Prying eyes in cyberspace

Academe, Sep/Oct 1999 by Alger, Jonathan

HAVE YOU EVER sent an e-mail message, and then worried about what might happen if someone other than the intended recipient read it? Would you modify your computer use if you knew that the administration could detect every visit you make to any Web site on the Internet? Many faculty members act as though e-mail and the Internet are as private and secure as "snail mail" or the telephone. They are surprised to learn that the law does not necessarily support this assumption.

As Internet and e-mail access has expanded on campuses everywhere, so too have controversies that have legal implications for colleges and their faculty, staff, and students. One college recently sought to protect itself from potential defamation claims by prohibiting a tenured economics professor from sending e-mail messages on campus computers to a long list of addresses and Listservs. The professor and college had been threatened with a lawsuit stemming from messages the professor sent about one member of a tribunal investigating alleged abuse of American Indian children in religious schools.

Other cases involve material downloaded from the Internet. The dean of the Harvard Divinity School was forced to resign in May after pornographic images were found on his universityowned computer. And at other campuses, including Stanford, computer specialists have tried to discover the identity of individuals who have used e-mail to broadcast racist or sexist hatemail messages.

In spite of such incidents, e-mail and the Internet have become indispensable tools for communication and research both in and outside the academy. According to a 1998 Ernst and Young survey, e-mail has become the single most important business communication tool. Yet the American Management Association reported recently that 45 percent of employers engage in some form of electronic monitoring of communications, up from 35 percent two years ago. Citing the practical need to protect the availability of limited and valuable computer resources, many colleges have instituted policies to monitor computer use. Colleges have also pointed to a variety of legal concerns as justifications for such monitoring, such as prevention of racial and sexual harassment and limitation of institutional liability for defamation, copyright infringement, distribution of pornographic or obscene materials, and software piracy.

Colleges are not constitutionally required to provide unrestricted access to e-mail or the Internet. In a 1997 Oklahoma case, for example, a federal appellate court held that a state university may limit the use of its computer systems to "academic and research purposes." As employers, colleges are generally permitted to monitor e-mail and computer use if they establish and disseminate clear policies to limit employees' expectations of privacy in the workplace.

In practical terms, however, it is no easy task to monitor campus computer use or to define work-related purposes with regard to faculty. The potential for arbitrary or selective enforcement is significant, thus creating fertile ground for claims of discrimination or retaliation. Professors who criticize campus officials or policies, attempt to organize their colleagues around sensitive campus issues, or engage in controversial scholarship could all be possible targets.

Faculty members can protect themselves by reviewing their institutional policies to understand the level of privacy they can reasonably expect and by using common sense in both e-mail writing and Internet browsing, bearing in mind that other eyes may be watching. In their communications and Web postings, professors should avoid using university trademarks or logos without specific authorization and otherwise take precautions to ensure that they do not imply that they are speaking for their institutions. When speaking as individuals, faculty should also remember that academic freedom and First Amendment protections apply to expression in e-mail and on the Internet, just as they do in other media.

Colleges as well as faculty members are best served by developing and implementing content-neutral policies that minimize surveillance and focus instead on protecting the institutions' resources and operations. Institutions are less likely to be held legally responsible for communications on their computer networks when they make no pretense of controlling their content. In an era in which colleges are encouraging faculty members to teach, conduct research, and communicate with students and colleagues online, they can best protect academic freedom and the integrity of their educational mission by respecting the privacy of these communications.

Jonathan Alger is AAUP counsel.