Fron the New York Times; 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.

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.