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Judges protest workplace surveillance

Privacy experts are cheering a revolt by some federal judges against workplace monitoring, but it may take more than just a protest to see tangible results anytime soon.

Privacy experts are cheering a revolt by some federal judges against workplace monitoring.

But they say it will take more than just a protest to ensure that employers aren't snooping on workers' electronic habits.

A few months ago, a group of federal workers--including some judges from the 9th Circuit Court of Appeals--asked their staff to disable electronic monitoring software for a week, saying it was unnecessarily invasive. As a result, a panel of influential judges will take a closer look at the issue at the U.S. Judicial Conference meeting next month. The group has the power to decide whether such electronic surveillance should take place among its workers, a spokeswoman for the 9th Circuit said.

David Sobel, general counsel for the Electronic Privacy Information Center, cautioned against reading too much into the actions of the 9th Circuit judges, saying their protest might not translate into tangible results anytime soon. Still, he said, it was good news that some judges are taking a personal interest in electronic surveillance.

"I'm not sure that it will have any binding legal effect, but it does indicate a change in attitude with regard to monitoring issues," Sobel said.

Until now, most cases involving employee surveillance have been decided in favor of the employer. The reasoning in such cases primarily has been that the employer owns the equipment the employee is working on and therefore has a right to track its use.

In fact, employers don't even have to tell employees that they're being watched. A bill introduced in Congress last year would have required employers to at least notify workers they're being watched, but, like most privacy-friendly legislation, it never made any headway. California Governor Gray Davis recently vetoed a similar bill.

Sobel said his group is hoping for a new federal bill addressing the matter. "We would really like to see legislation that goes beyond requiring notice and establishes employee rights," Sobel said. Specifically, EPIC is hoping for legislation that would develop standards for computer monitoring and outline when there are prohibitions on it.

Ari Schwartz, senior policy analyst at the Center for Democracy and Technology, said the judges' actions draw attention to the need for employers, at the very least, to inform workers of their monitoring policies.

"It's a message we've been trying to get out there," Schwartz said. "It will raise the issue in the minds of lawmakers, show them how much the workplace is exempt from privacy rules."

Electronic surveillance in the workplace is an issue that touches millions of people. According to a study released last month by The Privacy Foundation, one out of every three employers monitors its workers' electronic actions. Companies that watch their employees include 20th Century Fox, Nike and American Express, the study said.

Some employees have been fired after their employers discovered personal files on work computers, including resumes, diaries, and most recently, songs. Last month, a secretary at Northwestern University said she was fired for allegedly storing 2,000 MP3 files on her computer.