October 25, 2003

My letter to Swarthmore supporting fight against Diebold

[I sent this just now. Maybe it'll do some good. I tried to address the legal risk problem as I see it]

October 25, 2003

Dear Dean Robert Gross

I wish to write in support of the students hosting the Diebold memos, and to argue against your reported statement that the position of Swarthmore College is "We can't get out in front in this fight against Diebold". I would be flattered to be ranked among the "tech celebrities" sending letters. I was awarded a 2001 Pioneer Award by the Electronic Frontier Foundation, for my decryptions of censorware in the service of civil-liberties.

I will attempt to construct an argument with more depth than mere exhortation or preaching. My reading of the situation is that Swarthmore feels chilled by the possible legal liability. I recognize it is no help to volunteer other people, to say to fight to the last drop of someone's else blood. In fact, I've been driven to quit my own research into censorware systems because I simply could not get the necessary legal and press backing to balance the tremendous risk of lawsuits. So I know whereof I speak, and do not write lightly.

Yet I would say that Swarthmore, as an educational institution, is in fact extremely well-positioned to fight against Diebold. Though I'm not a lawyer, I'd claim that courts are generally extremely well-disposed to colleges in a situation such as this. The public interest and educational purpose aspect weigh very heavily, formally in a fair use copyright defense, and also informally in terms of making for a sympathetic presentation.

And Diebold does not appear to be in a particularly strong position. They might be able to crush any particular individual through simple attrition tactics, but an educational institution is another matter. The material at issue is extremely embarrassing to them, building on security problems which have been revealed in their system. They've had much bad publicity in the past, and are receiving more bad publicity now. They come off like Nixonian thugs trying to suppress their version of the "Pentagon Papers".

My own censorware research exposed a reality of products far inferior to their manufacturer's absurd marketing claims. When the very mechanism of democracy (voting) is at stake, exposing how the product works - or more importantly, doesn't work - is profoundly important.

Again, I deeply respect the reasons of anyone who does not want to endure being sued. But I hope my missive can add some strategic assessment to offset chilling effect.


Seth Finkelstein
Programmer, EFF Pioneer Award Winner, and civil-libertarian activist

By Seth Finkelstein | posted in copyblight | on October 25, 2003 10:50 PM (Infothought permalink) | Followups
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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Hey Seth, I'd just like to thank you for your letter of support. I'm a founding member of the Swarthmore Coalition for the Digital Commons, and I've found your blog and your links very informative. I don't know how much of the massive quantities of e-mail Bob Gross has actually been reading, but if he gets to this one I hope it may have some effect on him. Ultimately, however, he isn't really calling the shots here, he's turned over authority to Swarthmore's lawyers, and the college has been behaving in accord with their legal advice. It's a pity that their legal advice didn't result in the college calling Diebold's bluff.

Posted by: Nelson Pavlosky at October 26, 2003 08:59 PM

*Superb* letter, and I wanted to express my support to all of you fighting this.

And now my Alma Mater has gotten a C&D ... and MIT has (I gather, with no disrespect intended towards Swarthmore) substantially greater resources to bring to bear, an "attitude" ^_^, and special credibility in the field of computer systems. MIT just might make a stand on this, with any luck.

Posted by: Harold at October 29, 2003 08:24 AM

I am a graduate of Swarthmore and of the Harvard Law School. I support the freest flow of information on the Internet. Even if the information was obtained improperly in the first place, it cannot be put back in the bottle, so why suppress it? Look for remedies outside of copyright law to discourage illegal hacking.

Posted by: Anne M. Vohl at November 3, 2003 10:37 PM