An Account of EFF/Diebold Court Case

This is for any interested parties of the OPG vs Diebold hearing that was held this morning.

A brief background of the case: OPG (and the suborganization California Community Colo Project) acts as colo to a variety of sites, including partially sf.indymedia.org as well as evil-wire.org. Sites host leaked internal diebold memos annotating serious voting bugs amongst serious concerns of institutionalized vote fraud. Diebold sends OPG cease and desist letters under DMCA provisions. OPG sues back for declarative judgement that the cease and desist letters are inpermissible under fair use.

I showed up in the San Jose Federal Court today as partly an interested citizen, and partly one of OPG's "clients" who as asked to take down the material in question from the evil-wire.org servers. The court building itself was a creepy parody of Neal Stephenson's Fedworld- filled with metal detectors, overly sensitive security guards, and with more scary suits than unixbeards in a colo. (I will give however, that a lot of the hottie lawyer ppl can be fantastic eye candy while waiting for the boring parts to finish... And oh the possibilites of sexual tension between seemingly disparate intellectual views only to find out that love conquers all...)

The audience had a small number of reporters and digital civil liberties types waiting for the hearing.

The first 3 hearings in the court seemed to be of various corporate infighting. Judge Jeremy Fogel of the Northen California Federal Court distric rushed the cases along, as he announced he wanted to devote as much time as possible to OPG vs Diebold case.

When the case was called up, a horde of lawyers (I guess around 6, plus a CTO) representing Diebold went up to the stand, countered by Cindy Cohn and Wendy Seltzer representing OPG.

For better or worse, Judge Fogel appeared to be one of the key behind the scene players in the Silicon Valley- he was obviously a weathered veteran of endless rounds of patent, expression, and trade disputes in the endless circus that technology and law bring.

Judge Fogel opened up with statements about how the leaked Diebold memos were of material of great public interest. For a country that is now rife with election fraud and right wing court packing, Fogel's opening statements were remarkably lucid about how much was at stake about electoral democracy. I wonder how different the remarks would have been were this not Northern California the case was heard in.

Fogel proceeded to grill the Diebold Representatives.

On a side note, Diebold's lead counsel in this case is Robert A. Mittelstaedt of Jonesday. While I did not know this at the time he refused to give me his card after the hearing (and thus preventing my voicing distaste [I gleamed the contact info from a reporter if anyone is interested]), Mittlestaet is also the lead counsel for ChevronTexaco in a number of cases, including Bowoto vs ChevronTexaco-a case in which Chevron is under fire for the Parabe incident in Nigera where massive human rights violations and the deaths of activists occured.

Diebold's counsel proceeded on the following no brainer claims:

• the material is copyrighted and hence amenable to DMCA take down notices
• even if the material wasn't directly copyrighted, they are still trade secrets, and the publishing of the material causes direct harm to their business
• Diebold is trying to silence the leaked memos, and not critiques arising from the memos. People publishing the memos are comitting wholesale theft.

Fogel asked Diebold counsel whether any of the memos can be excerpted for publishing for purposes of critique, to which Diebold replied "no".

Fogel flipped the question to the counsel - whether any of the memos were excerptable for publishing, and possibly remove parts of the memo, to which OPG replied "no".

Fogel then grilled OPG, whose counsel came up with the following response:

• the material is that of vital public comment, as set by precedent of leaked tobacco industry memos, pentagon papers, etc. and falls well within first amendment and fair use issues.
  
  
• as the memos fall under fair use, the use of the DMCA for take down cannot apply
• the question of trade secrets is not applicable to this case as Diebold chose to use the DMCA for quick takedown of the memos

Fogel has set aside a good chunk of time for the ruling. IANAL, however, if the ruling falls on Diebold's side, then it seems the bar of difficulty for whistleblowers getting their story out will be raised at least in above ground channels.

If the ruling falls on the OPG side, then almost more interesting to me from a legal perspective is the inevtiable dispute that will come after this ruling. That is to say, free speech vs a context of trade secrets. I cannot think of any cases where this has been brought up before in such a strong light in the States in the pre-internet era. The Bunner case is one of consumer rights, whereas a ruling on this could truly decide just how commerce-uber-alles the U.S. government is. An interesting battle as the lives of American citizens fall more and more into monopolistic commercial powers.