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Defiant Judges Bar Monitoring of Staff Net Use

Internet: Software was disabled after 9th Circuit jurists approved the move. Panel headed by Chief Justice Rehnquist will decide whether to restore it.

August 09, 2001|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER

SAN FRANCISCO — The U.S. 9th Circuit Court of Appeals, furious that employees' Internet use has been monitored--possibly illegally--from Washington, shut off the surveillance software earlier this year in defiance of a court administrative office.

Circuit Court Judge Alex Kozinski said in an interview Wednesday that the monitoring software was disabled for one week in May after a 9th Circuit judges' committee approved the move on a unanimous vote. A judicial council chaired by Supreme Court Chief Justice William Rehnquist will meet in Washington in September to decide whether to reinstate the surveillance.

Kozinski said the administrative office of the U.S. courts began in December to examine use of the Internet by the U.S. judiciary and its employees without informing them, an intrusion the judge called possibly illegal under federal wiretapping laws and "certainly of questionable morality."

Since then, the office has sent letters to chief judges of federal courts across the country about computers that had been signed onto Web sites offering music, pornography, stock trading or gambling. The letters suggested that employees responsible for the usage be disciplined, he said.

Kozinski, who was appointed by former President Reagan, says he was offended by the monitoring. "I was born in Romania under communism, and stuff like this makes my toes curl," Kozinski said.

When the 9th Circuit shut off the surveillance software, it also disabled it for the 8th and 10th Circuits. In a June 15 letter to all chief judges, Leonidas Ralph Mecham, who heads the administrative office, complained that the 9th Circuit had jeopardized security.

"This action may have opened more than 180 court Internet Web sites in the 8th, 9th and 10th Circuits to intrusion attempts that have not been detected," he wrote.

In a memo 10 days earlier, Mecham said the technical experts at the 10th Circuit had been concerned that the 9th Circuit's action would jeopardize security in the case of Oklahoma federal building bomber Timothy McVeigh, who was recently executed.

Chief Judge Mary M. Schroeder of the 9th Circuit called the allegations of possible jeopardy meritless in a memo to the chief judges.

"Our computer staff has assiduously investigated every rumored firewall breach both within and outside the 9th Circuit," Schroeder told her colleagues in the memorandum, one of several given to The Times. "Thus far, every report of an incident has proved to be groundless."

She also wrote: "We are concerned about the propriety, and even the legality, of monitoring Internet usage. A nonfrivolous argument can be made that such activity violates the Electronic Communications Privacy Act of 1986."

The dispute was first reported by the New York Times on Wednesday. Schroeder referred reporters to a spokeswoman, who provided a brief statement.

"At the request of the 9th Circuit, the judicial conference of the United States is in the process of reviewing this matter," the statement said.

Kozinski said Schroeder's "leadership has been truly magnificent in all of this. She understood the privacy and legal concerns and she is the one who had to stand eyeball to eyeball with the administrative office," Kozinski said. "And she didn't blink."

A spokeswoman for the administrative office said she could not comment on the matter.

After monitoring employees' Internet usage, the administrative office sent letters to chief judges identifying the computers that were used and the times when the offending sites were visited, Kozinski said.

The office has stopped using the surveillance software pending a vote on the policy by the conference on Sept. 11. The conference is the policymaking body for federal courts and is headed by Chief Justice Rehnquist. Kozinski said the computers of the U.S. Supreme Court and its staff were not monitored along with other federal courts.

In an 18-page memorandum to the administrative office, Kozinski explained why the monitoring that occurred may well have violated federal law.

"It is quite unusual for us to be pushing the envelope on something like this that is highly doubtful legally," said Kozinski, a conservative with libertarian leanings. "This is the kind of issue that pops up in our courts all the time."

Kozinski said the conference will vote on a policy that would inform users across the federal judiciary that they should expect no privacy in the use of their computers. Users include court staff, judges, public defenders, probation officers and magistrates. Kozinski declined to comment on whether he believes such a policy is lawful.

"I do know that doing it without warning is highly questionable and exposes us to serious liability and a federal criminal statute that we are supposed to be enforcing," Kozinski said.

A nationwide security management survey reported in July that 64% of American companies conduct at least occasional monitoring of their workers' use of the Internet.

Kozinski said the warning proposed by the conference would require computer users to give up all privacy. "Turn on your computer, and everything on it, your recipes, your telephone book, anything you type on it becomes accessible by the employer," he said. "Should federal judges do this when we have to pass on the legality of these things in our cases?"

He said he did not know how many employees were disciplined or reprimanded as a result of the monitoring.

"I have talked to two dozen judges at all levels, federal circuit, bankruptcy, district court, and no one had ever heard of it" until the letters calling for discipline were sent, the judge said.

He said one of his law clerks has listened to classical music via the Internet while he worked.

"Now the law clerk is doing his work, he is in the office," Kozinski said. "If he feels more productive listening to classical music, I should worry?"

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