A pair of Swarthmore College students had a digital hot potato: thousands of e-mail messages from an electronic voting machine maker indicating that employees had serious doubts about the machines’ security. The students, members of the Swarthmore Coalition for the Digital Commons, published the documents on their website in August 2003 and convinced students at other colleges to do the same. 

When the manufacturer, Diebold Election Systems, sent threatening letters to students, universities, and Internet service providers, saying publication of the email messages infringed on the company’s copyright, the Law School’s Center for Internet and Society was called in to help. The CIS argued on behalf of the students in October that Diebold was abusing the Digital Millennium Copyright Act to quash criticism of the company, thereby violating the students’ free speech. 

The documents spotlight a troubling problem: the electronic voting machines produced by Diebold, one of the leading manufacturers of voting equipment, appeared to be susceptible to tampering. The messages revealed that the system used to count votes was not protected by a password, so someone could change the tally over the telephone. They also indicated that Diebold had donated at least $195,000 to the Republican Party. 

While Diebold withdrew its legal threats in December in a notable victory for CIS lawyers, the students, represented by the CIS and the Electronic Frontier Foundation, are pursuing the case, seeking damages and a ruling stating that publishing the e-mail messages did not violate copyright law. CIS Director Jennifer Granick is representing the Swarthmore students, Nelson Pavlosky and Luke Smith.