Dispute Tests Limits of Free Speech Online

How can colleges and universities promote their students' political engagement and free expression without running afoul of the Digital Millennium Copyright Act? Schools now face that difficult question in the wake of a legal dispute that erupted last week between Diebold and student voting activists, university officials and legal experts say.

Schools in the United States have long resigned themselves to complying with orders from copyright holders to stop music file swapping on their networks. But the Diebold case stakes out new territory, as the company tries to prevent Internet users from sharing archives of employee discussions that are at the center of a heated political debate regarding the security of electronic voting systems.

Ongoing Dispute

The dispute between Diebold and various electronic voting activists arose after a computer hacker in March compromised a Web server operated by Diebold and copied thousands of internal messages posted to Diebold online discussion boards addressing issues with Diebold election equipment. The documents were leaked to the press in August.

The controversy surrounding the Diebold documents heated up in recent weeks after members of the Swarthmore College student group Why War? published the discussion list archives on a Web site they maintain. They encouraged students at other colleges and universities to do the same.

Likening the Diebold memos to the now-famous Pentagon Papers that revealed U.S. government officials' internal plans for the war in Vietnam, the Swarthmore students convinced peers at more than 50 different universities to begin mirroring the Diebold documents.

Heeding the Call

One of those who set up a mirror site was C. Scott Ananian, a graduate student in computer science at the Massachusetts Institute of Technology and one of three students to mirror the Diebold document's on the institute's network. After downloading the documents from Why War?'s Web site, Ananian posted links to copies of the documents on his work computer on October 27, making the documents accessible through MIT's connection to the Internet.

Prior to posting the documents, Ananian followed reports about security flaws in Diebold systems, including a July report from researchers at Johns Hopkins University about software flaws in Diebold's AccuVote-TS voting terminal.

"As a patriotic American, I felt that people needed to know and that I had a duty to tell them about [the Diebold election system problems.] People need to see the primary documents to convince themselves that this stuff is real," Ananian said.

In response to actions by Ananian and others, Diebold moved last week to stamp out online copies of the internal documents. The North Canton, Ohio, company sent cease and desist letters to a handful of U.S. colleges and universities including Swarthmore, MIT, and Harvard University.

This week, the San Francisco-based Electronic Frontier Foundation and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School in Stanford, California, asked a federal judge to issue a temporary restraining order against Diebold on behalf of two Swarthmore students and a nonprofit ISP, The Online Policy Group.

Quick Reaction

After receiving two cease and desist e-mail messages from Diebold attorneys, MIT acted quickly to remove the copies hosted by Ananian and one other student, according to James Bruce, then vice president for information systems at MIT and currently a special advisor to MIT's executive vice president. "We did what we do whenever we receive DMCA complaints, which was to contact the student and tell them they have 48 hours to remove the content. In this case, both students complied," he said.

The Diebold case has not been a topic of conversation on online discussion groups used by his peers at other colleges and universities. Instead, most schools and universities are simply responding to the requests using the well-worn DMCA protocols they've established to handle file swappers, he said.

Still, MIT gives students wide latitude in deciding what material to host.

"We feel as long as it is of value to the community, then it's not improper use [of campus resources]," Bruce said.

That reaction is typical among colleges and universities, which are considered ISPs for their students, because of the way the DMCA is written, according to John Palfrey, executive director for the Berkman Center for Internet and Society at Harvard Law School. According to the DMCA, ISPs must immediately address infractions alleged in a copyright claim, regardless of whether the person or persons responsible for the claimed violations have had an opportunity to respond to the charges, Palfrey said.

Organizations that fail to follow this protocol risk losing immunity from prosecution under a safe harbor provision in the law, he said. "It's like getting a temporary restraining order, only without needing to go through a judge," Palfrey said.

The problem gets thornier when the information that universities are being asked to suppress contributes to an intellectual or political debate, as the Diebold documents do, Palfrey said. "Universities are struggling with the question of whether they are ISPs first and universities second, or whether it's the other way around," Palfrey said. "At some point we need to stand up in support of academic freedom."

Falling Short?

Swarthmore sophomore Nelson Pavlosky, one of two students at that college who are seeking a restraining order against Diebold, said that his school's administration has supported students' efforts to make the Diebold documents publicly available.

Even so, Swarthmore fell short of giving Pavlosky the level of support he wanted.

"I was hoping they'd stand up to Diebold and call their bluff--ignore the cease and desist order. But it seems like the college, as a corporate entity, didn't feel like they could make a stand with us," Pavlosky said.

Instead, like MIT's Ananian, Pavlosky is following DMCA protocol and filing a counterclaim with Swarthmore, arguing that the content he posted is not covered by the DMCA.

Once the university receives the counterclaim and transmits it to Diebold, it has fulfilled its obligations under the safe harbor provision of the DMCA, Palfrey said.

Bruce said that university attorneys are reviewing the counterclaim that Ananian submitted to MIT, after which the university will pass the document along to Diebold. At that point, the university may allow Ananian to repost the Diebold documents, Bruce said.

Like Ananian, Pavlosky anticipates reposting his copies of the Diebold documents once his counterclaim has been processed, but he admits to being nervous at the prospect of communicating directly with Diebold's attorneys in the future, without the college acting as an intermediary. "It's really surreal to be suing Diebold," he said.

"I never thought that I'd be dealing with national issues. I just expected to live a quiet life in my dorm, surfing the Web, playing my guitar, and being left alone by the world!" Pavolsky said.

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