November 29, 2004

Libel Case Could Chill Speech Online

EFF, ACLU Ask California Supreme Court to Restore Free Speech Protections for Internet Users and Service Providers

California - Last week the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union of Northern California (ACLU) filed a friend-of-the-court brief in a case that could undermine a federal statute protecting the free speech of bloggers, Internet service providers, and other individuals who use the Internet to post content written by others. The case in question is a libel suit filed against women's health advocate Ilena Rosenthal after she posted a controversial opinion piece on a Usenet news group. The piece was written not by Rosenthal, but by Tim Bolen, a critic of plaintiff Terry Polevoy.

In their brief, EFF and the ACLU argue that Section 230 of the federal Telecommunications Act of 1996 protects Internet publishers from being held liable for allegedly harmful comments written by others. Similar attempts to eliminate the protections created by Section 230 have almost universally been rejected, until a California Court of Appeals radically reinterpreted the statute to allow lawsuits against non-authors. The case is being reviewed by the California Supreme Court.

Lawyers for the plaintiffs argue that Rosenthal is liable because posting the comments makes her a "developer" of the information in question, and she therefore becomes the legal equivalent of its creator for the purposes of the lawsuit. If the court finds in favor of the plaintiffs, the implications for free speech online are far-reaching. Bloggers could be held liable when they quote other people's writing, and website owners could be held liable for what people say in message boards on their sites. The end result is that many people would simply cease to publish or host websites. In its brief, EFF argues that "the specter of civil liability chills the speech" of Internet service providers and users, and will inevitably lead to "protective self-censorship."

"Every other jurisdiction addressing Section 230 has given effect to Congress' broad protections and Internet speech has flourished as a result," said EFF Staff Attorney Kurt Opsahl. "The Court of Appeals upset this settled law and we are simply asking the California Supreme Court to set things right."

"Section 230 protects the ordinary people who use the Internet and email to pass on items of interest written by others, free from the fear of potentially ruinous lawsuits filed by those who don't like what was said about them," said ACLU Staff Attorney Ann Brick. "The vitality of the Internet would quickly dissipate if the posting of content written by others created liability. The impulse to self-censor would be unavoidable."

Contacts:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Stella Richardson
Media Relations Director
ACLU Northern California
srichardson@aclunc.org

Posted at 04:39 PM


November 23, 2004

Court Blocks Movie Studios' Bulldozer Legal Strategy

Northern California - A federal judge in California has put a roadblock in front of the movie studios' lawsuits targeting filesharers.

Last week, members of the Motion Picture Association of America (MPAA) filed eleven lawsuits against hundreds of people they accused of using file-sharing networks to share infringing copies of movies. They sued groups of "Does"
identified by numerical IP address and requested discovery of names from the users' ISPs. A Northern District of California judge found this bulldozer process improper, ordering the case to be put on hold for all but one of the defendants.

Judge William Alsup ruled that because claims against the 12 defendants were unrelated, yoking the defendants together into one big case was improper. "Such joinder may be an attempt to circumvent the filing fees by grouping
defendants into arbitrarily-joined actions but it could nonetheless appear improper under Rule 20," the order states. The Electronic Frontier Foundation has filed friend-of-the-court briefs objecting to similar misjoinder in many of the cases filed by the Recording Industry Association of America (RIAA) against alleged infringers.

"This decision helps to give due process rights to the Internet users accused of infringement," said EFF Staff Attorney Wendy Seltzer. "Lumping them together makes it more difficult for everyone to defend against these claims." EFF is also concerned about the movie studios' failure to produce evidence of infringement against even Doe #1 in this case.

Contact:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Posted at 02:43 PM


November 18, 2004

EFF Fights for Justice at WIPO

New "Pseudo Copyright" for Broadcasters Will Harm the Global Public Interest

Geneva - This week, the World Intellectual Property Organization (WIPO) will hold a committee meeting to debate the merits of its proposed "Treaty on the Protection of Broadcasting Organizations." The Electronic Frontier Foundation (EFF) will be there to urge delegates to reject aspects of the treaty that would impoverish the public domain and thwart innovation.

EFF European Affairs Coordinator Cory Doctorow will present a letter to the committee on behalf of 20 technology companies and organizations that oppose including new webcasters' rights in the treaty.

"This coalition shatters the illusion that there is a technology consensus on this issue," said Doctorow.

The new pseudo-copyright for webcasters would curtail the public's ability to archive news footage or re-use broadcast material that is in the public domain. It would also require that all media players be closed-source, proprietary, and subject to the oversight and approval of the movie studios. EFF is joining several other non-government organizations (NGOs) in proposing an alternative draft of the treaty -- one that targets the problem of signal theft rather than adds these new rights.

Doctorow will also speak at the meeting about how digital rights management (DRM) technologies hinder technological progress. The proposed treaty would add DRM provisions for broadcasters similar to those the much-criticized US Digital Millennium Copyright Act (DMCA) gives to copyright holders.

In October, WIPO made a positive move by adopting a "development agenda" proposed by a number of developing countries and NGOs. This agenda makes explicit the organization's responsibility for considering the social and economic impact of its decisions. Doctorow will urge the organization to apply the public-interest principles outlined in the agenda to its consideration of DRM.

Doctorow will be live-blogging the WIPO meeting at the EFF website.

Contacts:

Gwen Hinze
Staff Attorney
Electronic Frontier Foundation
gwen@eff.org

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Posted at 08:52 AM


November 17, 2004

Public Interest Groups Support Cox in Protecting User Privacy

Georgia - Electronic Frontier Foundation, Public Citizen, the American Civil Liberties Union, and ACLU Georgia filed an amicus brief yesterday supporting Cox Communication, Inc.'s efforts to protect the rights of its Internet customers. Cox moved to quash a subpoena from several record companies in a case called Arista Records, Inc. v. Does 1-100, which seeks the identities of Cox subscribers. Cox does not provide Internet service in Georgia, where the 100 Does were sued.

The amicus brief notes that it is unfair to force people living outside of Georgia to come to Georgia to defend their rights and also that it is unfair for the record companies to sue 100 people in the same lawsuit simply because it saves the record company money.

"Cox is taking an important step to protect the privacy of its customers," said EFF Staff Attorney Wendy Seltzer. "It's a basic matter of due process that Internet users should not have to seek counsel across the country in order to protect their right to anonymous speech."

EFF, Public Citizen, and the ACLU have joined in several briefs in similar cases arguing that due process must not be given short shrift in the record industry's lawsuit campaign.

The motion picture industry has started filing copycat suits across the country that are similarly flawed.

Contact:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Posted at 04:53 PM

Election Verification Project Press Conference

Washington, DC - A national coalition of voting rights and computer security experts will hold a post-election press conference to provide a preliminary analysis of electronic voting problems and solutions, and their implications for increasing voters' confidence in the legitimacy of elections.

Speakers will be:

- Kim Alexander, California Voter Foundation
- Lillie Coney, National Committee for Voting Integrity/Electronic Privacy Information Center
- David Dill, Ph.D., Verified Voting Foundation
- Will Doherty, Verified Voting Foundation/Election Incident Reporting System
- Chellie Pingree, Common Cause
- Matt Zimmerman, Electronic Frontier Foundation

WHEN: Thursday, November 18, 2004, 10:30 a.m. to 12:00 p.m.

WHERE: Cabinet Room, Beacon Hotel and Corporate Quarters (formerly Governor's House Hotel) 1615 Rhode Island Avenue, N.W., Washington, D.C. (Metro Stop: Dupont Circle or Farragut North)

The Election Verification Project is a coalition of technology, legal and voting rights organizations promoting transparency and accountability in the voting process. The Project advances reforms that reduce computerized voting risks, and fosters public confidence in the integrity and accuracy of the electoral process.

The California Voter Foundation is a nonprofit, nonpartisan organization promoting and applying the responsible use of technology to improve the democratic process. CVF-NEWS is a free, electronic newsletter featuring news and updates about the California Voter Foundation's projects and activities.

Contacts:

Faye Anderson
Election Verification Project
(718) 369-6059 cell

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Posted at 11:31 AM


November 16, 2004

EFF Continues Push for Access to Secret Court Order

Government Claims Need for Secrecy, Rebuffs Call for Open Access

San Antonio, TX - Today the Electronic Frontier Foundation (EFF) filed a reply brief in a federal court in Texas supporting its motion to unseal a secret court order. That order had led to the seizure of two servers hosting several websites and radio feeds belonging to Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists.

EFF filed its reply after the United States Attorney's Office in San Antonio, Texas, filed an opposition brief urging the federal court to refuse EFF's request to unseal. The opposition brief argued that secrecy was required to protect "an ongoing criminal terrorist investigation" and that the confidentiality provisions of a Mutual Legal Assistance Treaty (MLAT) trumped the rights of Indymedia in this case.

This marks the first time that the federal government has formally admitted to the secret order's existence. In its reply brief, EFF reminded the government that treaties are limited by the Bill of Rights, including the First Amendment right of access to court proceedings.

On October 7, the federal government secretly seized Indymedia's servers from San Antonio-based Rackspace Managed Hosting. Issued at the request of a foreign government, the seizure order resulted in more than 20 IMC websites and 10 streaming radio feeds being taken offline. Neither Rackspace nor the government has formally identified the foreign country that initiated the request, but language quoted in the government's refusal of EFF's first request matches a US treaty with Italy. Morena Plazzi, a deputy public prosecutor in Bologna, admitted that she requested server logs from Indymedia, but denied requesting a seizure.

"There are serious questions about whether the government or Rackspace overreached in responding to Italy's request," said Kurt Opsahl, EFF Staff Attorney. "The public needs to see the order so we can understand what went wrong and take steps to prevent this unconstitutional silencing of protected speech from happening again."

"The government's brief tacitly admits Italy issued the order, and the Italian government admits it sought information from Indymedia's servers," said Kevin Bankston, EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow. "By keeping the order secret, the government appears to be trying to hide serious procedural errors that led to the seizure, rather than legitimately protecting the secrecy of a 'terrorism' investigation."

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Posted at 02:28 PM


November 12, 2004

EFF Urges FCC Not to Mandate Surveillance Regime on Internet

Expanded Powers for Law Enforcement Are Dangerously Vague, Invasive

Earlier this week, the Electronic Frontier Foundation (EFF) filed comments with the Federal Communications Commission (FCC) objecting to the agency's plan to expand the reach of a law that forces communications service providers to build surveillance backdoors into their networks.

The Communications Assistance to Law Enforcement Act (CALEA), passed in 1994, forced telephone companies to redesign their network architectures to make wiretapping easier. It expressly did not regulate data traveling over the Internet. But earlier this year, law enforcement agencies petitioned the FCC to expand CALEA's reach to cover broadband providers so that it would be easier for law enforcement to tap Internet "phone calls" via Voice over Internet Protocol (VoIP) applications such as Vonage, as well as online "conversations" using various kinds of instant messaging (IM) programs like AOL Instant Messenger (AIM). The FCC responded with a "notice of proposed rulemaking" (NPRM), which proposes to introduce surveillance technology mandates to broadband Internet access and "managed" VoIP.

In its comments, EFF argues that this transformation in CALEA goes against the letter and the spirit of the law as it was originally written, which expressly ruled out information services like broadband.

"The NPRM relegates Congress' exclusion of information services to so much spilt ink," read the comments. Moreover, EFF argues, the rationale that law enforcement uses to justify its request -- that broadband has "significantly replaced" the telephone network -- is a misrepresentation that opens the door for CALEA to cover just about anything. "Any service that arguably replaces any portion of the prior telephony regime must look down the barrel of CALEA compliance."

In addition, the technological changes required by an expanded CALEA would undermine Internet security and subject new technologies to government review before they can be adopted for use with current Internet devices.

"Law enforcement already has the legal and technological means to access communications on the Internet," said EFF Staff Attorney Kurt Opsahl. "Expanding CALEA to cover broadband communication is not only unnecessary, it will retard innovation while depriving people of their privacy and security on the Internet."

Reply comments are due December 7.

Contact:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Posted at 05:33 PM

EFF Files Brief in Support of Email Privacy

Boston, MA - The Electronic Frontier Foundation (EFF) today submitted a friend-of-the-court brief in a case that could have a profound effect on the privacy of Internet communications.

The brief argues that the decision in US v. Councilman, soon to be reheard by the full First Circuit, should be overturned. A panel of First Circuit judges previously ruled that it does not violate criminal wiretap laws when an email service provider monitors the content of users' incoming messages without their knowledge or consent.

The defendant in the case, Bradford Councilman, is a bookseller who offered email service to his customers. Councilman configured the email processing software so that all incoming email sent to his customers from Amazon.com, a competitor, was secretly copied and sent to his personal email account before it arrived in the intended recipient's mailbox. The court ruled that this interception did not violate federal law, stating that "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

Authored by law professor and online privacy expert Orin Kerr, the amicus brief is co-signed by EFF, the Center for Democracy and Technology (CDT), the Electronic Privacy Information Center (EPIC), the American Library Association (ALA), the American Civil Liberties Union (ACLU), and the Center for National Security Studies. These groups argue that the earlier Councilman decision disrupts the traditional understanding of Internet surveillance laws and raises significant constitutional questions under the Fourth Amendment.

"The First Circuit's original decision effectively rewrote the field of Internet surveillance law in ways that Congress never intended," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "If private service providers like Councilman can avoid the Wiretap Act's criminal prohibition on interception, it follows that the government will also be able to monitor our communications without having to ask a judge for a wiretap order. If the decision is allowed to stand, it will eliminate the Wiretap Act as the primary curb against private and government snooping on the Internet."

The original panel decision has been withdrawn pending the First Circuit's rehearing of the case, which will take place in December.

Contact:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

Posted at 03:26 PM

Anti-Spam Measures Block Free Speech

EFF White Paper Reports on Collateral Damage to Free Expression in the Fight Against Spam

San Francisco - Today the Electronic Frontier Foundation (EFF) released a white paper (HTML - PDF) describing the effects of anti-spam technologies on free speech. "Noncommercial Email Lists: Collateral Damage in the Fight Against Spam" focuses on how groups running noncommercial email lists are being harmed by anti-spam techniques. The paper grew out of EFF's efforts to help MoveOn.org, human rights groups, parents' groups, and others, deliver email messages in the face of barriers that are aimed at stopping spam but that also stop wanted messages.

"When tools designed to prevent unwanted email also prevent wanted email from being delivered, or when anti-spam tools favor well-funded speakers over others, something fundamental to the health of Internet communication has been broken," write the authors of the paper, EFF Legal Director Cindy Cohn and EFF Policy Analyst Annalee Newitz, in the introduction. The paper goes on to explain how anti-spam technologies, such as blocklists, server-side filtering, bonded sender programs, and email authentication schemes like Sender-ID and DomainKeys, are often misused.

But there are solutions to the problem. In a section on best practices, EFF suggests ways that Internet Service Providers (ISPs) and other organizations handling email delivery can stop spam while preserving free speech. Recommendations include putting spam filtering preferences under the control of end users and making anti-spam mechanisms like blocklists more transparent. Also included are guidelines for email list managers that will reduce the likelihood that their mail will get incorrectly labeled as spam.

"Anti-spam technologies protect us against unwanted messages, but we need to do more to ensure that they don't also prevent us from receiving wanted speech," said Newitz. "Overbroad anti-spam measures have a significant impact on noncommercial mailing lists used by parents, political organizers, artists, and others. When anti-spam measures prevent people from participating in such communities, we need to rethink how we use them."

"Noncommercial mailing lists are one of the truly important free speech tools on the Internet, yet increasingly they face unfair, unseen, and unaccountable barriers due to overbroad and reckless anti-spam efforts," added Cohn. "If the government treated free speech this poorly, the First Amendment would be in serious trouble. We should demand better from those in the anti-spam community."

EFF has worked with several groups running noncommercial email lists that have signed on to the paper as a way of showing their support for its findings and recommendations. Now that the paper has been released to the public, EFF is calling on more email list owners and ISPs to sign on and change their practices to ensure that while they take steps to protect against spam, they also protect free speech.

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Annalee Newitz
Media Coordinator/Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Posted at 02:23 PM


November 10, 2004

EFF, Nonprofits Challenge Secret Government Blacklists

Funding for Charities Should Not Be Tied to Screening

Washington, DC - The Electronic Frontier Foundation (EFF) today joined the American Civil Liberties Union (ACLU) and a number of other nonprofit organizations in filing for an injunction from the US District Court in Washington, DC, to stop the federal government from requiring the charities to use blacklists in order to receive payroll donations from federal employees. The groups argue that the new requirement, which was implemented without any notice or public comment period, is not authorized by statute and violates the First and Fifth Amendments.

The Combined Federal Campaign (CFC) enables federal employees to contribute easily to their favorite nonprofit organizations through automatic payroll deductions. In 2003 alone, this program brought over $248 million to thousands of charities. Earlier this year, the government for the first time began requiring all organizations participating in the CFC to certify that they have screened every employee and expenditure against a series of blacklists created by the government on the basis of secret information. Charities that refuse to sign the certification cannot participate in the CFC, even if they meet all other requirements.

"The government can't force charities to become its 'anti-terrorism enforcers' simply because federal employees donate to those charities," said Kevin Bankston, EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow. "EFF refuses to violate the privacy of its clients and employees by screening them against secretly compiled blacklists. It was wrong during the McCarthy era, and it's wrong now."

EFF participated in the CFC program for two years prior to the blacklist certification requirement but withdrew from the program earlier this year in protest.
Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

Posted at 11:00 AM


November 08, 2004

StreamCast and Grokster File Supreme Court Brief

Judicial Restraint Urged at High Court

Washington, DC - Peer-to-peer (P2P) software companies StreamCast Networks and Grokster Ltd. today filed a joint brief urging the US Supreme Court to leave undisturbed the landmark MGM v. Grokster ruling handed down by the Ninth Circuit Court of Appeals earlier this year.

The case pits the world's largest music and movie studio companies against StreamCast and Grokster, two small start-up companies responsible for the Morpheus and Grokster P2P file-sharing software products. The entertainment companies have been seeking to hold StreamCast and Grokster liable for copyright infringements committed by the users of their software. In April 2003, a federal district court in Los Angeles rejected that claim, reasoning that the Morpheus and Grokster software products had many noninfringing uses, much like photocopiers and VCRs. That ruling was upheld by a unanimous 3-judge panel of the Ninth Circuit Court of Appeals in August 2004. But in October, the entertainment industry asked the Supreme Court to overturn the lower court rulings.

StreamCast and Grokster filed their brief in response today, emphasizing several reasons the Supreme Court should not take this case. They argue that the Ninth Circuit correctly applied the clear rule set out by the Supreme Court 20 years ago in the Sony v. Universal case (also known as the "Sony Betamax" case) that protects technologies with noninfringing uses. The Ninth Circuit ruling is also consistent with other federal rulings in P2P cases, including the 2003 Aimster ruling, since the Aimster defendants had not shown noninfringing uses. Finally, if copyright laws need to be adjusted in light of new P2P technologies, that is a job best left for Congress, rather than the courts.

The Electronic Frontier Foundation (EFF) and Charles Baker of the Houston law firm Porter & Hedges represent StreamCast Networks (Morpheus) in the case, joined by StreamCast's General Counsel, Matthew A. Neco, on the opposition brief, while the San Francisco law firm Keker & Van Nest represents Grokster Ltd.

"The Ninth Circuit got it right and applied the Supreme Court's own precedent in the Sony Betamax case," said senior EFF staff attorney, Fred von Lohmann. "There is no reason to revisit the unanimous ruling of the Ninth Circuit and insert judges into the design rooms of technologists across the nation."

The case is Metro-Goldwyn-Mayer v. Grokster, Supreme Court Docket No. 04-480. The Court is expected to decide whether it will take the case before the end of the year.

Contact:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Posted at 04:14 PM


November 04, 2004

Movie Studios to Sue File Sharers

Hollywood Joins Music Industry in Misguided Crusade

Today the Motion Picture Association of America (MPAA) announced that the major Hollywood motion picture studios would be filing hundreds of lawsuits against individuals using peer-to-peer (P2P) file-sharing software to access movies online. In so doing, Hollywood follows in the footsteps of the music industry, which has filed more than 6,000 lawsuits against file sharers since September 2003.

In connection with the music industry lawsuits, the Electronic Frontier Foundation (EFF) has intervened in court to defend the privacy and due process rights of the individuals being sued. It is not yet clear whether the MPAA lawsuits will make similar actions necessary.

The MPAA announcement comes on the heels of a recent study by the University of California, Riverside, and San Diego Supercomputer Center that shows that the music industry lawsuits have had no effect on the popularity of file sharing among US users, estimated at over 20 million.

Hollywood cannot credibly claim that file sharing is jeopardizing their profits. According to TIME Magazine's October 11, 2004, edition: "The studios can't exactly argue that file sharing is about to put them out of business. DVD sales, which grew 33 percent last year, and box-office receipts have never been stronger."

"These lawsuits are misguided," said EFF Staff Attorney Wendy Seltzer, who has been involved in the music industry suits. "The music industry experience shows that the lawsuits don't reduce the amount of file sharing. And it's certainly not good PR to sue movie fans for noncommercial sharing when the studios are rolling in record profits."

"In the end, what protects the studios from piracy is what attracts people to buy or rent movies in the first place -- a good product at a good price point," said EFF Legal Director Cindy Cohn. "As long as you can rent a movie on DVD for $2, movie file sharing is not likely to take a major bite out of studio revenues."

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Posted at 05:07 PM

EFF Appeals Anti-Competitive BnetD Ruling

EULAs, DMCA Should Not Trump Right to Reverse Engineer

St. Louis, MO - The Electronic Frontier Foundation (EFF) has appealed a District Court decision in St. Louis that held that programmers are not allowed to create free software designed to work with commercial products.

The 8th Circuit Court of Appeals will determine whether three software programmers who created the open source BnetD game server -- which interoperates with Blizzard video games online -- were in violation of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA). EFF, co-counsel for the defendants, will argue that programming and distributing BnetD is a fair use and therefore violates neither Blizzard's EULA nor the DMCA's prohibitions.

As it stands, the lower court's decision makes it unlawful in most cases to reverse engineer any commercial software program, thus making it impossible to create new programs that interoperate with older ones. This squeezes consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own. EFF considers this situation unacceptable and will use the appeal to explain why EULAs and the DMCA should not be allowed to trump fair use forms of reverse engineering when undertaken to create new products.

"This is a case of critical importance for the software industry," said EFF Staff Attorney Jason Schultz. "Allowing companies like Blizzard to lock out competition and complementary innovation will destroy future generations of products and services. The Internet itself is simply a collection of complementary software programs, and this ruling threatens the existence of all of them."

Fortunately, two recent courts have already recognized that it's unfair to outlaw competition under the DMCA. EFF hopes that the judges in the 8th Circuit will follow in the path of the Lexmark and Skylink cases, which held that the DMCA cannot be used to limit the aftermarket sales of printer cartridges and garage door openers.

Contact:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Posted at 12:29 PM


November 01, 2004

Presidential Votes Miscast on E-voting Machines Across the Country

Voters from at least half a dozen states reported that touch-screen voting machines had incorrectly recorded their choices, including for president.

Voters discovered the problems when checking the review screen at the end of the voting process. They found, to their surprise, that the machines indicated that they voted for one candidate when they had voted for another. When voters tried to correct the problem, the machine often made the same error several times. While in most cases the situation was reportedly resolved, many voters remain uneasy about whether the proper vote was ultimately cast. Meanwhile, voting experts are concerned that other voters are experiencing the problem, but failing to notice that the machine is indicating the wrong choice on the "summary" screen.

Election observers with the Electronic Frontier Foundation (EFF) and Verified Voting Foundation (VVF) reported today that the problem, which some voting officials initially attributed to fluke "voter error," is evidently widespread and may even be relatively common with touch-screen machines. Incorrectly recorded votes make up roughly 20 percent of the e-voting problems reported through the Election Incident Reporting System (EIRS), an online database in which volunteers with the Election Protection Coalition, a coalition of non-partisan election observers dedicated to preventing voter disenfranchisement, are recording and tracking voting problems.

For voters, these incidents underscore the need to carefully review ballots during the final portion of the electronic voting process. But they also point to the larger issue: using touch-screen voting systems vulnerable to this kind of error, combined with poll workers and voters unfamiliar with the new systems, substantially increases the chances of voter disenfranchisement.

"We're likely to see these types of problems repeated on Election Day," said EFF Staff Attorney Matt Zimmerman. "As a short-term measure, we strongly encourage voters who use touch-screen voting machines to proof their ballots at the review stage. But while we can try to address obvious, visible problems like these, the problems we really worry about are the ones that the voters and poll watchers can't see. Often the only way you catch these flaws is through audits - yet most of these machines lack even the most basic audit feature: a voter-verified paper trail."

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Posted at 07:59 PM