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Its probably safe to say that very few of the precedents being set by voting-machine maker Diebold are going the way the company intended.
Last weeks ruling—that Diebold overstepped its ability to invoke the Digital Millennium Copyright Act to silence online criticism of its voting-machine technology—is just the latest misstep.
The ruling, handed down by a federal district court in San Jose, Calif., will resonate, says Jennifer Granick, executive director of the Stanford Law School Center for Internet and Society. “It should have an impact,” she said.
David Bear, a Diebold spokesman, said the company is still reviewing the decision. He had no further comment on the court case.
Diebold had invoked copyright law—and the potentially harsh penalties its violators face—when it persuaded ISPs to shut down a site run by two Swarthmore College students. The students had posted memos about the companys technology, which Diebold claimed were copyrighted.
The district courts ruling, that Diebold misused the law to protect material that was not in fact protected, gives ISPs—and their customers—a way to challenge requests to deny access or shutter sites. “In this kind of case, a district court opinion can be very persuasive,” Granick said.
But how exactly did it come to this? A voting-machine manufacturer getting hauled into court over copyright law?
Welcome, once again, to the intersection of politics and technology. It aint pretty.
Diebold has been criticized—most notably on Slashdot.orgs political venue—for everything from relying on Microsofts operating system to encouraging the re-election of President Bush.
All of the accusations may be true. But in the long run, theyre beside the point. Bear, the company spokesman, takes great pains to talk about how Diebold CEO Walden ODell has curtailed his political activity. And he responds cheerfully to criticism of Diebolds equipment, pointing out that much of the debate about how machines should operate and be used is up to the local officials. Ultimately, thats who runs elections.
“It isnt just a piece of equipment sitting in a room,” Bear says, noting that voting machines are purchased, maintained and set up by local election officials. “No election is some rogue, nefarious person, sitting in the back of a room.”
Maybe. But lots can and does go wrong every November. And until recently, not too many people really noticed.
This year, for a variety of reasons, some tech-savvy folks are getting familiar with the daily grind of politics—its nuts, bolts, ballots and counting. Its a first look for many, and they are seeing how flawed the system is and always has been. “The more you look at it, the worse it gets,” says Kim Alexander, president of the California Voter Foundation.
Next Page: Wheres the paper trail?
Paper Trail
So, ballot counting is no longer the exclusive purview of election officials, who are often constrained by budget problems, not all that familiar with the inner workings of most computers, wary and harried. Diebold, which is more accustomed to that state of affairs—one common before the 2000 presidential election and the comedy of errors that was ballot-counting in Florida—is under a new and newly intense kind of review in venues it doesnt know and likes even less.
The result? Some name-calling. “Its what I call the technology-political information gap that Ive been staring at for years,” Alexander says. Like many people with political experience, shes less worried about operating-system hacks and other computer security problems envisioned by the tech cognoscenti.
Alexanders critique of Diebolds and others touch-screen voting machines is instead more specific. She wants their machines to provide a paper record of votes cast, a record detailed enough and updated regularly enough to be audited if there are any problems. “When—its when, not if—things go wrong, you need that paper record,” she says.
Diebold machines can provide paper trails, Bear says. And they are set up to be examined before and after votes are cast to ensure officials that theyre accurate and safe. But Alexander wants more—and recently got it in California. The state passed a law requiring machines such as those Diebold makes to provide more detailed paper auditing ability.
This is the sort of action that all communities should consider, Alexander says. “No matter what voting systems we have, people will cheat,” she says. That has to be anticipated not by better engineering but by better oversight, with examinations that everyone—even the less computer-savvy—can understand, Alexander says. “The county elections officials are in over their heads.”
eWEEK.com Technology and Politics columnist Chris Nolan spent years chronicling the excesses of the dot-com era with incisive analysis leavened with a dash of humor. Before that, she covered politics and technology in D.C. You can read her musings on politics and technology every day in her Politics from Left to Right Weblog.