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7.
Cindy A. Cohn, Esq. (SBN 145997)
Wendy Seltzer,Esq.
ELECTRONIC FRONTIER FOUNDA nON
454 Shotwell Street
San Francisco,CA 94110
Telephone: (415) 436-9333xl08
Facsimile: (415) 436-9993
Alan Kom. Esq. (SBN ) 61933)
LAW OFFICE OF ALAN KORN
1840Woolsey Street
Berkeley. CA 94103
Telephone:(510) 548-1300
Facsimile: (510) 540-4821
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Attorneysfor Plaintiffs
ONLINE POLICYGROUP
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Jennifer Stisa Granick, Esq. (SBN 168423)
STANFORD LAW SCHOOL
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CENTER FOR INTERNET
559 Nathan Abbott Way
& SOCIETY
Stanford, CA 94305-8610
Telephone: (650) 724-0014
Facsimile: (650) 723-4426
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Attorneysfor Plaintiffs
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NELSON CHU PAVLOSKY and LUKE
THOMAS SMITH
UNITED STA~
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ONLINE POLICY GROUP, NELSON CHU
)
PAVLOSKY, andLUKE THOMASSMITH
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Plaintiffs,
DIEBOLD, INCORPORATED,
andDIEBOLD
ELECTION SYSTEMS, INCORPORATED,
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Defendants. )
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v.
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DISTRICT COURT
:, Nelson Chu Pavlosky, declare:
No. C-O3-4913JF
DECLARATION OF NELSON CHU
PA VLOSKY IN SUPPORT OF
PLAINTIFFS' MOTION FOR
SUMMARY JUDGMENT
Date:
Time:
Courtroom:
February 9, 2004
9:00 a.m.
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I amNelsonChu Pavlosky,a plaintiff in the above-captioned
case. I am oneof the
two Swarthmorestudentswho foundedthe SwarthmoreCoalition for Digital Commons(SCDC).
2.
As describedmore fully in my previous declarations,which I hereby incorporateby
this reference,SCDC'spublicationof and linking to the Dieboldemail archivewaspreventedby
SwarthmoreCollege, our ISP, after receipt of two ceaseand desistletters from DefendantDiebold.
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Without a judicial decision the future of the SCDC as a free speechorganization is
in jeopardy. Though Diebold Corporation has officially withdrawn its DMCA notification to our
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organizationfor displayingthe email archive,Dieboldhasmadeno representations
regardingits
future legal actionstowardmyself, Luke ThomasSmith, or SCDCfor our publicationsof other
materialsin the future. We thereforefeel as if we are operatingunder the constantthreat of
litigation for any actionswe undertakewith regardto Diebold.
4.
our future actions.we are concernedaboutother companiesor individuals with similar claims
against SCDC and ourselves. Without a clear statementof the application of copyright law to our
noncommercialpublication of leaked internal companyinformation about electronic voting
machines,we would be forcedto repeatthe samecycle of notification,countemotification,two
weeks of not publishing and threatsof impending lawsuits the next time someonenotifies
SwarthmoreCollege that he or she claims a copyright interest in such information.
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Additionally,sincewe haveno judicial decisionto serveas a clearbenchmarkfor
For two undergraduatestudents,this is simply not feasible. My parents are rightly
concernedthat my involvementin respondingto Diebold's legal claims is detractingfrom my
studiesand activities Neither we nor the SCDC (which we founded)have the fmancial or
emotionalreservesto repeatthis scenario.While we were fortunateto havethe StanfordClinic
assistus this time, we cannotbe surethat we will receivepro bono legal representationin the
future. Any futureparties- includingDiebold- desiringfor us capitulateto their demandswould
easily win by virtue of perseveringfinancially in their pursuit.
6.
A distinct dangerexists to the mission of the SCDC, which among other goals seeks
to improvevoting accountabilitythroughexaminingelectronicvoting sourcecodefor flaws. As
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09 04 09:28p
(9731267-7858
Robert.".P.vlo.k~~D~C.
p.2
long as SCDC has accessto information suggestingvoting softwareis not secureand reliable, it
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will wish to makethat informationpublic. However,without a judicial decision,SCDCcannotbe
certain that email archives like Dicbold's may be legally published and our ISP) Swarthmore
College,is likely to onceagainrequireus to removeany questionedmaterial. Given SCDC's and
our very limited personalresources,publishing information that must first be cleared through
expensivecopyright litigation is not a risk we can afford to take, The uncertaintyassociatedwith
Diebold's vagueletter and the lack of a judicial decisionrendersSCDC ineffective and unableto
pursueits missionof promotingfree speechandvoting accountability.
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SCDC's December conference on open-source voting was limited by the absenceof
a judicial resolution. SCDC originatly planned to distribute CD-ROMs with Diebold's email
archivesto thoseattendingthe conference,so that the participantscould read the archivesin their
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entirety, perhaps immediately at the conference, without having to fmd the archives on the Internet.
However,SCDCultimately decidedagainstpursuingthis methodof distributionbecauseit wished
to err on the side of safety from additional Diebold legal claims. Any future information about
Diebold or other partieswill inevitably havea similar effect on SCDC's efforts at publication, as
long as there is no clear legal demarcation of acceptable and unacceptable uses for the information.
It is therefore crucial for SCDC to have a judicial decision for reference in similar future situations.
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.~w Tan.."
I declareunderpenaltyof perjuryunderthe lawsof the Stateof 1"MMi~"-:I.I'that the
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foregoing is true and correct and that this declaration was executed in WWoYOV"~
'PiG."'$
~~::.m:
~~f
,.'
NELSON CHU PA VLOSKY
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