Judges join protest of digital snooping

A panel of U.S. federal judges better known in the technology industry for their role in the landmark court battle against file-swapping Web site Napster Inc. is at the fore of another technology debate.

Judges from the Ninth Circuit Court of Appeals in San Francisco are protesting the use of software within the federal court system that monitors Internet use on employee computers -- including those of its judges. One expert said the protest could have broader implications for how companies monitor the activities of employees in the workplace.

In a move to express their anger over the use of such technology, a council of senior Ninth Circuit judges in May ordered their IT staff to disable the monitoring software from the computers of about 10,000 judges and federal employees. In addition to freeing the Ninth Circuit from the watchful eye of their employer, the snooping blackout spread to the computers in the Eighth and Tenth Circuits, which are tied to the same network, affecting about one-third of the nation's federal court system.

The weeklong protest caught the attention of a group of the nation's top judges, who will meet to discuss the issue next month, a spokeswoman for the Ninth Circuit confirmed Wednesday.

Judge Mary M. Schroeder, chief justice for the Ninth Circuit court, issued a statement Wednesday noting that the U.S. Judicial Conference -- a panel of the nation's top judges, headed by Supreme Court Chief Justice William Rehnquist, who set policy for the federal courts -- is in the process of reviewing the recent software rebellion. The body is scheduled to address the issue at its Sept. 11 meeting in Washington, D.C.

Judges from the Ninth Circuit have been speaking out against the use of invasive technology since 1998, when snooping software was first installed on computers of the federal court system. Ninth Circuit Judge Alex Kozinsky, talking about Web site filtering software also used by the federal courts, told the New York Times in 1998: "What I find offensive is that we need a nanny. ... We ought to be treated with more respect and less suspicion."

Three years later, the same judges and employees are crying foul over the use of Web site monitoring software, and the question of disclosure. The debate over whether an employee must be forewarned that they are being snooped on is one that has come up in a number of other cases around the country, said Andrew Schuler, a privacy advocate with the Privacy Foundation, based in Denver.

"Legal battles in this have mostly focused on the issue of disclosure," Schuler said. "What do employers have to tell employees about any monitoring, and, do they have to tell them at all?"

Only one state in the country has a law to address such electronic privacy in the workplace, Schuler said, and that's Connecticut. California's state legislature passed a bill that would have required companies to inform their employees of electronic monitoring, but it was vetoed in October 1999 by Gov. Gray Davis. The U.S. Congress has been equally slow as the states to address the issue. The one bill that attempts to offer workers more privacy -- The Notice of Electronic Monitoring Act -- has long been under debate.

While there are few laws that address the issue, the case of the Ninth Circuit judges could do much to raise the visibility of such monitoring programs, and offers new prospects in the efforts to strengthen privacy in the workplace, Schuler said.

"The part of this story that is so interesting is -- here we have judges in their positions as employees having to think about this sort of issue," he said.

An estimated 14 million employees in the U.S., or about one-third of the nation's wired work force, have their Internet or e-mail use under continuous surveillance while at work, according to a recent study by the Privacy Foundation. Worldwide, about 27 million employees have their Internet activity monitored by employers, the group said.

Despite instances of protest, an increasing number of organizations and companies are using the technology, according to one vendor that sells software for what it calls "Web site management." San Diego, California-based WebSense Inc. -- which supplies the Web management software that tracks and monitors Web use at the three Federal Circuit Courts that staged a protest in May -- says the technology is less invasive than critics make it out to be. It helps protect employees from pornography on the Internet, and protect employers from an employee's ability to waste time surfing the Web, WebSense says.

"Just about every company in corporate America has a policy in place that says what you can and can't do in the workplace on the Internet," said Darryl Gordon, director of marketing at WebSense. "It's one thing to have a policy in place; it's another thing to actually manage the policy."

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