eff: decl of pavlosky

8/14/2019 EFF: Decl of Pavlosky

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Cindy A. Cohn, Esq. (SBN 145997)Wendy Seltzer,Esq.ELECTRONIC FRONTIER FOUNDA nON454 Shotwell StreetSan Francisco,CA 94110Telephone: (415) 436-9333 xl08

Facsimile: (415) 436-9993

5 Alan Kom. Esq. (SBN ) 61933)LAW OFFICE OF ALAN KORN1840Woolsey StreetBerkeley. CA 94103Telephone: 510) 548-1300Facsimile: (510) 540-4821

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8Attorneys or PlaintiffsONLINE POLICYGROUP

10Jennifer Stisa Granick, Esq. (SBN 168423)

STANFORD LAW SCHOOLCENTER FOR INTERNET & SOCIETY559 Nathan Abbott Way

Stanford, CA 94305-8610Telephone: (650) 724-0014Facsimile: (650) 723-4426

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15Attorneys or PlaintiffsNELSON CHU PA VLOSKY and LUKETHOMAS SMITH

16UNITED STA~ DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA18

ONLINE POLICY GROUP, NELSON CHU )PA VLOSKY andLUKE THOMASSMITH ~

Plaintiffs, ~

)v. )

DIEBOLD, NCORPORATED, ndDIEBOLD ~

ELECTION SYSTEMS, INCORPORATED, )

No. C-O3-4913 F19

DECLARATION OF NELSON CHUPA VLOSKY IN SUPPORT OFPLAINTIFFS' MOTION FORSUMMARY JUDGMENT

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22Date:Time:Courtroom:

February 9, 20049:00 a.m.3

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24 Defendants.

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:, Nelson Chu Pavlosky, declare:27

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.1I am NelsonChu Pavlosky, plaintiff in the above-captionedase. am oneof the

2two Swarthmorestudentswho founded he SwarthmoreCoalition for Digital Commons (SCDC).

3As describedmore fully in my previous declarations,which I hereby incorporate by.

4 this reference, CDC'spublicationof and inking to the Dieboldemail archivewasprevented y5

SwarthmoreCollege, our ISP, after receipt of two ceaseand desist etters from DefendantDiebold.

6Without a udicial decision the future of the SCDC as a free speechorganization is3

Though Diebold Corporation has officially withdrawn its DMCA notification to ourn jeopardy.8

organization or displaying he email archive,Diebold hasmadeno representationsegarding ts

9future legal actions oward myself, Luke ThomasSmith, or SCDC or our publicationsof other

10materials n the future. We therefore eel as if we are operatingunder the constant hreat of

11 litigation for any actions we undertakewith regard o Diebold.

12Additionally, sincewe haveno udicial decision o serveas a clear benchmarkor.

13our future actions.we are concerned boutother companies r individuals with similar claims

14against SCDC and ourselves. Without a clear statementof the application of copyright law to our

snoncommercialpublication of leaked nternal company nformation about electronic voting

16machines,we would be forced o repeat he same ycle of notification,countemotification,wo

17weeks of not publishing and threats of impending awsuits the next time someonenotifies

18SwarthmoreCollege that he or she claims a copyright interest n such nformation.

19For two undergraduate tudents, his is simply not feasible. My parents are rightly.

20concernedhat my involvement n respondingo Diebold's legal claims s detracting rom my

21Neither we nor the SCDC (which we founded)have the fmancial ortudiesand activities

22emotional eserveso repeat his scenario.While we were ortunate o have he StanfordClinic

23assistus this time, we cannotbe sure hat we will receivepro bono egal representationn the

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future. Any futureparties includingDiebold desiring or us capitulateo their demands ould25

easily win by virtue of persevering inancially in their pursuit.

26A distinct dangerexists o the mission of the SCDC, which among other goals seeks.

27to improvevoting accountabilityhroughexaminingelectronic oting source ode or flaws. As

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Jan 09 04 09:28pRobert.".P.vlo.k~~D~C. (9731267-7858 p.2

long as SCDC has access o information suggesting oting software s not secureand reliable, t

2will wish to make hat informationpublic. However,without a udicial decision,SCDC cannotbe

3certain that email archives ike Dicbold's may be legally published and our ISP) Swarthmore

4College, s likely to onceagain equireus to removeany questionedmaterial. Given SCDC's and

5our very limited personal resources,publishing information that must first be cleared through

6expensive opyright itigation is not a risk we can afford to take, The uncertaintyassociatedwith

7Diebold's vague etter and he lack of a udicial decision endersSCDC neffective and unable o

8pursue ts missionof promoting ree speech nd voting accountability.

9SCDC's December conference on open-source voting was limited by the absenceof

10 a judicial resolution. SCDC originatly planned o distribute CD-ROMs with Diebold's email

archives o thoseattending he conference, o that the participantscould read he archives n their

12entirety, perhaps mmediately at the conference, without having to fmd the archives on the Internet.

13However,SCDCultimately decidedagainstpursuing his methodof distribution becauset wished

14to err on the side of safety from additional Diebold legal claims. Any future information about

15Diebold or other partieswill inevitably have a similar effect on SCDC's efforts at publication, as

16long as there is no clear legal demarcation of acceptable and unacceptable uses for the information.

17 It is therefore crucial for SCDC to have a udicial decision for reference in similar future situations.

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.~w Tan.."I declare nderpenaltyof perjuryunder he aws of the Stateof 1"MMi~"-:I.I' hat the

20foregoing is true and correct and that this declaration was executed n WWoYOV"~PiG."'$ .~~::.m: ,.'

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~~fELSON CHU PA VLOSKY

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eff: decl of pavlosky

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