Published on Monday, December 01, 2003
Diebold Won't Sue Students

By ZACHARY M. SEWARD
Contributing Writer

A coalition of college students who had disseminated damaging internal memos of Diebold Election Systems won a major victory last week when the company backed down from threats to sue.

“We’ve made the decision not to move forward on pursuing copyright infringements,” Diebold spokesperson David K. Bear said yesterday.

A motion filed by Diebold in U.S. District Court last Monday appeared to represent a white flag in the company’s effort to prevent students from posting the private and damaging memoranda on the Internet.

At least 87 people, most of them college students—and two of them Harvard undergraduates—have made the documents available on university-hosted websites in a growing movement aimed at highlighting alleged flaws in Diebold’s electronic voting machines.

The memoranda were obtained by a hacker in March 2003.

In one memorandum from April 23, 1999, an employee acknowledges a flaw in one of the company’s electronic ballots.

“I don’t expect you will see a fix in time for the election,” the employee writes, “since it is tomorrow.”

Diebold will not comment on the memoranda but has said that any imperfections in their systems have subsequently been fixed.

Diebold has claimed its memoranda are protected under copyright laws, which it says protect internal corporate documents.

In last Monday’s motion, Diebold cited “the widespread availability of the stolen materials” as a reason the company decided against pursuing litigation.

Bear, Diebold’s spokesperson, said the company would not rule out the possibility of litigation in the future.

“We certainly reserve our right to protect our proprietary information,” he said.

Diebold’s motion may render unnecessary a circuit court ruling on the merits of each side’s copyright claims.

Two Swarthmore College students and a non-profit Internet service provider had filed suit against Diebold in hopes of securing their rights to post the documents.

A conference call scheduled for today by that case’s judge, Jeremy D. Fogel, could resolve the suit.

“[Diebold’s] claims were not going to prevail in court,” predicted John G. Palfrey ’94, executive director of the Berkman Center for Internet and Society at Harvard Law School.

Wendy M. Seltzer ’96, staff attorney for the Electronic Frontier Foundation, which is providing legal representation for the plaintiffs, said she would still like to see Fogel rule on their suit.

“We’d still like to have a judge saying that a posting like this is ‘fair use,’” said Seltzer, a former Crimson executive, referring to an exemption in U.S. copyright laws under which students have claimed the Diebold memoranda fall.

Derek A. Slater ’05, one of two Harvard students who posted the memoranda on their University websites, said the Diebold motion represents a victory for him and others who have challenged the company.

“The students called their bluff by posting the documents,” said Slater.

After Diebold sent a cease-and-desist order to Harvard, the University removed the memoranda from Slater’s website.

But the University general counsel’s office informed Slater last month that his actions would not count as a violation of network policies.

The other Harvard student who has posted the memoranda, A. Eleanor Luey ’04, said she was never contacted by Diebold or the University about the documents.

The Diebold motion follows a decision last month by the California Secretary of State which will require all electronic voting machines in the state to provide paper receipts by 2006.

Reveling in the wake of Diebold motion’s last week, Palfrey said he was proud of the students.

“Derek Slater and a number of other students put themselves in harm’s way for something they believed in,” he said.