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Copyright (c) 2002 University of Denver (Colorado Seminary)
Denver University Law Review



79 Denv. U.L. Rev. 513


by Philip L. Gordon, Esq.



In May, 2001, when federal judges on the United States Court of Appeals for the Ninth Circuit learned that, in at least one important respect, they were no different from millions of clock-punchers worldwide, they were outraged. 1 What was the startling revelation for these usually imperturbable appellate court judges? Mere bureaucrats in the Administrative Office of the United States Courts, a little known group of civil servants who administer the federal court system, were monitoring the federal judiciary's e-mail and Internet traffic, including the traffic of these Article III judges. 2 The perceived intrusion upon the seclusion of judicial chambers so incensed Judge Alex Kozinski that he took the highly unusual step of publicly denouncing the chief of the administrative agency in the Wall Street Journal and discussed his views on a nationally televised talk show. 3

Ironically, in the years preceding this millennial epiphany, judges, practically all of whom came of age with the rotary dial telephone, had put in place a regime which has made it extremely difficult for workers to recover damages based upon their employers' review of e-mail and Internet communications. This situation has resulted from a judicial construction of the Federal Wiretap Act, 4 which effectively eliminates any statutory privacy protection for workplace e-mail and Internet use. With e-mail and Internet use steadily transforming the United States Postal Service into a quaint relic, the time is ripe for judges, and Congress as well, to re-think the law governing the privacy of ...
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