Electronic voting and copyright?

Most everyone who lived through the presidential election of 2000 would agree that it's important to have public discussion about the integrity of voting systems in America. Most everyone, except Diebold.

And Diebold sold electronic voting machines to at least 37 U.S. states in the last four years.

Computer experts have been fretting about the security of Diebold's electronic voting technology for years. In 2003, a controversial scholarly review cataloged 328 possible security problems in Diebold's systems. California decertified Diebold's touch-screen voting machines, citing security reasons. California's attorney general has sued the company for misrepresentation.

It didn't help matters that Diebold's CEO, Walden O'Dell, reportedly wrote in a fundraising letter in the summer of 2003 that he was "committed to helping Ohio deliver its electoral votes to the president next year."

But the most tragic part of the story has nothing to do with political partisanship. It has to do with Diebold's ill-conceived effort to use the copyright law to put a lid on the public debate about the integrity of electronic voting.

About a year ago, a rather large set of documents written by Diebold staff appeared online. Exactly how the memos got there is disputed. The 13,000 or so documents revealed internal concerns about many of the issues that had worried the computer scientists.

Diebold moved quickly to block the publication of the documents online by sending "cease and desist" letters to a woman who had posted the material, Bev Harris, and her Internet service provider.

Students at Swarthmore College, aware of the threat to the documents, copied the documents to their own Web sites. An undergraduate at Harvard, Derek Slater, among others, followed suit. The students contended that the accessibility of the documents contributed to an important civic debate and asserted that their actions were shielded by the fair use doctrine, an important exception in the copyright law. Nonetheless, the students and their schools heard promptly from Diebold's lawyers.

Diebold's legal action against the students makes perfect sense on one level. Company secrets, as well as private information about employees, were floating freely about in the ether. Shareholders would suffer. Competitors would gain.

But Diebold and its lawyers made a terrible choice in trying to stop the hemorrhaging. They decided to invoke the copyright law to cut short the debate.

The Digital Millennium Copyright Act, an addendum to copyright law passed in 1998, enables a copyright holder to send a letter to the Internet service provider that makes available copyrighted material (often an illegally copied song) to demand that it be taken down. Usually, the service provider complies promptly, in order to avoid litigation, and that's the end of the story. The matter is ruled by fear, not by a judge.

But copyright is intended to promote creativity, not to stifle political speech. A howl of protest went up in response to Diebold's heavy-handed tactics. Public interest lawyers, including the Electronic Frontier Foundation's Wendy Seltzer and the Stanford Center for Internet & Society's Jennifer Granick, among others, stood by the students and filed a raft of counterclaims. It did not take long for Diebold to withdraw its threats in the face of long odds and serious legal opposition, but the damage had been done.

Last week, a federal judge in California sided with the students against Diebold. "It is hard to imagine a subject the discussion of which could be more in the public interest," the judge wrote.

The judge also found that Diebold had misrepresented its claims against the students, who were indeed protected by their fair use defense. "No reasonable copyright holder could have believed that the portions of the e-mail archive discussing possible technical problems with Diebold's voting machines were protected by copyright," the judge said. Diebold will pay damages to the students and reimburse their lawyers' fees--the first case of its kind to slap the wrist of an over-reaching copyright holder.

In the Federalist Papers, James Madison wrote of the Congress' copyright authority that "The utility of this power will scarcely be questioned." But the scope of the power must be questioned, just as the students did. Copyright abuse can cost society dearly, especially when issues core to the functioning of our democracy are at stake.

It's not that electronic voting is a bad idea. In fact, well-developed electronic voting systems may turn out to be important to the future of American democracy. It's just hard to imagine that anyone might have missed the lesson that we ought to be talking about how our voting systems work.