I edited my personal info out here but per the rules, I put 'em in in the letter which went to my ISP plus CCed to Diebold's lawyers:
Subject: Counter-notification under 17 USC 512(g)(3)
-----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1
This is a counter-notification to a "cease and desist" memo filed by Diebold Election Systems legal counsel to my Internet Service Provider, Mr. (deleted). Mr. (deleted) recieved this notification on 9/18/03 and forwarded a copy to me. He has informed me that he has filed a query with your attorneys as to exactly which Diebold-related files I currently host infringe on Diebold copyrights.
I have some suspicion I know which files Diebold would consider "private property", but I am not of course quite certain as to what claims Diebold is making. Some of these files are of such shocking nature, I would be rather surprised if Diebold were to voluntarily declare ownership of them as they suggest serious criminal activity on the part of Diebold Elections Systems.
The files fall into four general categories, which I will discuss in detail below:
* "Program files" as used below refers to Diebold executable programs, mainly "GEMS" and the code needed to make it work. I do not have any source code, nor do I have the programs that run on Optical Scan or Touchscreen terminals (either online or on my local disks).
* "Data files" refers to the voting data files used by GEMS, identified by the extentions ".MDB" (Microsoft DataBase, also viewable in commercial versions of MS-Access) and ".GBF" (Global Backup Files, which GEMS can convert into .MDB files). Some are found within .ZIP archives, some are standalone.
* "Manuals" - these are documents written by Diebold Elections Systems, generally bearing Diebold corporate logos and graphics. They are very "professional looking" and generally stored as ".PDF" files. Most are written for Diebold customers, but at least one is described as being for employee use only (especially the hilarious "ElectionSupportGuide.pdf" file).
* "Internal EMail traffic" - a Diebold Elections System employee leaked a huge archive of EMail messages that were originally distributed across an internal Diebold mailing list managed by the Majordomo application. (Approximately 20+ Diebold employees were subscribers to this list; all messages that were sent to the mailing list address were "reflected" back out to the group as a whole for comment or informational purposes.)
Setting aside a detailed query as to each individual file or even file type as described above, my intent in writing this is to notify Diebold and their legal counsel that it is my honest opinion that I have committed no copyright infringement, and I ask my ISP to leave the files in question intact and/or reinstall any taken down.
I base this opinion on the following facts:
1) The material is subject to "fair use" copyright provisions because it provides a public service: informing the public, media and government figures that the "security" of Diebold Election Systems is deliberately flawed in ways that strongly suggest an intent to commit voter fraud.
2) I have made no profit whatsoever from this material, and have no intention to ever do so.
3) Most of the material in one way or another documents criminal activity on the part of Diebold Election Systems. These include:
3a) Setting up GEMS with zero effective security, by allowing MS-Access to alter GEMS voting data, passwords and audit trails. Even a cursory examination of the data files by anyone technically competent with MS-Access will reveal most of the extent of the problem.
3b) Knowingly leaving these security flaws in place, because MS-Access was a "convenient tool" to modify the data, despite MS-Access never being approved or tested by ANY government agency as elections software. Internal Diebold EMails fully document this going back to at least the year 2000, and in 2001 fraudulent statements were made to the Federal Independent Testing Authority ("Metamor", now called Ciber Inc) regarding this security flaw - in an EMail message of October 18th 2001 by Ken Clark, Diebold Election System's "Senior Engineer" which also disparaged the technical abilities of said testing lab, apparantly with some authority.
3c) In that same damning EMail, Mr. Clark mentions being able to tamper with vote data himself.
4) The data files are NOT Diebold property. They are owned by the various county clients of Diebold, and in my opinion and study of the California Public Records Act, the files from California (Alameda and San Luis Obispo Counties) are public record. According to SLO County Registrar Julie Rodewald, the SLO County file is "live elections data" from the day of the 3/5/02 primaries, timestamped BEFORE the close of the polls (stamped 3:31pm) and containing "live vote data" (absentee ballots). Rodewald claims that this file was NOT released to Diebold by her or her staff, certainly not for public distribution on a Diebold website unprotected by any password at all. The file itself did have a primitive password which turns out to be "sophia" - Diebold technical staffer Sophia Lee was present at the county that day according to Rodewald, apparantly in violation of INS rules! (See also the "ElectionSupportGuide.pdf" file section 3.1 on "crossing the border" for instructions by Diebold Election Systems to their employees to violate US immigration law.)
5) The other major reason the Diebold Elections System copyright is invalid is that said copyrights cannot legally benefit Diebold Elections Systems. Not without one hell of a large re-write. It is illegal to use the GEMS product in a US election. It passed Federal Elections Commission certification due to Diebold's deliberate fraud, and the laws of every state where electronic voting systems are used ban the use of programs and systems that can be tampered with.
California Elections Code 19205 is a typical example:
------------- 19205. The Secretary of State shall establish the specifications for and the regulations governing voting machines, voting devices, vote tabulating devices, and any software used for each, including the programs and procedures for vote tabulating and testing. The criteria for establishing the specifications and regulations shall include, but not be limited to, the following: (a) The machine or device and its software shall be suitable for the purpose for which it is intended. (b) The system shall preserve the secrecy of the ballot. (c) The system shall be safe from fraud or manipulation. -------------
GEMS emphatically does not comply with (a) or (c) above.
It is just as illegal to use GEMS to tally a California vote as it is to deal crack cocaine at a polling place. And Diebold technical staff have known this for years.
Therefore, no lawful income to Diebold can possibly be curtailed by my actions or the action of anyone else distributing Diebold Election Systems code, manuals and the like.
For these and a host of other reasons, I am convinced that no possible Diebold Elections Systems copyright can be used to conceal criminal activity from a person affected by said criminal activity. As a California and US voter, I am so affected by vote fraud of the type Diebold Elections System is engaged in.
I state under penalty of perjury that I believe, in good faith, that the files in question have been misidentified as being legally copywritten material not subject to fair use principles. On the contrary, the copyrights themselves are beyond merely "questionable", they are highly doubtful, and the files enjoy the strongest possible "fair use" protection as I have distributed them and commented on them.
This file has been digitally signed with the freeware version of PGP 6.58 available at:
7. WOW - Now that is giving them the finger - If the US Media picks this
up and runs with it -
Oh ya - - I forgot - the US media is not about to run with it are they? - Our "we are not controlled by the right wing, we just act like it" media will need to ask the GOP and Rove what is the correct spin before they can print or broadcast - and even if they are allowed to do, it will take a while to get permission.
head political editor of the Kalamazoo Gazette involved and he told me he couldn't see how it affects us in MI since we don't use touchscreens.
That's the kind of ignorance we're up against, people- it's not that people don't know about the BBV issue; they've apparently been told not to think about it at all. Uhhh, how about the federal elections, dipwad? GRRRR........
13. Eloriel, you are all doing a great job on this
Edited on Fri Sep-19-03 11:11 AM by Cheswick
I am very greatful. I am also convinced that a paper trail is not the solution. Unless a race is close why would the ballots ever be examined? If the ballots are to be examined as a matter of course, why not just have paper ballots altogether and forget the machines?
My real question is, can someone put together a simple letter that expresses this whole issue in a way that the average person reading a news paper can understand? Maybe you or someone could start a thread with 3 or 4 main points that should be addressed in any letter to the editor.
I have researched and understand this to some extent, but I am afraid I might leave out what is really important.
16. This isn't a whole letter, but contains some information you could use
Edited on Fri Sep-19-03 12:40 PM by gristy
Here is a bad voting and vote-counting process:
1. Voter "votes on a computer". 2. Vote is stored and counted on computer. Voter cannot verify his vote has been properly recorded (see www.wheresthepaper.org). 3. Vote totals are communicated by modem (or possibly physical transfer of a memory card, I've heard) to a central computer. 4. The central computer totals up all the votes and determines the "winners". 5. If a "recount" is demanded, sorry, the only thing available to recount is the stored electronic ballots (if they were stored in the first place). And due to their electronic nature, the recount process is quite opaque and open to fraud itself.
Problem is the potential for alteration of electronic ballots or vote totals and at the same time it can be difficult to determine even IF any fraud has occurred. You also have the problem, due to a general lack of transparency in the process, of disenfranchisement of the average voter. Voters may see electronic voting (and their feeling that their vote won't be accurately counted) as just another reason to not vote.
Here is a good voting and vote-counting process:
1. Voter votes on paper ballot. Blind voters use a specialized computer to assist them in the generation and verification of a paper ballot (per HAVA requirements). 2. Paper ballots are counted using optical scan. Specific auditing procedures (including hand-counting of ballots in randomly selected precicts; see info on Rush Holt's HR2239) are used to confirm the accuracy of this machine tally. 3. Paper ballots are secured using procedures that are published and followed. 4. Precinct totals are posted at each precinct AND transferred to a central computer. 5. The central computer totals up all the votes and determines the "winners". 6. Precinct totals and state totals are published. Precinct supervisors (and interested citizens) double-check that posted precinct totals match totals published by the state. 7. Any demanded recount is done in public, counts the paper ballots, and also re-audits the precinct records (e.g., verifies # of ballots = # of voters).
29. Paper trail plus change in audit laws is the solution
You are correct in identifying that the audit laws are too weak to let a paper trail alone do the job. However, we must require a voter-verified paper ballot, it must be the legal record of the vote, and it must be much more robustly checked against the machine tally.
There are many ways to do this, which are not costly or time consuming.
Has anyone else noticed that whenever anything important comes up RE;BBV, the candidate bashing threads get way out there? :shrug: Just an observation. :evilgrin: Could someone be trying to divert attention away from something or am I just paranoid? ;-)
As you know, Jim March is not a member of DU and can't directly reply here -- Jim's response as posted for you on BBV.org:
Quoting: ------------------- The urge is strong to use the letter to make declarations of your political reasons for doing what you do, but this could compromise your legal position seriously and irrevocably.
The letter that that Ohio ISP sent...that was a brilliant letter. They cited the law, divulged no compromising information, and place the ball firmly back in Diebold's court.
March could end up hurting himself more than helping himself with something like this. -------------------
Here's the situation:
By default, a company owns and has copyrights to this sort of thing. The burden of proof will be on ME to show that they are distributed under "fair use" and/or that the Diebold copyrights are no good.
The DMCA "counter-notification rules" under 17 USC 512(g)(3) *force* me to paint a giant target on my back in order to keep those files up: I have to state an address where I can be served, I have to list a phone number, I have to agree to operate under the jurisdiction of the local (to ME, thank God!) Federal Court, etc.
That means that this letter, no matter what I write, will be "exhibit A" if Diebold is stupid enough to file suit.
The other requirement in 17 USC 512(g)(3) is that I must have a good-faith *belief* that I'm acting legally. Not just morally, but legally. In this case, that means claiming that the works in question are "misidentified" (to use a term in the DMCA itself) as holding valid copyrights and/or not subject to fair use.
I really believe that's the case.
Now, I have some small experience with the subject of "reasonable belief of lawfulness" being used to avoid criminal penalties.
My former roommate hasn't paid US income tax in 28 years. He also has a letter from a Federal attorney saying he cannot be criminally charged for that. How did he get that letter? By writing to the IRS multiple times asking for explanations as to the definition of "income" under IRS regulations, and a host of other technical questions...the lack of answers to which has him convinced that the IRS is as crooked as Diebold.
Now, I'm not going to debate the point, it's not my area of expertise. He's basically following the concepts found at http://www.givemeliberty.org - go check it out if interested.
Recently, an airline pilot in Tennessee won an IRS criminal case on the same basis.
(There are other tax protest/resistance arguments that are seriously loony, such as the ones based on the 14th Amendment. I disagree with those rather strongly, I have some knowledge of the 14th Amendment myself. See also: http://www.equalccw.com/practicalrace.html for one of the two most scholarly pieces I've written.)
Upshot: in order to convict you of a crime, they have to show a "deliberate violation of law". If you can REASONABLY show why you're not in violation, it becomes impossible to convict. There ARE exceptions, gun laws being a glaring one...per the Calif Supremes and some Fed cases, "intent" isn't a factor if your shotgun barrel is fractionally shorter than 18" for example. Or drug laws, same deal.
But copyright law is tailor-made for this "intent defense", because the entire area of "fair use" is nebulous to start with. Read case law and commentaries on the "fair use" doctrine, and you start seeing references to "we know it when we see it" referring to "fair use" - including judges using that exact phrase from the bench. And what THAT means is, Diebold isn't going to be able to keep the actual content of the alleged copywritten material out of court. I'll be able to show that content to both judge and jury.
Which means they're HOSED! Toast. Stick a fork in 'em, they're DONE.
39. I do agree they're done. They haven't quit kicking, but it's all over.
There are over 100 memos that show they have deliberately circumvented the law, both the intent of the law and the letter of the law.
The most recent find was in April 2002, where stockholder and head programmer Tab Iredale urges folks to hustle on past any examination of Windows CE. "We don't want certifiers looking at the operating system," he says. That might be legal under the FEC "COTS" exemption (Commercial Off the Shelf software). Unfortunately, no Windows CE system can qualify for COTS, as they are all customized, and this particular Windows CE system was hacked to bits by Diebold, and therefore cannot bypass certification.
There are so many documents showing use of uncertified software in elections it makes your head spin. I've been talking to reporters all week. This will make its way into both the press and the courtroom.
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