 You're watching FJTN, the Federal Judicial Television Network. Coming up on Court to Court. The thing that has been most satisfying in me in sharing this information with other districts is to watch the evolution, to watch our system grow and how we address this type of defendant. It's not going to get stale. Technology keeps changing. Things keep evolving. The concern is that employees might involve themselves in primaries in a way that communicates the public endorsement that they shouldn't be giving to a partisan candidate. This is Court to Court. Your connection to what's happening in the federal courts around the country, providing information and ideas that will enhance your job and how the courts function. Now with today's program, Michael Burney. Welcome to Court to Court, the Federal Judicial Center's educational magazine program for all court employees. Today we'll learn one way that probation and pretrial services officers help each other by sharing information. We get the explanation of two Latin legal phrases, and we'll hear some of the guidelines for judiciary employees about political activities. Crimes involving the use of computers are a growing caseload in federal courts. Often called cyber crimes, they come in many varieties. Hacking into a computer system to disrupt service or to steal money or information, identity theft is in this category. High quality printers now available increasingly make counterfeiting a computer crime, also credit card fraud. Cyber crime can be possession and distribution of child pornography, and also what are called traveler cases, a pedophile making contact with the child in a chat room or by email, and then actually arranging to meet the child. As probation and pretrial services officers carry out their responsibilities with cyber crime defendants and offenders. They must keep up with very sophisticated and rapidly changing technology. In the spirit of probation and pretrial services recently adopted Charter of Excellence, officers are helping each other by sharing information and techniques. We visited both the pretrial services and a probation office and also talked with several officers in our studio. You open a computer up and you have 10,000 or 20,000 files or more depending on how much information that is stored on there, and if you're doing a thorough investigation you're going to need to look through a good portion of those files. The defendants and offenders are good at hiding things from us. Well we're looking for new and improved ways actually to supervise computer criminals or cyber criminals if you will because they're more sophisticated than our traditional offender. Much of that sophistication comes from ever increasing advances in technology, whether for post-sentence supervision or pretrial release. Probation and pretrial services officers working on cyber crime cases must expand their knowledge by knowing what computer technology a defendant or offender has access to, how he can use it and whether she is using it in ways not allowed by the court. One group that has taken the lead in learning about cyber crime issues and sharing that information is the Office of Pretrial Services for the District of Arizona. We have no choice but to deal with this and the thing that excites me is that this is a proactive thing that we're doing, creating a computer monitoring program. Court-ordered monitoring of a defendant's computer and internet use can be a condition of pretrial release. This monitoring adds to an officer's responsibilities a level of technology not needed before. The software that we want to use with this defendant is a software that will take a snapshot of the computer screen so whatever he is seeing will be able to see it as well. The software itself takes that snapshot and stores it into a file and once it's in that file it's emailed to us here in the courthouse. Ruben, what if the defendant or anyone else attempts to tamper with the software? It'll send email on a regular schedule to us and we can set up, we have the flexibility to set up that schedule. In order to enhance the skills and knowledge of all the staff we have encouraged officers to share their experiences with their peers. The techniques that we've used to share information are pretty basic networking techniques. We just wait for the calls to come in and then we try to help them as much as we can. We've also participated in some multi-district training seminars which were beneficial for officers because it was a networking opportunity to discuss cybercrime issues. We always learn something out of those interactions and it helps us also to refine our policies and procedures and keep up with national trends or abreast of new issues and problems that are occurring in other districts. The thing that has been most satisfying to me in sharing this information with other districts is to watch the evolution, to watch our system grow and how we address this type of defendant and these type of issues that this defendant brings to our system. Hi Ruben, do you have a minute? Hey Eden. I have a question about this case. Yeah. This defendant was released with a computer search condition. How often do you think we should go out to his home? When we network with other districts, when they call and try and get our insight, that just reaffirms the efforts that we've gone to to formulate this program. We're only making this our own core family stronger and being able to address this issue. The last component which is probably the most important is also presenting the information and all of the resources that we have available to the judges so they can comfortably order the various conditions of release as alternatives to detention that we are recommending. Probation officers' responsibilities mirror those of their pretrial services colleagues. In the district court for the Northern District of Ohio in Cleveland, Chief Judge Paul Mattiah says courts now are seeing increasing numbers of cyber crime offenders coming out of prison as they finish their sentences but who are still in supervision. It's extremely important for the probation officers in order to supervise these people to understand how they use these instruments to facilitate their offenses and to stay one step ahead. It helps the court in the sense that our job is to supervise these people to make sure that they do not commit other offenses that the public has protected and hopefully in the long run to aid in their rehabilitation. Hi, Mr. Hahn? Yes. My name is Aaron Bochran with the U.S. Probation Office. You're doing salt monitoring software on your computer. Yes, Mr. Riffle told me you would be coming. Traditionally, probation officers coming into the field have background and interest in working with people and with the rise of computer crimes there is an need for some additional technical knowledge. Mike here is going to go over some forms with you and then I'm going to work on your computer. Okay. Okay. I do have some questions about those forms. You go out to an offender's home and you know, you need a kind of a format. You can't just go out and say, well, I'm going to willy-nilly look at this. It's not something you can do freehand. Well, you could if you were an Einstein, I suppose, but. To help himself and the other non-einsteins in the system, Bocher created a cybercrime manual that guides officers in dealing with offenders and defendants. It gives me a map and also gives other officers a guide to work with and it contains conditions to recommend for the court. I know there's a banner that will show up on my computer. Is that right? That will tell my family that it's being monitored? Yes, it is. It's a banner, the probation office banner. Okay. It's looking at the screen. It's going to be there. Okay. So anybody who comes on that computer will know it's being monitored. Right. Then they have no expectation of privacy. If monitoring software is installed, the officer marks the computer so all who use it know it's being monitored. The software also includes an on-screen notice. If a suspicious website is logged on to from this computer, the monitoring software sends an email to the probation office. The system is automatic and takes less of an officer's time than an actual examination of the hard drive. Officers examine computer hard drives using forensic techniques to maintain the integrity of the electronic evidence. Sometimes this can be accomplished on-site, but other times it requires taking either the computer or an exact duplicate of the hard drive to the office to screen it. Using a separate, secure machine highlights the need for close collaboration with automation staff. We try to be pretty strict about not allowing folks to install any software or hardware on their equipment. We've had to be more flexible with art. We've needed to be a little more flexible giving him freedom to explore software. Allowing an officer the leeway to find commercially available monitoring software is one example of the automation staff's flexibility. Collaboration between specialties is clearly defined. Automation staff are not hazardous duty employees. We would not send automation staff out into the field with the probation officer. Officers with cybercrime cases need an increased set of computer skills and the learning curve is steep. Pete says that from the start their plan was that Boker would continue working as a pre-sentence writer. But that a certain amount of his time would also be used for training of our staff and sharing and training other districts as needed. You're going to use the monitoring software to decide whether you need to go do a search of this computer. Other officers acknowledge the benefit of taking advice on setting up cybercrime policies. It helps us to sell it to our management because we can say well that district has done it and it works for them. So there's a lot of benefits involved in sharing ideas with other districts. We use a listserv which is basically an electronic bulletin board to post ideas and solutions to problems and post questions. A listserv is maintained by one particular office but available to all who sign up to participate. I post a message, it goes out to all the people that are on the listserv. They see what I posted, Johnny sends his response to my message and everybody on the listserv sees his response and before long you have all these messages going back and forth. Boker put his court's cybercrime supervision manual on a CD in order to pass it out at a training exercise. He realized there was a lot of space left on the CD so he added more information. He still makes it available to any probation or pretrial services office that wants it. The sharing of knowledge on the part of the probation officers who have taken the lead on this is very beneficial not only to us but to other courts around the country. It's difficult for all of the probation officers to stay up to date on these things. That will hold the equivalent of sixty-four, sixty-one and a half floppies which would hold a lot of images, pornographic images. Those probation officers that have an interest in this, they want to share because they really believe that what they have is of value. But I think part of the passion is also with a concern for the potential victims out there. It's not going to get stale, technology keeps changing, things keep evolving. It's kind of exhilarating and frightening at times too. Still ahead on court to court, we'll learn two Latin phrases that are used regularly if not every day and with the election year underway, we'll hear what political activities are off limits for judiciary employees. Many people may consider Latin a dead language but it's still alive and well in courthouses and legal documents. Despite efforts to substitute English for Latin words and phrases, some of those words and phrases are likely to be with us for some time. Here with two examples is my colleague Bob Fagan. In law, an act by or from only one party in a dispute is described by the Latin phrase exparte, which literally means from the part. Such acts usually are done without notice to or argument from the adverse party. Adverse of course means opposing. The kinds of acts we're talking about are often communication with the judge which could be face to face conversation, telephone call, email, or a written letter. Any such communication between council or a party and the court without opposing council or party being present or given a copy of the same document is generally prohibited. One of the hallmarks of U.S. jurisprudence is that all parties be aware of all communications with the judge in a matter. But exparte actions also can be motions, hearings, or orders. In some cases, these types of exparte actions are permitted. Motions may be submitted to the court without notice to the other party. Two recent very high profile cases included exparte motions permitted by the federal rules of criminal procedure. When posted on their websites, many districts' local rules refer to exparte communications. One particular action that involves exparte filing is our other Latin phrase today, qui tam. This is shortened from the phrase qui tam pro domino reggae, quam pro sei ipso, in hark parte secuator. Did you get all that? Literally it means who is well for the king as for himself sues in this matter. In a qui tam action, a private person sues for a penalty, part of which the government or some specified public institution will receive. In federal court, qui tam actions are filed under the False Claims Act. It was enacted in 1863 at the urging of President Abraham Lincoln as a way to fight procurement fraud during the Civil War. The qui tam provision was designed to entice whistleblowers to come forward and file suit by offering them a share of any money recovered. But the law was little used because it contained many obstacles for the plaintiffs. It's been amended twice, most recently in 1986, to make it easier for someone to bring suit. The plaintiff in a qui tam action is also called the relator. The relator files a complaint under seal in the name of the United States government. The complaint is reviewed by the U.S. Department of Justice to determine whether it believes the case has merit and whether to intervene. If the Justice Department intervenes, the complaint is unsealed and served on the defendant. The Justice Department prosecutes the case, but the relator remains a party and can receive up to one fourth of any amount recovered. If the Justice Department does not intervene, the relator has the right to conduct the action on his or her own. For individuals, that can be a difficult task. In some cases, the relator is a state or local government, a public interest organization, or even a law firm that has uncovered misconduct in the course of discovery in the civil case. The number of qui tam cases and the amounts recovered have grown dramatically since the 1986 amendments to the law. In 2000, there were 366 such cases and the government recovered $1.2 billion. Relators in the defense and health care industries often reap the largest awards for their efforts. In the mid-1990s, when the defense subcontractor settled a case for knowingly shipping defective aircraft parts, the machinist who filed the case received more than $19 million. Okay, that's enough Latin for today. I'm out of here, but I'll be back in the future, court to court, with more words to know. 2004 is an election year, which reminds us that there are restrictions on judiciary employees' participation in political activities. During the 2000 presidential election, my colleague Judy Roberts spoke with Maryland Holmes, Associate General Counsel of the Administrative Office, on this topic. We thought it appropriate to bring you that conversation again. Marilyn, thank you for joining us here today. Glad to be here. What does the Code of Conduct have to say for judicial employees? Well, the Code of Conduct sets out pretty firm guidelines for the kinds of political activities that employees can and can't engage in. And there are really two key issues that it addresses. First of all, of course, is what is the form of activity that the employee wants to engage in? And secondly, who is the employee? Because there are different standards for differing employees. In terms of the activities, the most essential question is whether the employee wants to engage in partisan or nonpartisan activities. Unfortunately, the Code doesn't define what the difference is between those, but most likely you would look to the definition that's used in the Hatch Act, which is that a partisan activity or a partisan election is one in which someone who's running for office is somehow affiliated with a political party. And that would, of course, extend to the presidential election that we're right in the midst of. But it would probably not cover a lot of local elections like school board and sometimes town council elections, which often are nonpartisan because no one in the election is permitted to be affiliated with a particular political party. Marilyn, is there anything new for 2000? Well, 2000, of course, is a presidential election year, and that brings with it primaries and intensive campaigning and so forth. And one issue that has come up frequently because of that is what employees can do in terms of participating in primaries. The concern about primaries brings, highlights an issue relating to public endorsements. The concern is that employees might involve themselves in primaries in a way that communicates a public endorsement that they shouldn't be giving to a partisan candidate. But our advice is be wary of any participation in a primary or any other kind of activity that conveys a public endorsement. What can court employees do or not do in partisan activities? Probably in the area of partisan activities, the list is a lot longer of what they can't do. The prime concerns are, they're spelled out in the cannons, in the code of conduct, and they include things like actively campaigning for someone, publicly endorsing a candidate or a party, running for office. Employees should not be running for part of some political office if they're also serving in the federal judiciary. Another big area is money. Anything having to do with money in political campaigns can be problematic, and that means that not only should employees not be soliciting funds, if they have a neighbor or friend who's running for office, they shouldn't be engaging in campaign solicitations, but they also shouldn't be contributing, and that sometimes is a surprise to employees. They're not aware of that limitation, and the limitation extends not only to a candidate but to a political party as well. What about the limitations for nonpartisan activities? Well, nonpartisan activities are more broadly permitted. Employees can engage, well, let me make one little exception to that, and that is there are certain employee groups, as I mentioned earlier, who are treated differently. And in the area of nonpartisan political activities, employees who are in either court unit executives or are members of a judge's personal staff, chamber staff, those employees should not be engaging in either nonpartisan or partisan political activities. But other employees generally are permitted to engage in nonpartisan political activities, and it's not completely unrestricted, but it does permit them to do the kinds of things they couldn't do in the partisan sector. They can run for office, they can manage someone's campaign, they can endorse or give speeches for candidates in a nonpartisan sector. The restrictions, the prime restrictions, are really on things that relate to their government duties, and so, for example, they of course shouldn't be politicking or campaigning in the office, in the workplace, and they certainly should not be using any federal resources to assist in the effort. What happens if your spouse is running for political office or a family member? What are the guidelines in this case? That's a tough question. It undoubtedly comes up all the time. It certainly comes up for judges as well. The basic guideline, I would suggest, is that the Code of Conduct doesn't report to tell spouses what to do, but it does tell judicial employees what to do, and the key for the judicial employee who is in that situation is to disassociate himself or herself as much as possible from the spouse's activities. Now, that doesn't mean that they can't appear in a campaign photo, for example, if there's a family photo, but if they're in that photo, they probably shouldn't be listing themselves as law clerk to judge so-and-so or clerk of court or whatever, so those kinds of restrictions are key. The employee, of course, has the same restrictions that apply in any circumstance, and so if the spouse is running for a partisan office, the employee is going to be much more restricted in the kinds of assistance that can be provided. What about guidelines for specific groups of judicial employees? You had alluded earlier that Janger's staff have some limitations. What about clerks of court or other court unit executives? Court unit executives are treated as chambers and personal staff are, and that is they are prohibited both from partisan and from nonpartisan activities. What that means in practice is where maybe a deputy clerk could run for the local school board, the clerk of court probably should not, in fact, pretty clearly should not be running, even if it's a nonpartisan office in the school board. There's one other special group I want to mention, and that is federal public defender employees. The advice I've been describing so far relates primarily to employees throughout the court system other than federal public defender employees because federal public defender employees have their own code of conduct, and that code is actually the most permissive in the federal judiciary. It does permit some involvement in partisan political activities as well as nonpartisan, so if there are any federal public defender employees listening, they should be aware that they need to check out separately what their obligations are. What are the questions that you are asked the most often? Well, I'd say there are probably a couple. One very frequent question is why is it that my colleague who works for the executive branch gets to engage in all of these political activities and you're telling me that I can't? And the short answer to that is that the Hatch Act, which applies to the executive branch and was liberalized four or five years ago, permits executive branch employees to do more than judicial branch employees are permitted to do. The reason being the Hatch Act doesn't apply to the judiciary, it never has applied to the judiciary. We generally follow the earlier version of the Hatch Act, which was more restrictive and the judiciary has decided to maintain those restrictions to keep its employees away from the difficulties and the problems that can be presented by political activities. Another question I get fairly frequently is the employees understand that they can't make political contributions, but when it's a good friend who's running or maybe a spouse or sibling who's running or maybe the campaign or the election is somewhere all the way across the country, they want to know why they can't do that. And the answer is the rule doesn't differ, it doesn't matter if it's a family member, it doesn't matter how far away it is from your courthouse. The rule is the same, you should not be involving yourself in political activities. Is there any last piece of advice you'd like to give to court employees out there watching court to court today? A rule of thumb I like to offer is when in doubt, check it out. There are numerous ways in which employees can be guided, can read about the permissible and impermissible political activities that they may be considering. Probably the most important are the codes of conduct I mentioned earlier, the Code of Conduct for Judicial Employees, Canon 5 covers all the political activities, issues we've been discussing and of course there's a separate Code of Conduct for federal public defenders. There's also a published advisory opinion that contains more detailed advice that I think is quite useful. And where would we find these Maryland? The materials are all published in the Guide to Judiciary Policies and Procedures, which most courts have available in their libraries. In addition, it's available on the JNET and it's also available to the extent people have access to it. It's on Westlaw in a database called Conduct. Okay. Well, Marilyn, I think you've given court staff some very good advice and guidance today and we thank you for joining us. Thank you. The Guide to Judicial Policies and Procedures is under the library heading on the JNET home page. Click on Guide, then on Volume 2 to find the appropriate Canon. We want your comments about this program and your ideas for future topics, but this time we're going to try something different for your input. Rather than filling out an evaluation form, please just email your thoughts, comments and suggestions to me at mburnyatfjc.gov. That's M-B-E-R-N-E-Y at F-J-C dot gov. Our next court to court program will feature innovative uses of workplace technology and how to make it successful and a moment in court history returns with the story of two legal pioneers, both women. We hope you'll join us. I'm Michael Burney. On behalf of everyone at the Federal Judicial Center, thank you for watching today.