When I discussed the case of Russian programmer Dmitry Sklyarov two weeks ago (Crypto law misguided), I had no way of knowing that he was going to be granted bail the day after the column appeared in print. Remember, folks, I write this gem a dozen days before you read it, so I can't claim responsibility for getting him sprung.
Here comes da judge
Of all the places to look for column ideas, The New York Times falls pretty low on my list -- or at least it did until I read a front-page story about the federal judges who insisted that their IT staff stop monitoring internet access. It seems that the Washington-based Administrative Office of the US Courts had ordered each Court of Appeals to install an unnamed "spyware" package because it found that 3% to 7% of web traffic going through the courts' internet connections consisted of streaming media, the Times said.
When the judges of the US Court of Appeals for the 9th Circuit -- based in San Francisco -- found that internet monitoring was taking place, they flipped, and ordered the monitoring software disabled. The Electronic Frontier Foundation could have scripted some of the comments the judges were reported to have made, such as the chief judge of the circuit's statement, "We are concerned about the propriety and even the legality of monitoring internet usage." That's strong stuff coming from folks in black robes. The Times also indicated that the 8th and 10th Circuits were affected by the order, although it's unclear why.
The judges of the 9th are concerned that federal anti-wiretapping statutes and the Electronic Communications Privacy Act of 1986 might be violated by the use of web monitoring software, particularly when it is implemented without the knowledge of employees, as appears was the case with the appeals courts. The judges don't seem to have been surfing porn sites in their chambers, but some staff members have been disciplined for misbehaviour. It is refreshing to know that some federal judges recognise that computer monitoring and privacy rights don't mix.
The big question is whether or not the judges will extend their argument's scope from the rights of individuals using government-owned computers to those of individuals using company-owned systems. So far, courts have held in favor of the employer, but that soon may change.
For those who don't memorise my columns, I remind you that web monitoring is more trouble than it is worth. Goldbrickers will always be around, and it's pretty easy to figure out when someone is goofing off instead of working. It also sends the message that you don't trust your employees, which can be damaging for morale -- especially when workers are punished for violating boundaries that you didn't remind them exist.