FW: Rebels in Black Robes Recoil at Surveillance of Computers

[Trei, Peter]

> ----------
> From: 	Donald E. Eastlake 3rd[SMTP:dee3 at torque.pothole.com]
> Sent: 	Wednesday, August 08, 2001 6:29 AM
> To: 	interest at another.pothole.com
> Subject: 	FWD: Rebels in Black Robes Recoil at Surveillance of
> Computers
> 
> <http://www.nytimes.com/2001/08/08/national/08COUR.html>
> 
> August 8, 2001
> 
> Rebels 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.
> 
> Leonidas Ralph Mecham, who runs the Administrative Office of the
> Courts, and who ordered the monitoring of all federal court workers,
> said in a March 5 memorandum that the software was to enhance security
> and reduce computer use that was not related to judicial work and that
> was clogging the system. A survey by his office, he wrote, "has
> revealed that as much as 3 to 7 percent of the judiciary browser's
> traffic consists of streaming media such as radio and video
> broadcasts, which are unlikely to relate to official business."
> 
> Officials in the judicial branch on both sides of the issue provided
> several internal memorandums written as the dispute continued over the
> weeks.
> 
> After the shutdown, Mr. Mecham complained in a memorandum that
> disconnecting the software was irresponsible and might have resulted
> in security breaches, allowing unauthorized outsiders access to the
> judiciary's internal confidential computer network. "The weeklong
> shutdown put the entire judiciary's data communication network at
> risk," he wrote on June 15.
> 
> Mr. Mecham warned in that memorandum that on the days before the
> software was disabled, there were hundreds of attempts at intrusion
> into the judiciary's network from places like China and Iran.
> 
> But Chief Judge Mary Schroeder of the Ninth Circuit responded that the
> concerns were overblown and that the circuit's technical people
> carefully monitored computer activity during the week that the
> software was disabled.
> 
> In a June 29 memorandum, she said that there was no evidence that the
> electronic firewall used to block hacking had been breached and
> suggested that Mr. Mecham had exaggerated the potential of a security
> breach because having hundreds of attempted breaches per day was
> routine and routinely blocked.
> 
> The Ninth Circuit disconnected the software, she wrote, because the
> monitoring policy was not driven by concern over overloading the
> system but Mr.  Mecham's concern over "content detection." Many
> employees had been disciplined, she noted, because the software turned
> up evidence of such things as viewing pornography, although they had
> not been given any clear notice of the court's computer use policy.
> 
> Moreover, she wrote, the judiciary may have violated the law.
> 
> "We are concerned about the propriety and even the legality of
> monitoring Internet usage," she 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, widely known for his libertarian views, said the court
> employees who were disciplined, an estimated three dozen, could be
> entitled to monetary damages if they brought a lawsuit.
> 
> A spokesman for Mr. Mecham said that the software could not identify
> specific employees but workstations. When unauthorized use was
> detected, Mr. Mecham's deputy, Clarence Lee Jr., wrote to the chief
> judge of the district, urging that the employee who used the
> workstation be identified and disciplined. One such letter includes an
> appendix listing the Web sites that employee had visited, some of them
> pornographic. There is no evidence that any alleged abuse of the
> system involved judges.
> 
> 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."
> 
> Judge Edwin L. Nelson, who is chairman of a judges' committee that
> deals with computer issues, said in an interview that his group met
> last week and drafted proposals to deal with monitoring. Judge Nelson
> would not discuss the proposals but they are almost certain to
> resemble policies used in the rest of the federal government, in which
> clear notice is given to computer users that they may be monitored.
> 
> Jim Flyzik, vice chairman of an interagency group that considers
> computer privacy issues in the federal government, said that each
> department had its own policy but that clear and unambiguous
> notification of monitoring was usually an element.
> 
> In the private sector, a survey by the American Management Association
> this year found that 63 percent of companies monitored employees'
> computer use.