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Federal Judges Take a Stance Against Workplace Monitoring
parvati writes: "The NYTimes is reporting that federal judges on the US Court of Appeals for the Ninth Circuit (the largest of the 12 regional circuit courts) disabled software on their office computers that monitored downloading of music, streaming video, and pornography--software that had been installed by the Washington-based Administrative Office of the Courts after a survey showed that 3-7% of the judicial computer traffic included streaming video and the like. The judges say that they are concerned about "the propriety and even the legality of monitoring Internet usage." The AOC is not pleased."
Note that in the article, Judge Kozinski is reported to state in a memorandum that he believes monitoring for content is a violation of anti-wiretap statute. This is independent of whether the judges themselves or the judiciary employees want to avoid monitoring for idealistic and legalistic reasons or simply as an end-run around being caught downloading MP3s, AVIs, inappropriate content for the workplace, or simply stealing the bandwidth provided to them as a matter of course for their use in their employment. Don't forget that the judges are employed by us (the taxpayers) via the government to administer and adjudicate the laws that are created by the legislative and executive branches that we choose to elect.
Kozinski's point is actually a very good thing. He asserts that regardless of why he or the judiciary may oppose this monitoring of employee web usage, he has a valid point because this sort of invasion of privacy is violating the anti-wiretap laws.
This may have an interesting effect on the case before FBI's keystroke-logging of Scarfo's computer to acquire his PGP key.
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. [italics added]
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. END OF ARTICLE
My workplace uses blocking software. In conjunction with an investigation, a supervisor request or normal network maintenance, we occassionally monitor Internet (primarily WWW) usage. Each time we can't a half dozen folks who are then reprimanded or fired.
Our CEO's feeling is that we should not have to tell our employees that using a company provided PC and Internet bandwidth during the workday to surf porn it not OK. With the last few rounds of discipline however, we have put out a notice to all employees, the boss put out a letter to supervisors requiring them to council their staff and we initiated a user statement of agreement that is signed prior to being issued an account.
All that is great CYA. It is disappointing to see folks who should be setting the example protect the immature habits of a few. It is crap like this that is that is causing American jobs to go elsewhere. I am not for worker abuse, but like one of my bosses used to tell me "When you name is on the bottom of your paycheck, you will get a vote in workplace policy".
Did you hear the story about the two judges arrested for drunk driving on the same night? They get to talking, and figure out that they could be the judge at each other's trial, and get off a lot easier.
So, on the day of the trial, the first judge takes the bench, the second says he is representing himself, etc., etc.. To speed things up, the defendant pleads guilty, the judge asks, are you sorry for what you did, etc., etc., the defendant shows "due remorse", and the judge decides to let him off with time served.
The two then switch places, even swapping the same black robe there in the court room, each wearing their golfing outfits underneath, and switch places.
The current defendant pleads guilty, and shows "due remorse". The judge looks over the desk, and says, "if memory serves, this is the second DUI in a row that has come before the court. In the past, the court has been lenient on this particular offense, but it looks like we have to send a message to the community. $5000 fine and time served!"
I agree, this probably won't turn into a real court case. All this talk about illegal wiretaps and other nonsense sounds scarier than a nice, simple privacy amendment to the constitution. I wouldn't like my IT department getting a court order to "wiretap" my connection because they think I may be "stealing" excessive bandwidth from the company. Is it a worse crime if you are "stealing" from a government institution?
The solution is clear - either a privacy ammendment, which clearly states the right to privacy and lets future legislation and court cases decide the boundaries (not likely in the near future), or just go to a better company, one that's not as draconian. And you wonder why there is a shortage of tech workers for government jobs?
-- Dan
Wait a second here. I read this to mean that it was ruled a violation of privacy to visit someone's website? This seems a bit far in the other direction. Does anyone have any more information? I am firmly against workplace monitoring, but at the same time, I can't imagine how some one could post a web page and not expect visitors.
-db
How do you tella judge what they can and can't look at in the course of their duties? If they're working on a case that involves online porn they may need to visit the site!
The revolution will NOT be televised.
Note that in the article, Judge Kozinski is reported to state in a memorandum that he believes monitoring for content is a violation of anti-wiretap statute. This is independent of whether the judges themselves or the judiciary employees want to avoid monitoring for idealistic and legalistic reasons or simply as an end-run around being caught downloading MP3s, AVIs, inappropriate content for the workplace, or simply stealing the bandwidth provided to them as a matter of course for their use in their employment. Don't forget that the judges are employed by us (the taxpayers) via the government to administer and adjudicate the laws that are created by the legislative and executive branches that we choose to elect.
I didn't elect them to use workplace time and equipment for personal use. Now I agree with Kozinski that if this policy was not well-articulated, then it is wrong for monitoring to be allowed to occur. But I also feel that it is not appropriate to suck bandwidth or waste time on the company dime. Especially when that company dime came from my pocket via taxes.
I also feel that if the company or gov't office allows people to use telephones to make personal calls, they ought to allow some leeway in using internet bandwidth for personal use.
But since it would be inappropriate to use the office telephone system to call Mabel in Australia every day from the AOC office in the U.S.A., it would be just as inappropriate to waste huge amounts of bandwidth for MP3's (unless you are Judge Marilyn Patel, working on the Napster case), porn (unless you are working on a porn-related case), or even voice-over-IP phone calls (unless you are going to work on that case that ATT, MCI, et al, all WANT to file!).
Judge not lest ye be judged... or something like that.
I've hit Karma 50 and gotten a Score:5, Troll... I win!
Any appeals in Dmitry Sklyarov's case will go to the 9th Circuit, which is just one rung below the Supreme Court (and in fact, is the final say in most cases; only about 2% of cases appealed from Circuit Courts of Appeal are ever accepted for review by the Supreme Court.) It's cool that we have judges so high up the ladder who have a sense of individual liberties and enough tech know-how to work around The System to achieve it.
IANAL
I work for a consulting firm that does a great deal of work for the government. If I'm surfing porn or whatever during their time, then that's not a legitimate use.
Mass downloading on the other hand is something else entirely. As I type, I have slackware 8.0 downloading and I regularly listen to streaming radio feeds while I'm doing my work. Those are the uses that I think are the most important. IMHO, It's no different from having the radio on or listening to a cd.
Note that in the article, Judge Kozinski is reported to state in a memorandum that he believes monitoring for content is a violation of anti-wiretap statute. This is independent of whether the judges themselves or the judiciary employees want to avoid monitoring for idealistic and legalistic reasons or simply as an end-run around being caught downloading MP3s, AVIs, inappropriate content for the workplace, or simply stealing the bandwidth provided to them as a matter of course for their use in their employment. Don't forget that the judges are employed by us (the taxpayers) via the government to administer and adjudicate the laws that are created by the legislative and executive branches that we choose to elect.
I didn't elect them to use workplace time and equipment for personal use. Now I agree with Kozinski that if this policy was not well-articulated, then it is wrong for monitoring to be allowed to occur. But I also feel that it is not appropriate to suck bandwidth or waste time on the company dime. Especially when that company dime came from my pocket via taxes.
I also feel that if the company or gov't office allows people to use telephones to make personal calls, they ought to allow some leeway in using internet bandwidth for personal use.
But since it would be inappropriate to use the office telephone system to call Mabel in Australia every day from the AOC office in the U.S.A., it would be just as inappropriate to waste huge amounts of bandwidth for MP3's (unless you are Judge Marilyn Patel, working on the Napster case), porn (unless you are working on a porn-related case), or even voice-over-IP phone calls (unless you are going to work on that case that ATT, MCI, et al, all WANT to file!).