* Federal Judges Fear Losing Their Privacy
- J.A.I.L. News Journal
Los Angeles, California August 9, 2001
Federal JudgesFear Losing Their PrivacyRebels in Black Robes Recoil at Surveillance of Computers
By NEIL A. LEWIS
WASHINGTON, Aug. 7  - A group of federal employees who believed that the monitoring of their office computers was a major violation of their privacy recently staged an insurrection, disabling the software used to check on them and suggesting that the monitoring was illegal and unethical.
This was not just a random bunch of bureaucrats but a group of federal judges who are still engaged in a dispute with the office in Washington that administers the judicial branch and that had installed the software to detect downloading of music, streaming video and pornography.
It is a conflict that reflects the anxiety of workers at all levels at a time when technology allows any employer to examine each keystroke made on an office computer. In this case, the concern over the loss of privacy comes from the very individuals, federal judges, who will shape the rules of the new information era.
The insurrection took root this spring in the United States Court of Appeals for the Ninth Circuit, based in San Francisco and the largest of the nation's 12 regional circuits, covering 9 Western states and two territories. The Judicial Conference of the United States, the ultimate governing body of the courts, is to meet on Sept. 11 to resolve the matter.
The conflict between the circuit judges and the Administrative Office of the Courts, a small bureaucracy in Washington, deteriorated to a point that a council of the circuit's appeals and district judges ordered their technology staff to disconnect the monitoring program on May 24 for a week until a temporary compromise was reached. Because the Ninth Circuit's was also linked to the Eighth and Tenth Circuits, the shutdown affected about a third of the country and about 10,000 court employees, including more than 700 active and semiretired judges.
Officials in the judicial branch on both sides of the issue provided several internal memorandums written as the dispute continued over the weeks.
"We are concerned about the propriety and even the legality of monitoring Internet usage," she [Chief Judge Mary Schroeder of the Ninth Circuit] wrote. Her memorandum said that the judiciary could be liable to lawsuits and damages because the software might have violated the Electronic Communications Privacy Act of 1986, which imposes civil and criminal liability on any person who intentionally intercepts "any wire, oral or electronic communication."
She noted that the Ninth Circuit had ruled just this year that the law was violated when an employer accessed an employee Web site. In fact, the issues of what is permissible by employers have produced a patchwork of legal rulings and the matter has never been addressed directly by the Supreme Court.
Judge Alex Kozinski, a member of the Ninth Circuit appeals court, drafted and distributed an 18-page legal memorandum arguing that the monitoring was a violation of anti- wiretap statute.
Judge Kozinski said: "Aside from my view that this may be a felony, it is something that we as federal judges have jurisdiction to consider. We have to pass on this very kind of conduct in the private sphere."
Prof. Jeffrey Rosen of the George Washington University Law School, author of a recent book on privacy, "The Unwanted Gaze" (Vintage 2001), said, "It's fascinating that the courts have to grapple with these issues so close to home." The law is evolving, he said, adding: "This drama with the judges reminds us of how thin the privacy protections are. There's a real choice right now whether e-mail and Web browsing should be regarded like the telephone or a postcard." ....
Copyright 2001 The New York Times Companyhttp://www.nytimes.com/2001/08/08/national/08COUR.html?ex=998295285&ei=1&en=43c7fac7953a9f17
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