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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.
I'm not sure I'd call it a great opinion piece. It's good that someone's taking issue with judicial workplace privacy invasion. 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?
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?
Am I the only one who sees the irony of asking my e-mail address before you show me an article about privacy? Yes, any address works, so it's not nearly as bad as it could be, but still
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
Cryptome has a posting showing the porn mpg download logs from a court computer. Its a letter from the court's administrative offices to one of the chief judges, giving the IP (and who's assigned to it) of the downloader.
.vbs and maybe other executables, but since mpgs don't (yet) contain virses and trojans horses, they *ARE* safe to download.
The downloads were at lunchtime, but jeeze, there are a lot of downloads. It looks like it was some sort of sharing software involved, by the looks of the filenames and the IP numbers.
The letter is from the adminstrative offices of the court to a chief judge, indicating the IP and registered owner of that IP. The log was captured as part of their "security intrusion detection" system because of the large volume of traffic. Sounds a little funny-- the volume of traffic is going the wrong way to be a massive data leak. I wonder how the judges like this "security" precaution being used to spy on them.
The administrative office goes on to complain about sexually-oriented websites are likely to contain "computer viruses, trojan horses, and other harmful products". First off, the administrator didn't notice that these weren't websites, and second, all the files were videos. A decent security system would have blocked
Sure, I'd be weirded out if someone was doing their thing to porn in the office next door, but it doesn't take a porn download to enable that sort of behavior. Besides, by the quantity of the downloads, it doesn't look like there was much time to view them.
HIV Crosses Species Barrier... into Muppets
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.
InstaPundit! Ahead of the Curve Since 30 Minutes Ago
If surveillance can invade a judge's workplace, it's for damnsure there's nothing keeping it out of yours.
Well, if I could play the role of devil's advocate for a moment:
It is more significant if a judge is surfing for illegal pr0n or warez on the job than some average luser. Is it so wrong to hold the guarantors of justice to a higher standard?
Who guards the guards?
*** Where are we going? And what's with this handbasket?
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...
Just because it's legal doesn't make it right. I once refused to use company equipment for exactly this reason. I used my own laptop, my private e-mail (over a secure link), and my own cell-phone. The company didn't like this, but my contract didn't say I had to use their stuff, nor did it say I had to submit to monitoring.
I've contracted for many companies, and I've never had to submit to monitoring. I spend enough of my life (way more than 40 hours/week) at work that I feel quite justified in using some of that time for personal business.
My experience has been that the companies that insist on monitoring employees also tend to be the ones with the worst moral and the least compentent management. Of course that doesn't prove a causal relationship, but I doubt it's a coincidence.
It is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail. - Abraham Maslow
My ongoing complaint about the YRO articles is that whatever is currently being proposed is always ridiculed in favor of something else. Government regulation? Schools and libraries should set policies. Schools and libraries restricting access? It should be up to parents. Parents take responsibility? How dare they!
In this case, I would be extremely reluctant to join a workplace that monitored my computer usage. But unlike the hypocritical, dishonest bigots who edit Slashdot, I recognize the real issues here and I'm curious to hear what people think is an equitable way to deal with them.
Unfortunately, the reality is that workers in the judicial offices are not capable of policing themselves. ("A letter Lee sent on March 5 contains a list of all the movies accessed by a particular user between 12:12 p.m. and 1:35 p.m., including /bigtits/bix/mer021/3.mpg and /personal4/fuckmovie/asian/07.mpg. ")
It seems to me the issues are:
I work at a large inventment bank, where many employees have access to information that other employees do not. And, I suppose that whoever has the job of snooping on people's email, etc. would have access to all of this proprietary or client information. But that's not stopping them from having the policy.
Is the outcome of this struggle amongst judges really going to have any effect on the rest of us in the private sector?
That may not be accurate.
http://www.usc.edu/isd/policies/general/
(see sections 1.4 and 3.3)
"No prints can come from fingers / If machines become our hands." -- Jack Johnson
It's a trade off. Judges were given long-term / permanent appointments exactly because we wanted them to be free of the restraints of having to run for re-election and fight public opinion. If they have to pander to public opinion then they might not do what they believe to be morally and ethically right when it conflicts with what a majority of the people want. It would a bad thing for the guardians of the rule of law to be compromising their ethics to ensure re-election.
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.
The important thing is to make sure that only good honest people get to be judges in the first place. As an additional safe guard, the heirarchy of the judicial system ensures that only judges who consistently make intelligent reasonable rulings will advance in stature.
I can't support monitoring of the on-line activities of members of the judiciary, not because I have problems with monitoring in general (which I do, but that's another issue) but because it represents our first tentitive steps onto a slippery slope which has the potential of being the root cause of many great miscarages of justice.
Monitoring opens the door for filtering, which by definition operates with the sole purpose of preventing access to certain information. It is an exceedingly dangerour proposition, to suggest that Judges should be prevented from recieving certain information, as a matter of law, however this bears a little explaining. I'm not prtoposing that preventing judges from viewing pornography while they contemplate a legal decision is nessecerily a bad thing, but merely having the capability to filter what a judge sees opens the door to the potential risk of the abuse of the technology. Granted, monitoring is not filtering, but again, it's a slippery slope. Slippery slope arguments are difficult to make because you come off as though you're tilting at windmills, however, I think any technically knowlegable person can see the risks here.
This decision has been a long time in coming. Earlier this year Judge wrote an article in the Green Bag Law Journal called In Defense of the Hard Drive in response to proposals then to monitor the office PCs of members of the judiciary. It seems that proposal has been expanded to an unbelievable degree at this point.
On the bright side, there is a new grounds for appeal for every case brought before any court where this proposed system is implemented. Essentially, the argument could be made that undue influence was excerted over the court by those who monitor the proposed monitoring system; that judges will be hesitant to seek out information theough communications systems made available to him for that specific purpose in his/her chambers.
--CTH
--Got Lists? | Top 95 Star Wars Line
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.
Has anyone else at any company of any size (>100 employees) seen anything along these lines? Simply asking employees to cut down Internet use and the employees did? Or any studies about this?
It sounds kinda odd to me. My reason for asking: I had never had any hesitations installing censorware for my employer to cut down on wasting bandwidth. But if asking actually works for >100 people, (ideally several documented cases) then I'll rethink my stance..
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
It's not my right to use someone else's resources to surf the net at work, granted. But if I am allowed the privilege of doing so, it _is_ my right to have my privacy untrammelled while I'm at it. If a guest at your home asks to use the telephone, you are not obligated to let them. But if you _do_ give them permission, a basic respect for human dignity demands that you not eavesdrop on their conversation by using another phone without their knowledge. And I haven't met the person yet with enough ill-advised chutzpah to inform his guests that all calls made from his phones will be monitored by him without specific permission (which is exactly the stance many companies take in their anti-privacy policies that explicitly warn employees that everything they do is being watched.)
Personal use of company equipment is a privilege. To have my privacy respected while I exercise that privilege is my right.
IHBT (I think)
--
Pay no attention to the errors in my post. I am the great and powerful Oz.
All other fedral employees already get to see this (DoDs warning) every time they log on and on every web page:
"THIS IS A DEPARTMENT OF DEFENSE (DoD) COMPUTER SYSTEM. This computer system, including all related equipment, networks and network devices (specifically including internet access), are provided only for authorized U.S. Government use. DoD computer systems may be monitored for all lawful purposes, including to ensure that their use is authorized, for management of the system, to facilitate protection against unauthorized access, and to verify security procedures, survivability and operational security. Monitoring includes active attacks by authorized DoD entities to test or verify the security of this system. During monitoring, information may be examined, recorded, copied and used for authorized purposes. All information, including personal information, placed on or sent over this system may be monitored. Use of this DoD computer system, authorized or unauthorized, constitutes consent to monitoring of this system. Unauthorized use may subject you to criminal prosecution. EVIDENCE OF UNAUTHORIZED USE COLLECTED DURING THIS MONITORING MAY BE USED FOR ADMINISTRATIVE, CRIMINAL OR ADVERSE ACTION. USE OF THIS SYSTEM CONSTITUTES CONSENT TO MONITORING FOR THESE PURPOSES."
Seriously, any network use requiring privacy should be done on one's own connection. It's too bad, but even eloquently written letters decrying this fact won't change it.
sulli
RTFJ.
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.
This actually happened in Missouri. If I recall correctly, Kansas City was not budgeting enough money to pay for a court-ordered desegregation effort, so the Federal judge sitting on the bench imposed a sales tax on Kansas City with orders that the proceeds from the tax be used to pay for this court-ordered desegregation.
This was very recently, too--in just the last few years.
The decision was later found to be grossly unconstitutional by the Eighth Circuit Court of Appeals, but the damage had already been done.
When John Ashcroft was being grilled for his Attorney General confirmation hearings, he took a lot of flak (primarily from Democrats) for his statement that the number one threat to the Constitution and public liberty was ``judicial tyranny''. A lot of people screamed bloody murder that we couldn't approve Ashcroft as A.G., that he didn't trust the courts.
How could he?
John Ashcroft was the Governor of Missouri at the time this half-baked crock in a robe usurped the Constitution and passed his own tax on the citizens of Missouri.
No joke here; I don't understand.
I read slashdot all the time, and there is always an article about how some judge has ruled in favor of a wealthy entity's right to take away the privacy of an individual, followed by posts from libertarians saying that its okay that individuals don't have privacy rights in "the real world" as long as they do in theory.
That's fine. That's good. That's slashdot. I love it.
But now we have a situation where the Judges' rights to privacy are in jeopardy. And it seems most people are rallying to their defense. Send letters! Send email! Fight for their right to privacy!
I don't get it. This is almost Shakespearean irony - judges being forced to endure the consequences of an environment that they themselves helped to create. Perhaps the best way for them to see the results of their rulings on individual privacy is for them to experience what it is like to be deprived of that privacy. Why would we interfere with poetic justice?
DJS
God is real unless declared integer
The cameras are coming. They're getting smaller and nothing will stop them. The only question is: who watches whom?
I have no problem with your religion until you decide it's reason to deprive others of the truth.
One point from Kozinski's article that hasn't been appreciate here so far is that federal judges do not have bosses. They do not have people who can tell them how they do their work or what hours they work or anything else similar. A higher court can tell a lower court that it was wrong and reverse it. The people of the United States can even amend the constitution, or Congress can amend a law.
A federal judge is appointed for life. Sure, Congress can remove him for bad behavior, but that has been applied as doing illegal things not how the judge ruminates about the case, or with whom. The system is designed to protect the ability of these individuals to make independent judgments. Courts of appeal provide the accountability, not putting the individuals under a microscope.
A judge cannot operate in a vacuum. He needs clerks, secretaries, and the like to do his job. Monitoring them can be like monitoring him. The judicial conference's monitoring plan is a genuine intrusion into the independence of federal judges that should be beaten back.
This is not only about the kind of privacy issue that comes up with all other workers. If that was the case, a prominent judge like Kozinski would probably not be publishing letters in the Wall Street Journal. (He's a likely candidate to be on Bush's short list for possible Supreme Court nominations.)