Judges furious over being watched

A group of Calif. judges discovered that their online activity is being monitored by a federal agency. At least one is challenging the law that allows workplace monitoring.

WASHINGTON -- Privacy advocates hope a simmering dispute within the federal judiciary over Internet use will spark changes to federal laws on employer monitoring of company networks.

A group of senior West Coast judges, angry that their online activity is monitored by a federal agency here that administers the court system, have suggested the scrutiny may be illegal and for one week earlier this year disabled the monitoring system in protest.

Judge Alex Kozinski of San Francisco's U.S. Court of Appeals for the Ninth Circuit -- where the disabling took place -- has claimed in a memorandum that such oversight violates the federal wiretap statute.

But experts in workplace law say the legality of such monitoring is widely accepted. Broad surveillance by system administrators is explicitly permitted under the 1986 Electronic Communications Privacy Act and has been upheld by several courts, and Congress has rejected attempts to craft a new policy.

"This sounds like the judge had no clue how intrusive modern monitoring security is," said Stewart Baker of the Washington law firm Steptoe & Johnson, an expert on wiretap law.

Calls to Judge Kozinski and the Ninth Circuit's media representative weren't returned.

Pushing the lawmakers
The dispute could spur lawmakers to re-evaluate federal policy on monitoring, privacy advocates said.

"We may need to have people in a position of power affected by electronic monitoring before there is going to be an honest legislative evaluation of the current situation in the American workplace," said Jeremy Gruber, legal director at the National Workrights Institute in Princeton, N.J.

Under the 1986 law, a network operator can intercept or disclose a user's messages "in the normal course of his employment" to protect the rights and property of the network's owner -- even without giving a warning, though experts frequently advise companies to do so.

It isn't unusual for companies to monitor the online behavior of employees; a survey in July of 435 large U.S. companies by the American Management Association found more than 60% watched Internet connections. Most indicated they are worried about lawsuits, especially stemming from workers visiting pornographic Web sites or distributing sexually suggestive material, but many said they also check to detect network attacks by hackers.

Sen. Charles Schumer (D., N.Y.) and Rep. Bob Barr (R., Ga.) are expected to introduce legislation later this year that would limit employer surveillance. A similar bill sponsored by the two was voted down last year.

The judiciary dispute was reported July 5 by the Houston Chronicle and was also the subject of an article Wednesday in the New York Times.

For the judges, the issue will be decided when the United States Judicial Conference meets on Sept. 11. The conference, which makes policy for the judiciary, "is actively studying the issue," conference spokesman David Sellers said. "There's really nothing to be said until the conference meets." WASHINGTON -- Privacy advocates hope a simmering dispute within the federal judiciary over Internet use will spark changes to federal laws on employer monitoring of company networks.

A group of senior West Coast judges, angry that their online activity is monitored by a federal agency here that administers the court system, have suggested the scrutiny may be illegal and for one week earlier this year disabled the monitoring system in protest.

Judge Alex Kozinski of San Francisco's U.S. Court of Appeals for the Ninth Circuit -- where the disabling took place -- has claimed in a memorandum that such oversight violates the federal wiretap statute.

But experts in workplace law say the legality of such monitoring is widely accepted. Broad surveillance by system administrators is explicitly permitted under the 1986 Electronic Communications Privacy Act and has been upheld by several courts, and Congress has rejected attempts to craft a new policy.

"This sounds like the judge had no clue how intrusive modern monitoring security is," said Stewart Baker of the Washington law firm Steptoe & Johnson, an expert on wiretap law.

Calls to Judge Kozinski and the Ninth Circuit's media representative weren't returned.

Pushing the lawmakers
The dispute could spur lawmakers to re-evaluate federal policy on monitoring, privacy advocates said.

"We may need to have people in a position of power affected by electronic monitoring before there is going to be an honest legislative evaluation of the current situation in the American workplace," said Jeremy Gruber, legal director at the National Workrights Institute in Princeton, N.J.

Under the 1986 law, a network operator can intercept or disclose a user's messages "in the normal course of his employment" to protect the rights and property of the network's owner -- even without giving a warning, though experts frequently advise companies to do so.

It isn't unusual for companies to monitor the online behavior of employees; a survey in July of 435 large U.S. companies by the American Management Association found more than 60% watched Internet connections. Most indicated they are worried about lawsuits, especially stemming from workers visiting pornographic Web sites or distributing sexually suggestive material, but many said they also check to detect network attacks by hackers.

Sen. Charles Schumer (D., N.Y.) and Rep. Bob Barr (R., Ga.) are expected to introduce legislation later this year that would limit employer surveillance. A similar bill sponsored by the two was voted down last year.

The judiciary dispute was reported July 5 by the Houston Chronicle and was also the subject of an article Wednesday in the New York Times.

For the judges, the issue will be decided when the United States Judicial Conference meets on Sept. 11. The conference, which makes policy for the judiciary, "is actively studying the issue," conference spokesman David Sellers said. "There's really nothing to be said until the conference meets."