September 10, 2001 7:00 PM PDT
Judges back down on workplace monitoring
On the eve of a hearing addressing electronic surveillance of executive-branch employees, Edwin Nelson, chairman of a 14-judge committee on Automation and Technology, removed a section of the proposal on employee Internet use. That section would have taken away staff members' right to privacy while using government office equipment, the Internet and e-mail.
In a the memo to Chief Justice William Rehnquist and members of the U.S. Judicial Conference, Nelson wrote that after discussions among the committee Friday, "some privacy concerns merited further analysis."
In addition, the committee suggested further analysis of a policy to place notifications about computer monitoring practices on employees' computers nationwide.
The U.S. Judicial Conference, a group of 27 federal judges governing court policies, meets Tuesday to vote on the proposal and its amendments.
The revisions follow barbed protests from several federal judges and members of Congress about the privacy provisions contained in the proposal, which are guidelines to acceptable use of computers by 30,000 federal court employees.
The recommendations are largely designed to curtail the use of computers for personal entertainment such as downloading music, movies or adult-related files, which are considered a drain on resources and productivity.
To monitor such activity and protect network security, the Administrative Office of the U.S. Courts (AOC), which implements the policies of the Judicial Conference, installed intrusion detection software on the courts' gateways in December 2000--without notice and consent. Although the software can in theory scan e-mail, the AOC says it has not been used for that purpose.
The practice hit a sore spot with judges in the 9th U.S. Circuit Court of Appeals, which disabled the software earlier this year upon its discovery. The judges charged that the surveillance system was a needless invasion of privacy. Since then, the AOC has disabled nationwide a feature that detects the transmission of music and movie files.
The debate highlights mounting tension surrounding workplace surveillance in the United States, which is becoming rampant in the private sector. One out of every three U.S. workers, or about 14 million people, are under surveillance by employers spying on Internet use or e-mail, according to a recent report from Denver-based Privacy Foundation. Worldwide, the number of employees under surveillance is estimated at 27 million.
As a result, employees are increasingly fearful about technology use during office hours, and employers are evaluating legal obligations to provide notification of monitoring practices.
"The question of Internet monitoring is being confronted in many workplaces," said James Dempsey, deputy director of the Washington D.C.-based Center for Democracy and Technology. "Too many employers are jumping to implement monitoring without taking the more direct approach of telling employees what's not and what is permitted.
"In the case of the courts, you have some special considerations--the independence of the judiciary, and the value of free and open inquiry, and exchange of views to the judicial process. So judges shouldn't feel like they have someone looking over their shoulders while making decisions. That applies to everyone but especially to judges."
Setting an example
In this case, lawmakers are concerned that a judiciary-wide policy allowing surveillance software to reside on computer networks reaches too far into workers' personal privacy.
Underscoring the concern, three members of Congress sent a letter Friday to the Judicial Conference, arguing against the monitoring plan. One co-signer, Rep. Howard Berman, D-Calif., a member on the House Judiciary Subcommittee on Courts, said that he would "oppose any efforts by the Judicial Conference to systematically monitor the electronic communications and Internet use of judicial employees."
"While it may be appropriate for an immediate supervisor to monitor an employee's Internet use or e-mail in certain circumstances, I do not believe indiscriminate, systemic monitoring is appropriate," Berman wrote in an e-mail. "It is particularly inappropriate for the courts, which will inevitably be called to rule in cases involving questions of employee privacy."
9th Circuit Judge Alex Kozinski emerged as an outspoken opponent of the monitoring plan, weighing in against it in an opinion piece for The Wall Street Journal.
In an interview Monday, he called the plan a "pure, bureaucratic power grab." He added that most of his colleagues protest of computer surveillance, including the Federal Judges Association, representing 800 judges nationwide.
He said that under the proposal, monitoring practices would not necessarily be mandated. But it would give the government rights to implement monitoring if they so choose.
"It's unnecessary; it's overkill and insulting to our employees," Kozinski said. "If we take an extreme position as employers, then when the same issue comes up in a case where we have to decide as judges, we're more likely to approve the extreme position. So in a way we've prejudged the issue by conduct.
"We have to be like Caesar's wife: We have to be more clearly correct, (lawful) and more safe than a private business. The proposal came too close to the line," said Kozinski, adding that he believes the monitoring plan is now "dead" and will not rear its head in the committee again.
However, that issue will likely be raised at the hearing Tuesday.
Attempting to defuse criticism, Judge Nelson of the Judicial Conference's tech panel said in a statement last week that "misconceptions seem to have shaped the debate...The Administrative Office of the U.S. Courts does not now, nor has it ever, monitored content of e-mail or other judicial communications. Only when data passing through national gateways triggers predetermined security criteria may it be logged for date, time, IP address and the name of the file."
Still, "since 1995, courts have been advised to notify judges and staff that their use of judiciary computers may be monitored for security purposes," he wrote.
Andrew Schulman, chief researcher with the Privacy Foundation, said that the committee has not given clear enough direction that monitoring will not be used in the future.
"By simply removing the section that says you have no reasonable expectation of privacy, does that now mean that people have a reasonable expectation of privacy? And if they do, what are its extents?" Schulman asked.