BLOG POST UPDATE (as of Feb. 2019): The Faculty Senate Technology Committee along with the Chief Information Officer formed an advisory group of stakeholders, including faculty members, to examine and further revise the Policy 901. That working group, which will be meeting some time in spring 2019, includes the following faculty members:
Randy Reed (Senate Campus Tech Committee, Philosophy and Religion)
Regina Hartley ( Senate Campus Tech Committee, Computer Information Systems)
Martha McCaughey (Senate, At-Large, Sociology)
Becki Turpin (Senate, Nursing)
Agnes Gambill (Library)
Hey, professor, mind if I sample your urine? You’re working at a state university, and you just peed into a state-provided urinal on university property, after all. No? Well, how about your car? You wouldn’t mind if your boss searched it, or if the university attorneys told the university police it was ok for them to search it, would you? After all, you parked it on state property and they might “need” something in it. What about if the university administration or police took the notes you had made for a research project—those ones you wrote on a university-provided notepad and put in your state-owned desk drawer? How about the document you put into your privately owned backpack or purse—if that document were work-related, would it be OK to go into and search your bag?
What if the information technology team installed remote-access technology into your university-issued laptop and turned the monitoring technology on? How about remotely accessing the camera in your computer to watch what you’re doing?
If you don’t like the idea of these actions, then you have some expectation of privacy, even at work. Good–you should! The Fourth Amendment of the Constitution actually suggests that this is an important right.
No faculty members should waive their right to privacy, which is fundamental to our academic freedom and the ability to do our work to benefit the public good. And yet, if you don’t speak up, a drafted policy at Appalachian State (Policy 901) is going to do just that—ask you (and students, and staff, and visitors) to waive your expectation of privacy just for using the university’s information infrastructure. But there is still time to voice your concerns. Policy 901 is being debated through February, and faculty should contact their Faculty Senate representative or the Faculty Senate Technology Committee with feedback. You can see the proposed new policy here – starting on 4th page of January Faculty Senate meeting agenda: https://facsen.appstate.edu/sites/facsen.appstate.edu/files/January%2014%2C%202019%20Agenda.pdf. This is not our current Policy 901; this is a proposed revision. We must challenge the Orwellian components of the proposed new Policy 901.
Asking faculty to waive their privacy rights in their electronic files and communications is neither wise nor necessary. Although the Department of Justice considers adding a “no expectation of privacy” statement in technology use policies to be a “law-enforcement friendly” policy (making it easier for police to search your files without a search warrant), such policies are hardly academic-freedom friendly.
Think this is all an over-reaction, that nobody is really interested in what scholars are working on? Think again.
The well-known professor William Cronon at University of Wisconsin was the victim of political interference. The Republican Party wanted his emails, including personal ones he’d sent over his university’s computer and networks per their policy that allows for incidental personal uses of the computer system. Fortunately for Cronon, the U of WI Chancellor Biddy Martin released a statement saying that the university had analyzed the public-records request, as it does with all records requests, by applying “the kind of balancing test that the law allows, taking such things as the rights to privacy and free expression into account.” The Chancellor explained that the university intended to protect a “zone of privacy” for scholars and scientists so they can pursue knowledge without fear of reprisal. “When faculty members use e-mail or any other medium to develop and share their thoughts with one another, they must be able to assume a right to privacy of those exchanges, barring violation of state law or university policy,” Chancellor Martin said. “Having every exchange of ideas subject to public exposure puts academic freedom in peril and threatens the processes by which knowledge is created.” (See https://www.chronicle.com/article/Wisconsin-Madison-to-Release/126994 )
Prof. Steve Wing of UNC Chapel Hill was harassed by hog farm industry giants. The North Carolina Pork Council got wind of Wing’s research on the health impacts hog farms had on people living near them, and started demanding his notes. Fearing for the safety of his research participants, wanting to comply with the confidentiality protections he’d promised them through his University’s IRB protocols, and wanting to protect the integrity of his academic research, Wing refused to comply. It was a nightmare for the professor, and illustrates why such academic records—whether in electronic form or not–must not be matters of public record. If they are deemed public simply because stored on a state-issued device or transmitted over a university network, then a professor like Steve Wing could have been fired or even arrested for not turning over or stealing “state property.” Chapel Hill’s IRB took Wing’s side, saying he was ethically correct. (For a story about Steve Wing see https://www.northcarolinahealthnews.org/2015/01/20/the-peoples-professor/ .)
The American Tradition Institute tried to gain access to the electronic communications of University of Virginia climate scientists. As reported by the Union of Concerned Scientists, the Virginia Supreme Court ruled in favor of the privacy of the professor’s research records and communications because making those matters of public record would curtail scientific research. Scientists who have to fear that every email they write would be subject to public disclosure would be hesitant to criticize a colleague’s research, or might leave the university for another university that afforded more privacy.
We would not be able to serve our profession, our students, and ultimately the public if special interests could succeed in preventing us from seeking and sharing the truth.
Given these issues, Appalachian State’s proposed changes to our Acceptable Use of Computing and Electronic Resources Policy (Policy 901) should be revised so as not to assert a broad claim of ownership or access to electronic files or communications. The policy should be revised so that it does not require us to waive our privacy rights. In its current form, the proposed policy asks employees to waive their privacy in their electronic files and communications, because it would force us to click “agree” to a “no expectation of privacy” statement. (Again, see the proposed new policy here – starting on 4th page of January Faculty Senate meeting agenda: https://facsen.appstate.edu/sites/facsen.appstate.edu/files/January%2014%2C%202019%20Agenda.pdf .)
The new policy should state what the state/University does not own and will not search, and articulate what it would or might need to search–for instance, to maintain network security, or when the police present a search warrant, or when the information is subject to a bona fide Public Records Act request.
But, some might say, we’re public employees, so we can’t have any privacy at work. This is flat out wrong. Public (government) employees actually have greater protections of privacy provided by the U.S. Constitution.
Yes, public employees must also be accountable to taxpayers, and that’s why we have the Public Records Act. But not all information is subject to such requests because not everything on our computers is a public record. You might think of records protected by FERPA or HIPPA, but there are multiple other sorts of information that are not public record and/or protected by law. Just think of people’s library searching and borrowing records. In NC, and in almost every other state, the privacy of these records is protected by law–and for good reason.
Remember, too, that just because the campus police are investigating a crime they do not have some automatic right to search your person, your car, or your electronic files without a search warrant. If they are conducting a criminal investigation, state employees have even more—not fewer—privacy protections. (see the Federal Law Enforcement Training Center document on this here: https://www.fletc.gov/sites/default/files/imported_files/training/programs/legal-division/downloads-articles-and-faqs/downloads/other/workplacesearches.pdf )
A good example of a recently updated acceptable use of info systems policy that acknowledges privacy rather than attempts to strip away privacy is UNC Chapel Hill’s policy. For their acceptable use policy see: https://unc.policystat.com/policy/5357980/latest/ and see their related policy on the privacy of electronic information at: https://unc.policystat.com/policy/4464653/latest/
It’s particularly important to include in the Acceptable Use Policy a section, or a link to another policy, on the privacy of certain electronic materials.
A professor’s ability to do their work that is on principle free from government or corporate interference demands some expectation of privacy.
Sure, it’s easy to access, copy, or otherwise take huge amounts of information given the capabilities of current information and communication technologies. Commenting on the use of new electronic communications, an AAUP report, Academic Freedom and Electronic Communications affirmed one “overriding principle”:
“Academic freedom, free inquiry, and freedom of expression within the academic community may be limited to no greater extent in electronic format than they are in print, save for the most unusual situation where the very nature of the medium itself might warrant unusual restrictions—and even then only to the extent that such differences demand exceptions or variations. Such obvious differences between old and new media as the vastly greater speed of digital communication, and the far wider audiences that electronic messages may reach, would not, for example, warrant any relaxation of the rigorous precepts of academic freedom.”
Finally, giving campus officials permission to look at files that traverse the University’s information infrastructure (such as a picture you post to Instagram using your private iPhone while on the campus wifi) is a bad idea. You might be saying, “but I have nothing to hide” and “those things won’t be public records, but the University might want or need to look at those files.” And if and when they do, you might feel confident that they won’t mind what they find. But what if a student or colleague makes a complaint about you, and suddenly you find yourself under investigation by the Title IX office? This happened to the well-known feminist professor, Laura Kipnis, at Northwestern University, when students complained that they did not like the view Kipnis expressed in an article she wrote in the Chronicle of Higher Education. Yes, writing something for a professional publication “triggered” students on Kipnis’ campus and they filed a Title IX complaint against her, which got her investigated. Once some university official goes on a fishing expedition through your electronic files, they are bound to find something that looks incriminating. Maybe you received spam that makes it appear as if you are running a business on your university-issued computer. Maybe an uncle you only see once a year sends you strange sexually explicit jokes over email. Maybe your actual teaching or research looks suspicious to untrained, prying eyes. And so you could suffer severe consequence—ie., be reprimanded, fired, or prosecuted legally—thanks to the unfettered access a bad technology policy could give supervisors, administrators, and even campus police.
A “no expectation of privacy” statement gives them blanket permission to go snooping.
As scholars who value academic freedom and the true purpose of higher education in a democratic society, urge your Faculty Senate representative to demand the removal of the “no expectation of privacy” statement in the revised Policy 901.
BLOG POST UPDATE (as of Feb. 2019): The Faculty Senate Technology Committee along with the Chief Information Officer formed an advisory group of stakeholders, including faculty members, to examine and revise the Policy 901. That working group, which will be meeting some time in spring 2019, includes the following faculty members:
The Appalachian State AAUP chapter strongly encourages readers to give their thoughts on this matter in the “comments” section below.
Note: This post is a report on matters of interest to the AAUP chapter, not an official statement by the Chapter.