Judge denies publisher’s request to view cookie files: But pending appeal could still allow free access to public employees’ online behavior

In the first round of a case that could have legal ramifications for school employees, a federal judge has denied an internet publisher the right to feast his eyes on so-called “cookies,” computer files showing which web sites users have been browsing.

U.S. District Judge Thomas Higgins dismissed the publisher’s lawsuit Sept. 24 but left a legal question up to the state: Are cookies public records?

Geoffrey Davidian, publisher of an on-line newsletter called “The Putnam Pit,” wanted to see the files to determine whether city employees in Cookeville, Tenn., were visiting pornographic and other non-work related sites on taxpayers’ time. He said the city violated First Amendment rights by denying him access.

Higgins ruled that Davidian’s claim was a stretch, but left it up to the state to decide whether the cookies are public information when they are stored on government computers.

Davidian has appealed. First Amendment experts are watching the case, hoping the courts will set clearer boundaries for what computer information is open to the public.

If the appeal is successful, it could open the door for reporters or other stakeholders to access the computer records of school employees’ surfing habits.

Cookies are nuggets of information that a web site can be programmed to plant in the hard drives of computers. Depending on the computer, the files can be stored for long periods of time, leaving a trail showing where the user has visited.

Evan Hendricks, editor and publisher of the Washington, D.C., newsletter “Privacy Times,” said the Freedom of Information Act guaranteeing public access to certain government records should cover cookies. But, he said, it might take a number of court cases to establish that.

Davidian’s case stemmed from a feud with Cookeville officials that led him to start publishing the Pit, which focuses on government and politics in Cookeville, about 80 miles east of Nashville.

City attorney John Duffy argued that because the files are created by outside software, they are not city property, even though they are stored in city computers.

Sam Harris, Davidian’s lawyer, likened the cookies to long distance phone records, which are considered public under Tennessee’s Public Records Act.

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