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June 6 - 12, 2004 |
Electronic Voting Rights: Another Blast from the Digital Pirates?
Electronic voting machines are the new version of pirated music, says Professor Doris E. Long of The John Marshall Law School in Chicago.
"Like digital music, electronic voting machines were designed to make voting rights easily available to the masses. Technology, the `savior' of the 21st century, however, has once again demonstrated how easy it is to circumvent a good idea through better `hacker' technology," the copyright and trademark expert explains. "To solve the problem, just as in the case of music piracy, we will need both technological fixes and better legal protections for those fixes."
After the presidential election debacle of 2000, voters hoped the hanging chads and other problems with the voting hardware will be rectified by use of electronic voting machines. One of the companies manufacturing these new machines is Diebold.
What prompted Long to examine the latest election year debate on voting machine vulnerability was a legal move by Diebold to limit access to corporate information, including more than 15,000 e-mails, that showed poor results when the voting machines were tested. The information was on the Internet because hackers had
managed to access the Diebold system. The company said it was invoking the Digital Millennium Copyright Act (DMCA) which it argued was meant to protect companies from online piracy. It sent Internet providers cease-and-desist letters.
But students at Swathmore College put the materials back on the Internet using their school accounts. The college took their sites down when Diebold threatened action, but the students managed to get friends around the country to reload the Diebold materials. Then the students sued the Ohio company for abusing copyright law. The company backed down.
"Unfortunately the DMCA, established in the 1990's to `solve' the problem of digital piracy, has been even less successful in protecting the integrity of the voting process. In point of fact, it has worked directly against such integrity," Long said.
One of the cornerstones of the DMCA was its new legal protection for "technological" access barriers that are designed to prevent unauthorized reproduction of protected works.
That same statute that prohibits circumventing copy protection codes on CD's and DVD's has been used to prevent the private testing of electronic voting machines or the dissemination of such test results without the permission of the owner of the voting technology at issue.
"Because electronic voting machines use technology to protect their record keeping, problems can only be discovered by outsiders if such `technological' protection measures are circumvented," Long explained. "In the Diebold case, the hackers were the outsiders who circumvented the company's e-mail system to share the testing records."
Under the DMCA, the company which creates the voting machines has the exclusive right to authorize such circumvention.
"It's a rare provider that is willing to expose its product to such rigorous and uncontrolled testing," she noted.
"Diebold's subsequent threatened legal action against the students put the Digital Millennium Copyright Act on a direct collision course with the First Amendment," Long contends. "Political speech lies at the heart of Constitutional First Amendment rights. And nothing seems more `political' than information about the reliability of voting machines."
But, the DMCA contains no exceptions for such critical fair uses.
"Contrary to popular press, copyright and free speech are not natural enemies," Long stressed. "The primary goal of copyright law is to encourage new works. These works in turn expand the marketplace of ideas the free speech clause of the Constitution was designed to protect.
"Poorly designed legal `fixes' to technological problems create false conflicts that detract from the real issues at stake," she added.
"Quite simply, lawmakers are never as prescient as we hope. Like most of us, they failed to appreciate that anti-circumvention provisions would ever be used to stifle public debate over accuracy of voting systems.
"They failed to include critical exceptions to permit speech related activities to guarantee secure and accurate electronic voting," Long said. "This oversight must be corrected so that copyright can once again be brought into its proper relationship as a supporter and promoter of First Amendment values."
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Defense Attorneys Discuss Pardons and Commutations of Illinois Prisoners
A trial advocacy class taught by Adjunct Professor Patrick Rocks (center) recently welcomed guest speakers Sheri Mecklenburg (right), general counsel to the superintendent of the Chicago Police Department, and Mike Monahan (not pictured), special counsel to the superintendent of the department. Their discussion focused on many of the cases which led to the pardons and commutations by former Governor George Ryan. Mecklenburg and Monahan served as defense attorneys on many of these cases, and discussed the reasons for both convictions and reversals, the aftermath of the cases and the impact the cases have had on eyewitness identification, confessions, science, prosecutors and defense counsel. Welcoming the guests to the law school was Sunny MacLachlan (left), associate director of the Center for Advocacy and Dispute Resolution at John Marshall.
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Chilean Professor Visits John Marshall
The John Marshall Law School Center for International Business and Trade Law recently welcomed Alicia Merbilhaa Romo (third from left), director of the Law Faculty at The Universidad Gabriela Mistral in Santiago, Chile, for an introduction and overview of all of the LL.M. programs offered at John Marshall. Welcoming Romo to the law school were (from left) Professor Mark Wojcik, director of Global Legal Studies; Virginia Russell, director of the center; and Professor Gerald Berendt, associate dean for advanced studies.
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Previous Issues of Up & Coming
Schedule of Events
June 8
- AIDS Foundation Chicago Meeting, Room 1200, 9:00 a.m.
June 9
- Board of Trustees Meeting, Albert Hofeld Room of the CBA, 4:00 p.m.
June 11
- Commencement Cap and Gown Pick-Up and Photographs, Room 200 - 201, 12:00 - 6:00 p.m.
- Commencement Regalia Reception, Room 300, 12:00 _ 6:00 p.m.
- Alumni Chapter Presidents Lunch, Room 3East, 11:30 a.m.
- Alumni Annual Meeting, Room 1200, 5:30 p.m.
June 12
- Admissions Open House, Room 200 - 201, 9:30 a.m. - 1:30 p.m.
- Alumni Chapter Presidents White Sox Outing, 6:00 p.m.
June 13
- Alumni Chapter Presidents Lunch, Hyatt McCormick Place, 12:30 p.m.
- Commencement, McCormick Place, Lakeside Center 1:00 p.m.
- Alumni Legacy Lunch, East Lakeside Terrace 1:30 p.m.
- Student Robing, Room E450, 4th Level, 2:15 p.m.
- Faculty Robing, Room E451, 4th Level 3:00 p.m.
- Ceremony, Lakeside Center Ballroom, Room E354, 3rd Level; Reception follows the ceremony on the south terrace of the Lakeside Center
June 16
- International Trade Club of Chicago Meeting, Room 402, 12:00 p.m.
June 17
- AIDS Foundation of Chicago Seminar, Room 1200A, 8:00 a.m.
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Faculty Activity and Publications
Professor Maureen Straub Kordesh
Activities
She conducted a half-day in-service for 10teachers of the Swift Specialty School on Friday, May 28. The teachers were interested in learning about the law-related topics proposed to be introduced in the school curriculum as part of the law school's outreach. The law school is learning about the best way to present this material to further the students' success in school and in learning about the law and the legal profession.
Professor Doris E. Long
Activities
She spoke at the Law and Society Conference in May on "Curtailing the Imperialism of the Public Domain." She compared European imperialism of the 19th century and current treatment of indigenous works by those who seek to expand the riches of the public domain at the expense of minority cultures.
Publications
The American Bar Association's International Law Section newsletter is publishing Long's article, "Small States and the Challenge of Intellectual Property Protection." The article discusses the failure of major regional and multilateral intellectual property treaties to take into account the special needs of small states, and it recommends corrective measures to better address the needs of small states. Professor Long contends that the one-size-fits-all approach of current regimes ignores the specialized needs of most small states. With the emphasis on technology-based protection regimes, such treaties have little relevance for small state innovation. However, other forms of traditional protection, including industrial designs and trade secrets, may provide a more profitable basis for encouraging indigenous innovation.
Professor Michael Polelle
Activities
He presented his law review article, "Racial and Ethnic Group Defamation: A Proposed Solution," at the Law & Society Convention on May 29 in Chicago. He was the chair of the panel as well as a presenter. The other presenter was Luis Fuenter-Rohwer of the University of Indiana who spoke on redistricting under the Voting Rights Act.
Publications
The editor-in-chief of The Heritage Foundation's First Amendment Law Handbook (West) has asked Polelle for permission to include his article in the annual compilation of the best, recent articles on freedom of speech.