EFFector 18.42: North Carolina Illegally Certifies Diebold E-voting System

[David Farber <dave () farber net>]

Begin forwarded message:

From: EFFector list <editor () eff org>
Date: December 2, 2005 7:11:16 PM EST
To: farber () cis upenn edu
Subject: EFFector 18.42: North Carolina Illegally Certifies Diebold E- 
voting System
Reply-To: EFFector list <editor () eff org>

EFFector Vol. 18, No. 42  December 2, 2005  editor () eff org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 358th Issue of EFFector:

 * North Carolina Illegally Certifies Diebold E-voting System
 * DMCA Triennial Rulemaking: Failing Consumers Completely
 * Smart Card Research Threatened in DirecTV Case
 * Location Privacy: 3, Warrantless Cell Phone Tracking: 0
 * Blogging WIPO: The New Internet Treaty
 * Help Us Bust the Test.com Patent
 * Blog of the Month - Ed Foster's GripeLog
 * miniLinks (8): Sony BMG's Costly Silence
 * Staff Calendar - Kevin Bankston at LISA in San Diego
 * Administrivia

For more information on EFF activities & alerts:
 <http://www.eff.org/>

Make a donation and become an EFF member today!
 <https://secure.eff.org/support>

Tell a friend about EFF:
 <http://action.eff.org/site/Ecard?ecard_id=1061>

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* North Carolina Illegally Certifies Diebold E-voting System

Board of Elections Ignores Rules to Escrow Code, Identify
Programmers

Raleigh, North Carolina - The North Carolina Board of
Elections certified Diebold Election Systems to sell
electronic voting equipment in the state Thursday, despite
Diebold's repeated admission that it could not comply with
North Carolina's tough election law. The Electronic
Frontier Foundation (EFF) believes that this raises important
questions about the Board of Elections'procedures as well as
the integrity of Diebold's bid for certification.

In all, three companies were certified for e-voting in
North Carolina: Diebold, Sequoia Voting Systems, and Election
Systems & Software. However, Keith Long, an advisor to the
Board of Elections who was formerly employed by both Diebold
and Sequoia, has said that "none of them" could meet the
statutory requirement to place their system code in escrow.
Instead of rejecting all applications and issuing a new call
for bids as required by law, the Board chose to approve all
of the applicants.

"The Board of Elections has simply flouted the law," said
EFF Staff Attorney Matt Zimmerman. "In August, the state
passed tough new rules designed to ensure transparency in the
election process, and the Board simply decided to take it
upon itself to overrule the legislature. The Board's job is
to protect voters, not corporations who want to obtain multi-
million dollar contracts with the state."

Last month, Diebold obtained a broad temporary restraining
order that allowed it to evade key transparency requirements
without criminal or civil liability. The law requires escrow
of the source code for all voting systems to be certified in
the state and identification of programmers. Diebold claimed
that it could not comply because of its reliance on third-
party software.

Monday, responding to EFF's arguments, a judge dismissed
Diebold's request for broad exemptions to the law and told
Diebold that if it wanted to continue in its certification
bid, it must follow the law or face liability. Diebold had
told the court that it would likely withdraw from the bidding
process if it was not granted liability protection. But
instead, Diebold went forward with the certification bid.

Diebold's certification now means it is permitted to sell e-
voting equipment in North Carolina. But Zimmerman says that
any county that buys from Diebold is taking a risk.

"If Diebold's certification is revoked, counties using its
equipment could be left holding a very expensive bag,"
Zimmerman said.

Despite Long's assertion, at least one Diebold competitor--
Nebraska-based Election Systems & Software--has publicly
stated that it is capable of meeting the escrow requirement
for the code used it its system.

For more on the judge's decision Monday:
<http://www.eff.org/news/archives/2005_11.php#004203>

For this release:
<http://www.eff.org/news/archives/2005_12.php#004227>

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* DMCA Triennial Rulemaking: Failing Consumers Completely

EFF Bows Out of Broken Process

San Francisco - The Electronic Frontier Foundation (EFF)
released a report entitled "DMCA Triennial Rulemaking:
Failing the Digital Consumer," describing why the third
triennial DMCA rulemaking, currently underway before the U.S.
Copyright Office, does not effectively address the concerns
of American digital media consumers. In light of the
shortcomings of the DMCA rulemaking procedure, EFF did not
propose any DMCA exemptions for the 2006-2009 triennial
rulemaking period.

Digital media consumers are finding themselves increasingly
hemmed in by "digital rights management" (DRM) restrictions
on digital music, movies, video games, and software. The
Digital Millennium Copyright Act of 1998 (DMCA) generally
prohibits consumers from circumventing DRM mechanisms that
control access to DVDs, CDs, and other digital media
products. In an effort to ensure that these DRM mechanisms
would not impede lawful uses of copyrighted works, however,
Congress included what it described as a "fail-safe"
mechanism in the DMCA rulemaking proceeding to be held every
three years by the Copyright Office. The law delegates to the
Copyright Office and Librarian of Congress the power to grant
three-year exemptions to the DMCA's prohibition on
circumventing DRM restrictions where the restrictions would
otherwise encroach on lawful uses of copyrighted works.

EFF has participated in each of the two prior rulemakings in
2000 and 2003, each time asking the Copyright Office to
create exemptions for perfectly lawful consumer uses for
digital media that are encumbered by DRM.  The Copyright
Office has rejected all of EFF's previous proposals.

Based on its prior experience with the rulemaking procedure,
as well as the increasing pervasiveness of DRM restrictions
on digital media products, EFF has concluded that the
triennial rulemaking does not effectively address the
concerns of digital media consumers. Instead, EFF's report
calls on Congress to take legislative action to reform and
repair the DMCA rulemaking process.

"When the Copyright Office is unwilling to grant a DMCA
exemption that would allow consumers to play copy-protected
CDs on their computers, you know the rulemaking process is
failing digital media consumers," said Fred von Lohmann,
Senior Staff Attorney with EFF. "In the wake of the Sony
BMG DRM debacle, it's time for Congress get involved on
behalf of American consumers."

"DMCA Triennial Rulemaking: Failing Consumers Completely"
<http://www.eff.org/IP/DMCA/copyrightoffice/DMCA_rulemaking_broken.pdf>

For more on why EFF won't participate:
<http://www.eff.org/deeplinks/archives/004212.php>

For more on DMCA rulemaking:
<http://www.eff.org/IP/DMCA/copyrightoffice/>

For this release:
<http://www.eff.org/news/archives/2005_12.php#004219>

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* Smart Card Research Threatened in DirecTV Case

EFF Fights Heavy-Handed Tactics From Satellite TV Giant

San Francisco - The Electronic Frontier Foundation (EFF) and
the Center for Internet and Society Cyberlaw Clinic at
Stanford University Law School filed an amicus brief in the
Ninth Circuit Court of Appeals Wednesday, asking judges to
protect legitimate researchers from the heavy-handed tactics
of the DirecTV Group, Inc., a worldwide provider of digital
television entertainment, broadband satellite networks and
services, and global video and data broadcasting.

Federal law makes it illegal to intercept satellite TV
signals without authorization and also bans modifying or
assembling interception tools for sale or distribution. In
the case before the Ninth Circuit, DirecTV claims that it can
sue individuals for both interception of its signal as well
as modification of receiving equipment in cases where altered
smart cards are simply inserted into standard television
equipment. DirecTV claims that inserting a smart card into
preexisting television equipment constitutes "assembling" a
pirate device. The amicus brief claims that DirecTV is
overreaching and also points out that legitimate security
researchers would be threatened under the proposed misreading
of the law. A lower court has already ruled that DirecTV
cannot sue on this theory and dismissed DirecTV's attempt to
"double-dip" by punishing individuals twice for a single
offense.

"Researchers are constantly assembling, modifying, and
building smart card components in furtherance of scientific
knowledge and innovation," said EFF Staff Attorney Jason
Schultz. "Congress clearly meant to exclude these beneficial
activities from any legal liability. The court below
understood this, and we hope the Appeals Court agrees."

Over the past few years, DirecTV has orchestrated a
nationwide legal campaign against hundreds of thousands of
individuals, claiming that they were illegally intercepting
its satellite TV signal. The company began its crusade by
raiding smart card device distributors to obtain their
customer lists, then sent over 170,000 demand letters to
customers and eventually filed more than 24,000 federal
lawsuits against them. Because DirecTV made little effort to
distinguish legal uses of smart card technology from illegal
ones, EFF and the Cyberlaw Clinic received hundreds of calls
and emails from panicked device purchasers. We worked with
DirecTV to get them to limit their lawsuits to only those
people they could prove were illegally receiving their
signal. The two groups co-sponsor a website at
www.directvdefense.org to help people defend themselves.

For the full brief filed in the case:
<http://directvdefense.org/files/hunyh_amicus_brief_final.pdf>

For this release:
<http://www.eff.org/news/archives/2005_11.php#004216>

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* Location Privacy: 3, Warrantless Cell Phone Tracking: 0

When we recently reported that the DOJ had chosen not to
appeal two court decisions that forcefully rejected its
secret requests to track cell phones without probable cause,
we expressed our fear that the government would keep trying
to secretly convince other judges to grant these illegal
orders while avoiding appellate review.

Well, that fear has now been confirmed by a newly-issued
third court decision denying a DOJ request for a cell-
tracking order, a request that was made after the DOJ chose
not to challenge the other two decisions. This time, a
federal magistrate judge in Maryland has followed the lead of
judges in New York and Texas by refusing to allow the feds to
track people's movement via a cell phone unless the
government can at least meet the requirements for a search
warrant.

Even though there are now three published decisions rejecting
the government's arguments and none supporting them, we're
aware of at least one other case where the DOJ is still
pushing for authorization to track a cell phone without a
search warrant. At this point, one has to wonder: how many
public trips to the woodshed is it going to take before the
DOJ either stops seeking these orders, or is willing to
subject its claims to appellate court scrutiny?  We may find
out soon enough--at this rate, we'll have a dozen new denials
by the spring!

Maryland cell tracking decision:
<http://www.eff.org/legal/cases/USA_v_PenRegister/ 
maryland_cell_decision.pdf>

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* Blogging WIPO: The New Internet Treaty

The UN's World Intellectual Property Organization (WIPO) has
just finished another round of deliberations on a new treaty.
Although the draft treaty is nominally about broadcasters'
rights, most of the discussion focused on proposals to create
new rights over Internet transmissions: the US's proposal to
extend the treaty to "webcasting", and the European Union's
pitch for "simulcasting" rights, covering retransmission of
broadcasts and cablecasts over the Internet.

These proposals would give webcasters, broadcasters and
cablecasters the right to control Internet transmissions
irrespective of the copyright status of the transmitted
material. EFF believes that this is likely to stifle
technological innovation on the Internet, restrict the
public's access to knowledge, and change the nature of the
Internet as a medium of communication.

The meeting ended in a deadlock with no real agreement on the
scope of the treaty or the rights it should grant. The Chair
recommended convening two further meetings in April and June
2006, to consider new exceptions proposals put forward by
Brazil and Chile before the WIPO General Assembly votes on
moving the treaty to a 2007 Diplomatic Conference.

Read more on WIPO:
<http://www.eff.org/deeplinks/archives/004200.php>

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* Help Us Bust the Test.com Patent

As many of you know, EFF has gone into the Patent Busting
business. Our next target is the Test.com patent for Internet
test-taking, but we need your help tracking down the evidence
we need.

Visit the link below for a description of the prior art we
are looking for, and send it around to any friends or
colleagues who might know about Internet test-taking
technology before February of 1999.

We're particularly interested in systems where the revenue
for the testing is shared between the host system and the
test maker, but any information about online test-taking
before February 11, 1999 can help.

Prior art description:
<http://www.eff.org/patent/wanted/test.pdf>

Prior art submission form:
<http://www.eff.org/patent/wanted/prior.php?p=test>

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* Blog of the Month - Ed Foster's GripeLog

As part of our Bloggers' Rights Campaign, EFF is highlighting
a blog each month that supports our campaign and strikes our
fancy. Our first featured blog is Ed Foster's popular
GripeLog. We watched with increasing glee as new members told
us they joined because "GripeLog sent me."

On GripeLog, technology product consumers can air their beefs
with vendors and read about the problems and issues other
customers are raising. Written by Ed Foster, long-time author
of InfoWorld's Gripe Line column, GripeLog combines a weekly
e-mail column with a format that allows readers to air their
concerns and views. Ed has been a particularly strong and
clear voice about the problems with EULAs (End User License
Agreements) in software, an issue that is near and dear to
our hearts here at EFF.  We appreciate Ed's work at GripeLog
and his support of EFF and bloggers' rights.

Ed Foster's GripeLog:
<http://www.gripe2ed.com/scoop/>

EFF's Bloggers' Rights Campaign:
<http://www.eff.org/bloggers/badges/>
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* miniLinks
miniLinks features noteworthy news items from around the
Internet.

~ Sony BMG's Costly Silence
BusinessWeek discovers that Sony knew about their rootkit
problem for at least a month before it was publicly
uncovered.
<http://www.businessweek.com/technology/content/nov2005/ 
tc20051129_938966.htm>

~ Security Flaw Allows Wiretaps Evasion, Study Finds
Matt Blaze discovers that a tone box can turn off wiretapping
equipment.
<http://www.eff.org/cgi/tiny?urlID=535>

~ TSA Would Allow Sharp Objects on Airliners
Note that internal studies show half of the Department of
Security Theater staff's screening time is spent searching
for cigarette lighters.
< http://www.eff.org/cgi/tiny?urlID=536.>

~ One Man Against One Click
Plucky blogger decides to challenge Amazon's one-click patent
alone.
< http://igdmlgd.blogspot.com/>

~ Persecuted Iranian Blogger Escapes to Turkey
Seyyed Ahmad Seyyed Seraji Tabrizi is seeking assistance in
the city of Van.
<http://committeetoprotectbloggers.civiblog.org/blog/_archives/ 
2005/11/26/1422787>

~ Fixing the Cybercrime Treaty
Declan McCullagh on the single amendment that would fix the
cybercrime treaty currently before the Senate.
< http://news.com.com/2010-1071_3-5969719.html>

~ I Have A Little List (of Bloggers)
A historical and growing database of legal action taken
against bloggers.
<http://www.eff.org/cgi/tiny?urlID=537>

~ Trademarks vs Free Speech, Again
Local Ohio Republican party asks the court to shut down an
opposing site on trademark grounds: motion denied.
<http://www.citizen.org/hot_issues/issue.cfm?ID=1242>

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* Staff Calendar

For a complete listing of EFF speaking engagements (with
locations and times), please visit the full calendar:
<http://www.eff.org/calendar/>

December 9
Kevin Bankston speaks at LISA, San Diego, CA
<http://www.usenix.org/events/lisa05/tech/#friday>

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation
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Editor:
Rebecca Jeschke, Media Coordinator
 rebecca () eff org     

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