A small correction, there is a common misperception that if you don't use Diebold touch screen (DRE) machines you're ok. This is not the case. Voting systems are comprised of two parts (more or less), the recording device, and the system that counts up vots from these machines.

The biggest problem with Diebold isn't the recording machines (though these are scary) but the tallying system, which is effectively a black box voodoo machine running on MS Access. This system is also used with Diebold optical machines, which are much more widely used (as I understand it) than the DRE technologies.

You, like everyone else in the "blogosphere" that I've seen, fails to note that the judge DENIED THE TRO!!!! That's the story, certainly more than the fact that the case was "accelerated." So much for Berkeley's journalism school.

Yes, the judge did deny the TRO, with these words at the very end of his order Tuesday: "In light of the accelerated briefing schedule set forth herein, Plaintiffs request for a temporary restraining order is DENIED." Here is the link to the order. I don't think the order was up on EFF's site by the time I blogged it early Wednesday am, although I could have missed it. In any event, I think that we, in the blogosphere, wrote about the accelerated court date, thinking that that was the most important thing. But you are right, we did miss the TRO denial.

However, your remarks are not very conducive to creating discussion and that is what we are trying to do here. Blogging to me is about evolving the discussion, and if I or anyone else misses something, the conversation through comments and linking is meant to foster the iteration of what we know about something. So I appreciate your pointing out the correct information but find your other remark and lack of real email address useless.

I do not wish to give out my email address, for spam and other privacy reasons. That doesn't affect my substantive point one iota.

You treat the denial of the TRO as a minor aspect of the order. That is absurd. The EFF went into court seeking the extraordinary remedy of a TRO -- and the judge DENIED it. Who cares that the relevant words came at the "very end" of a two-page order? Court orders almost always place the result at the end. Wherever the words appear, they are by far the most important part of the order. Surely the substance is more important than the scheduling.

With all your talk about "creating discussion" and "evolving the discussion" and "foster[ing] the iteration of what we know about something," you seem to have forgotten the basic rules of journalism, i.e., don't publish before you know the relevant facts. The fact that you blame your ignorance on the EFF's web site is really telling (and so is the fact that your headline nearly mirrors theirs); they are a zealous, biased interest group whose statements should be subject to a high degree of skepticism, as should the statements of all such partisan groups. Or do such rules of fairness and accuracy not apply in the "blogosphere"?

Regarding putting an email address in comments, I've altered the comments form to reflect the fact that email addresses are scrambled to fool spam 'bots. It's fine if you don't want to tell what your background is but it does help people to understand what you are saying, in the sense that if you are say, a lawyer, then we know you have a somewhat detailed knowledge of the law, verses say, a software engineer, who may have a detailed knowledge of the code used in the systems being discussed.

The TRO was denied, but on Wednesday morning was not referenced in any press articles (I can't find any, but please let me know where they are if you know about them) and EFF is the ONLY poster of the order, so that is the only place I could get it with going to the court myself. Just because I talk about these issues on the blog, doesn't mean I have the time or ability to go do this necessarily in every case. Sometimes, but I do have other things to do besides this blog.

In this case, since EFF seems to be the only poster of the order, it makes sense to reference their site, since part of the point of blogs is that you can link to the source of the information. I also noted the "end of the order" as the place where the denial came so that people could find it if they wanted to. It's a pdf, and in this case, not searchable.

Also, EFF does take particular positions, but that is no reason to dismiss them or to refuse to link to them. I do scrutinize their work and sometimes criticize them, but I also sometimes appreciate their work. In this case, I very much appreciate their taking on OPG’s and the student's case against Diebold, which is trying to use the DMCA to block the publishing of memos raising big questions about Diebold’s voting systems. Also, this blog is about my particular positions on issues I discuss here. Blogs are often a combination of opinion and fact discussion, and in this case, not meant to be purely objective journalism. I do try to put down what is truthful, and if I make a mistake, I want to correct it. But my posts reflect my opinions on these issues, as well as news and information on the topics listed on the right.

This particular post was meant to convey that the case has been accelerated. The information in the order itself was not available, but the fact that the judge thought the case was important enough to accelerate the hearing date was available. Obviously we've corrected and added here, between your first post and mine, with the order which states that while the case has been accelerated, the TRO was denied.

Like I said, I appreciate the most up to date information from you. But I don't see that you understand that blogs are iterative. The point is to continue adding to the information as it becomes available to try to find out what the truth is and then comment on it with opinion. If you would like to post the order on your website, so that we can all view it at a non-partisan site, that would be great. Or you could get a blog and say that the TRO being denied is more important than the acceleration of the case. Or you can state that here in the comments as you have done. But now that I know the TRO was denied, I still think the acceleration of the case is more relevant than the denial of the TRO -- which was denied because the case is being accelerated.

The acceleration itself is a win... the judge could have very well sided with the opposition brief[1] and denied all action whatsoever.

[1] http://www.eff.org/Legal/ISP_liability/OPG_v_Diebold/20031104-Diebold-opp.pdf

"[N]ot referenced in any press articles (I can't find any, but please let me know where they are if you know about them)" -- this is so pathetic I hardly know where to start. You purport to be at a journalism school and you blame a highly distorted story that leaves out the actual OUTCOME of the hearing on the fact that you couldn't find any "press articles"? You are at a journalism school! Practice some journalism! Call the lawyers -- on BOTH sides. Call the court -- try to get a copy of the order. Ever heard of "shoe leather"? "Pounding the pavement"? Or is that considered old-fashioned in the blessed "blogosphere"? If this is what they teach at journalism schools these days, Lord help us all.

"This particular post was meant to convey that the case has been accelerated." -- Oh, this is rich. So scheduling is more important than substance? I suppose if you are one day covering a murder trial, and the defendant is convicted, you will not report the fact of the conviction. You will simply report that the judge has scheduled another hearing a few weeks hence. And blame it on the fact that you couldn't find any "press articles."

Your statement that "I still think the acceleration of the case is more relevant than the denial of the TRO" simply demonstrates your ignorance of the law (yes, I am a lawyer). The EFF filed for a TRO, a drastic form of relief warranted only in emergency situations. The judge read the application for such emergency relief, and DENIED it. The necessary implication is that he disagreed with the EFF that it really was such an emergency. That's important -- and in fact should have been the lede of any story on the subject.

I never said you should "dismiss" or "refuse to link" to the EFF. Far from it. I simply don't think a board purportedly sponsored by a journalism school that is supposed to be promoting good, ethical, accurate journalism, should blindly parrot the views of one set of lawyers in a case. YOU are responsible for finding out the facts -- don't blame your ignorance on the fact that the EFF didn't post something fast enough. Saying you don't "have the time or ability" to write accurately and fairly is the weakest excuse you could possibly muster. I understand fully that blogs are "iterative." But that is no excuse for inaccuracy, unfairness, or, frankly, laziness -- especially by someone at a journalism school.

To Joe, who wrote, "The acceleration itself is a win... the judge could have very well sided with the opposition brief[1] and denied all action whatsoever.":

That is absolutely false. The judge DID side with the opposition brief. The brief simply asked that the application for a TRO be denied (see conclusion of opposition brief). The judge did EXACTLY that. Nowhere did the opposition brief argue that the case be dismissed -- under the Federal Rules of Civil Procedure, that is an argument for another day.

(sorry ahead of time to Mary, this will be my last post on this thread. I've got more important things to do, as does Mary, than fight this little fight)

Alright, dude... you're a law God. You are infallible. You've found us out... we report what we want. We're on the EFF's side. We're upset that the TRO was denied but glad that the judge sees that this is an issue that needs to be decided quickly.

What the hell do you really want? An award? A non-digital cookie? Do you want us to waste more of our time reading your comments (whether you're right or wrong the delivery is enough for me to consider it a waste of my time)? How about you attempt to be constructive with your criticism instead of a full-bore attack?

As for substance, do you really believe that the judge will find that Diebold has a valid copyright claim in these documents?

All I want is that a blog -- especially a blog hosted by a journalism school -- be accurate and fair. The posts on this topic from Ms. Hodder were anything but.

I believe that the judge will find that Diebold holds a valid copyright in the documents -- even Ms. Hodder seems to agree; her original post refers to Deibold's "copyrighted internal memos." Whether the judge will find that posting these apparently purloined documents on the web constitutes fair use is a much closer call. Ultimately, I think that the judge probably will find that it is fair use, but I am not at all sure of that; read the opposition brief from Diebold and you will see that the issue is not as one-sided as the EFF would like you to think. I am fairly confident that the judge will NOT issue the order requested by the EFF, i.e., one forbidding Diebold from issuing C&D letters. I predict that the judge will find that such an order would be clearly barred by the First Amendment.

I find it quite easy to believe that the courts may become befuddled and confused on this issue. Judges rarely like to recognize that they derive their just powers from the consent of the governed.

The issue is in fact quite one-sided: Whenever any form of government becomes fundamentally destructive to liberty, it is the right of the people to alter or abolish it.

I am becoming increasing pessimistic that the right to elected representation will be upheld without resort to trial by arms.

I've posted a response on my blog here:

http://importance.typepad.com/the_importance_of/2003/11/who_is_john_sim.html

I've posted a comment response to Ernie Miller's post on this issue here. It follows a comment left on The Importance Of... by JD Lasica.

I clerked for a federal judge for 2 years and spent a lot of time dealing with TROs and Preliminary Injunction Motions. I have spent the last 15+ years litigating, mostly in federal court. I don't know about the case or the judge (and those two facts are obviously the most valuable predictor of outcome), but I know this: you can't predict outcome or ascribe significance to the wording of the order (i.e. accelerating the injunction hearing).

Lawyers know better. Or at least the good ones do. Judges are very aware that people try to interpret their words; so --not surprisingly-- they are very good at concealing their intentions.