Just as a capsule summary in case you've missed it, over the last several months there has been a rising tide of concern regarding the verifiability of electronic voting machines in general and the security, reliability, and integrity of Diebold's technology in particular. Adding fuel to the fire is the leaking of a large cache of internal Diebold documents and e-mails that have been circulating on the Internet. Critics pointed to memos that they said demonstrated Diebold's technology was buggy, badly tested, and vulnerable to backdoor manipulation. Some even claim to see evidence that outcomes of elections have already been influenced.

Perhaps not surprisingly, Diebold's first response was to begin cease-and-desist letterings to websites that had posted its internal memos, threatening to have those sites taken down under Section 512 of the DMCA. Section 512 provides a very big hammer to copyright holders because it requires Internet service providers to either quickly remove any allegedly infringing material they are hosting or face liability for the infringement themselves. If the ISP refuses, the copyright holder can go to the ISP's upstream provider and ask them to pull the plug. To protect themselves and their other customers, therefore, most ISPs will automatically and immediately take down their client's site upon receiving a 512 notification.

Diebold went the typical DMCA takedown one better, though. Not only did it go after the ISPs whose clients were posting the Diebold memos, it also began sending cease-and-desist letters to secondary sites that were reporting the controversy and merely contained hyperlinks to sites that were hosting the Diebold material. One such website and its ISP refused to accede to the DMCA takedown order and are being defended by the Electronic Frontier Foundation.

In other words, not only are you subject to DMCA takedown for what's on your own site, but you and your ISP are responsible for what might be on a site you link to. From a journalist's point of view, this raises some interesting questions about how one can fairly report this story and provide readers with resources for making up their own minds without incurring Diebold's wrath.

When I asked Diebold spokesman Mike Jacobsen whether I could provide links to Diebold-targeted sites as Blackbox Voting or Why-War, he acknowledged I could but said that it was possible I could get a cease-and-desist notice. "I'm not saying we're going to do it, but you would be at risk for getting a letter," he said. "Anyone that's hosting a direct link to someone hosting those files, we want them to understand this is our stolen property and we want those links to be removed. Looking at it from a legal perspective, we were advised the DMCA was the best resource for getting that done. All we're really requesting that the links be removed from the site, although it does seem that the ISPs wind up taking down the whole site."

Of course, I'm probably going to have a long wait for my cease-and-desist letter, because Diebold's actions have backfired in a number of ways. A mushrooming number of sites are now mirroring the entire set of memos, and by claiming intellectual property rights to them, Diebold has given backhanded authentication to the material. But in using the DMCA to try to suppress the debate about its voting machines, Diebold has made another tactical error - it's closed off the discussion to all but its most virulent detractors. Academicians or journalists who might find evidence in the memos to debunk the more sensational claims about stolen elections are going to feel their hands are tied.

The Diebold controversy has raised a number of troubling questions that can only be answered by an unbiased, transparent examination of the facts. Trying to avoid that examination through questionable intellectual property will only leave a lingering cloud of suspicion hanging over the electoral process. And it proves yet again that the DMCA is in practice totally antithetical to everything Americans believe about how a democracy is supposed to work.

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