Troubling Discovery

For Dorothea Perry and Robert Gross, the course of action seemed clear enough when Gross, an IT support specialist working at New York Law School, opened a folder on a faulty PC last June only to discover thumbnail images of naked young girls in sexually explicit positions. The IT colleagues reported the finding to their manager, setting off a chain of events that resulted in the arrest of the professor who used the computer and, last month, his guilty plea. An open-and-shut case, right?

Not by a long shot. Within a few weeks of reporting what they saw on the PC of professor Edward Samuels, a copyright law expert, Perry and Gross found themselves on slippery footing with their employer, Collegis Inc., an IT outsourcing company under contract to New York Law School. Both workers were put on probation for a range of issues unrelated to the child-porn finding, and in October, they were fired.

Collegis insists there's no connection between the two developments, but the broad outlines of the case still raise questions about IT's responsibility in dealing with the serious problem of child pornography on workplace computers: Do businesses have clear policies that forbid employees from storing child pornography on computers and guidelines for what system administrators should do if they encounter it? Should the law, as it does in at least one state, South Carolina, require that IT professionals report incidents of suspected child pornography? And is it really necessary for help-desk technicians to delve into personal files when troubleshooting or is that an invasion of privacy?

Perry and Gross maintain they did nothing wrong and, in January, they filed a $15 million lawsuit, charging New York Law School and Collegis with retaliation for their "discovery of and complaints about" the child pornography, which they contend was a form of sexual harassment and, as such, a violation of New York City's human-rights law. The workers "had a right to a workplace free from degrading and offensive pornography," explains their lawyer, Louis Pechman. (In addition, the complaint charges, Perry's dismissal was in retaliation for a previous job-discrimination lawsuit she filed against the law school, which was settled in 1997.)

Collegis has moved to dismiss the January suit on grounds that New York City's human-rights law doesn't apply "to the plaintiffs' claim that discovery of child pornography in a hidden file on a computer not owned by Collegis violated their rights," according to Collegis lawyer Cleat Simmons, who responded via E-mail to InformationWeek. In a separate correspondence with InformationWeek, Collegis CEO Tom Huber said Perry and Gross' actions in reporting the pornography to their supervisor were consistent with company policy, and that New York Law School and Collegis cooperated fully with law enforcement in handling the case. Perry and Gross lost their jobs, he wrote, for reasons "completely unrelated" to that.

As recounted in Perry and Gross' lawsuit, circumstances leading up to the legal face-off were just another day in the lives of New York Law School's PC support team. On Sunday, June 2, Perry began to assess problems on the PC used by Samuels, who thought his system might be infected with a virus. For two hours, Perry tried to fix it, uninstalling and reinstalling antivirus software, but the system continued to malfunction. The next day, Perry gave the PC to Gross to back up, fearing it might crash and lose valuable data. In the process, according to the suit, Gross opened a folder titled "my music," within which was another folder, named "nime," then another, "nime2." It was here, Gross said in an interview, that he encountered the illicit content. "I didn't have to click on any files when I went into the folder," says Gross. "There were thumbnail [images], so I was pretty much instantly exposed to that."

If Gross hadn't opened those folders, he wouldn't have come across the offensive images in the first place. But Perry and Gross say it wasn't unusual for them to check the content of folders when troubleshooting; a large file, for example, can be an indication that a virus is at work. Indeed, the techies say they took great care to ensure all user-created files were preserved following help-desk calls from the law school's faculty because they never knew when a professor's PC might contain, say, the chapters of a book in progress or class notes.

When Gross saw the thumbnail pictures, he consulted with Perry, who reported the incident to their supervisor, Margaret Perley, another Collegis employee on site at the school, according to the complaint. In a meeting on or about June 13, the suit continues, Perley told Perry and Gross that she had contacted New York City's district attorney's office about the incident. On June 20, the New York City police confiscated Samuels' PC. Samuels was arrested Aug. 14, and a subsequent search of his home turned up more child porn. Last month, Samuels pleaded guilty to 100 counts of "possessing a sexual performance by a child," a felony, and a few days later he resigned his tenured position at New York Law School. Sentencing is scheduled for June 23.

So how did Perry and Gross, who took action when they came across the illegal pictures, find themselves within weeks on probation, then out of work? New York Law School defers to Collegis. "We feel that Collegis, as their employer, would have made that decision based on their own policies and review of employees," says Alta Levat, the school's associate dean for public affairs. Collegis CEO Huber, in his letter to InformationWeek, writes that Collegis "would never dismiss an employee for doing the right thing." The reasons for the terminations, he adds, "will become clear as the case progresses through the legal system."

Perry and Gross had good track records as employees prior to reporting the child pornography, attorney Pechman contends, but found themselves being nitpicked afterward. "We think the timing speaks for itself," he says. The suit charges the IT workers lost their jobs because their complaints "set into motion an embarrassing and very public condemnation" of a well-known professor.

The suit includes excerpts from recent performance appraisals for Perry and Gross that suggest they were--at the time of the reviews anyway--very good employees. Still, on June 20, the same day the police executed a search warrant on Samuels' office computer, Perry was put on probation for tardiness, excessive phone usage, having visitors at her office cubicle, and dressing provocatively, the suit says. On July 16, Gross was hit with his own probation letter for tardiness, failure to respond to a help-desk call, and lack of knowledge about a Norton application used by PC administrators. Perry says she satisfied the school's first concerns, but on Sept. 13, she was slapped with an extension to the probation for other reasons. In a letter signed by a Collegis VP, according to the suit, Perry was accused of not complying with directives given by supervisor Perley; of not "fully, accurately, and proactively" communicating with Perley; and of being "combative."

In early August, Perry had taken matters into her own hands by going directly to the FBI. Perry says she took that action because it was hard to gauge how the case against Samuels was proceeding, or even if there was a case. Perley "told us the [police] detectives didn't have enough information," Perry says. (Through a Collegis spokesman, Perley expressed support for Huber's letter but otherwise declined comment.) The New York district attorney's office says the case against Samuels--approximately 10 weeks from the discovery of the images until his arrest--proceeded normally.

Gross' probation also was extended, according to the suit. In October, both employees lost their jobs.

Perry and Gross stand by their actions. "What we did was totally right," Perry says. They say they received no training from Collegis or New York Law School that would have prepared them to deal with the discovery of child porn on a workplace computer. "I've never met anyone or heard of anyone receiving any training for this situation," says Gross.

Collegis CEO Huber writes that thoughtful observers will "reserve judgment on Collegis until all the facts have been presented." Perry and Gross, meanwhile, are still unemployed. They want to keep working in IT--that is, if anyone will hire them. "It's very hard to get a job and have to bring up this whole situation every time I go for an interview," Gross says. It's possible the full story about what happened between the time Perry and Gross reported the child pornography and their dismissal will only come out in court.

-- with David M. Ewalt and Marianne Kolbasuk McGee