:
The Skinny on Indymedia's Server Seizure
Team EFF has assembled the authoritative account of how Indymedia servers in England were seized - and returned - following an international bricolage of secret legal maneuvers.
Fair Use Goes on the Offensive
Our own Fred von Lohmann on how judo-minded attorneys can turn a baseless copyright claim into a fair use smackdown:
Israel Creates Licensing System for Private Copies
The country will amend its copyright law to allow citizens to make personal use copies of CDs so long as the reproductions use licensed media:
Free Culture Goes Dutch
Dutch Parliamentarians want to put images from publicly owned broadcasters into the public domain. Bravo!
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