Electronic communication facilities in academic institutions: issues of academic freedom.

Barkacs, Craig B. ; Schneider, Gary P. ; Barkacs, Linda L. 等

INTRODUCTION

Debates over the right to privacy have arisen as e-mail use has become ubiquitous in businesses and other organizations (Barker and Hammond, 1995; Greengard, 1996; Traynor, 1994). These debates are often heated (Brown, 1994; Nelson, 1994), and pit the employee's right to privacy against the employer's right to control the use of its assets. Firms are concerned because information contained in e-mail can be used against the them in litigation (Barker, et al., 1995; Himelstein, 1995) and have tried, in many cases, to protect themselves by establishing written policies on permissible employee uses of employer electronic communications facilities (Cavanagh, 1996; McCune, 1997; Weisband and Reinig, 1995). Firms are also concerned because employees often experience increased stress and decreased productivity when they know their e-mail is being monitored (Aiello and Kolb, 1995; DeTienne, 1994). Legislation has been proposed that might act to balance employee and employer interests, but no uniform privacy act for non-governmental employees has been enacted (Bockanic and Lynn, 1996; Guffey and West, 1996; Pincus and Trotter, 1995; Van Duch, 1996; Waks and Brewster, 1994).

PRIVACY RIGHTS VS. PROPERTY RIGHTS

Historically, the law favors employers' property rights over employees' right to privacy in electronic mail. This may explain a survey of executives at American companies that revealed that 22% of firms engage in searches of employee E-mail, computer files and voice mail. In companies with 1000 or more employees, that figure rises to 30%. (Gerhart, 1995). Probably the most widely-cited E-mail case is Shoars v. Epson America, Inc. (B07322243 CA Ct. App.). In that case, an employee discovered her supervisor reading and printing electronic mail messages she had sent to other employees. The employee questioned the practice and was fired the next day. At trial, her wrongful termination claim was denied and the California Supreme Court ultimately refused to hear her appeal, 1994 CA LEXIS 3670 (S040065, CA June 29, 1994).

Just as historical, however, is the law favoring academic freedom. These two issues have yet to be juxtaposed in a case dealing with the electronic mail of professors, who expect that their words and actions will be judged under the current laws favoring academic freedom. This paper asserts that the principles of academic freedom can and should be applied to electronic mail, and that this can be accomplished despite the current state of the law on privacy, or lack thereof, in electronic mail.

PROTECTION OF ACADEMIC SPEECH

A recent Ninth Circuit case demonstrates the different standard applied to academic speech as opposed to nonacademic speech. In Cohen v. San Bernardo Valley College, (9th Cir. 1996) 92 F.3d 968 (Cohen), an English professor was accused of violating the college's written sexual harassment policy. A female student complained that the language used during the professor's English and Film Studies course was sexually harassing (Cohen, 970). The college held hearings, ruled against the professor and punished him. The appellate court, however, held that the college's sexual harassment policy was too vague as it applied to the professor.

In the First Amendment context, there are three areas of concern regarding vague policies: they trap the unwary by not providing fair warning; resolution is delegated to low level officials who may apply the policy in an arbitrary or discriminatory manner; and vague policies discourage the exercise of first amendment freedoms (Cohen, 972, citing Grayned v. City of Rockford (1972) 408 U.S. 104, 108-109). In the Cohen case, the college punished the professor based on his teaching methods (Cohen, 972). The appellate court, noting that the professor had used the same method of teaching for the last twenty-four years, held that the college had engaged in "legalist ambush" (Cohen, 972).

Ironically, the language of the college's written sexual harassment policy is found in nearly every written sexual harassment policy. Although the Ninth Circuit Court of Appeals failed to say so directly, the issue of academic freedom certainly came into play in the Cohen case, as it has in other cases. In 1995, the Sixth Circuit appellate court held that a university's policy prohibiting ethnic slurs and epithets was unconstitutional and overly broad as applied to a former head coach of the university's basketball program who used an ethnic slur Dambrot v. Central Mich. Univ. (6th Cir. 1995) 55 F.3d 1177. These two cases are prime examples of the different treatment of speech when it involves academic institutions. Electronic mail is just another form of speech, and the same principles of First Amendment protection and academic freedom are applicable.

GENERAL ACADEMIC FREEDOM PRIVILEGE

A general academic freedom privilege has been recognized by the U.S. Supreme Court for over four decades (Keyishian v. Board of Regents (1967) 385 U.S. 589 (Keyishian); Sweezy v. New Hampshire (1957) 354 U.S. 234(Sweezy)). In 1957, the Supreme Court reversed a contempt citation of a leftist university lecturer who refused to disclose the content of his university lectures (Sweezy, 250). Then, in 1967, the Supreme Court held unconstitutional an anti-communist "loyalty oath" required of university teachers (Keyishian, 603-604). The issue of how far the right to academic freedom extends, and how it should be balanced with other considerations, continues to be an open question among the various courts Wilkinson, et al. v. Federal Bureau of Investigation, et al. (1986) 111 F.R.D. 432, 440 (Wilkinson).

RESEARCHER'S PRIVILEGE

Another privilege recognized, though not yet clearly defined, is the researcher's privilege (Wilkinson, 441). In Richards of Rockford, Inc. v. Pacific Gas & Elec. Co (N.D. Cal. 1976) 71 F.R.D. 388, 389 (Richards), the plaintiff attempted to compel a third party researcher to produce documents and testify regarding confidential interviews conducted with PG&E employees in the course of a research project which was unrelated to the litigation. The court took into consideration the researcher's interest in academic freedom and privacy, along with the fact that the researcher was not a party to the litigation, and denied discovery (Richards, 441). The court's rationale was that the plaintiff's interest in the discovery was not strong enough to justify disclosure in the face of society's interest in fostering the work of researchers. (Richards, 390).

APPLICATION OF PRINCIPLES TO E-MAIL PRIVACY

This same principle, fostering the work of researchers, may be applied to the use of electronic mail by university professors. In universities, electronic mail is used to promote the free exchange of ideas. Many professors communicate via electronic mail, nationally, as well as internationally, with other academics. Joint research projects are often facilitated by the use of electronic mail. To protect this free exchange of ideas, privacy in electronic mail is essential.

In yet another case, Dow Chem. Co. v. Allen (7th Cir. 1982) 672 F.2d 1262 (Dow Chemical), the plaintiff sought disclosure of a researcher's notes, working papers and raw data related to a toxicity study, for use in an administrative hearing. The Seventh Circuit Court of Appeals discussed Sweezy and Keyishian, then held that a researcher's interest in academic freedom was substantial enough to be used as a factor in the court's inquiry as to whether the request was unreasonably burdensome (Dow Chemical, as discussed in Wilkinson at 442).

IMPLICATIONS FOR UNIVERSITY POLICIES

Many universities have or are considering adoption of policies that govern the acceptable use of their electronic communications facilities (EFF, 1997). Many of these policies attempt to specify acceptable use for all university users of computing and communication facilities. Current law appears to give faculty members specific rights beyond those to which all university employees would be entitled. We suggest that such policies either include specific provisions regarding faculty members' rights to academic freedom or that universities draft separate policies to govern faculty members' use of electronic communications facilities as a separate category of user.

Given the court's holding in Cohen, universities should consider having a faculty committee administer any acceptable use policy that applies to faculty members. The Cohen holding suggests that universities should particularly avoid having an administrative official make decisions on what qualifies as faculty members' acceptable use. Universities should, however, consider taking the necessary steps to protect their legal interests and establish reasonable defenses against potential sexual harassment suits (Hibbard, 1996; Taylor, 1996).

SUMMARY AND CONCLUSION

The threshold question in the researcher privilege cases thus far seems to be whether such information is discoverable, or whether academic freedom protects such information. That same threshold question should be applied to electronic mail in the university setting. The issue is not whether electronic mail is the property of the university as employer of the professor, but whether the electronic mail is entitled to the protections associated with academic freedom and the researcher's privilege. If we want to promote research, the obvious answer is yes. To answer no to this question would create a dilemma--an academic freedom privilege or researcher's privilege could exist for notes, raw data, and working papers; however, such privileges would not exist for identical information in the form of transmitted or stored electronic mail.

Future cases involving privacy of university faculty members' electronic mail should apply the case law surrounding academic freedom and the researcher's privilege and rule accordingly. Lack of privacy in electronic mail for non-university employees is not inconsistent, as the same First Amendment issues are not present in those situations. Society must decide what it wishes to promote--if research and the free exchange of ideas are of value, they must be protected by laws.

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Craig B. Barkacs, University of San Diego

Gary P. Schneider, University of San Diego

Linda L. Barkacs, Barkacs and Barkacs, LLP