big brother should be watching

Nick blogged about this last week, and someone in the comments pasted a link to the original court documents. Here’s the situation:

Some perv gets busted for transmitting child pornography over his company’s network. Aforementioned company is brought up on charges that they be held liable. They contend that the employer had evidence that the employee was engaging in “inappropriate” activity and therefore should have been investigated further. As evidence, they present:

  • Evidence that “Employee was visiting inappropriate websites.” (They don’t say what “inappropriate” here means, so I am assuming they’re referring either to a company policy or just an arbitrary slice of morality pie.) Either way, not an illegal activity.
  • Evidence that “he was visiting pornographic sites on his office computer, including “bestiality” and “necrophilia” sites.” Also not illegal activity.
  • Evidence that “Employee was acting strangely by shielding his computer screen and quickly minimizing it so that others could not see what he was doing.” Not illegal.
  • “That while walking past Employee’s cubicle she had seen a picture of a woman in a bikini with “very large breasts” in a “sultry pose” on Employee’s computer screen.” Not illegal.
  • “That Employee had visited “various porn sites” and printed out what was displayed on the screen. The printout identified obvious porn sites (“Big Fat Monkey Blowjobs,” “Yahoo Groups - Panties R Us Messages” and “Sleazy Dream Main Page”) as well as one that specifically spoke about children: “ The Original Non Nude Teen Index.” Not illegal.

Based on this, the prosecution holds that the company had some obligation to investigate further. Note that all of this activity is in fact perfectly legal. There is no obligation for a company to restrict this activity at all, much less see it as cause to “investigate” for illegal activity. Check out the language in the section about what they believe the company should have done:

Defendant possessed and could have implemented software that would have permitted it to monitor employees’ activities on the Internet. Specifically, defendant’s Director of Network Services testified that defendant tried Web Trends, the most common such software, which would allow it to monitor where anybody goes on the Internet, and for how long they visit a particular site. Moreover, Griesler, then defendant’s Network Administrator, described how readily defendant could have discovered the child pornography sites Employee visited everyday on his work computer.

I can’t find any information about whether or not they won this appeal. Further down, after they argue for the right of a company to monitor its employees (which I am assuming has quite a big of legal precedent already) in the section titled “C. INFORMATION KNOWN OR ATTRIBUTABLE TO DEFENDANT CONCERNING EMPLOYEE’S PORNOGRAPHY ACTIVITIES.”, they explain:

Assessing those facts and the reasonable inferences to be drawn from them, as we must in the summary judgment context, we conclude that defendant, through its supervisory/management personnel, was on notice that Employee was viewing pornography on his computer and, indeed, that this included child pornography. Knowledge includes “implied” knowledge, which “means knowledge based on other known facts that would inform a reasonably prudent person of the ultimate fact.”

In other words, suspicion (“implied” knowledge) qualifies as knowledge, which therefore implies liability. What a load of crap. Nevermind that there was no evidence of child pornography (at least in the facts presented in this document) – are court proceedings often this disingenuous, or are they really so naive as to believe “teen” is indicative of child porn?

Are we really to expect companies to investigate every corner of their employees’ actions based on perfectly legal behaviour? I’m no legal expert, but you don’t have to be to see that this is pretty messed up. How can this lead anywhere but to a creepy extension of the police state?

Oh well. I for one welcome our new corporate overlords.