Reply #72: Another small mountain of evidence to examine

[Kelvin Mace]

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=104&topic_id=568934&mesg_id=571440&page=

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=555538
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------- Original Message --------
Subject: The news of your lawsuit is going to break in two hours.
Date: Thu, 16 Oct 2003 07:54:13 -0700
From: "bev" <[email protected]>
To: <redacted Eloriel's email>
CC: <[email protected]>

If there is a problem with this, call me and give me straight answers.

425-xxx-xxxx
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-------- Original Message --------
Subject: Just learned -- four words: Dill. Qui tam. EFF
Date: Fri, 26 Oct 2003 18:08:04 -0700 (PDT)
From: Bev Harris <[email protected]>
To: [email protected]

What really happened to BlackBoxVoting.org

Edited on Sun Oct-19-03 01:35 AM by BevHarris
Here is your weird bedtime story of the weekend. It's a mystery story. Maybe you guys can figure this out. For the life of me, I can't.

1) BlackBoxVoting.org is a site domain that I own. I felt it was important to have my own site, rather than being dependent at all times on a site owned by my publisher. As it turns out, thank goodness we both have had sites!

2) DemActivist volunteered to set it up. I had no idea this requires programming (shows how old-school I am with HTML, and also why my web pages are so ugly and hard to update). She did a brilliant job.

3) In mid-September, the ISP Tiger Tech shut my site down with no advance notice, right before the close of business day on a Friday. The reason was that they said I sent a press release which violates their spam policy. I've been in the PR business for a decade or more, and all PR firms send press releases, and we use a pricey opt-in list that requires a subscription of around $2500 a year. Such a policy is unheard of, since the press gets their material from press releases and they request being on the lists. The only time you get a complaint is if you send a press release about, say, baking cookies, to an automotive editor. Then they just tell you to pick the right editor next time.

No matter. Shut down, and I had to move. I was working on moving the site to Bookzone, which does a wonderful job, but Demactivist found a reseller named Gator Graphics, run by Bev Conover, who in turn leases from AIT Inc. Conover, bless her heart, was willing to help us get the site up over the weekend. Apparently the configuration was troublesome, because DemActivist had to work quite hard to get it changed over, and I appreciated that, and told her so.

4) Around the third week of September, I posted the same article Alastair (Scoop Media) did, about the Ken Clark memo, which included the memo. We got a cease and desist from Diebold. James Baker, the attorney for AIT Inc, the ISP who was served, stood firm and told them to go back to the drawing boards and write a better complaint. By the time they did, we took the page down and just put a link to it. To this day, the page is still up at Alastair's Scoop Media. Thus, when the new cease & desist arrived, it was pointless.

5) During the last week of September, a participant at our forum posted a link to a page with links to memos. There was a lively discussion at DU about the memos, and bpilgrim created the handiest tool ever for research with them, a search engine. Both bpilgrim's site and BlackBoxVoting.org got cease & desists. bpilgrim's site took the search engine down. Here's where it got strange.

Tuesday morning: Cease & Desist. Site still up. AIT (the ISP) attorney James Baker says he's trying to look up the law to know whether he has to comply with a DMCA pulldown on a link to a link.

Tuesday morning: Demactivist talks to Cindy Cohn at EFF.
Tuesday afternoon: James Baker still hasn't decided what to do. He's told to wait for a call from Cindy Cohn at EFF, who has the expertise to advise him.

Tuesday afternoon: Cindy Cohn from EFF calls James Baker. The content of the discussion is currently in some dispute. I have gotten two stories from Cindy Cohn about this, and they do not match. (This is not "trashing her" -- I'm just reporting my conversations. And as you know, I take pretty good notes.)

Tuesday afternoon: Within an hour after James Baker talked to Cindy Cohn of EFF, our site was taken down. Instead of just taking down the page, all 300 pages were down, a clear case of overreaching.

Tuesday afternoon: I called EFF. I spoke with Cindy Cohn. She told me she was sorry that she had to inform James Baker they had liability if they keep the site up. I asked if they had to take the whole thing down. She said they are within their rights to do so. I asked if EFF could help me or Black Box Voting. She said the EFF has no time to help me or Black Box Voting. She said that a case she is working on with Dr. David Dill and Avi Rubin is taking a tremendous amount of time.

Tuesday evening I read on DU that there was a message about a dispute with Diebold on BBV.org, so I went to look at the message on my site. I could only see a page for Gator Graphics. I called Demactivist, who told me that she and Bev Conover could go there, but my ISP address had been blocked from visiting my site. I thought this was strange. First, why block my ISP from visiting my own take-down page. Next, why are they telling DemActivist about it, not me? Third, if they are communicating with her because she's the webmaster, why not block her access from it if they are blocking mine? And fourth, I wasn't even at my normal computer or on my normal service. I was using someone else's AOL account. How did they know to block that?

Comment: Here Bev is displaying a woeful misunderstanding of how all this works. The block was set to block the domain blackboxvoting.org. Since DemActivist worked on the site extensively she would have access and was probably getting in using the IP address. A quick way to take a site down is simply to change the DNS entry pointing to the correct IP. If you don't block the IP as well, you can still get in using the IP address, but the domain name will not work. Also, changes to the DNS entry propagate slowly across the net and can take 1-3 days to affect the entire net. Thus, it would be entirely possible for Bev to use someone else's account and not get in, but use another (non-AOL) account and get access.

As to why DemActivist and/or Bev C. would be told info about the domain, if they are listed as tech contacts this would be entirely appropriate.

Tuesday evening Demactivist told what I had to do: keep the link up and fight them legally. I told her I'm so broke I can't pay my mortgage, much less a lawyer. She hung up on me.

Comment: If I were a betting man, I would put money down that Bev was screaming abuse prior to being hung up on. I know, I had it happen to me several times.

Next call: I asked who got at the page to publish the statement about Diebold. She said Bev Conover. I asked if I could upload something. Demactivist said no, she could but I was prohibited from access. I asked if she would upload something for me. She said no, that would get Bev Conover in trouble.

Comment: Not sure what's going on in this exchange. Key information is missing.

By this time it was 10 p.m. east coast, nothing could be done until morning anyway. I said I didn't see the point of making a decision until morning. Exploring options, I said it would be kind of funny to take the link down and put the cease and desist letter in its place, since the letter had the link in it four times. She became angry and said no, you CAN'T take the link down.

She hung up on me and emailed her resignation as webmaster. I found that a bit baffling; why not discuss options? At any rate, since the lawsuit would be filed against me personally, never Demactivist, and EFF had said they would not represent me, I wanted the night to think it over. I wasn't sure it was worth shutting the whole site down over a link that could be found elsewhere.

Comment: DemA quit because she was told that it wasn't her site and Bev had no intention of following her advice. Her advice being (as I understand it) Stop claiming the site was "confiscated", it wasn't. Leave the links up and move the site to one of two sites suggested by Cindy Cohn at EFF. Cindy couldn't defend Bev if the ISP was going to cave to the C&D. EFF WOULD defend Bev if the site was moved to an ISP who would ignore the C&D. In essence, contrary to what Bev has claimed about EFF, they were quite willing to defend her and were spoiling for a fight. But the fight had to be fought on their turf so they would have legal standing.

Bev had three options: 1) Move the site to EFF turf and be defended by them. The site would be back up as soon as they could move the files. AIT would not have stopped a transfer (I have this from my talks with their lawyer). She would have been down 2-3 days and we would have humiliated Diebold in court. 2) Leave the site where it was and file a "Safe Harbor" letter telling the ISP she disputed Diebold's claim. The site would stay down for ten days from the delivery of the letter, but then would be restored and Diebold would have to go to court and prove infringement, something they couldn't do. 3) Take the links off and the site could go back immediately. Bev chose option #3 because she was convinvced EFF, DemA et all were trying to "steal" her files in order to file a 'qui tam' and because she was convinced Diebold would be able to put her in jail.

Wednesday morning Eloriel called to tell me that Demactivist wanted to let me know they'd have to distance themselves from me, and that she sounded really upbeat, really excited about something. I asked what was up, why would someone "need to distance themselves?" I got no explanation whatsoever -- haven't to this day, and I must tell you that this has been very, very painful. I have racked my brain for this terrible thing I must have done to make people have to "distance themselves." Anyone who has seen the book chapters can see the quality of my work. Anyone who's worked directly with me knows I have integrity. Why the sudden leprosy?

Comment: As I see it, they were distancing themselves from three things: 1) Bev abusive behavior. 2) Bev's hyping the C&D as a "confiscation". 3) Bev's increasing paranoia about people filing 'qui tams'

Wednesday My DU email kept getting new messages, but told me I was forbidden to have access whenever I tried to get it. I couldn't get to it for several days. Figured it was a glitch.

Wednesday I got two more emails from EFF urging me to switch BlackBoxVoting.org to Marc Perkel. I got one from Marc Perkel. I said thanks but no thanks. All in all, over the next few days, I got no less than EIGHT increasingly urgent requests to switch to Marc Perkel as a new ISP. I was supposed to switch, but EFF still would not help me. WTF?

Question: How about posting these email so we can examine the context and wording?

Wednesday Bev Conover called and said access to the FTP site was taken away for some reason, and she couldn't get an answer about what was going on with the site. 48 hours later, she said she still couldn't get any answers. I tried calling James Baker. No return call.

Comment: At this point, as I understand it, Bev had been screaming at them about "unauthorized" access to the site, telling them that no one should be permitted to have access. That said, they simply "locked" the site. The ISP's refusal to call back Bev H. probably was that they had no further desire to be screamed at and threatened.

Friday morning I decided something had to be done. I sent a press release about the confiscation of our FTP files -- DemActivist emailed David Allen to say they weren't confiscated (how did she know?) and that I'd put people in danger by sending that release. All I can say is WTF?

Comment: Ah, there's that word "confiscated". If I confiscate your car, I take it away from you and place it in my possession. What they did was the equivalent to booting a car. No one could drive it, but you still have physical possesion of it.

Friday afternoon Thanks to a former DUer who found a lawyer to help me, I had a great conversation with an attorney from the Samuelson Center at UC Berkeley. She requested copies of everything and called me back, said they'd decided to help BBV. A couple hours later, she called back to tell me she'd discovered a conflict of interest. I asked her what conflict it could be, and why she didn't know of it that morning. She said that her firm does work with Cindy Cohn of EFF, and that Cindy had a case that this would conflict with. "There are other cases afoot," she said. What? Can someone fill me in?

Comment: There is nothing sinister about this. Depending on the size of the law firm, a given lawyer is not going to know every other case the firm is involved with. Also, they would not be at liberty to explain the nature of a conflict other than to say there was one.

I became upset at this point. I explained to her the importance of what we are doing, and asked if she could do just one more thing: pick up the phone, recommend to a colleague somewhere -- anywhere -- that I needed help, and let me try to find someone else. She said "sorry, can't help." She said Cindy Cohn had an ISP she recommended that I switch to...

Comment: Again, having been on the phone with Bev when she is "upset" I can understand why the person on the other end might become less than helpful.

Friday My publisher, David Allen, called and schmoozed tech to tech with the ISP, AIT Inc. The techs there told him that the password had been changed, but they decided to let him get the FTP files, so they gave him access. He spent Friday night downloading files (This is much appreciated, but also a bit strange. He does not own the site, I do. They let someone else get the files, but not me???)

Comment: Not at all strange. All they did was unlock the site. No one would be able to access the site without the username and password, both of which I had gotten from Bev C. after Bev H. sent her an email to okay it.

Friday David posted to DU that he'd gotten hold of the files. He then received an e-mail from Demactivist telling him he'd better not use those files, that she owned the program, it was licensed to her, she owned the programming. So this was our first roadblock to moving the site.

Comment: The forum software that DemA used was one she licensed and paid for. We would just have to buy another license and install it, which would require someone with expertise in the program.

I called Angka from DU, who looked up the pricing on the license. Not too bad. I figured, I can just buy the license. But apparently the programming is so specialized I have to find a programmer to help me move the site.

Saturday I was by myself, in an "undisclosed location," wondering where the hell my friends were and why David and I had just been cut from the herd. Cooties? A special surprise party? What the hell? He and I were so tired of being called names, and having our motives questioned, that he said "let's just give the book away." God bless him. He is an amazing, amazing man of great character.I agreed immediately and we announced it in an interview I did with Buzzflash Sunday morning.

Comment: No comment!

October 3 I tried to move my BlackBoxVoting.org domain to a new ISP, the one that's stood up to the BFEE on the AWOL documents. The tech there tried to move the domain, and called me back.

"There's a flag on your domain name from the registrar. Says it can't be moved."

Comment: This is a common precaution taken by tech savy folks to keep their domain from being "poached" by another registrar.

I contacted Tucows, the registrar, who said it can't be moved until Oct 9 (coincidentally, the day after the California recall). I asked them to send me something in writing as to whose authority did this, and what the reason was. They said I had to go back to the original reseller, Tiger Tech.

"If I do that, and Tiger Tech says it can be moved, then we can move it, right?"

"No."

Geez. I went to Tiger Tech, who told me there is a flag on the domain name and I can't move it. I asked for this in writing. They sent an email that said that no .org site registered with tucows could be moved for about a week, due to "maintenance." WTF?

Comment: No clue about this.

I contacted another tech, who checked to see if he could move his .org registered with tucows. There was nothing that said he couldn't.

Comment: But then, since he didn't try to move a domain, we can't be sure. It wouldn't be the first time that a registrar failed to keep people apprised of issues affecting them.

Okay, forget this mess, skip forward to yesterday, when I was asked to be on the radio with EFF as they proudly announced they were helping IndyMedia fight Diebold. They told me, on the air, that I was doing important work and was a great patriot. "Then why won't you help me?" I asked. He had no answer.

Comment: Either 1)He didn't know about the situation, or 2) He didn't want to embarrass Bev on the air by discussing it.

I called Cindy Cohn back, and said good, now that you're helping IndyMedia (who was told to pull down a link) could you revisit the idea of helping me, because not only was the link pulled, the whole 300-page site was pulled, we were denied access to our FTP, and denied the ability to move the domain. She said no, they have to choose who they can help.

Then she said "and you never switched to the ISP we told you to." I said, "If I had done that, would you have helped?"

Of course. "No."

She had another ISP to refer me to, but they still wouldn't help. She said the reason they couldn't help is because when she offered to help with AIT, they didn't want help. (that's funny, that day she apologized to me for telling me, and James Baker, she could not help).

She said she has another ISP for me to switch to. "Will you help then?"

"No."

Comment: IndyMedia cooperated, Bev didn't. This last part about them saying they wouldn't have helped even if Bev had cooperated is at odds with the recollection of other principles. I think they were refusing to help by this time because they knew getting involved with her would be a bad thing.

Cindy Cohn told me I could write the safe harbor letter and get reinstated in 10 days; actually, I've had that letter for awhile, Jim March helped me write it, but it requires that I provide a physical location for my whereabouts, so I need to wait until the book is out the gate.

Comment: Here we see paranoia that people were out to arrest or harm her. This is a recurring theme.

I asked her what someone does when there are safety issues. I'm only a two-hour drive from the programmers in Vancouver, and don't feel secure handing out physical location. She said she couldn't help with that, but I should send the letter.

Comment: The ISP actually has an on-line form you can use to file "Safe Harbor" letters. Bev could have used my address or I could have filed it since I had standing as her publisher and co-writer.

I asked her what someone does when there are safety issues. I'm only a two-hour drive from the programmers in Vancouver, and don't feel secure handing out physical location. She said she couldn't help with that, but I should send the letter.

I asked if it was overreaching to shut down all 300 pages of the whole site over a link. She said Yes. (But earlier she told me that was within their rights).

I asked if it was overreaching to block my access to my FTP. She said yes.

I asked if it was overreaching to block me from moving my domain. She said yes.

Comment: All of these questions are dependent on wording and proper understanding of context. As I have explained, Bev had neither.

We then had a conversation about the ownership of the site. She was surprised that Demactivist (Roxanne) wasn't the owner. I asked if Roxanne can own the programming after volunteering to help me set up the site, preventing me from reinstating it. She said maybe. I asked if Roxanne has the right to keep files on her computer, especially things like RedEagle's legislative letter templates and Paranoid Pat's "Take Back the Vote Tool Kit" -- wouldn't those belong to BlackBoxVoting.org or to RedEagle and ParanoidPat? She said she didn't think those would belong to Roxanne.

Comment: See above comment.

Oct 17: I interviewed Rob (rob-georgia.) Rob is a straight arrow. I trust his word. He said that Roxanne asked him to go to an attorney named James Penland to give a videotaped deposition. Penland asked Rob to give him his emails from Diebold; he refused. He did provide his notes from a session with Diebold's Greg Loe. Penland then asked to interview another of my sources, James Rellinger (that interview has been up on BBV since February).

I wrote to Dem and to Eloriel and said if there was any reason it would be a problem to break the news that a lawsuit was afoot, to contact me immediately. I did not want to mess up any legitimate pursuit. I received this in return:

"I have no knowledge of any lawsuit being filed, contemplating being filed, discussed being filed or anticipated being filed. Public statements being made alleging so, will be dealt with swiftly."

Comment: It's called gathering evidence for future use. Also, a person willing to give a deposition is making a commitment to their story.

XXXXXEDITNAMEXXXXX

If you can make sense of all this, you are doing better than me.

I have work to do, and am focused on two things: getting Chapter 10 to David by tonight, Chapter 11 tomorrow, 12-13-14 the following day.

Then, launching the activism planning sessions with the 425 activists who signed up.

That's what I'm focusing on.

- The shutdown of BlackBoxVoting.org removed a critical communication forum for activists nationwide, and many of them lost their work when it became inaccessible.

- The library, in particular, was quite a loss. I had archived most of the articles for the footnotes in the book there, and had to re-find every article for the book. A DUer named Phoebe spent dozens of hours archiving everything into it. She is very saddened by its loss. A New York Times reporter emailed me, said "when will it be back up? We need it!"

Comment: Nothing was lost. It was all there when the site came back on line.

- The private forums were highly valued by many activists, and if we have to completely reprogram to get them back up, we will. This will be an effort, and next time, I'll make sure the programming can't walk away with a volunteer, shutting down our ability to use our own forums.

- The actual work living on the BBV.org site, which included template letters to legislators, talking points, a "Take Back the Vote Toolkit" created by ParanoidPat, and others, may not be recoverable very easily if we have to reprogram the whole thing.

I have to wait until the book is done to tackle that. I appreciate all of you who have volunteered to help. If you have been advised to "distance yourselves" please do me, or at least David Allen, the courtesy of explaining why.

Comment: The only person who wound up "distancing" themselves was Bev. She filed a 'qui tam' behind my back.

Whatever is afoot, it would have been compassionate to let us know how we can help, or at least, not get in the way.

Weird story, huh?

Comment: "Weird" is an understatement.

Not going in the book or anywhere else.

Comment: Obviously, "anywhere else" didn't include posting it to a public forum.

Bev Harris
Black Box Voting