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1 Cindy A. Cohn, Esq.

(SBN 145997)
Wendy Seltzer,Esq.
ELECTRONIC FRONTIER FOUNDA nON
454 Shotwell S1reet
3 SanFrancisco,CA 94110
Telephone: (415) 436-9333xl08
4 Facsimile: (415) 436-9993

s Attorneys for Plaintiff


ONLINE POLICY GROUP
6 JenniferStisaGranick, Esq.(SBN 168423)
.7 STANFORD LAW SCHOOL
CENTER FOR INTERNET & SOCIETY
559 Nathan Abbott Way
8 Stanfo~ CA 94305-8610
9 Telephone: (650) 724-0014
Facsimile: (650) 723-4426
10 Attorneys for Plaintiffs
NELSON CHU PA VLOSKY and LUKE
11 THOMAS SMITH
12
UNITED STATESDISTRICf COURT
13
FOR THE NORTHERNDISTRICT OF CALIFORNIA
14
ONLINE POLICY GROUP, NELSON CHU No.
15 PA VLOSKY , and LUKE THOMAS SMITH. )
16 )
Plaintiffs, ) DECLARAnON OF NELSON CHU
17 ) PA VWSKY IN SUPPORT OF
v, ) PLAIN'CD'j!"S APPLICA nON FOR
18 ) TEMPORARY RESTRAINING ORDER
DIEBOLD, INCORPORATED,and ) AND FOR PRELIMINARY INJUNCnON
19 DIEBOLD ELECrlON SYSTEMS,
INCORPORATED,
20 )
Defendants.
21
22 .>

23
I, Nelson Chu Pavlosky,declareunderpenaltyof perjury that the following is true and
24
correct:
25

26 I am a plaintiff in the above-captionedcase am a sophomoreat Swarthmore


27 College. am nineteenyearsold. My addressis 500 College Avenue, Swarthmore,Pennsylvania
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PA S 0
PLAINTIFFS' APP FOR TRO AND FOR PRELIM INJUNCfION
1 19081. I havenot yet declareda major.

2 2. I am one of two foundingmembersof the SwarthmoreCoalition for the Digital

3 Commons(hereinafter"SCDC"), a studentorganization. My friend Luke SmithandI conceived

4 the idea for the SCDCin the summerof 2003, The first official meetingof the SCDCwas

5 September14,2003.The SCDCis not currentlycharteredwith Swarthmore,althoughI plan on

6 submitting a charterapplicationfor the SCDC as soonas Swarthmore'sstudentgovernmentbegins

7 acceptinga new round of charter applications. The SCDCis not currentlyfunded,but a charter

8 would bring funding.

9 3,
On October21,2003, our organizationpostedon our web page e-mail archivesthat

10 appearedto be from Diebold employeesdiscussingproblemswith the company'selectronicvoting

11 machine. One day later, the college administration told us that they had received a letter from

12 Diebold claiming that we were infringing their copyright by posting thesee-mail archivesand the

13 schooldisabledinternetaccessto the e-mail archiveson October22, 2003

14 4. The SCDC is dedicatedto promoting a bottom-up,participatory structurefor society

5 and culture characterizedby the free and open exchangeof infonnation. The groupwasinspired

16 by the ElectronicFrontier Foundation,LaurenceLessig,CreativeCommons,and the Free Software

1 Foundation. The SCDC is also dedicated to fmding a balance between the growth of new

18 technologiesand the interestsof creatorsand consumers. The SCDC choosesprojects from this

19 generalinterestareafor studentmembersto researchand discuss.

20 s, The SCDC operates a website on the Swarthmore network, at

21 <http://scdc.sccs.swartmore.edu>,
that describesthe organization's goals and mission, notifies

22 membersand interestedstudentsof upcomingmeeti!1gs,and publishesarticles and facts relating to

23 the free and open exchangeof infonnation. The SCDC site also provides links to resources,

24 including newspaperarticles and other websites. SCDC studentmembers,including myself, post


information and add links to this website. SwarthmoreprovidesInternet connectivity to studentsas
2S
26 a serviceincludedin Swarthmore's$36,000a yeartuition fee.

27 6. As a first-time voter, am particularly interestedin open standardsin voting and

28 discussedSCDCstudyingthe issueof voting transparency asearly asthe first SCDCmeeting. I


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DECLARATION OF NELSON cfiu PA VLOSKY IN SUPPORT OF
PLAINTIFFS' APP FOR TRO AND FOR PRELIM INJUNCTION
was interestedin exploringa non-proprietaryor open-source
voting systemas an alternativeto
2 voting technologies developed by private companieswith proprietary interests. I worry that
3 electionresultsmay dependon voting technologiesdevelopedin secret. I believe that the only way

4 the public can know if voting softwareworks the way it should is if they can seeits sourcecode.

s Otherwise,the future of our nationdependson a business'srepresentation


that their productis
6 accurateenoughto useas a voting system

7 7. I first heard about the Diebold employeee-mail archives from friends in another
8 Swarthmore student organization, Why-War? The Why-War? website contained links to the
9 Diebold e-mail archives. I immediatelyrecognizedthe significanceof thesee-mail archivesto the

10 SCDC's mission. The e-mail archives..xposedflaws in Diebold voting machinesthat could affect

1 the outcome of elections, felt that making the e-mail archivesavailablewas a unique opportunity
12 for the SCDC to infOmt people about how closed electronic voting could hurt the democratic

13 processby possibly producing false election results I thoughtthe e-mail archiveswould help
14 peopleevaluatea systemby which manywill exerciseoneof their mostfundamentalrights-the
IS right to Yote. The following excerptsfrom the e-mail archivesillustrate my concern:
16 "Electionsare not rocket science.Why is it so hard to get things right! I have never
beenat any other companythat hasbeenso miss [sic] managed."
17 [source:http://chroot.net/s/lists/announce.w3archive/200110/msgOOOO2.html ]
18
"I needsomeanswers!Our departmentis being auditedby the County. 1 have been
19 waiting for someoneto give me an explanationasto why Precinct216 gaveAl Gore
a minus 16022 when it was uploaded.Will someonepleaseexplain this so that 1
20 have the information to give the auditor insteadof standinghere"looking dumb.'"'
21 [source:http://chroot.net/s/lists/support.w3archive/2001
01/msg00068.html]

22 8, In early October, I learnedthat Diebold had askedWhy-War's off-campus internet


23 serviceprovider to disable accessto the Diebold e-mail archives. In response,membersof Why-
24 War? and other interestedSwarthmorestudentsbeganhostingthe e-mail archiveson their personal
2S sites. However, bandwidth issuesmade hosting on personal sites impracticable. The SCDC
26 decided to preservepublic accessto thesee-mail archivesby hosting the e-mail archives on its
27 website on the SwarthmoreCollege Computing Society server. SCDC put up the e-mail archives
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DECLARA: A Y IN S
PLAINTIFFS' APP FOR TRO AND FOR PRELIM INJUNCTION
1 on Tuesdaythe 21st of October.

2 9. The next day, Wednesday


the 22ndof October,SwarthmoreDeanRobertGross
3 called Why-War? and the SCDCand askedus to have a meetingwith him that afternoon. He said

4 that he had been in contact with Swarthmore's legal counselabout a letter he had received from

s Diebold asking Swarthmoreto disableaccessto the e-mail archiveshostedon its network. A copy
6 of that letter is attachedat Exhibit A. At the meeting,Dean Grosslistened to other students'and

7 my thoughtson the merits of Diebold's demandsand on whetheror not Swarthmoreshouldcomply


8 with those demands. Dean Gross did not explicitly statewhat action Swarthmorewould take in
9 responseto the Diebold letter.

10 10, I receivedan email from a Swarthmoresystemsadministratorat 6:12 pm that


1 evening informing me that SwarthmoreITS had told the SwarthmoreCollege Computing Society
12 ("Computing Society") to remove the e-mail archives hosted on SCDC's site, The Computing
13 Society removed the Diebold e-mail archives from the SCDC site at approximately 6:30 pm on
14 Wednesdaythe 22nd. The e-mail archiveswere up on the SCDCsite for approximatelyone day

15 11 At this point, knew Swarthmorehad resolvedto take website posts of the e-mail
16 archives off of Swarthmore's servers. However, I did not know the policy on linking from a

.7 Swarthmorewebsiteto anotherwebsitethat hostedthe e-mail archives. Co-plaintiffLuke Thomas


18 Smith added a link from the SCDC website to Why-War?'s website, which hosted the memos
19 The following day, Thursday October 23rd, Why-War? member Micah White sent me an e-mail
20 infonning me that it was now againstSwarthmore'spolicy to link ftom a Swarthmorewebsiteto an

21 outsidewebsitethat hostedthe e-mail archives. After reading the e-mail, I promptly removedthe
22 link from SCDC's website,
23 12 I am not currently hosting or linking to the e-mail archiveson the SCDC site or on
24 any personalwebsite.
2S 13 Diebold's actions have negatively affected my academic research and plans to

26 educatemyself and the public about the state of the voting processin our country. When the

27 SCDC first acquiredthe e-mail archives,we intendedto start a project to read and study the e-mail

28 archives,in the sameway other collegeshave studiedthe "TobaccoPapers"which revealed


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~;. ~ ECLARATIO P S UP RTOF
PLAINTIFFS' APP FOR TRO AND FOR PRELIM INJUNCTION
questionablepracticesof the tobaccoindustry However, upon discovering that the SCDC could
2 not post the e-mail archiveson the web due to Diebold's claims of "copyright infringement", we

3 realized that doing this researchwould be difficult if not impossible. I fearedthat Diebold would
4 accuseus of "copyright infringement" if we copiedthe e-mail archivesonto CD. I also fearedthat
5 sharing the e-mail archives with other studentscould be construedas "copyright infringement,
6 that printing out the e-mail archivescould be considered"copyright infringement," that indeedany
7 disseminationof this infonnationcould put us at risk of a lawsuit from Diebold Working on
8 researchwith other peopleis impossibleunder theseconditions.I now fear that we cannot discuss

9 someof the most relevantissuesin voting technologybecauseDiebold's threatsforce us to


10 suppressthe e-mail archivesthat reveal the flaws in these voting systems.An upcoming
II symposiumon voting transparencythat the SCDC is organizing could have benefited from such
12 research;we may be able to hold a successfulconferencewithout researchingthe e-mail archives,
13 but we may now neverknow what impactknowledgeof the e-mail archivescould havebad
.4 14. Diebold's actions have also affected my experienceas a Swarthmorestudent. For
15 me, Swarthmoreis no longer the environmentof academicfreedom it once was. am afraid to
16 discussthe Diebold e-mail archiveswith friends and with other students fear that Diebold will
7 come after me if I engagein discussionaboutthe problemswith voting technologyrevealedin the
18 e-mail archives It frightens me that my college didn't have the courageto standup for my fellow
19 studentsand me have a feeling of abandonmentand vulnerability because face a massiveand
20 unknown dangerwhenever speak I also believe the imposedsilencenms afoul of Swarthmore's
21 own tradition of responsibilityandparticipation.
22 IS If SCDCpostse-mail archivesor links to the Diebold e-mail archivesftom its
23 website, the school administrationmay force the SwarthmoreCollege Computing Society to take
24 the SCDCwebsite off of the ComputingSociety'swebserver. This would seriouslyhamper
2S communicationbetweenmembersaboutmeetingsand events,and removeaccessto any resources
26 that the SCDC publishes, such as tutorials for using Linux. The group might not be able to get

27 charteredif it cannot function as an organizationthrough its website The SCDC's future would

28 also be threatenedby a lack of internetexposure


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DECLARATION OF NELSON CHU PA VLOSKY IN SUPPORT OF
PLAINTIFFS' APP FOR no AND FOR PRELIM INJUNCTION
t

:
1 JI
2 16. I am very concernedabout the chilling cffccts of not being able to host the Diebold
3 c-mail archives. Diebold's actions have stifled my efforts to use the SCDC as a toOl for Jeaming
4 and debate. My group. the SCDC. cannot fully dedicateitself to elevating our knowlcdge and th~
s public's knowledge about issuesthat affect our ability to participate in our government aI1din OUT
6 society in general I fear that the resultinglack of transp~cy in the voting processwill mcan

flawed election IeSultsand will decreasevoter confidenceand participation.


8 I declarc under penalty of perjury under the laws of the State of Pennsylvania that the
9 foregoing is troc and conect and that this declaration was executed in S~(~M'rv. _I

10 Pennsylvania.

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PLAINTIFPS'APPFOR.TROAND FORPREIJM INJUNcrIO

eoollJ Q"I3I.i~NIHdS SOJNt~


YVd 8Y:YY COIZOltt
1r~."
a legal professional association

Ralph E. Jocke 1r~


Patent (.." Jc~e
0-
T~ Lew

October 9, 2003

JudyDowning
Director oflnfonnation TechnologyServices
SwarthmoreCollege
BeardsleyHall
500 CollegeAvenue
Swarthmore,PA 19081

downin2ra2swarthmore.
edu

Re: Copyright Infringement

Dear Ms. Downing:


We represent Diebold, Incorporated and its wholly owned subsidiaries Diebold Election
Systems, Inc., and Diebold Election SystemsULC (collectively "Diebold").

Diebold is the ownerof copyrightsin certain COITesPOndence


and other material relating to its
electronic voting machines that were stolen from a Diebold computer ("Diebold Property").

It has recently cometo our clients' attentionthat you appearto be hosting a web site that
containsDiebold Property.The web siteyou arehostinginfringesDiebold's copyrightsbecausethe
Diebold Propertywas placedon this web site without Diebold's consent.

The web site and Diebold Propertyareidentified in a chart attachedto this letter.

The purpose of this letter is to advise you of our clients' rights and to seekyour agreementto
the following: (1) to remove and destroy the Diebold Property contained at the web site identified in
the attachedchart and (2) to destroy any backup copies of the Diebold Property in your possessionor
under your control.

Pleaseconfirm, in writing, that you havecompliedwith the aboverequests.


e

To the best of my knowledge and belief the information contained in this notification is
accurateas of the time of compilation and, under penalty of perjury, I certify that I am authorized to
act on behalf of Diebold.

Our clientsreservetheir position insofarascostsanddamagescausedby infringing activity


with respectto the Diebold Property. Our clientsalsoreservetheir right to seekinjunctive relief to
preventfurther unauthorizeduseof Diebold Property,including reproduction,distribution, public
display,or the creationof derivativeworks, pendingyour responseto this letter. We suggestyou
contactyour legal advisorsto obtain legal adviceasto your position.

We await your responsewithin 24 hours.

r
Very truly ~urs,

","'1~~-

Ralph E. Jocke

~31 ~oulh f>road.." Medina U.~.A


INFRINGING MA ~RIALS POSTEDON http://d176.whartonab.swarthmore.edu/

This site consistsof Diebold Property,stolenfrOmDiebold md postedat


http://why-
war. co m/ reso urces/ f this web site without the consentof Diebold.
iles/diebold_interna
lmemos.pdthttp://dl
76.whartonab.swart
hmore.edu/diebold-
int~~memos. pdf

~~.t &ovth f>roadway Medina U.~.A