EFF: Pavlosky

8/14/2019 EFF: Pavlosky

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Cindy A. Cohn, Esq. SBN 145997)Wendy Seltzer, Esq.ELECTRONIC FRONTIER FOUNDA nON454 Shotwell S1reetSan Francisco, CA 94110Telephone: (415) 436-9333 xl08Facsimile: (415) 436-9993

Attorneys or PlaintiffONLINE POLICY GROUP6

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Jennifer Stisa Granick, Esq. SBN 168423)STANFORD LAW SCHOOLCENTER FOR INTERNET & SOCIETY559 Nathan Abbott WayStanfo~ CA 94305-8610Telephone: (650) 724-0014Facsimile: (650) 723-4426Attorneys for PlaintiffsNELSON CHU P A VLOSKY and LUKETHOMAS SMITH1

12UNITED STATES DISTRICf COURT

13FOR THE NORTHERN DISTRICT OF CALIFORNIA

14ONLINE POLICY GROUP, NELSON CHUPA VLOSKY , and LUKE THOMAS SMITH.

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Plaintiffs, ) DECLARAnON OF NELSON CHU) PA VWSKY IN SUPPORT OF) PLAIN'CD'j!"S APPLICA nON FOR) TEMPORARY RESTRAINING ORDER) AND FOR PRELIMINARY INJUNCnON

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18DIEBOLD, INCORPORATED, andDIEBOLD ELECrlON SYSTEMS,INCORPORATED,

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)0Defendants.21

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23I, Nelson Chu Pavlosky, declare under penalty of perjury that the following is true and

24correct:

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26 am a sophomore at Swarthmoream a plaintiff in the above-captioned ase

27 College. am nineteen years old. My address s 500 College Avenue, Swarthmore, Pennsylvania

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1 19081. I have not yet declared a major.

I am one of two founding members f the Swarthmore oalition or the Digital2.My friend Luke Smith and conceivedCommons hereinafter SCDC"), a student organization.

The first official meeting of the SCDC wasthe idea for the SCDC n the summer of 2003,

September 4, 2003. The SCDC s not currently chartered ith Swarthmore, lthough plan on5submitting a charter application or the SCDC as soon as Swarthmore's tudent government begins6

The SCDC s not currently unded, but a charter7 accepting a new round of charter applications.

would bring funding.On October 21,2003, our organization posted on our web page e-mail archives hat9 3,

appeared o be from Diebold employees iscussing problems with the company's electronic voting10

machine. One day later, the college administration told us that they had received a letter from11Diebold claiming that we were infringing their copyright by posting these e-mail archives and the12school disabled nternet access o the e-mail archives on October 22, 200313

The SCDC s dedicated o promoting a bottom-up, participatory structure or society14 4.The group was nspirednd culture characterized y the free and open exchange of infonnation.5

by the Electronic Frontier Foundation, Laurence Lessig, Creative Commons, and he Free Software16The SCDC is also dedicated to fmding a balance between the growth of newFoundation.

The SCDC chooses projects from thistechnologies and the interests of creators and consumers.8

general nterest area or student members o research nd discuss.19network,warthmore atheCDC, The operates website on0 a

<http://scdc.sccs.swartmore.edu>, hat describes he organization's goals and mission, notifies21members and nterested tudents of upcoming meeti!1gs, nd publishes articles and facts relating to22

The SCDC site also provides links to resources,23 the free and open exchange of infonnation.

including newspaper articles and other websites. SCDC student members, ncluding myself, post24information and add inks to this website. Swarthmore rovides nternet connectivity o students as2Sa service ncluded n Swarthmore's $36,000 a year uition fee.26

am particularly interested n open standards n voting andAs a first-time voter,7 6.discussed CDC studying he ssue of voting ransparency s early as he first SCDC meeting. I

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was nterested n exploring a non-proprietary r open-source oting system as an alternative o

2 I worry thatoting technologies developed by private companies with proprietary interests.

3 election results may depend on voting technologies eveloped n secret. I believe hat the only way

4 the public can know if voting software works the way it should s if they can see ts source code.

s Otherwise, he future of our nation depends n a business's epresentation hat their product s

6 accurate enough o use as a voting system

7 7. I first heard about the Diebold employee e-mail archives from friends in another

8 Swarthmore student organization, Why-War? The Why-War? website contained links to the

9 Diebold e-mail archives. I immediately ecognized he significance of these e-mail archives o the

10 SCDC's mission. The e-mail archives .xposed laws in Diebold voting machines hat could affect

1 felt that making the e-mail archives available was a unique opportunityhe outcome of elections,12 for the SCDC to infOmt people about how closed electronic voting could hurt the democratic

13 I thought he e-mail archives would helprocess by possibly producing false election results

14 people evaluate system y which many will exercise ne of their most undamental ights-the

IS right to Yote. The following excerpts rom the e-mail archives llustrate my concern:

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"Elections are not rocket science. Why is it so hard to get things right! I have neverbeen at any other company hat has been so miss [sic] managed."[source: http://chroot.net/s/lists/announce.w3archive/200110/msgOOOO2.html

18"I need some answers! Our department s being audited by the County. 1 have beenwaiting for someone o give me an explanation as o why Precinct 216 gave Al Gorea minus 16022 when it was uploaded. Will someone please explain this so that 1have he nformation to give the auditor nstead of standing here "looking dumb.'"'[source:http://chroot.net/s/lists/support.w3archive/2001 1/msg00068.html]

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228, In early October, learned hat Diebold had asked Why-War's off-campus nternet

23 service provider to disable access o the Diebold e-mail archives. In response, members of Why-

24 War? and other nterested Swarthmore tudents egan hosting he e-mail archives on their personal2S The SCDCowever, bandwidth issues made hosting on personal sites impracticable.ites.26 decided o preserve public access o these e-mail archives by hosting the e-mail archives on its27 website on the Swarthmore College Computing Society server. SCDC put up the e-mail archives

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1 on Tuesday he 21st of October.

The next day, Wednesday he 22nd of October, Swarthmore ean Robert Gross9.called Why-War? and he SCDC and asked us to have a meeting with him that afternoon. He said

that he had been n contact with Swarthmore' legal counsel about a letter he had received rom

s Diebold asking Swarthmore o disable access o the e-mail archives hosted on its network. A copy

6 of that letter is attached at Exhibit A. At the meeting, Dean Gross istened o other students' and

7 my thoughts on the merits of Diebold's demands nd on whether or not Swarthmore hould comply

8 with those demands. Dean Gross did not explicitly state what action Swarthmore would take in

9 response o the Diebold letter.

I received an email from a Swarthmore ystems dministrator at 6:12 pm that0 10,

1 evening nforming me that Swarthmore TS had told the Swarthmore College Computing Society12 ("Computing Society") to remove the e-mail archives hosted on SCDC's site, The Computing

13 Society removed the Diebold e-mail archives rom the SCDC site at approximately 6:30 pm on

Wednesday he 22nd. The e-mail archives were up on the SCDC site for approximately one day4

15 11 knew Swarthmore had resolved o take website posts of the e-mailt this point,

16 However, I did not know the policy on linking from archives off of Swarthmore's servers.

.7 Swarthmore website o another website hat hosted he e-mail archives. Co-plaintiffLuke Thomas

18 Smith added a link from the SCDC website to Why-War?'s website, which hosted the memos

19 The following day, Thursday October 23rd, Why-War? member Micah White sent me an e-mail

20 infonning me that it was now against Swarthmore's policy to link ftom a Swarthmore website o an

outside website hat hosted he e-mail archives. After reading he e-mail, I promptly removed he1

22 link from SCDC's website,

23 12 I am not currently hosting or linking to the e-mail archives on the SCDC site or on

24 any personal website.2S 13 Diebold's actions have negatively affected my academic research and plans to

26 When theducate myself and the public about the state of the voting process n our country.

27 SCDC first acquired he e-mail archives, we intended o start a project to read and study the e-mail

archives, n the same way other colleges have studied he "Tobacco Papers" which revealed8.', 4-~;. ~ ECLARATIO P S UP RTOF

PLAINTIFFS' APP FOR TRO AND FOR PRELIM INJUNCTION



However, upon discovering hat the SCDC coulduestionable practices of the tobacco ndustry

2 not post the e-mail archives on the web due to Diebold's claims of "copyright infringement", we

3 realized hat doing this research would be difficult if not impossible. I feared hat Diebold would

4 accuse us of "copyright infringement" f we copied he e-mail archives onto CD. I also feared hat

5 sharing the e-mail archives with other students could be construed as "copyright infringement,

6 that printing out the e-mail archives could be considered copyright infringement," that indeed any

7 dissemination f this infonnation could put us at risk of a lawsuit rom Diebold Working on

8 research with other people s impossible under hese conditions. now fear that we cannot discuss

9 some of the most relevant ssues n voting technology because Diebold's threats orce us to

10 suppress he e-mail archives hat reveal the flaws in these voting systems. An upcoming

II symposium on voting transparency hat the SCDC is organizing could have benefited from such12 research; we may be able to hold a successful onference without researching he e-mail archives,

13 but we may now never know what mpact knowledge of the e-mail archives could have bad

.4 14. Foriebold's actions have also affected my experience as a Swarthmore student.

15 am afraid oe, Swarthmore s no longer the environment of academic reedom t once was.

16 fear that Diebold williscuss he Diebold e-mail archives with friends and with other students

7 come after me if I engage n discussion about he problems with voting technology revealed n the

18 e-mail archives It frightens me that my college didn't have he courage o stand up for my fellow

19 students and me face a massive andave a feeling of abandonment nd vulnerability because

20 unknown danger whenever speak I also believe he imposed silence nms afoul of Swarthmore's

21 own tradition of responsibility and participation.

22 IS If SCDC posts e-mail archives or links to the Diebold e-mail archives tom its

23 website, he school administration may force the Swarthmore College Computing Society to take

24 the SCDC web ite off of the Computing Society's webserver. This would seriously hamper2S communication between members about meetings and events, and remove access o any resources

26 that the SCDC publishes, such as tutorials for using Linux. The group might not be able to get

27 The SCDC's future wouldhartered f it cannot function as an organization hrough its website

28 also be threatened y a lack of internet exposure

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2 16. I am very concerned about he chilling cffccts of not being able to host the Diebold

3 c-mail archives. Diebold's actions have stifled my efforts to use the SCDC as a toOl for Jeaming

4 and debate. My group. the SCDC. cannot ully dedicate tself to elevating our knowlcdge and th~

s public's knowledge about ssues hat affect our ability to participate n our government aI1d n OUT

6 society in general I fear that the resulting ack of transp~cy in the voting process will mcan

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flawed election IeSults and will decrease oter confidence and participation.

I declarc under penalty of perjury under the laws of the State of Pennsylvania hat the

foregoing is troc and conect and that this declaration was executed n S~(~M'rv. _I

10 Pennsylvania.

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PLAINTIFPS'APPFOR. RO AND FORPREIJM NJUNcrIO

eoollJ Q"I3I.i~NIHdS SOJNt~ YVd 8Y:YY COIZOltt



1r~."

E. JockePatent

0-T~ Lew

Ralph

a legal professional association

1r~(.." Jc~e

October 9, 2003

Judy DowningDirector oflnfonnation Technology ServicesSwarthmore CollegeBeardsley Hall500 College AvenueSwarthmore, PA 19081

downin2ra2swarthmore. du

Re: Copyright InfringementDear Ms. Downing:

We represent Diebold, Incorporated and its wholly owned subsidiaries Diebold ElectionSystems, Inc., and Diebold Election Systems ULC (collectively "Diebold").

Diebold s the owner of copyrights n certain COITesPOndence nd other material relating to itselectronic voting machines that were stolen from a Diebold computer ("Diebold Property").

It has recently come o our clients' attention hat you appear o be hosting a web site thatcontains Diebold Property. The web site you are hosting nfringes Diebold's copyrights because heDiebold Property was placed on this web site without Diebold's consent.

The web site and Diebold Property are dentified in a chart attached o this letter.

The purpose of this letter is to advise you of our clients' rights and to seek your agreement othe following: (1) to remove and destroy the Diebold Property contained at the web site dentified inthe attached chart and (2) to destroy any backup copies of the Diebold Property in your possession or

under your control.

Please onfirm, in writing, that you have complied with the above equests.



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To the best of my knowledge and belief the information contained in this notification isaccurate as of the time of compilation and, under penalty of perjury, I certify that I am authorized to

act on behalf of Diebold.

Our clients eserve heir position nsofar as costs and damages aused y infringing activitywith respect o the Diebold Property. Our clients also eserve heir right to seek njunctive relief toprevent urther unauthorized se of Diebold Property, ncluding reproduction, distribution, public

display, or the creation of derivative works, pending your response o this letter. We suggest oucontact your legal advisors o obtain egal advice as o your position.

We await your response within 24 hours.

Very truly ~urs,

","'1~~- rRalph E. Jocke

Medina U.~.Aoulh f>road.."31



INFRINGING MA ~RIALS POSTED ON http://d176.whartonab.swarthmore.edu/

This site consists of Diebold Property, stolen rOm Diebold md posted atthis web site without the consent of Diebold.

http://why-war. co m/ reso urces/ files/diebold_internalmemos.pdthttp://dl76.whartonab.swart

hmore.edu/diebold-int~~memos. pdf

f>roadway Medina U.~.A~.t &ovth

EFF: Pavlosky

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