MESSAGE
| DATE | 2015-11-14 |
| FROM | Ruben Safir
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| SUBJECT | Subject: [Hangout-NYLXS] Who snoops on Who
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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.
Readers' Opinions
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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.
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