Student Will Not Be Disciplined for Memos

The undergraduate who was forced to remove damning internal corporate documents from his Harvard website earlier this month will not face disciplinary action by the University.

Derek A. Slater ’05 said he has notified the University of his desire to restore the documents, which are private memoranda of Diebold Election Systems employees.

The University removed the documents from Slater’s website in October after Diebold sent a cease and desist order to Harvard.

But a notice sent to Slater by the general counsel’s office on Friday said his posting of the Diebold documents would not count against him as an infringement of network policies.

The memoranda, which were obtained by a hacker in March 2003, acknowledge serious flaws in electronic voting machines distributed by Diebold in 37 states, including Massachusetts.

“It’s important that we have a public debate about these issues,” Slater said. “We need to make sure that every vote counts.”

Diebold has claimed that the memoranda are protected under copyright laws which may extend to internal corporate documents.

David K. Bear, a spokesperson for Diebold Election Systems, declined to comment yesterday on the company’s ongoing litigation but claimed a “right to protect our proprietary information.”

The thousands of Diebold memoranda contain snippets of damaging comments by employees of the company.

“Elections are not rocket science. Why is it so hard to get things right! I have never been at any other company that is so miss managed [sic],” an employee wrote in one of the memoranda.

Another student who has posted the documents on her Harvard site, A. Eleanor Luey ’04, said neither Diebold nor the University has contacted her.

“I think it’s really important for [the documents] to be available and also to show that someone at Harvard cares about this enough to make them accessible even at the risk of disciplinary action,” Luey said.

At least 87 people, including 9 in the Ivy League, have posted the Diebold memoranda on their college websites in a growing movement of electronic civil disobedience, according to the website of an unnamed and informal coalition of students who have made the documents available.

Two students at MIT were forced to remove the documents after their university received a cease and desist order from Diebold last month, but a third MIT site run by graduate student Christopher E. Kuklewicz still features the memoranda.

Slater said he will return the documents to his Harvard site (blogs.law.harvard.edu/cmusings) if Diebold does not file suit against him within ten days of his counter-notice filing. After that time, the University cannot be held legally liable for the documents on Slater’s website, though Slater himself could potentially face litigation.

John G. Palfrey ’94, executive director of the Berkman Center for Internet and Society at Harvard Law School, said the Diebold suits put universities in the uncomfortable position of censoring their students to avoid serious legal action.

But Palfrey, who has been assisting Slater in his dealings with the University, said Diebold has erroneously claimed copyright protection for its documents.

“I think the problem here is that copyright law was not meant to stifle political speech,” Palfrey said.

Students and others who have posted the memoranda on their websites have claimed they are protected under the “fair use” exemption of the Digital Millennium Copyright Act, passed by Congress in 1998.

A study by researchers at Johns Hopkins and Rice Universities this July, which examined source code allegedly used by Diebold, found gross inadequacies in the company’s election systems.

“Our analysis shows that this voting system is far below even the most minimal security standards applicable in other contexts,” the researchers stated in their study.

Diebold subsequently claimed the study had looked at only part of the source code and that any glitches found have been fixed.

Rebecca T. Mercury, a research fellow at the Belfer Center for Science and International Affairs at the Kennedy School of Government who has studied electronic voting systems for more than a decade, said students posting the Diebold memoranda on their websites only scratch the surface of alleged problems with the systems.

“I’d rather see people going to their government, the people who bought this stuff, and banging on their doors and saying, ‘What the hell’s going on here?’” Mercury said.