September 6, 2001
Members of the Judicial Conference
Attn: Karen K. Siegel
Administrative Office of the United States Courts
One Columbus Circle, NE
Washington, D.C. 20544
To the Members of the Judicial Conference:
I am writing to you regarding the electronic monitoring of the employees
of the federal judiciary undertaken by the Administrative Office of the
Courts. I understand that this issue will be considered at a meeting of
the Judicial Conference on September 11. I am the executive director of
the Electronic Privacy Information Center (EPIC) in Washington, DC, a
former counsel to the US Senate Judiciary Committee, and an adjunct
professor at Georgetown University Law Center where I have taught the
Law of Information Privacy since 1990.
It is my view that the practice of logging the web sites that are viewed
by members of the judiciary and their staff, without prior notice, could
be a violation of the Electronic Communications Privacy Act of 1986, 18
USC § 2510 et seq., and that the use of this information in a
disciplinary proceeding would be in violation of the Act. But whether or
not it is determined that the practice is permissible, the prospect that
the employees of the judiciary engaged in sensitive matters concerning
the public interest would be routinely monitored in this fashion raises
troubling questions about the widespread use of surveillance technology
within the federal government. Clearly, it is the aim of the federal
wiretap law to establish limitations on the circumstances when private
activities, conducted by means of new communications technology, may be
observed and recorded by others.
I would also like to suggest that providing simple notice of the
monitoring practices does not cure the underlying Fourth Amendment
problem. As Professor Amsterdam noted in a widely cited article on Katz
v. U.S., 389 U.S. 347 (1967), "each person's subjective expectation
[could be rendered meaningless if the government were to announce]
half-hourly on television that 1984 was being advanced by a decade and
that we were all forthwith being placed under comprehensive electronic
surveillance." Anthony Amsterdam, Perspectives on the Fourth Amendment,
58 Minn. L. Rev. 349, 384-85 (1974).
The Supreme Court acknowledged this danger in Smith v. Maryland, 442
U.S. 735 (1974), when it considered the question of the expectation of
privacy in the disclosure of telephone numbers obtained by means of a
Situations can be imagined, of course, in which Katz' two-pronged
inquiry would provide an inadequate index of Fourth Amendment
protection. For example, if the Government were suddenly to announce on
nationwide television that all homes henceforth would be subject to
warrantless entry, individuals thereafter might not in fact entertain
any actual expectation of privacy regarding their homes, papers, and
effects. . . . In such circumstances, where an individual's subjective
expectations had been "conditioned" by influences alien to
well-recognized Fourth Amendment freedoms, those subjective expectations
obviously could play no meaningful role in ascertaining what the scope
of Fourth Amendment protection was. In determining whether a "legitimate
expectation of privacy" existed in such cases, a normative inquiry would
442 U.S. at 740 n.5.
It seems appropriate and necessary at this point in time to pursue this
normative inquiry. Chief Judge Mary Schroeder, Judge Alex Kozinski, and
Judge Edith Jones have fairly made the case that routine monitoring of
judicial employees is not appropriate, and perhaps more significantly,
not consistent with Fourth Amendment norms.
I strongly urge the Judicial Conference to end the practice of
monitoring the computer terminals of employees of the federal judiciary.
Your actions on this matter will speak to the ongoing vitality of
important principles in federal law. As Justice Brandeis wrote in
Olmstead v. US, 277 U.S. 438(1928):
In a government of laws, existence of the government will be imperiled
if it fails to observe the law scrupulously. Our Government is the
potent, the omnipresent teacher. For good or for ill, it teaches the
whole people by its example.
277 U.S. at 485 (Brandeis, J., dissenting).
I appreciate your consideration of my comments and would be pleased to
provide further assistance if you wish.