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Big Brother To Watch Judges?
One week from today, the U.S. Judicial Conference will decide whether judges and their staff can handle grown-up responsibilities like ... using the internet. No, you did not click onto The Onion by mistake: after heated
disagreement
earlier this year, the issue is coming to a head. Judge Alex Kozinski of the 9th Circuit Court of Appeals has
a great Wall Street Journal opinion piece, today only. (It wants your email; try
me@privacy.net.)
Jeffrey Rosen's
analysis in TNR
is another good take on it. If you don't think the men and women who hold people's lives in their hands need daddy and mommy looking over their shoulder, you might take a moment to fire off a quick, polite email
per the EFF's suggestion.
If surveillance can invade a judge's workplace, it's for damnsure
there's nothing keeping it out of yours.
I don't want the government keeping track of what judges do online... I wanna know what congressmen do online. Which sex sites they go to. Which interns they're emailing about affairs. Which corporations they're getting email from. Stuff like that. Judges should be able to take care of themselves. Congressmen are far more expensive to buy.
The op-ed article spends some time referring to people who are constantly watched as prisoners, which indirectly implies that its perfecally okay to continue the monitoring the private conversations of prisoners. This in and of itself, creates a problem, as you are divinding up society into two camps. Those who are permitted to be watched at all times, and those who are not permitted.
I should probably address those who will tell me that I shouldn't be defending prisoners. In fact, I would suspect that the first thing people will say is 'Prisoners give up their right to privacy when they break the social contract that our society agrees to', ie, when they break laws. However, not all prisoners are gulity, nor are all prisoners truly that dangerous. Giving a prisoner who commited a minor offense private access to a phone is hardly endangering the community.
Prisoners are people, and judges are people. We should treat all people as much like people as we can. And I think that involves giving them as much privacy as we can. Unless we suspect something hoakey is going on, we should never, ever be permitted to monitor anyone's private messages. If you think a judge is corrupt and you've got some resemblance of evidence, get a warrant, and start listening. If you think a prisoner is trying to hire a hitman to kill a judge, and you've got evidence, get a warrant and start listening. If Joe Prisoner says he wants to call his wife to make sure she knows how to properly do the laundry and just to talk to her, if he's got phone rights, by all means let him have his private time.
By creating artifical lines between humans, and allocating rights to some and not others, a greater divide is created. If judges can't be monitored, but prisoners can, does that mean entry level workers can be monitored for no reason, and CEO's can't? Or does it mean that all criminals (past and present) be watched in the workplace, and no one with a completely clean record?
Why not just make it easy and flat forbid it except in the most extreme of circumstances?
It'll be interesting to see how Kozinski's fellow judges react. If they can't be bothered to protect their own privacy, we can't trust 'em to protect ours.
If they drop the ball on this one, maybe we should move to an elected judiciary. I've always opposed that, but the federal courts aren't exactly covering themselves with glory (or independence) these days.
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I doubt that any /.er would be happy with surveillance at the workplace or otherwise. Common sense and legal prededent (in the interest of privacy, the judiciary should adopt the least intrusive, rather than the most intrusive, means of discouraging Internet misuse. -- TNR Online ) dictate that the least invasive means should be employed when attempting to block abuse of the system.
So, the fact is that the monitoring of internet use is a gross over reaction to something that isn't really a problem at all.
So how is this good for us?
This may be exactly what is necessary to galvanize judges into action in the fight to preserve privacy. Like that guy in The Patriot they may finally fight the threat after it has hit too close to home.
--------
Remember that you are unique, just like everyone else.
Yeah it sucks, but there's some delicious irony about the whole thing. One of the arguments used for workplace monitoring is because if a company doesn't block certain sites it can open it up to litigation -- i.e. sexual harrasment, etc. When the courts say that a company can be held accountable (i.e. cough up mondo $$$) for the actions of one of its employees during company hours, and the civil definition of what constitutes harrasment is murky at best, companies take a "ban it all/monitor it all" mentality.
Imagine, for a sec, that the judges only used government material for work related issues.
In this case, the monitoring is even scarier. Based on the judges' private communications, sites visted, things like that, anyone with access to the log files can begin to recreate the judge's state of mind DURING the case.
Imagine what happens when this gets into the wrong hands. There are some very creative journalists who can take small bits of nformation and blow them out of proportion. We learn that people are likely to be convicted before the trial is complete. We learn that people who appear to be guilty are going to walk. And worse, we learn this because of things that the judges has said and done, rather than just speculation (as it is now) How much harder will it be to keep an untainted jury? Besides, if we know what the judge is thinking, why have a jury?
Yes, it's an exaggeration, but it's frightening to think that the scenario they are trying to achieve is actually worse than finding out which judge has what fetish...
This guy should look at the last ten years of computing history. Judges all over America have been giving their blessing to increased monitoring by government and private companies. They made the bed, now they should lie in it. They have been warned for years of loss of privacy brought to everyone by snooping and wiretaping. They didn't listen. They even ruled that a company can monitor any and all communication held by an employee. Did they really expect it wouldn't apply to themselves? They had it coming.
This is an interesting question: why would *anyone* be entitled to privacy when you're using equipment that someone else has paid for?
... disturbing. Employees wouldn't stand for that. Yet they -- we -- stand for web monitoring?)
- for can *see* you yabbering when she passes your cubicle on her way to yet another important meeting.
The question is interesting for a couple reasons. First, it assumes that money -- cash, whatever -- negates privacy considerations. I'm entitled to privacy only with stuff -- phones, faxes, computers -- that I *pay* for. If I haven't paid for it, then anything goes.
Second -- and this is derived from the first point -- is the resulting "anything goes" mentality. This seems to be the real point of the WSJ article. Even though I'm getting paid for working -- and certainly expect to be given the money I'm entitled to -- why must I give my fundamental right of privacy up?
(The logic here, then, if I'm *not* getting paid -- on my lunch hour -- then does that give me the right to surf? In some places, yes. In most places, no. Because -- and some junior manager will be quick to explain this -- the fact that you surf means not only wasted productivity [which is, of course, dubious] but also liability.)
Which brings me to my third point -- and one that I have yet to receive an explanation for: the digital paradox. Why does a company fear the internet more than it does idle chatter in the bathroom? Or idle phone conversation? Why aren't my telephone calls monitored -- yet every site I visit is.
Why aren't there video cameras in the bathroom? (Because, well, that would be
I'd really like an explanation as to why the web -- more so than the phone, more so than the break-room during "work" time -- is so feared by management.
The reason, of course, is power. Skippy the mid-level manager can *see* you yabbering away in the break room.
Britney the just-out-of-Keller-with-an-MBA-I-worked-real-hard
Ah well. It's all power. Britney needs to commandeer what little power she is and make sure the power remains inviolable. I think that's what managers fear most -- loss of power. There is this illusion among the worst managers that somehow power -- their own, tenuous power -- will increase productivity. Because that means money -- the real reason the web is monitored.
It's crazy -- the surveillance. Everybody's watching, watching to make sure you don't do something to decrease productivity. Fucking absurd.
It'd be a great piece if he talked to the larger issue of any employee's right to privacy. It's kind of ironic that BOFH policies hit the news with judges, but what about the rest of us?
This is a very important issue, not just for the judiciary and rendering of justice, such as it is, in America, but in the long run for all of our individual rights in the workplace as well.
The Libertarian notion that constitutional protections stop at the private property line, and that it is therefor ok, even reasonable, for employers to invade and snoop the personal correspondence of their employees merely because such correspondence passes through their privately owned equipment or networks is responsible for more loss of individual privacy than all of the government's orwellian snooping combined, if for no other reason than that the focus of the privacy invasion is targeted so specifically by an entity against a relatively small group of people (their employees).
How then, are we to combat this remarkably Orwellian situation? First and foremost, by getting our government, in particular the judiciary, to understand what is going on and just what the stakes are. In so doing they will be sensitized to these issues, and rulings favoring individual employee rights over an employers property priveleges may perhaps become more common (after all, it is a felony for an employer to open an employee's private correspondence which has been sent by US Mail, even though the desk it is sitting on is privately owned by them, not the employee. Why should email, or web browsing, be any different?)
On the other hand, if judges are routinely subjected to this kind of invasive monitoring, and it becomes truly a widespread, acceptable practice within all branches of the government, then any argument for the protection of individual citizens' privacy will be correspondingly diluted. Our courts and judges may not grant a private citizen priveleges they themselves enjoy, but they certainly won't grant a private citizen priveleges, or rights, they themselves not only do not enjoy, and perhaps even have come to take the lake thereof for granted.
It is ironic that the judiciary is only now beginning to experience the kind of Orwellian monitoring and control all too many people have come to expect in their workplace, but perhaps this is exactly the catalyst that is needed to put an end to this nonsense in both the private and public spheres, once and for all.
The Future of Human Evolution: Autonomy
Furthermore judges can only interpret the law. While this can have large implications, it's not the same as if they can decree martial law is in effect or pass taxes to raise money for themselves. The founders of our democracy decided that benevolent dictators with limited power were good for the republic.
Judges in this nation do not only interpret law, they create it out of whole cloth. A perfect example is forced busing. No legislature enacted this program, the federal courts did. There are many other examples such as requirements to feed and shelter illegal aliens and requirements to display public documents in thousands of languages outside of English (de facto national language of the US). That is why I feel they need to be monitored and more reactive to public will. If they are going to be making laws when they have no Constitutional right too, they need more oversight by the public.
Strange women lying in ponds distributing swords is no basis for a system of government.
If a specific violation of judicial ethics is alleged, then I can see your point. Otherwise, it's analogous to a general search.
The missing link here is the link between Fourth Amendment rights (specific searches only, and upon probable cause) and general privacy rights. Courts have ruled that individuals have a reasonable expectation of privacy in certain instances, that carries Fourth Amendment rights beyond the boundary of the home. The problem is that the scope of that reasonable expectation -- how far it "should" be reasonable to expect privacy -- is not defined and is shrinking empirically.
"Are we supposed to believe that the director of the Administrative Office of the US Courts (umm, what is that exactly?) did something quite illegal (or at the very least was morally reprehensible) and then called together a "compliant Automation Committee" (again, what is that) that decided that this was a good idea and made the proposal?"
Yes. In plain language summary.
1) Beaurcrat snoops.
2) Punishes those who viewed obscene material.
3) Other judges find out he is covertly snooping on their private communications and point out that he doesn't have the mandate or legal right to do what he's doing.
4) Said snoop calls a secret closed meeting of the "Automation Committee" who handles all types of communications devices (eg. phone, fax, email ect.) and says I want the right to snoop in writting. They give him said right.
5) Letter is sent out to all judges saying this new power is no big deal. In fact he had the ability to monitor with cause already so what's the big deal about going fishing for misdeeds.
6) This Judge who wrote the Times op/ed tries to get his letter circulated as the other guys was but meets a roadblock so he publishes with the Times.
There's your simple summary. Now I'm going to comment.
One we already know what the US deffinition of obscene is... "I know it when I see it." That was a judge at the end of a case. Who is this guy not using due process of getting a warrant to go gathering evidence? He had no probable cause he just went trolling through proxy servers and mail spools. What he did was a best wrong and at worst illeagle.
Two the judge is right to be up in arms about this because this does change the complete communication flow. In an age where computers allow lawyers and their staffs to find cases that they would never find before as precidents and huge backlogs judges have a lot on their plates. Can you imagine either side could now fault say the judges thought process based on a telephone call. Or heck maybe they can turn the fact that he has pancreatic cancer (gleamed from a call from his doctor on his lunch hour)in their profile for whether he'd be likely to be swayed or worse use it as a technicality to get the case thrown out should they lose.
Bottom line, it's just painful to think about the pandoras box this opens up. And before someone mentions the monitoring of Dubaya POTUS Bush and shows this to be a good thing, think of this applied on a large scale AND remeber a pissant that wants more power does not equal watergate.
As other people have noted here, this is hardly the first step toward online monitoring of employees. People like me who work in the national labs have to deal with this sort of thing constantly, even if we don't have access to any classified data and even if we don't have a security clearance (i.e., even when it's not worth while to monitor us). This is what it says when I log in at work. When I first saw it, I thought it was someone's bad idea of a joke.
But honest and competant sysadmins will also tell you that usage monitoring never needs to pry into the content of the excessive usage. Merely reporting the amount to the user usually suffices. If not, reporting it to the user's boss by definition suffices.
Unix sysadmins have evolved certain privacy ethics over the decades. Never pry into user files, email or other traffic even though it is trivially easy to do. There is no justifiable need. Record and store email headers (addressees & subject) in the event of a complaint of email non-delivery. Remind users of excessive resource usage, preferably by automated email. At the limit, publicly post a list of the top10 resource hogs. But never any mention of content.
Perhaps NT admins need a lesson?
Dear Sir:
Employees are monitored all day, every working day in this country. They don't have access to the august pages of the WSJ to make their case. Since when should I believe you are a champion of the Little Guy? You represent the same class of people who appointed George Bush president, who support restitution for unauthorized computing in Georgia, Internet filtering for unauthorized reading in Michigan, arresting foreign nationals in California for unauthorized coding. When the tide turns against you, we should be concerned? My civil liberties are stripped from me daily with judicial complicity. What can you possibly expect in return?
Given my druthers, I'd prefer a system where everyone got to keep their privacy, but with companies increasingly taking the position, "they're our computers so we can monitor and filter if we want," and ISPs increasingly saying, "they're our networks so we can monitor and filter if we want," does anybody really still believe that's an option? At least one other poster has pointed out that this sort of monitoring is already de rigueur for many employees. Are our saviors on the bench prepared to join the crusade against this practice once their own privacy is assured? Somehow, I doubt it.
I think the worst of all possible worlds would be the one where the high and mighty are allowed to have privacy, but the rest of us are not. If every detail of my life is potentially open to scrutiny by the whole world, then I want, at the very least, to be able to discourage people from making unfair use of that information through the threat of exposing their secrets. If we rally behind these judges, perhaps we might strike a blow for privacy; then again, perhaps we might open the door to that lopsided scenario where judges and congresspeople and billionaries can protect their privacy, but the rest of us can just lump it.
No thanks. I propose instead that we support monitoring for judges and elected officials until such time as they get off their duffs and take steps to assure privacy protection for all of us.
-rpl
The cornerstone of our civilization being a state of law where everything the State does is DICTATED BY LAW ALONE, law that has to be the same for everyone, it is absolutely essential that there shall be no interference between the executive, judiciary and legislative branches.
So, YES, we believe that those in one branch do indeed have a right of privacy from the other branches.
There's a very long list of exceptions. Look at the municipal code of just about every city in the US that has a municipal traffic code.
In my city, speeding IS a crime, albeit a minor one. You get caught, you get issued. You have the option of paying by mail. Fail to pay by mail within the time perior (fifteen days in my city) and it becomes a summons to appear in the municipal court. Fail to appear on the summons, and a warrant is issued for your arrest.
Tell the cop that you won't take care of the ticket one way or the other, and he'll arrest you right then, assuming that the offense is arrestable and the officer is willing to deal with the paper. I usually just tell the driver "You've been served. If you want to leave this hanging, it's your problem."
Just about every home-rule city in Colorado has the same thing, with only the specific details varying. Most other states are similar, in that they have such practices at the state level or allow cities or counties to enact them into law.
Under the STATE CODE[1], speeding isn't necessarily a crime. It may just be a civil traffic infraction. (The cutoff is at 20MPH over the limit). Even so, fail to pay or appear and the court will simply enter a default judgement against you. Then DMV cancels your license. Then you will almost certainly be arrested if you're caught driving on a cancelled[1] license.
[1] State Patrol, State Parks and Wildlife, etc., only write under the state traffic code. However, city officers have the discretion to charge under either state law or muni code.
[2] The legal term is "denied." If your license is suspended, revoked, or cancelled in any state in the Traffic Offender's Compact, then it's automatically denied in Colorado. That means sitting behind the wheel on any public roadway in the state is good for jail time.