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When the 9th U.S. Circuit Court of Appeals voted to shut down monitoring of the court’s Internet use, the decision ignited a controversy about privacy in today’s high-tech age. One newspaper last month dubbed the court “Rebels in Black Robes,” and the 9th Circuit was once again cast in the role of renegades. The issue this time was not federal law, but the propriety of monitoring the judiciary’s 30,000 employees. But as the U.S. Judicial Conference prepares for a final vote on a policy to require Internet monitoring of federal court employees next week, it appears that support for the 9th Circuit’s actions is growing. Fifth Circuit Judge Edith Jones, an avowed conservative who President Bush once used as an example of a model jurist, has sided with the 9th Circuit in a letter stating that virtually every member of her court is critical of the monitoring. The Electronic Frontier Foundation, the San Francisco-based electronic rights group that spearheaded successful efforts to get Adobe Systems Inc. to drop its support of the copyright infringement prosecution of Russian programmer Dmitry Sklyarov, has initiated a letter-writing campaign. And aiming to shore up opposition in the judiciary, the most outspoken critic of the policy, 9th Circuit Judge Alex Kozinski, wrote an open letter to all federal judges in Tuesday’s Wall Street Journal that had the subtlety of a sledgehammer. Kozinski’s take-no-prisoners article named names, characterized the monitoring as “draconian” and called for an independent investigation into whether it broke any civil or criminal laws. In a widely reported memo, Kozinski previously said he considered the policy a felony. He publicly lambasted Leonidas Ralph Mecham, head of the Administrative Office of the U.S. Courts, whom he accused of being responsible for the policy. The AO implements decisions of the policy-making Judicial Conference. Internet monitoring was put in place earlier this year, prompting a letter from the AO to 9th Circuit Chief Judge Mary Schroeder detailing questionable Internet use by court employees. Out of privacy and legal concerns, the 9th Circuit voted in May to turn off the monitoring software. The Judicial Conference’s 14-member Committee on Automation and Technology then recommended, unanimously, that the monitoring be reinstated. Last week, Judge Edwin Nelson, the committee’s chairman, sent a clarifying letter to all federal judges to clear up “misconceptions” in media accounts of the issue. To which Kozinski responded, in part: “Salving Mr. Mecham’s bureaucratic ego, and protecting him from the consequences of his misconduct, is hardly a basis for adopting a policy that treats our employees as if they live in a gulag.” The AO, while not responding directly to Kozinski’s article, said the debate over the issue is out of proportion. “It’s important to keep the focus on the facts, and the facts are that there are no issues of privacy, and there is no monitoring of e-mail or judicial communications,” said AO spokesman David Sellers. “And none is contemplated.” Sellers explained that the monitoring software is alerted only by the movement of large files, such as movies or music. The 5th Circuit’s Judge Jones’ letter was sent to Judge Nelson last month. While praising some of the principles of Nelson’s committee, she criticized its report. “I suggest that the committee step back from these recommendations, take a deep breath, and recall that one of the first principles of leadership is to foster trust and respect among one’s team members. … Surely we can expect more of ourselves and our team members than these benighted privacy-invading recommendations imply.” Jones’ court was not directly affected by the 9th Circuit’s actions. But since the 9th Circuit controls the Web portal for the 8th and 10th circuits, those courts were. They were notified of the decision to shut down the monitoring and did not object. “They knew in advance it was going to be shut down,” said 9th Circuit chief executive Greg Walters. Both Walters and Schroeder said neither the 8th nor the 10th Circuit was actually involved in the decision-making process. Schroeder said the courts were notified “as we were doing it.” “They didn’t voice any objection,” she said. But whether that implies consent and support of the 9th Circuit when the Judicial Conference debates the issue Tuesday remains to be seen. When asked whether the 9th Circuit had approval from the 8th Circuit before shutting down the monitoring software, 8th Circuit Chief Judge Roger Wollman declined to say. “I don’t want to comment on that,” Wollman said. Nor would he comment on the controversy in general. “It’s an interesting issue, and I’m sure we’ll have an interesting discussion at the Judicial Conference next week,” Wollman said. Meanwhile, as many as 30,000 e-mails were to be sent by the Electronic Frontier Foundation Tuesday night, alerting the receivers of the controversy. “We’re trying to create some grassroots concern about all of this, and also to sensitize the judges,” said EFF senior staff attorney Lee Tien. Tien said that even if a compromise were devised that eliminated judges’ chambers from monitoring, he would oppose it. “That still rubs me the wrong way; that still sets a bad example,” Tien said, adding that if the judges were “not part of the rank-and-file, it would be an elitist separation.” 9th Circuit Judge Stephen Reinhardt recently offered his opposition as well. “You wouldn’t believe it could happen in a democratic country,” Reinhardt said. “I agree with Judge Kozinski: It seems like Romania.” Kozinski emigrated from Romania as a boy.

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