Last week the AO finally surrendered to Kozinski’s loud public campaign, which included a barrage of memos, media interviews and an op-ed piece in The Wall Street Journal. With a 27-judge policymaking panel led by Chief Justice William H. Rehnquist set to decide this week whether to resurrect the monitoring program, the AO conceded in a letter that “the need for privacy appears to have, at least temporarily, taken precedence.” Citing “misunderstanding” and “worry among judges,” the AO rescinded a recommendation that court employees be notified that they have no “expectation of privacy” while using government computers. It was a big win for Kozinski, and for privacy advocates who have watched as courts repeatedly sided with companies against employees in these kinds of disputes over the past few years. “This is a victory for privacy,” says Stanford law professor Lawrence Lessig. “The real thing is balance. It’s signaling that the courts are thinking about a balanced way of dealing with this complicated issue.”
Kozinski may have accomplished what employees elsewhere probably wish they could do–throw a dark blanket over the watchful eyes of Big Brother. The Denver-based Privacy Foundation estimates that one out of every three employees who accesses the Internet from the office is subject to some kind of Internet surveillance by his boss. As corporations see it, the Internet is a productivity tool–but can also be a vast arena of sports chat rooms, gambling halls and porn sites that distract workers. Companies worry, too, that they can be sued for fostering a hostile work environment if an employee sends a harassing e-mail or leaves a pornographic Web site up on his computer.
In several cases where workers were fired for sending inappropriate e-mail and then sued the company for violating their privacy, judges have mostly sided with the employer. In one 1996 case, Smyth v. Pillsbury, the court found that the company had rightfully terminated a worker for dispatching threatening e-mail, even though it had promised all messages would be kept confidential and privileged. “The company’s interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest the employee may have,” the Philadelphia judge wrote.
In the clubby confines of the federal judiciary, staging a public protest is hardly the norm. Not that Kozinski is the typical judge. The son of Romanian Jews who fled Bucharest when he was a boy, he is also a freelance writer whose articles range from snowboarding to the death penalty. He may be the only federal judge to have appeared on “The Dating Game”–twice. Kozinski’s gamble, openly criticizing his own institution as only someone with lifetime tenure would dare, appears to have paid off. By backing down, court watchers say, the AO spared Rehnquist the potential embarrassment of endorsing a controversial Big Brother policy for the nation’s courthouses.
Kozinski’s victory could turn the tide on the larger issue of Internet monitoring in the private sector. Business interests have so far defeated previous efforts by lawmakers to limit monitoring, but last week the AFL-CIO said it would start lobbying Congress on the issue, partly because of the attention brought by the Ninth Circuit dispute. And last week liberal members of the House Judiciary Committee threatened to limit the use of federal funds for monitoring in government offices. Office workers who combine a little personal Internet surfing with their daily diet of Powerpoint presentations may owe Judge Kozinski a thank-you e-mail.
