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Cindy A. Cohn,Esq.(SBN 145997) Wendy Seltzer.Esq. ELECTRONIC FRONTIER FOUNDAnON 454 Shotwell Street SanFrancisco,CA 94110 Telephone: (415) 436-9333xl08 Facsimile: (415) 436-9993 Attorneys for Plaintiffs ONLINE POLICY GROUP JenniferStisaGranick, Esq.(SBN 168423) STANFORD LAW SCHOOL
CENTER FOR INTERNET 559 Nathan Abbott Way & SOCIETY
Stanford,CA 94305-8610 Telephone: (650) 724-0014 Facsimile: (650) 723-4426 Attorneys for Plaintiffs NELSON CHU PA VLOSKY and LUKE THOMAS SMmI
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FOR TIlE NORTHERNDISTRICT OF CALIFORNIA
ONLINE POLICY GROUP,NELSON CHU PA VLOSKY, and LUKE mOMAS SMmI Plaintiffs,
DECLARAnON OF LUKE moMAS SMITH IN SUPPORT PLAINTIFFS' OF APPUCATION FOR TEMPORARY RESTRAININGORDERAND FOR PRELIMINARY INJUNCnON
DIEBOLD, INCORPORATED,andDIEBOLD ) ELECTION SYSTEMS,INCORPORATED, Defendants.
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[, Luke ThomasSmith, declareunderpenaltyof perjury that the following is true and correct: I am Luke ThomasSmith, a plaintiff in the above-captioned case.My addressis 500
College A venue~Swarthmore~Pennsylvania 19081
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2. I am a second-year undergraduate studentat Swarthmore Collegein Pennsylvania, planning to major in ComputationalLinguistics/Computer Science am especiallyinterestedin
-1nON LUKE mOMAS SMmf IN S T0 PLAINTIFFS' APP FOR TRO AND FOR PRELIM INJUNCTION
the way humansusetechnologyto connectto eachother,and Conn communities.
3. I am one of two founding members the Swarthmore of Coalition for the Digital Commons ("SCDC"). The organization started myself and NelsonChu Pavlosky.We was by startedthe organization September, in 2003.The groupwas inspiredby the ElectronicFrontier Foundation,LawrenceLessig, CreativeCommons, and the Free SoftwareFoundation.Our
organizationis dedicatedto promoting free and open-source technologicalstandards, because we believe that democracydepends the public being well-infonned, particularly aboutthe effect of on technologyon government,and to encourage Internetusersto reclaim the Internet as a democratic medium for the dissemination infonnation. Our group works to build awareness the value of of of
nonproprietary information and public discourse,
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4. The organizationoperates websiteon the Swarthmore a computernetwork. The website describes organization's the goalsandmission,serves a critical meansfor notifying membersof as upcomingmeetings,and containsupdates the organization's on activities and projects. SCDC uses the websiteto communicate aboutprojectspromoting democracy it relatesto technology,and to as conveythis information to the generalpublic. Swarthmore providesInternetconnectivity to
students as a service included in Swarthmore's $36,000a year tuition fee.
5. Diebold is a companythat makeselectronicvoting machines. October21st,2003,our On 20
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organizationpostedon our web pagean email archivethat appeared be from Diebold employees to discussingproblems with the company's electronic voting machine Our goal was to show the public the seriousand deep-seated problemswith the Diebold machines,and we postedthe emails
on SCDC'swebsiteaspart of our missionto educate public aboutthe needfor a transparent the
voting system 6 One day later, the college administration told us that they had received a letter from Diebold claiming that we were infringing their copyright by posting this infonnation. The school -2F LUKETHOMAS SMITH IN RT
PLAINTIFFS' APP FOR TRO AND FOR PRELIM INJUNCTION
disabledInternetaccess the archiveon October23rd. to 7. I first heardabout the Diebold email archive from friends active in anotherSwarthmore studentgroup, Why-War? I was told that the emailscontainedinformation o~ amongother topics, the (lack of) accuracy,security and accountabilityof Diebold's electronic voting machineswidely usedin the United States. Many of the emailsare themselves copiesof news articles that mention Diebold or other e-votingmachinemanufacturers. Why-War?websitehostedthe email archive The betweenOctober8th and 10th,and I downloaded copy from that site a
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The Diebold email archive raisedgrave concernsregarding the reliability and integrity
of Diebold's voting system The archiveincludedthe following quotes: I have becomeincreasinglyconcernedabout the apparentlack of concernover the practiceof writing contractsto provide productsand serviceswhich do not exist and then attemptingto build theseitems on an unreasonable timetable with no written plan, little to no time for testing, and minimal resources.It also seemsto be an accepted practiceto exaggerate progressand functionality to our customersand our ourselvesthen make excusesat delivery time when theseproducts and servicesdo not meetexpectations.
[source: http://chroot.net/s/lists/announce.w3archive/20011 O/msgOOOO I.html ]
The archive showedDiebold's inability to accountfor reporting impossibleresults,as in the 2000
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Florida Presidentialelection I need someanswers!Our departmentis being auditedby the County. I have been waiting for someone give me an explanationas to why Precinct216 gaveAl Gore to a minus 16022when it was uploaded.Will someonepleaseexplain this so that I have the information to give the auditor insteadof standinghere "looking dumb". [source:http://chroot.netls/lists/support.w3archive/ I 0 l/msg00068.html] 200 Finally, the archive showedDiebold's machinesas seriously flawed in their ability to accurately processvotes 28 of 114or about I in 4 precinctscalled in this AM with either memory card issues "pleasere-insert", units that wouldn't take ballots - even after recycling power, or units that needed be recycled.We reburned7 memory cards,4 of which we didn't to -3-
LUKEmOMAS SMITH IN
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needto, but they were far enoughawaythat we didn't know what we'd find when we got there(badrover communication).
[source: http://cbroot.netls/lists/ support.w3archive/200003/msgOOO34.html ]
to 9. I immediatelyrecognizedthe significanceof thesemessages the SCDCs mission of promotinginfonned civic participationthroughtransparency the responsible of technology. and use Even before I had heard of the Diebold email archive, SCDC was interestedin non-proprietary voting software,and membersbad discussed doing somethingaboutthe issueat the first or second meeting. The only way the public canknow if the voting technologyreally works is if they can see how the softwareworks. The archive exposedseriousflaws in Diebold voting machines,and the dangersof relying exclusively on a softwarecompanyto report flaws in their own technology. I felt that the public should know that thesemachineswere flawed, becausesuch problems could
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potentiallyaffectthe outcome elections.I thoughtthat educating public aboutthis wasa of the
uniqueopportunity for the SCDC. I wantedpeopleto havea chanceto evaluatea systemby which many will exerciseone of their most fundamental rights - the right to vote.
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~~tsomepoint I was told that Why-War's commercialwebsitehost forced them to
removethe email archive from their websiteupon receivinga legal complaint from Diebold Corporation. On October21,2003, two individual Swarthmore students postedthe documents on the Internetfrom their personalcomputers.
On October21st, SCDCdecidedto post the email archiveon our website. That day,
Nelson Chu Pavlosky,two other students, I were invited to a meetingwith the Swarthmore and Dean,Bob Gross,for October22nd.At that meeting,the Deansaidthat SwarthmoreCollege receiveda Cease-and-Desist letter from Diebold Corporation.None of the membersofSCDC, including myselft had seenthe letter in questiontbut the Deanstatedthat Diebold'sletter referredto an individual student's serverpostingthe email archive,andto links from the SCDC to that server.
-4D n !NOF LUKE THOMASSMITHIN SUPPOR F PLAINTIFFS' APP FOR TRO AND FOR PRELIM INJUNcnON
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At the meeting,the administrationwasnot clear aboutwhetheror not it would take down SCDC's postsof Diebold archives.
A few hoursafter the meeting,I receivedan email from the systemadministratorof
the studentgroupthat hoststhe SCDCsite sayingthat they had beeninstructedby Information TechnologyServices ("ITS") to removethe files, andhad disabledaccess them. I first to
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understood postingthe archiveswas againstSwarthmore's that policy from ITS's email. After receivingthe email, I posteda link to Why-War's websiteand their copy of the entail archives. On or aboutOctober23rd, a Swarthmore student~erted SCDC to the fact that linking to the archives is againstSwarthmore's policy, andNe~son Chu Pavloskyremovedthe link. Neither my personal site nor SCDC'swebsitecurrentlydisplaysor links to the archive.
SCDC is planning a symposium, "Choosing Clarity: Symposium on Voting
Transparency" the week of December1,2003. The goal of the symposium is to bring together for
will people from acrossdisciplines to discussthe issueof voting transparency. The symposium
compile recommendations improvementof the voting process,including the improvementof for
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the technical standardsfor voting machines, Our ability to discuss significantproblemswith electronicvoting system,problemsthat could result in erroneous election outcomesand a
corruption of our democracy,will be severelycurtailed becausewe won't be able to discussthe Diebold email archiveillustrating theseproblemswith symposiumguests.Our symposiumwill not
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24 be effective if people are not infonned about theseseriousflaws. Becausewe cannot link to the archive or distribute or post it for attendeesto read, we are effectively prohibited from fully discussing this importantmatterat the symposium. 13. I was seriouslyconcerned I would be suedby Diebold for making the email that archiveavailable. Even thoughI believethat the public needsto know the infomlation contained in the email archive,the prospectof being suedby a multi-million dollar corporationis extremely
DECLARATION LUKE THOMAS SMITHIN SUP R OF PLAINTIFFS' APP FOR TRO AND FOR PRELIM INJUNCI'ION
worrisome,given the potentialhavocit could wreakby distractingme from my studiesand school activities, and potentially derailingmy educational, career,and financial goals.
14. If I, as an individual, choose post the email archiveor link to it from my own to
computer, I'm afraid that Diebold could also get the Swarthmoreadministration to cut off my
Internet access, possibly indefmitely, which would hinder my ability to pursuemy studies,
completemy assignments, preparefor class. or 15.Diebold's actionshavealsohannedmy experience a studentconcerned as with the effect of technologyon government society.I am afraid to discussthe Diebold email archive and with frIends,with other students with the world at large. I fear that Diebold will comeafter me and and sueme, or pressure Swarthmore the administrationto take disciplinary action againstme if I discussthe problemswith voting technologyrevealedin the email archive. feel that my academic freedomandmy freedomto discussthe political process and to participatein it - especiallyasa first-time voter - are seriouslyhampered. 16. If SCDC, asa group,poststhe email archiveor links to it from their website,the group may not be ableto get chartered and/orrecognized the StudentCouncil, and thusmay losethe by possibility of schoolfunding. The websitemay also be takenoff of the Swarthmore network by the administration,hamperingcommunication betweenthe group'smembers regardingthe group's activities,meetings,etc. The generalpublic would not haveaccess our links and FAQs offered to
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by the website.The administration,via the ITS, canwidely block studentweb serverson the Swarthmore network in order to stopthe uploadingof the archive,shouldstudents chooseto move it from serverto server.Students would thusbe preventedfrom posting any materialto the Internet. 7. I am very concerned peopleneedto know aboutthe voting machineflaws discussed that in the Diebold email archive,or risk contaminationof the electoralprocess.I fear that thesehidden flaws in the voting machines will result in false election outcomes, and may decreasevoter
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DECLARATION OF LUKE THOMAS SMITH IN SUPPORT F PLAINTIFFS' APP FOR TRO AND FOR PRELIM INJUNCTION
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confidence participation and
18. Diebold's lottcr to Swarthmorepreventsroc from using the SCDC and its wcbsjte as a tool for learning and debateabout OUT core mission intexestof informing the public about issues that affect citizens' ability to participatein our governmentand in OUT society iD gencra1. I declare undcr penajty of peljury under the laws of the State of Pennsylvania that the foregoing is true and concct and that this declaration was exccuted in g~7A~:~
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-7DBCLARATION OFLUKBmONAS SMmI IN SUPPORT OP ~11FFS'
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