Court upholds agency reviews of employees' Internet use

klunney@govexec.com

A federal appeals court has upheld a CIA policy allowing agency officials to monitor employees' Internet use. The policy had helped convict a federal employee of downloading child pornography on government time.

The CIA's Foreign Broadcast Information Service implemented a policy in June 1998 authorizing "electronic audits" of employee computers in order to crack down on non-business related Internet use. Those audits included reviewing employees' e-mail messages and collecting information on their Web site visits.

Later that summer, Science Applications International Corp. (SAIC), which had a contract to manage FBIS' computer network and monitor inappropriate Internet behavior, alerted the agency when the keyword "sex" turned up numerous hits in a firewall database during a routine test. The hits originated from the computer of Mark L. Simons, an electronic engineer at FBIS.

FBIS officials then searched Simons' computer and office on four occasions, eventually compiling enough evidence to indict him on two counts of knowingly receiving and possessing child pornography downloaded from the Internet and stored on his government hard drive.

Simons claimed that his Fourth Amendment rights had been violated during the searches. But a district court upheld the searches. Simons was found guilty and was sentenced to 18 months in jail.

The U.S. Court of Appeals for the Fourth Circuit affirmed that decision in late February, saying that Simons failed to prove that he had a "legitimate expectation of privacy in the place searched or the item seized."

According to the appeals court, "In the final analysis, this case involves an employee's supervisor entering the employee's government office and retrieving a piece of government equipment in which the employee had absolutely no expectation of privacy [due to the agency's Internet policy]-equipment that the employer knew contained evidence of crimes committed by the employee in the employee's office ... Here, there was a conjunction of the conduct that violated the employer's policy and the conduct that violated the criminal law."

The court's decision in USA v. Simons (99-4238) is online at www.law.emory.edu/4circuit/feb2000/994238.p.html.

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