CIVIL SERVANTS' NET USE LITIGATED; CASE TESTS RIGHT TO SEE HIDDEN FILES.

Byline: Ben Sullivan Daily News Staff Writer

In a case with broad freedom-of-information implications, a newspaper publisher from Beverly Hills has filed suit to access the Internet records of government employees in a small Tennessee town.

If the lawsuit is successful, legal authorities say it could give citizens the right to find out what Web sites government employees visit on taxpayer time.

Geoffrey Davidian, publisher of the Cookeville, Tenn.-based Putnam Pit, said he wants to find out whether city employees are wasting time and taxpayer money by trawling on the job for pornography, white-supremacy propaganda or virtually anything else not related to their work.

The suit, filed in U.S. District Court for the Middle District of Tennessee, Northeast Division, seeks access to the ``cookie'' files, Web browser history files and computer cache files for the city's 35 computers. Together they would show what World Wide Web sites the computers had accessed recently.

``The U.S. Supreme Court has found on many occasions that the right to gather information is part of freedom of speech and freedom of the press, that gathering, printing and dissemination are all in it together,'' Davidian said Wednesday. ``If you stop any one of those, you impede the constitutionally-protected First Amendment right.''

Davidian likens the computer files he is seeking to government telephone records, which reporters regularly request for articles on government activities.

Cookeville officials, however, say the files are akin to personal notes kept by employees and are therefore not public record.

``You're a public employee and you scribble notes on a yellow pad. Are those public records? I don't think so,'' said Cookeville City Attorney Michael O'Mara. ``They don't rise to the dignity of a public record.''

Several legal specialists said they know of no previous case involving such computer files, thus positioning Davidian's pursuit as a precedent-setter.

Because the cyberspace files are categorically unique, it is unclear how a court would rule, said K.C. Sheehan, a professor at Southwestern University School of Law in Los Angeles.

``The thing that strikes me is it's neither like personal notes nor like phone notes,'' Sheehan said. While telephone records show where a user may have called, they do not reveal what was discussed.

``If you get someone's cookie file, it's fairly simple to figure out what they saw,'' she said. ``It's a good deal more intrusive than getting a list of telephone numbers.''

Richard Gruner, a professor at the Whittier School of Law who also teaches aspects of Internet law at USC, said the Cookeville case bears some resemblance to an attempt by the Bush administration to bar investigators from accessing backup tapes of internal White House e-mail.

``Ollie North dealt with many sensitive issues regarding Iran-Contra with e-mail. He physically destroyed the hard copies of e-mail, but investigators found backup tapes and were able to construct'' much of what was said, according to Gruner. Though the case continues to bounce around appellate courts, ``the latest ruling was they were public records,'' Gruner said.

Davidian's suit is only his latest squabble with Cookeville authorities. The 53-year-old journalist moved to Cookeville after visiting the town of 25,000 in 1995 to investigate an alleged arson attack in which a woman was killed.

After encountering what he described as repeated indications of corruption, Davidian decided to stay and start a newspaper in the town. He now splits his time between Beverly Hills, where he cares for his father, and Cookeville.

``If you're a doctor, see a car accident and discover six injured people, you're their doctor. Forget dinner, forget the ball,'' he said. ``This is my car wreck and I'm going to take care of it.''

Davidian's newspaper, published in print and on the Internet, has an irreverent, biting tone.

City Manager Jim Shipley said Davidian is on a crusade to depict the town as a hotbed of corruption when, in fact, ``I think we've got a neat town.''

Shipley described the lawsuit as frivolous and said the files Davidian seeks do not exist. The city's computers essentially wipe the slate clean each day, he said. He added that only once in the past year has a city employee been caught accessing improper sites on city time. In that instance the sites were pornographic, and the employee was reprimanded, Shipley said.

``We have ways we will know'' whether employees are goofing off, Shipley said, denying any need for outside inspection.

Davidian contends that the files he seeks exist - or did - but says the city might have destroyed them. In addition to the files, Davidian is seeking unspecified damages.

``I want them to understand they can't destroy files,'' Davidian said. ``I intend to create an atmosphere in which corruption can't occur.''

WHAT`S A COOKIE?

Surfing the Internet can leave hidden files in your computer called ``cookies.'' Cookies contain information, such as whether you've visited a particular Web site and, if so, how frequently, or more detailed data including anything you supplied while filling out an online form.

Web site managers use cookies to tailor their marketing. They can flash advertising that corresponds to your interests as indicated by your cookies.

Together, the cookies on your computer leave sort of an electronic equivalent of a paper trail.

Users can instruct their Internet browsers not to accept cookies. Users can delete those already implanted. They can generally be found on a PC in a file called cookies.txt or on a Mac in a file called MagicCookie.

CAPTION(S):

Box

BOX: WHAT`S A COOKIE? (see text)