ACADEMIC FREEDOM and PRIVACY at CUNY
Philip Pecorino, Harold Sullivan and Stefan Baumrin, Faculty, CUNY (2004)
Are the faculty of CUNY correct in thinking that they have a right of privacy: protection from intrusion into their personal and professional affairs by the institution in which they work? Is it reasonable for them to hold the expectation of privacy? Can they offer a pledge of confidentiality to those whom for whom such pledges are needed in order for them to provide information as related to research or employment?
Privacy or the right to privacy is something which faculty take as a given in terms of their employment and work. Beyond the ordinary assumption of citizens of a liberal state, faculty believe that their academic work, their research and their relationships with students and subjects and colleagues carries with them the presumption of confidentiality, if not the pledge of such under certain circumstances. Although there is case law and precedents to make clear that employers may examine the uses to which their employees put the various devices and communications equipment and systems provided by the employer most faculty take it that an academic institution has a different relationship with its faculty than that of the ordinary employer-employee type. In fact, the academic institutions have the unique concept of academic freedom that sets faculty apart from typical employees of any other form of employer. Along with academic freedom comes the entailment of those conditions necessary for the realization of such freedom and among those are privacy. Faculty are not the same sort of employee as compared to the security guards or the cleaning crew or the ground keepers. Faculty do the sorts of things for which privacy needs to be presumed or reasonably expected. Faculty are covered by the concept of academic freedom. The secretaries and groundkeeper are not. When a college or university formulates policies and regulations related to its employees, faculty must be distinguished from all other employees. A single policy intended to cover all employees will not suffice to respect that which is privileged under academic freedom.
Faculty have an expectation of privacy that is reasonable. This is a claim with serious implications for where there is such a "reasonable expectation of privacy" then the rights protected under the fourth amendment of the U S Constitution would obtain for the faculty of CUNY or any other public university or public college. The question of the concept of a "reasonable expectation of privacy" as being applicable to the situation of a faculty member acting in accord with the duties of that position is one which is ultimately for the courts to decide but there is reason to believe that it would be so adjudicated because previous cases in which the concept has been a crucial issue the expectation of privacy has been held to vary with circumstances and settings. The expectation of privacy is obviously different for one in one's own home as opposed to walking on a public street. Likewise the expectation would vary for an employee working at a desk in the office of a manufacturing firm as opposed to a lawyer working with a client in an office or a physician with a patient and so on. A faculty member working in a classroom or office also has a different sort of expectation of privacy. It is one born of the nature of the work and the relationships involved of faculty member to students, advisees, colleagues and so forth when faculty are teaching, advising, counseling, researching, communicating about hypotheses, theories and when ruminating and writing. So generally spread is the practice of respect for another's privacy within the academy that there is a wonder that the reasonableness of the expectation would be challenged There are no previous cases over the fourth amendment protection that have involved academic settings based on the concept of academic freedom. Perhaps this is precisely due to the recognition that in the academic setting it is reasonable to expect privacy and that such privacy is seldom violated.
In a statement of the AAUP in November of 2004 the following point was made:
There are genuine academic freedom concerns that have not yet been recognized by the courts, and that are less than fully or adequately reflected in most institutional policies. The sensitivity of academic communications and the wide range of scholarly purposes for which digital channels are invoked warrant a markedly higher level of protection. Academic Freedom and Electronic Communications (2004): http://www.aaup.org/statements/REPORTS/04AFelec.htm
EXPECTATION of PRIVACY
1) CUNY Faculty have an expectation of privacy in their conduct of their professional activities as educators and members of discipline professions.
2) CUNY Faculty have an expectation of privacy that is reasonable.
3) The reasons for their expectations include the following:
a) CUNY is an educational institution not simply a business with employees
b) As an educational institution CUNY has a responsibility to affirm and support Academic Freedom for its faculty in order to enable its faculty to act as educators and researchers and has done so.
c) Academic Freedom entails a number of concepts and privacy is one of them
d) Privacy is necessary for the educator and researcher because there can not be the free pursuit of new knowledge , the exploration of alternative hypotheses and positions, the gathering of sensitive information if there is concern that others not directly involved in the research would be viewing or examining communications and information.
"The basic precept in the 1940 Statement of Principles on Academic Freedom and Tenure that "teachers are entitled to full freedom in research and in the publication of results" should apply with no lesser force to the use of electronic media to conduct or disseminate research findings or data." AAUP Statement on Academic Freedom and Electronic Communications.
As Researchers
e) faculty in a variety of disciplines often interview people to obtain
sensitive information as part of their research that could not be obtained without
the offer of confidentiality. There are the obligations the faculty has with those who provide the faculty with confidential information, including the law governing human subject research.As Educators
f) the teacher student relationship often involves exchanges of sensitive information that would not be shared if it was known that third parties would be viewing or hearing it
g) faculty often advise and counsel students and receive confidential information
h) what occurs in the classroom after a brief time is dependent upon a relationship that is nurtured by the educator with the learners and that set of relationships and atmosphere can not be well developed if there is the possibility that what is occurring in the class is being witnessed by parties not involved in the teacher-class relationship
" A basic precept of the 1940 Statement of Principles is that "teachers are entitled to freedom in the classroom in discussing their subject...." The scope of that principle is relatively clear in the physical setting, where a "classroom" is bounded by walls, floor, and ceiling. But where the learning site may be a virtual space, the import of this principle is far less clear. The focus of the course might be a web site or a home page. Each student might post course material, even term papers, on his or her own web page. Much of the course-related communication may occur through e-mail, either individually targeted or addressed to the class as a group. Under these conditions, the scope of the operative term "classroom" must be enlarged to encompass electronic formats for those virtual spaces and areas where the communication inherent in the teaching and learning process may occur--web sites, home pages, bulletin boards, chat rooms, and e-mail lists that convey or share information and ideas within the context of a university class or course--as well as to the traditional physical classroom in which much teaching will continue to take place." AAUP Statement on Academic Freedom and Electronic Communications.
As Faculty
i) on search committees and on personnel matters faculty often obtain and exchange and discuss information that is and should remain confidential
As Counselors
j) information concerning the medical records and conditions of faculty, students and staff are to be kept confidential by statute and regulations, whether it is FERPA or HIPPA or other such regulatory agent.
The reasonable expectation of privacy, precisely as a reasonable expectation, is not an expectation for privacy that is absolute. Faculty understand and accept that privacy can be breached for extraordinary and unavoidable circumstances:
a) a fire in a faculty members office or burst water pipe that is destroying property and information would necessitate an invasion of privacy of the office space
b) a computer system or network problem would require technicians to examine files and bits of data to either analyze or effectuate repair of a problem that might involve an invasion of the digital files including email items of faculty.
c) a court order or warrant might compel university authorities to grant access to or examine faculty offices and labs including information devices.
d) a complaint or report of behavior that would be illegal could lead to some investigative body being granted access by a legitimate authority to what otherwise would be considered as private
ACADEMIC FREEDOM at CUNY
The City University of New York, through its governing bodies, has recognized the principle of academic freedom on multiple occasions:
In June 1946, when it reaffirmed the AAUP’s 1940 “Statement of Principles,”
In November 1973 when its Council of Presidents stated that the university “…should remain a forum for the advocacy of all ideas protected by the First Amendment to the Constitution and the principles of academic freedom,”
In October 1981 when the Board of Trustees resolved “That the University pledges diligently to safeguard the constitutional rights of freedom of expression, freedom of association and open intellectual inquiry of the faculty, staff and students…,”
In December 2001 when the University Faculty Senate resolved that it “strongly supports the 1981 Board of Trustees statement” and that it, “along with the Council of Faculty Governance Leaders, affirms the full AAUP Statement of Principles on Academic Freedom and Tenure,”On April 20, 2004 when the University Faculty Senate unanimously passed a "Resolution Reaffirming the University’s Commitment To Academic Freedom".
PRIVACY as ENTAILED by ACADEMIC FREEDOM
When the University affirms Academic Freedom for its faculty it affirms its recognition of the privacy rights of faculty. Privacy for faculty is part of the meaning of Academic Freedom. Faculty must know that they are free from uninvited observations of their communications and activities when they pursue research and when they with their colleagues consider all forms of thought, particularly on matters of controversy. Such inquiry that is part of scholarly research and the expansion of knowledge and critical theory and analysis must be conducted without concern that the communications involved in such activities would be viewed by outside parties. This right of privacy includes but is not limited to all forms of communications and this includes electronic and computerized means of communication and research.
The University should carry out its legal and ethical duty to respect privacy and fulfill its institutional responsibility to respect and protect academic freedom. Only carefully circumscribed and well scrutinized exceptional circumstances such as a judicially sanctioned search warrant or wire tap order over which college personnel have no control should ever be allowed to overcome the right to privacy concerning faculty research activities and all forms of communication.
All forms of communication should be protected from unwarranted review. This includes not only scholarly, scientific and academic research but union affairs and college activities where faculty might engage in speculation and criticism of what management may or may not be doing. Faculty must fulfill their responsibilities to the university in their participation in the governance of the university. Faculty should be able to communicate with one another concerning what college policies they will support and which they will oppose and why in order to fulfill that responsibility.
In a university setting privacy of communications, files and research materials is an essential prerequisite for academic freedom. When we commonly think about academic freedom we think of freedom of inquiry and the freedom to express views free from threat of sanction. If, for example, our research notes, raw data, or even drafts of potential publications can be viewed by others without our consent, then the threat of sanctions or just embarrassment is always present. Lack of assurance for the privacy of such records or communications may deter us from studying topics which could be misunderstood by outsiders.
Consider as just one example that a faculty member of wants to do research into the activities of hate groups. In order to understand such groups the researcher might naturally visit websites or read literature produced by such groups. Colleagues and students might misunderstand an “interest” in the KKK or American Nazi Party that was reported on the basis of the monitoring of correspondences and communications by management. Similarly a political scientist or sociologist might want to examine terrorism and need to do research and communicate with others on that topic.
Another facet of privacy essential to an academic community is the privacy of communications between and among faculty. In a environment of shared governance faculty leaders need assurance that their email and phone voicemail communications are not subject to monitoring by administrators. Without such assurances faculty cannot effectively fulfill their role in College governance.
The AAUP offers guidelines with regard to email communications that can be more widely adapted to the issue of privacy. Academic Freedom and Electronic Communications (2004): http://www.aaup.org/statements/REPORTS/04AFelec.htm
There are undeniable differences among communications media, which may take some toll on privacy. A college or university computing network legitimately "backs up" some portion of each day's e-mail traffic. Information technology staff members in the normal course of events have a degree of access to electronic messages that would be unthinkable for personnel in the university mailroom or the campus telephone switchboard. By its very nature, electronic communication incurs certain risks that have no print counterpart—for example, the potential invasion of the system by hackers, despite the institution's best efforts to discourage such intrusions. These risks are simply part of the reality of the digital age, and our extensive reliance upon computer networks for the conduct of academic discourse. Yet such claims as university "ownership" of the hardware and phone lines, or the need to ensure that the university's business gets done on time, could dangerously diminish the countervailing interests in digital privacy. There are genuine academic freedom concerns that have not yet been recognized by the courts, and that are less than fully or adequately reflected in most institutional policies. The sensitivity of academic communications and the wide range of scholarly purposes for which digital channels are invoked warrant a markedly higher level of protection
A fully responsive policy would reflect at least these criteria:
Every college or university should make clear, to all computer users, any exceptions it deems necessary to impose upon the presumed privacy of communications, whether in print or in digital form.
There must be substantial and meaningful faculty involvement in the formulation of any such exceptions (for example, requiring formal approval or endorsement by a faculty senate or comparable governance group).
The basic standard for e-mail privacy should be that which is assured to persons who send and receive sealed envelopes through the physical mail system— that envelopes would not be opened by university officials save for exigent conditions (e.g., leaking of a noxious chemical, ticking or other indicia of an explosive, etc).
If a need arises to divert or intercept a private e-mail message to or from a faculty member, both the sender and the recipient should be notified in ample time for them to pursue protective measures—save in the rare case where any such delay would create imminent risk to human safety or university property.
The contents of any such messages that have been diverted or intercepted may not be used or disseminated more widely than the basis for such exceptional action may warrant.
Should the occasion ever arise to suspend or terminate an individual faculty member's access to the computer system, so drastic a step should be taken only in response to a serious threat to the system, and should be preceded by a hearing before a faculty committee on the specific charge or charges of misuse or abuse.
Finally, similar safeguards should be fashioned (with full and meaningful faculty involvement in that process) and applied to other facets of electronic communications within the campus community—for example, the posting of sensitive evaluations or course materials, as to whose confidentiality may prove harder to maintain than might initially be supposed. Careful consideration should be given to privacy needs in myriad situations where unauthorized disclosure of electronic messages and materials could jeopardize personal reputations and other vital interests, and could ultimately deter free and open communications within the campus community.Such principles as these, designed as they are to ensure privacy of electronic communications, will require careful and extensive study by each institution, and the tailoring of specific responses consistent not only with institutional needs and values, but also with state and local law. This report is designed to facilitate that process.
Academic Freedom and Electronic Communications (2004): http://www.aaup.org/statements/REPORTS/04AFelec.htm
An example of exceptions to privacy as listed by the University of Pennsylvania are contained in the following statement:
"In other cases, properly authorized University officials including the Vice President for Audit and Compliance and the Information Security Officer may access e-mail, voice mail or computer accounts without the consent of the assigned user when there is a reasonable basis to believe that such action
Is necessary to comply with legal requirements or process, or
May yield information necessary for the investigation of a suspected violation of law or regulations, or of a suspected serious infraction of University policy (for example alleged research misconduct, plagiarism or harassment), or
Is needed to maintain the integrity of University computing systems, or
May yield information needed to deal with an emergency, or
In the case of Staff, will yield information that is needed for the ordinary business of the University to proceed."
The problem with the listing of exceptions as in the statement above is that there are too many phrases that are vague and open ended enough to permit what most faculty would think of as unnecessary and disturbing invasions of privacy. The troublesome phrases are emphasized in this listing :
needed for the ordinary business of the University to proceed."
suspected violation of law or regulations, or of a suspected serious infraction of University policy
May yield information needed to deal with an emergency
Delineation of the exceptional circumstances should not be left open ended or include vague phrasings. Exceptions to the assertion and exercise of that right and to the burden of that duty are rare and need to be carefully delineated. Such exceptions would share the characteristic of originating from outside of and being beyond the control of the administration of the institution. There should be a review of all requests for violations of privacy by a review body that includes a faculty governance representative and a collective bargaining representative along with administration officials. The reviewing body should expeditiously review and agree as to the exigency of the request based on the delineated exceptional circumstances previously set out. Such a delineated listing would include a judicially sanctioned search warrant or wire tap order over which college personnel have no control.
CONCLUSION:
As a university CUNY has affirmed Academic Freedom for its faculty and thus it must impose a higher standard of respect for a right to privacy for its faculty , as an essential component of Academic Freedom, than the minimum that the law requires of employers in relation to their employees who do not labor under the umbrella of Academic Freedom. CUNY should endorse the idea that, except in extraordinary circumstances, faculty members of the university community can expect to have the privacy of their research and communications preserved and protected within the University. Not to do so is inconsistent with its affirmation of Academic Freedom. In the interests of Academic Freedom CUNY should affirm as a matter of policy a higher level of protection for a right of privacy than may be currently afforded by law (either statute or by a constitution). This right of privacy includes but is not limited to all forms of communications and this includes electronic and computerized means of communication and research. CUNY can and must set as a policy which is consonant with Academic Freedom. Such a policy should be derived as the logical consequence of the CUNY affirmation of Academic Freedom. If so, the result would be that no one in the administration or on the faculty may without the voluntary consent of the faculty member who is covered by the affirmation of Academic Freedom, violate that faculty member's right to privacy except under circumstances carefully delineated in the pertinent policy statement. There should be a review of all requests for violations of privacy by a review body that includes a faculty governance representative along with members of either the college or university administration. Having faculty make the decision to invade the presumed sphere of privacy for another faculty member is the most direct way to on the one hand affirm the presumption of a reasonable expectation of privacy by faculty and on the other hand the legitimacy of concern over circumstances that might warrant an invasion of that privacy.
REFERENCES:
CUNY Statement on Academic Freedom November 2, 1973 http://portal.cuny.edu/cms/id/cuny/documents/level_3_page/Academic_Freedom.pdf
CUNY Computer User Responsibilities
http://portal.cuny.edu/cms/id/cuny/documents/level_3_page/001171.htm
AAUP Statement on Academic Freedom (1940) with Interpretive Comments(1970) http://www.aaup.org/statements/Redbook/1940stat.htm
AAUP Statement on Academic Freedom and Electronic Communications(2000) : http://www.aaup.org/statements/archives/reports/pre2000/Statelec.htm
Academic Freedom and Electronic Communications (2004): http://www.aaup.org/statements/REPORTS/04AFelec.htm
Electronic Communications Policy: University of California Office of the President Reissued November 17, 2000
http://www.ucop.edu/ucophome/policies/ec/html/
Privacy in the Electronic Environment: University of Pennsylvania
Send comments on this position to: ppecorino@qcc.cuny.edu