[wordup] Rebels in Black Robes Recoil at Surveillance of Computers

[Adam Shand]

Via: The Eristocracy <Eristocracy at merrymeet.com>
From: http://www.nytimes.com/2001/08/08/national/08COUR.html?todaysheadlines

Rebels in Black Robes Recoil at Surveillance of Computers
By NEIL A. LEWIS
August 8, 2001

ASHINGTON, 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.

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.