Academic Freedom and Electronic Communications

This report was prepared by a subcommittee of the Association’s Committee A on Academic Freedom and Tenure and initially published in 1997. A revised text was approved by Committee A and adopted by the Association’s Council in November 2004. A revised and expanded text was approved by Committee A and adopted by the Association’s Council in November 2013.

In November 2004, the Association’s Council in sharp contrast to any form of print communi- adopted Academic Freedom and Electronic cation. Although a digital message, once posted, Communications,1 a report prepared by a can be infi nitely altered over time— another subcommittee of Committee A on Academic signifi cant difference— the initial message may Freedom and Tenure and approved by Committee never be retracted once it has been sent or posted. A. That report affi rmed one “overriding Indeed, the fi rst posting may remain accessible on principle”: ‘mirror’ sites despite all efforts to suppress, remove, and expunge it.”2 Electronic communica- Academic freedom, free inquiry, and freedom of tions can be altered, or presented selectively, such expression within the academic community may be that they are decontextualized and take on limited to no greater extent in electronic format implicit meanings different from their author’s than they are in print, save for the most unusual original intent. With the advent of social media situation where the very nature of the medium itself such concerns about the widespread circulation might warrant unusual restrictions—and even then and compromised integrity of communications only to the extent that such differences demand that in print might have been essentially private exceptions or variations. Such obvious differences have only multiplied further. between old and new media as the vastly greater Moreover, while the 2004 report assumed that speed of digital communication, and the far wider electronic communications produced by faculty audiences that electronic messages may reach, would members in the course of their teaching and not, for example, warrant any relaxation of the research were physically located on servers and rigorous precepts of academic freedom. computers owned and operated by their colleges This fundamental principle still applies, but and universities, today institutions increasingly developments since publication of the 2004 report employ technologies associated with cloud suggest that a fresh review of issues raised by computing and other outsourcing strategies. the continuing growth and transformation of These may involve relinquishing control to electronic- communications technologies and the third-party services, storing data at multiple sites evolution of law in this area is appropriate. For administered by several organizations, and instance, the 2004 report focused largely on issues relying on multiple services across the net- associated with e-mail communications and the work—a shift that poses potentially profound posting of materials on websites, online bulletin challenges to academic freedom. boards, learning-management systems, blogs, and These changes have been magnifi ed by the listservs. Since then, new social media, such as growing proliferation of new electronic- Facebook, LinkedIn, Reddit, Tumblr, and Twitter, communications devices, such as smartphones and have emerged as important vehicles for electronic tablets. At Oakland University in Michigan, for communication in the academy. example, the university’s roughly 7,500 students Already in 2004 it was clear that electronic now bring an average of 2.5 devices each to communications could easily be forwarded to campus, while faculty members bring about two.3 others at vastly greater speeds, with potentially The desire of growing numbers of faculty profound implications for both privacy and free members, staff members, and students to have expression. As Robert M. O’Neil has written, “An access to communications and information on electronic message may instantly reach readers multiple devices, especially mobile devices, has across the country and indeed around the globe, increasingly driven institutions to create “BYOD”

42 (bring-your- own- device) policies. By embracing many libraries to offer access to a far broader individual consumer devices, an institution may array of materials than in the past through a wide better address the personal preferences of its variety of online databases. Some online cata- faculty, staff, and students, offering not only logs, designed to replicate social media, now increased mobility but also increased integration allow users to leave notations and reviews of of their personal, work, and study lives. However, cata loged materials that can be viewed around the increasing number of devices and the increas- the world. ing demand for bandwidth from new applications To be sure, as O’Neil has noted, “[a]lthough a may strain institutional resources in ways that university does to some degree control a scholar’s might lead institutions to establish access recourse to print materials by its management of restrictions that could adversely affect academic library collections, . . . the potential for limitation freedom. or denial of access is vastly greater when the More important, such practices can further institution maintains and therefore controls the blur boundaries between communications gateway to the Internet.” 4 Colleges and universi- activities that are primarily extramural or ties certainly are entitled to restrict access to their personal and those that are related more directly library resources, including electronic resources, to teaching and scholarship. Digital devices such to faculty members, staff members, students, and as smartphones have also promoted increased other authorized users, such as alumni and interactivity between users and their devices, recognized scholars from other institutions, in permitting users to create their own content but accordance with policies adopted by the institution also to leave personal “footprints,” which might with the participation of the faculty. But the be subject to surveillance. extent to which access to electronic materials may As in 2004, “college and university policies be limited is not always under the control of the that were developed for print and telephonic library or even of the institution. Third- party communications”— and policies developed for vendors may seek to impose restrictions on access earlier modes of electronic communications— that go beyond those claimed by the institution ”may simply not fi t (or may fi t imperfectly) the itself, and such restrictions are rarely defi ned by new environment.” Faculty members need to faculty governance structures. Those vendors may understand more completely the implications for also impose auditing requirements that are in academic freedom of electronic- communications tension with librarians’ obligations to respect the technologies, and they should be directly involved confi dentiality of patrons. in the formulation and implementation of policies Concerns about access were heightened in governing such technology usage. early 2013 following the tragic suicide of open- access advocate Aaron Swartz. In 2011, a federal I. Freedom of Research and Publication grand jury had indicted Swartz for the theft of The 2004 report affi rmed: “The basic precept in millions of journal articles through the JSTOR the 1940 Statement of Principles on Academic account of the Massachusetts Institute of Technol- Freedom and Tenure that ‘teachers are entitled to ogy. It was thought that Swartz had wanted to full freedom in research and in the publication of make all of those articles freely available. the results’ applies with no less force to the use of Authorities charged him with having used an electronic media for the conduct of research and MIT guest account, even though he did not have a the dissemination of fi ndings and results than it legal right to do so. At the time of his death, applies to the use of more traditional media.” As Swartz faced millions of dollars in fi nes and legal that report noted, however, access to materials in costs and de cades in prison if convicted. He digital format may be subject to greater restric- reportedly had suffered from depression, but tions than would be the case with print- format there was speculation that his legal troubles led to materials. his suicide. Although JSTOR declined to pursue action A. Access to Information in Digital Format against Swartz, some charged that “MIT refused Academic freedom is dependent on a researcher’s to stand up for Aaron and its own community’s ability not only to gain access to information but most cherished principles.”5 Ironically, however, it also to explore ideas and knowledge without fear was MIT’s relatively open policy of access to its of surveillance or interference. Historically, network that enabled Swartz to obtain the scholars have gained access to published and downloaded materials. In its own subsequent often to unpublished research materials through investigation of the matter, MIT acknowledged college and university libraries. Electronic- that it had missed an opportunity to emerge as a communications technologies have permitted leader in the national discussion on law and the

43 Internet. But the university denied having had protecting the confi dentiality of library circula- any active role in his prosecution.6 tion records. Scholars have also debated whether Swartz’s The commitment of libraries and librarians to action was actually a kind of theft. “The ‘property’ maximizing access to information and protecting Aaron had ‘stolen,’ we were told, was worth user privacy and confi dentiality should not change ‘millions of dollars,’ ” wrote Harvard law profes- in the face of new technologies. The maintenance sor Lawrence Lessig, “with the hint, and then the of usage logs for licensing reasons, for diagnosing suggestion, that his aim must have been to profi t technical problems, or for monitoring computer from his crime. But anyone who says that there is perfor mance may be necessary, but libraries must money to be made in a stash of academic articles is strive to minimize such monitoring and to either an idiot or a liar.”7 compile information as much as possible only in The complicated copyright and other issues the aggregate. So, for example, when the library raised by the open-access movement are beyond identifi es a user as authorized to gain access to a the scope of this report. While the digital world journal held by another entity, it should indicate has offered great promise to make information that the user is affi liated with the institution accessible to a global community, commercial without sharing that user’s identity. forces have locked up most research behind Nevertheless, third-party vendors may gain paywalls and ever- more- restrictive licensing access to user information, especially when these agreements. Faculty members who produce vendors offer research tools such as customized research in digital form frequently do not control portals, saved searches, or e-mail alerts on how that research may be accessed and by whom. research topics. How these vendors employ The AAUP’s Statement on Copyright affi rmed such information and who can gain access to it that “it has been the prevailing academic practice may be beyond the library’s control. Librar- to treat the faculty member as the copyright ians thus have a responsibility to educate users own er of works that are created in de pen dently about the potential risks of using third- party and at the faculty member’s own initiative for tools. traditional academic purposes.”8 Any consider- Faculty members can also play a role in ation of open access must start from this shaping the policies of publishers and online principle.9 vendors regarding access to published research Often college and university libraries are and monitoring of individual users through their themselves compelled to accede to the demands of roles as members of editorial boards and holders outside vendors. Libraries and librarians can, of managerial positions in academic societies and however, promote open access to information by with private publishers. Faculty members in these supporting institutional repositories, hosting positions can work with academic libraries to open- access journals, and working with faculty collaborate on cost-effective business models that members to promote the value of more open encourage broad and confi dential access to modes of scholarly communication. Libraries may publications. also collaborate with others or work inde pen- College and university libraries need to review dently to develop a role as publisher both for new existing policies on privacy and confi dentiality to content and through digitization of material that ensure that they have kept pace with practices and is in the public domain or otherwise lawfully technologies in the library.11 In addition, when available for digitization.10 negotiating contracts with vendors, librarians When resources are provided by third- party should require those vendors to protect user vendors, the library may also lose control over information to the same degree as if it were in the privacy and confi dentiality. When a faculty custody of a library. And, building on the success member visits the library to read a book or a of laws in forty- eight states that protect the journal article, this activity takes place without confi dentiality of library users, as well as triggering any recordkeeping or permissions provisions of the Family Educational Rights and issues. In the electronic journal and e-book Privacy Act that protect the privacy of educational environment, however, records of access and records, colleges and universities should advocate permissions may be critical to resolving issues additional legislation that would provide the same concerning licensing and copyright infringement, level of protection to information held by third and the existence of such rec ords may compro- parties on behalf of libraries and their users, mise user confi dentiality. Sometimes the identity whether it is library- controlled information of a person reading a resource is even embedded— hosted on a server in another state, cloud- hosted both electronically and in text—in the journal information, or user-supplied information in a article. Such features may violate state laws vendor’s customizable portal.

44 The 2004 report noted that “in many disci- tions’ infrastructure more generally has also been plines, scholars may quite legitimately share under threat. Some universities have experienced material that would be deemed ‘sexually as many as one hundred thousand hacking explicit’— art, anatomy, psychology, etc. Such attempts each day.14 sharing is at least as likely to occur electronically The increased threat of hacking has forced as it has traditionally occurred in print. The many universities to rethink the basic structure of difference in medium should no more affect the their computer networks. “A university environ- validity of such exchanges than it should justify a ment is very different from a corporation or a double standard elsewhere.” AAUP policy government agency, because of the kind of elsewhere recognizes that academic freedom openness and free fl ow of information you’re includes freedom of artistic expression “in visual trying to promote,” said David J. Shaw, the chief and performing arts.”12 Increasingly, artistic information security offi cer at Purdue University. expression that challenges conventional tastes and “The researchers want to collaborate with others, norms involves digital images, even more than inside and outside the university, and to share images on canvas and fi lm, or dance. It is thus their discoveries.”15 vital to affi rm that academic freedom applies to While many corporate sites restrict resources such novel modes of artistic expression as well as to employees, university systems tend to be more to traditional media. Nonetheless, the 2004 report open, and properly so. The most sensitive data can on electronic communications noted that there be housed in the equivalent of small vaults that may “be legitimate institutional interests in are less accessible and harder to navigate, use restricting the range of persons eligible to receive sophisticated data encryption, and sometimes are and gain access to such material—especially to not even connected to the larger campus network, ensure that minors are not targeted.” particularly when the work involves dangerous Although in 1968 the US Supreme Court pathogens or research that could turn into weapons recognized that material that is not legally systems. obscene but is “harmful to minors” may be Some universities no longer allow their regulated, subsequent rulings have severely professors to take laptops owned or leased by the limited the application of this principle when it university to certain countries. In some countries might affect access to such material by adults.13 In the minute one connects to a network, all data this light, institutional policy should make clear will be copied, or a program or virus will be that faculty members in the course of their planted on the computer in hopes that it will be research have the right to gain access to and transferred to a home network. Many institutions circulate electronically all legal materials, no have become stricter about urging faculty matter how controversial, even if these might be members to follow federal rules that prohibit considered “harmful to minors.” taking some kinds of sensitive data out of the In partic u lar, colleges and universities should country or have imposed their own tighter refrain from employment of so- called “fi ltering” restrictions. Still others require that employees software that limits access to allegedly “harmful” returning from abroad have their computers or even “controversial” materials. It is question- scrubbed by professionals before they may regain able whether such fi lters are appropriate or access to university servers. effective in school and public libraries, but they These are genuine concerns, and universities surely have no place in higher education facilities. are well advised to devote resources to protecting Filters are especially insidious because users often their electronic- communications networks. cannot know whether they have been denied However, every effort should also be made to access to a site or resource. balance the need for security with the fundamen- tal principles of open scholarly communication. B. Security versus Access In recent years many university information- C. Scholarly Communication and Social Media technology (IT) systems have come under The advent of social media has raised some new sustained cyberattack, often from overseas. While questions about how scholars communicate about these attacks have sometimes resulted in the theft their research. For example, professors who of personal information, such as employee social present papers at scholarly conferences often use security numbers, they also target faculty those occasions to try out new ideas and stimulate research materials, including patentable research, discussion. While they may be willing, even some with vast potential value, in areas as eager, to share unpolished or preliminary ideas disparate as prescription drugs, computer chips, with a closed group of peers, they may be less fuel cells, aircraft, and medical devices. Institu- happy to have those in attendance broadcast these

45 ideas through social media. Conference papers are If anything, the boundaries of the “classroom” often clearly labeled as “not for circulation.” At have only expanded in the ensuing period. It is some meetings, however, attendees at sessions now more common than not for even the most have communicated to others electronically—and traditional face- to- face classes to include material often instantaneously— through social media, offered through online learning-management e-mail, or blogs, reports and comments on papers systems. And the rapid development and perhaps and statements made by other conference overhyped promise of totally online education, presenters and attendees.16 including the explosive growth of Massive Open Many academic conferences and some Online Courses (MOOCs) frequently offered by individual sessions have associated Twitter hash for- profi t private corporations, suggest that tags—at times suggested by the conference academic freedom in the online classroom is no organizers. As a result, ideas and information that less critical than it is in the traditional classroom. previously would have been controlled by the This report is not the place to discuss all the presenter and limited to a relatively small myriad issues of academic freedom, shared audience may quickly become accessible globally. governance, intellectual property, and institu- Some have worried that reports on social media of tional fi nances raised by the spread of online conference proceedings might increase the education. It is critical, however, to reiterate that a likelihood that others could appropriate a classroom is not simply a physical space, but any presenter’s new and original ideas before that location, real or virtual, in which instruction individual has had an opportunity to develop occurs and that in classrooms of all types the them. While the concern may be speculative and protections of academic freedom and of the the risk exaggerated, it is clear that new forms of faculty’s rights to intellectual property in lectures, social media and electronic- communications syllabi, exams, and similar materials are as technologies can make research in progress both applicable as they have been in the physical more accessible and more vulnerable to intellec- classroom. tual property theft. In effect, anyone with an In August 2013, the administration reassigned Internet connection can function as a reporter the teaching duties of a tenured professor in publishing accounts of others’ work. Michigan after a student anonymously videotaped “The debate over live tweeting at conferences part of a ninety- minute lecture, a heavily edited is, in many ways, about control and access: who two- minute version of which— described by some controls conference space, presen ta tion content, or as an “anti-Republican rant”—was then aired on a access to knowledge?” wrote one doctoral student. conservative Internet site, on Fox News, and on A professor responded with objections to sharing YouTube, where it was viewed more than 150,000 “other people’s work without asking.” For some times. In October 2013, a Wisconsin geography the debate is generational. “I see this as a divide professor sent her students an e-mail message between older and newer forms of academic explaining that they could not gain access to culture,” wrote one younger scholar. “On the census data to complete a required assignment traditional model, you don’t put an idea out there because the “Republican/Tea Party– controlled until it’s fully formed and perfect.”17 House of Representatives” had shut down the Of course, scholars have always debated each government, thus closing the Census Bureau’s other’s ideas and will continue to do so. However, website. After a student posted the message on faculty members who use social media to discuss Twitter, it appeared in a local newspaper and in research should keep in mind the intellectual national conservative media, resulting in numer- property rights of their colleagues as well as their ous complaints to the university, which sent an own academic freedom to comment on and debate e-mail message to the campus distancing the new ideas. institution from the comment.18 These and similar incidents demonstrate that II. Freedom of Teaching electronic media can expand the boundaries of the According to the 1940 Statement of Principles, classroom in new and dramatic ways. And while “teachers are entitled to freedom in the classroom classroom lectures, syllabi, and even an instruc- in discussing their subject.” But what constitutes a tor’s e-mail messages to students should be classroom? The 2004 report noted that “the considered the intellectual property of the concept of ‘classroom’ must be broadened” to instructor, much of what teachers distribute to refl ect how instruction increasingly occurs students in the classroom or write in e-mail through a “medium that clearly has no physical messages may legally be redistributed by students boundaries” and that “the ‘classroom’ must indeed for noncommercial uses under the “fair-use” encompass all sites where learning occurs.” principle. Moreover, copyright does not cover

46 expression that is not reduced to “tangible” form, care when posting material for courses on sites including extemporaneous utterances such as that also include potentially controversial those of the Michigan professor, as it might in the noninstructional materials. case of a formal lecture, a PowerPoint presen ta- tion, or written material like a syllabus. III. Access to Electronic- Communications Surreptitious recording of classroom speech Technologies and activity may exert a chilling effect on the Colleges and universities commonly adopt academic freedom of both professors and stu- formal electronic-communications policies, dents.19 Faculty also should be aware that which defi ne access to the institution’s electronic communications with students can electronic- communications network and, through easily be recirculated without the permission of that network, to the Internet. Such policies either party. generally try to balance the need, on the one It should be further noted that new teaching hand, to protect the university’s electronic technologies and learning-management systems resources from outside hacking and to safeguard also allow faculty members and students to be confi dential personal and research information monitored in new ways. Online teaching plat- and, on the other hand, to provide free access to forms and learning- management systems may authorized users. Although security and liability permit faculty members to learn whether students concerns may result in legitimate constraints in a class did their work and how long they spent being placed on usage, in general no conditions or on certain assignments. Conversely, however, a restrictions should be imposed on access to and college or university administration could use use of electronic- communications technologies these systems to determine whether faculty more stringent than limits that have been found members were logging into the service “enough,” acceptable for the use of traditional campus spending “adequate” time on certain activities, channels of communication. and the like. Such monitoring should not be An institution may, for example, acceptably permitted without the explicit and voluntary require each faculty user to obtain and enter a permission of the instructor involved. password or to change that password periodically. Some thorny issues also surround the prolifer- The university also has an interest in protecting ating use of plagiarism-detection software, such its faculty, staff, and students from spam and in as Turnitin. The benefi ts (and limitations) of such limiting how much bandwidth an individual may ser vices are often obvious, but many faculty use to ensure that computing resources are not members are unaware that these services keep overburdened or squandered. However, wholesale databases of student papers, and although these bans on streaming video may constitute a papers apparently are not sold individually, the violation of academic freedom. Some institutions entire database can be and has been sold to third have imposed limitations on access to streaming parties. This practice may raise copyright video and audio in student dormitories, both to concerns beyond the scope of this report, but as prevent illegal downloading of copyrighted one 2011 study concluded, it also raises “ethical material and to avoid overburdening the network. issues because it denies students notice, access, But such efforts should not be extended to faculty and choice about the treatment of their personal members, who may need access to such sites and information.” That study proposed a “code of materials for their teaching or research. More- ethics” concerning the use of such services that over, restrictions that deny use for “personal faculty members may fi nd helpful.20 matters” or limit usage to “offi cial university While learning-management systems make it business” can reduce productivity and are both possible for faculty members to keep electronic unnecessary and problematic, as many private teaching materials separate from scholarly, businesses have learned. politi cal, or personal materials often found on In an often well-intentioned effort to reduce faculty websites, many instructors still frequently spam and prevent the monopolization of band- post course materials on websites alongside other width, some university IT offi ces have proposed content, some of which may be controversial. policies under which users of institutional Students who encounter material they fi nd electronic- communications resources must seek disturbing while they are browsing through a advance permission to send messages to large faculty member’s website in search of course groups of recipients. But even if such measures materials may complain to the administration or address the problems of spam and limited even to the courts. While all legal material on bandwidth—and it is questionable whether they faculty websites should enjoy the protections of do—they only create a much larger and more academic freedom, instructors should exercise ominous academic freedom problem because they

47 amount to de facto prior censorship. Similarly, threats, as was surely the case in this instance, can provisions that have been proposed in some violate academic freedom, especially if the accused instances to bar communications that purportedly is denied the protections of academic due process “interfere with the mission of the university” or before any adverse action has been taken.22 that violate university policies amount to un- The AAUP has upheld the right of faculty warranted censorship of free expression. members to speak freely about internal college or Some states have also barred public employees, university affairs as a fundamental principle of including faculty members at public colleges and academic freedom that applies as much to universities, from employing university electronic communications as it does to written electronic- communications resources— for and oral ones. This includes the right of faculty example, a university e-mail account—for members to communicate with one another about politi cal campaigning. In such states, public their conditions of employment and to or ga nize colleges and universities must clearly defi ne what on their own behalf. constitutes such activity. While a public employee Frequently university policies attempt to may reasonably be barred, for instance, from delineate user “rights” and “responsibilities,” but using a university website to run for public offi ce too often the emphasis of those policies is mainly or raise funds for a campaign, policies that on the latter. Administrations at some institutions discourage or prohibit, either explicitly or through appear to view computer and Internet access as a imprecise or ill-defi ned language, faculty lower- order faculty perquisite that may be members, staff members, and students from summarily terminated. Such views need to be expressing politi cal preferences clearly violate rejected unequivocally. Access to campus comput- fundamental principles of academic freedom and ing facilities, and through them to the Internet, free expression. represents a vital component of faculty status for Electronic resources should also be made most scholars and teachers, especially as cost- available equally to all employees, including cutting mea sures have caused libraries to rely faculty members, for the purposes of union or more heavily on electronic instead of print other or ga niz ing activity. While the National journals. While it would be naive to suggest that Labor Relations Board has ruled that private circumstances might never warrant withdrawal or employers may bar employees from using suspension of digital access, such access may be employer- owned e-mail accounts for non- work- denied or limited only for the most serious of related communications, if they do permit such reasons (for example, creating and unleashing a activity they may not discriminate against destructive virus) and only after the fi ling of union- related e-mail use nor can they bar the use formal charges and compliance with rigorous of social media for discussion of working condi- disciplinary procedures that guarantee the tions.21 Similarly, senate offi cers and other faculty protections of academic due process to the accused representatives engaged in institutional gover- individual, even where the transgression may not nance activities should have free and unfettered be so grave as to warrant dismissal or suspension. access to university-controlled lists of faculty A university’s policies must specify the members they represent, and all faculty members infractions that might warrant such a sanction, should be able to comment electronically on recognizing only conduct that jeopardizes the governance issues without restriction or fear of system and the access of others. The policy should disciplinary action. also prescribe the procedures to be followed in In one 2014 incident, a faculty member in such a case. In exigent circumstances, a faculty Colorado sent an e-mail message protesting member’s computer access might be summarily proposed layoffs of faculty at his institution that and briefl y suspended during an investigation of offered a comparison with the 1914 Ludlow serious charges of abuse or misuse. Any such Massacre of striking Colorado miners. The suspension should, however, be no longer than university swiftly terminated the professor’s necessary to conduct the investigation and should access to the institution’s e-mail system, charging be subject to prior internal faculty review.23 that the message in question amounted to a Indeed, any restrictions that an institution violent threat. Although the administration later may need to impose on access and usage must be restored access, the faculty member’s ability to narrowly defi ned and clearly and precisely stated distribute messages on listservs remained severely in writing. In addition, institutions should include restricted. While institutions clearly have an in their electronic- communications policy a obligation to protect members of the community statement similar to that found in the University from genuine threats of violence, overbroad of California policy: “In general, the University interpretations of messages as constituting such cannot and does not wish to be the arbiter of the

48 contents of electronic communications. Neither ethical obligations, and the norms and mission can the University always protect users from of the institution. receiving electronic messages they might fi nd 3. IT leadership should carefully evaluate the offensive.”24 outsource provider’s ability to gain access to content and traffi c data. It is important to note IV. Outsourcing of Information that even if a provider promises not to Technology Resources circulate usage data to advertisers, that Many campuses have considered outsourcing the promise does not foreclose the analysis of provision of noninstructional IT resources, such electronic- communications data for other as e-mail servers and document storage. Out- purposes, including commercial ones. sourcing to a technology company can provide 4. Faculty members should encourage campus IT advantages to institutions, including lower cost leadership to collaborate with other institu- and potentially better security, and help an tions in jointly identifying problems and institution focus on its core mission of education mitigating risks. instead of on the provision of services. 25 Prior to 5. IT leadership should carefully evaluate the the cloud outsourcing model, institutions operated outside provider’s uses, pro cessing, and in- house technical resources, and the information analysis of user content and transactional data. generated by their use remained within the All uses of data should be reviewed by the confi nes of the institution. In many cloud models, institution and specifi cally authorized. however, it is assumed, sometimes without 6. IT leadership should follow policy decisions explicitly stating so, that the outside ser vice and changes of outsource providers and notify provider can analyze how these resources are used faculty members when these decisions for the provider’s own benefi t. Thus cloud ser vices implicate governance issues. proceed from a fundamentally different set of 7. IT leadership should consider technical assumptions from those that govern the same approaches to reduce “vendor lock- in” and, ser vices that are provided in- house at institutions. where possible, to mask content and traffi c data Electronic communications are vulnerable to a from these providers. variety of threats. They may contain private or 8. Contracts with outside vendors of electronic- confi dential information concerning the develop- communications services should explicitly ment of new drugs, classifi ed research, export- refl ect and be consistent with both internal controlled research, and advice to clients visiting institutional policies regarding such communi- institutionally operated legal clinics. They may be cations and applicable federal and state laws. targets of government surveillance. Institutions also have special duties, including legal and V. Unwarranted Inference of Speaking for or ethical obligations, among others, to protect Representing the Institution information about students. The 1940 Statement of Principles cautions that Outsourcing presents several identifi able risks. faculty members “should make every effort to Outsource providers may be motivated to offer indicate that they are not speaking for the services that they can develop and serve “at scale” institution” when in fact they are not doing so. and that do not require special protocols. These The meaning of that constraint is clear enough in services may have been designed for businesses, the print world. One may refer to one’s faculty and thus employees and the services themselves position and institution “for identifi cation may not be tailored to the special context of purposes only” in ways that create no tenable higher education. In effect, outsourcing may inference of institutional attribution. In the undermine governance, as the provider may digital world, however, avoiding an inappropriate effectively set and change policy without consult- or unwarranted inference may be more diffi cult. ing campus IT leadership or the faculty.26 The very nature of the Internet causes Several approaches can strengthen an institu- attribution to be decontextualized. A statement tion’s posture on and commitment to academic made by a faculty member on a website or freedom even in outsourced situations: through e-mail or social media may be recircu- lated broadly, and any disclaimer that the 1. Institutions should formally involve the institution bears no responsibility for the faculty in decisions to outsource core statement may be lost. What about statements electronic-communications technologies. made on Twitter, which limits communications to 2. The selection of an outsource provider must a mere 140 characters? It is hardly reasonable to take into consideration other factors besides expect a faculty member to indicate on every price, including institutional needs, legal and tweet that she or he is not speaking for the

49 institution. And Facebook pages are part of a fi xed month for personal use, a rate that rose to 84 template that does not allow for a banner dis- percent when those who use social-media sites claimer in a readily visible spot on an individual’s less frequently than monthly are added. Of main page. greater relevance to the concerns of this report, In late 2012, a Florida professor posted on his more than 55 percent said they had made blog a controversial statement expressing professional use of social media outside the classes skepticism about offi cial accounts concerning the they teach on at least a monthly basis, and 41 murder of students at Sandy Hook Elementary percent reported having used social media in their School in Connecticut that year. The blog included teaching.28 this statement: “All items published herein Social-media sites blur the distinction between represent the views of [the professor] and are not private and public communications in new ways. representative of or condoned by [the university].” Unlike blogs or websites, which are generally Yet the administration claimed that even by accessible to anyone with Internet access who goes mentioning his affi liation the professor had failed in search of the site, social-media sites offer the to distinguish adequately his personal views from appearance of a space that is simultaneously those of the university and thereby damaged the private and public, one that is on a public medium institution. As a result, he was issued a formal (the Internet) and yet defi ned by the user through reprimand.27 invitation-only entry points, such as Facebook In a letter to the university president, the “friend” requests, and a range of user-controlled AAUP staff wrote that the professor “may indeed privacy settings. have posted highly controversial statements on The extent of the privacy of such sites, his website; but it is such speech, in par tic u lar, however, is at the least uncertain and limited, that requires the protection of academic free- because it is dependent not only on the individual’s dom. . . . In our time, when the Internet has privacy-setting choices and those of the members become an increasingly important vehicle for free in the individual’s network but also on the service intellectual and politi cal discourse around the provider’s practices of analyzing data posted on world, the [university] administration’s action, if the network. Moreover, social-media providers allowed to stand, sets a prece dent that potentially often modify their policies on privacy and access chills the spirited exchange of ideas—however in ways that their users do not always fully unpopu lar, offensive, or controversial—that the comprehend. Faculty members may believe that academic community has a special responsibility their Facebook pages are more secure or private to protect.” than a personal web page, but that is not necessar- Institutions may reasonably take steps to avoid ily true. The seemingly private nature of sites like inferences of institutional attribution or agree- Facebook, Flickr, or Pinterest can lead individuals ment in ways that print communications might to let their guard down more readily, because they not warrant. Disclaimers may be useful, though may think they are communicating only to their value is often exaggerated. However, the handpicked friends and family members, when in nature of electronic communication itself tends to fact those friends and family members may be decontextualize meaning and attribution, and sharing their utterances with other unintended faculty members cannot be held responsible for recipients without the individual’s knowledge.29 always indicating that they are speaking as These sites are not closed portals, despite what individuals and not in the name of their institu- their account controls may suggest. Likewise, an tion, especially if doing so will place an undue acquaintance may post private information about burden on the faculty member’s ability to express a faculty member’s personal life without that views in electronic media. faculty member’s knowledge (or vice versa), and the viral nature of social-media sites may then VI. Social Media make that comment more public than the original The 2004 report essentially assumed that poster intended. electronic communications were either personal There is evidence that such concerns are not (if not wholly private), as with e-mail messages, or unwarranted. One prominent example was the public (or open access), as with websites, blogs, or 2010 case of a Pennsylvania professor who was faculty home pages. The growth of social media suspended from her faculty position and escorted calls such a distinction into question. off campus by police after a student reported to Faculty use of social media is increasing. In the administration one of her Facebook status one survey of eight thousand faculty members, updates (“Had a good day today. Didn’t want to 70 percent of all those responding reported having kill even one student.”). The professor alleged that visited a social- media site within the previous she did not know that anyone other than her

50 personal Facebook network could gain access to academic freedom. So, for instance, the University her status updates. of South Carolina Upstate’s “Social Media Policy In another example, also from 2010, the and Procedure Guidelines” includes the following: administration at a Catholic theological seminary “The purpose of the Social Media Policy is to summarily dismissed an assistant professor of ensure accuracy, consistency, integrity, and church history and languages who was also the protection of the identity and image of the library director, reportedly because of a comment University of South Carolina Upstate by provid- he had posted on a former student’s Facebook page ing a set of required standards for social-media a month earlier, predicting that “one day the content from any department, school, facility, Catholic Church will . . . approve of openly gay orga ni za tion, entity, or affi liate.”33 It is unclear priests.” In June 2013, an evolutionary psychology whether or to what extent this policy applies to professor sparked an uproar after he told his individual faculty members. Twitter followers that overweight students are not The incident cited above at Kansas prompted cut out for PhD programs. The professor quickly the Kansas Board of Regents in December 2013 to deleted the tweet, but he faced considerable adopt new rules under which faculty members criticism, especially after he tried to justify his and other employees may be suspended or comment by claiming it was part of a research dismissed for “improper use of social media.” The project. The administration disciplined him for new policy defi ned social media as “any facility what he had written.30 for online publication and commentary” and In September 2013, the administration of covered but was “not limited to blogs, wikis, and Johns Hopkins University asked a professor, a social networking sites such as Facebook, Linked- prominent authority on Internet security and In, Twitter, Flickr, and YouTube.” This defi nition privacy issues, to remove a blog post, claiming could arguably include any message that appears that the post contained a link to classifi ed electronically, including e-mail messages and information and used the logo of the National online periodicals and books. The policy defi ned Security Agency (NSA) without authorization. “improper use of social media” in extremely broad The post was about NSA privacy debates and terms, including communications made “pursuant encryption engineering. The university has a to . . . offi cial duties” that are “contrary to the best number of ties with the NSA. The administration interest of the university,” as well as communica- withdrew the request after the professor discussed tion that “impairs discipline by superiors or it on Twitter and in the media.31 harmony among co- workers, has a detrimental At the University of Kansas, also in September impact on close working relationships for which 2013, a journalism professor, responding to a personal loyalty and confi dence are necessary, shooting incident at the Washington Navy Yard impedes the perfor mance of the speaker’s offi cial in Washington, DC, tweeted a comment about duties, interferes with the regular operation gun control that many gun advocates found of the university, or otherwise adversely affects offensive. He was barraged with hate messages the university’s ability to effi ciently provide and death threats, and several legislators called for services.” 34 his dismissal. Although the university publicly The AAUP quickly condemned the policy as “a reaffi rmed its commitment to his freedom of gross violation of the fundamental principles of speech, he was suspended to “avoid disruption.” academic freedom that have been a cornerstone of However, a suspension designed to protect a American higher education for nearly a century. faculty member from potentially violent re- Not only faculty members, but students and sponses to a controversial statement can quite members of the general public benefi t from the easily become a punishment for the content of the free exchange of information and ideas that are at statement, which in this instance was clearly the heart of the academic enterprise, whether protected by both the First Amendment and conducted orally, in print, or electronically.”35 In principles of academic freedom.32 the face of widespread criticism, the board of Many faculty members have decided that they regents agreed to work with campus leaders to will simply not join Facebook or similar sites. revise the policy, but it was not withdrawn. Others have decided that it would be improper This report recommends that each institution ever to connect with a student on a social network. work with its faculty to develop policies governing Most colleges and universities have yet to the use of social media. Any such policy must formulate policies regarding social-media usage recognize that social media can be used to make by faculty members. At institutions where such extramural utterances and thus their use is subject policies exist, the focus is frequently on the to Association- supported principles of academic university’s reputation and not on the faculty’s freedom, which encompass extramural utterances.

51 As Committee A previously noted regarding and do employ a balancing test to weigh the extramural utterances, “Professors should also interest of the public’s right to know against the have the freedom to address the larger commu- equally important interests of academic nity with regard to any matter of social, politi cal, freedom.”38 economic, or other interest, without institutional Freedom of information laws are generally discipline or restraint, save in response to benefi cial: they enhance public knowledge and fundamental violations of professional ethics or debate on the workings of government agencies, statements that suggest disciplinary including public universities. But as the AAUP- incompetence.”36 UCS amicus brief pointed out, in some situations Obviously, the literal distinction between a balance must be struck between competing “extramural” and “intramural” speech— speech interests. Likewise, the Supreme Court recognized outside or inside the university’s walls—has little as early as 1957 that po liti cally motivated meaning in the world of cyberspace. But the investigations of universities and scholars can fundamental meaning of extramural speech, as a have a chilling effect on academic freedom.39 shorthand for speech in the public sphere and not Allowing fl eeting, often casual e-mail exchanges in one’s area of academic expertise, fully applies in among scholars to be opened to inspection by the realm of electronic communications, including groups bent on po liti cal attack implicates both social media. privacy and academic freedom concerns. As Committee A previously noted in its report VII. FOIA and Electronic Communications Access to University Rec ords, “The presumption In several recent instances, outside groups or of confi dentiality is strongest with respect to governmental agencies have sought to obtain individual privacy rights; the personal notes and rec ords of faculty members’ electronic communi- fi les of teachers and scholars; and proposed and cations. In 2011, Virginia’s attorney general Ken ongoing research, where the dangers of external Cuccinelli demanded that the University of pressures and publicity can be fatal to the Virginia turn over all e-mail messages and other necessary climate of academic freedom.” 40 communications related to and produced by For example, in 2011, the Republican Party of former professor Michael Mann, a prominent Wisconsin fi led a FOIA request with the Univer- scientist of climate change, on the grounds that sity of Wisconsin, demanding that the university these were public records. The university release e-mail messages from Professor William successfully resisted the request, characterizing Cronon, then president of the American Historical the investigation as “an unprece dented and Association, who had criticized the Republican improper governmental intrusion into ongoing governor’s “assault on collective bargaining scientifi c research,” and charged Cuccinelli with rights.” The administration agreed to release some targeting Mann because the attorney general of Professor Cronon’s e-mail messages, excluding “disagrees with his academic research regarding “private e-mail exchanges among scholars that climate change.”37 But no sooner had this effort fall within the orbit of academic freedom and all been thwarted, than a private group, the Ameri- that is entailed by it.” The administration also can Tradition Institute (ATI), fi led a FOIA request excluded messages that contained student that mirrored the attorney general’s subpoena. information and those “that could be considered The AAUP and the Union of Concerned personal pursuant to Wisconsin Supreme Court Scientists (UCS) fi led a joint amicus brief in case law.” support of UVA and Professor Mann, urging that The University of Wisconsin’s then-chancellor “in evaluating disclosure under FOIA, the public’s Carolyn Martin wrote: right to know must be balanced against the signifi cant risk of chilling academic freedom that When faculty members use e-mail or any other FOIA requests may pose.” ATI’s request, the brief medium to develop and share their thoughts with stated, “strikes at the heart of academic freedom one another, they must be able to assume a right to and debate.” ATI justifi ed its broad intrusion by the privacy of those exchanges, barring violations of claiming that its purpose in seeking the records state law or university policy. Having every was to “open to public inspection the workings of exchange of ideas subject to public exposure puts a government employee, including the methods academic freedom in peril and threatens the and means used to prepare scientifi c papers and pro cesses by which knowledge is created. The reports that have been strongly criticized for consequence for our state will be the loss of the most technical errors.” The AAUP- UCS brief argued, talented and creative faculty who will choose to however, that “in the FOIA context, the public’s leave for universities where collegial exchange and right to information is not absolute and courts can the development of ideas can be undertaken without

52 fear of premature exposure or reprisal for unpop u lar press the librarians had posted on the Internet positions. constituted libel. In the fi rst case, Mellen sued an associate librarian at McMaster University in Unfortunately, this position has not always Ontario over a post he had written in 2010, when been endorsed by other authorities. In June 2012, he was a member of the library faculty at Kansas the American Inde pen dent News Network sought State University, that described Mellen as a documents relating to a study by Professor Mark “vanity press” with “few, if any, noted scholars Regnerus of the University of Texas at Austin. serving as series editors,” benefi ting largely from The university asserted that the documents were librarians not returning books sent for approval at exempt from disclosure under a section of the “egregiously high prices.” The librarian stated, Texas Education Code, which covers “technologi- “As a qualifi ed and experienced librarian, I was cal and scientifi c information” developed by an sharing a professional opinion for consumption by institution that can be sold, traded, or licensed for peers.” 43 Although Mellen dropped that suit, a fee. Moreover, it asserted that the rec ords another suit by its found er continued. Mellen contained information about third parties. The threatened legal action against the interim library state attorney general’s offi ce rejected these dean at the University of Utah, after he criticized claims, however, and in February 2013 the Mellen, in part for its action against the McMas- university released the requested rec ords. By ter librarian. Mellen’s threats prompted the April 2013, the American In de pen dent was Society for Scholarly Publishing to remove the reporting on material that Regnerus had received. Utah dean’s posts from its blog, The Scholarly A Florida court then ruled that the University of Kitchen. The Mellen Press’s litigious behavior is Central Florida also must share the e-mail clearly incompatible with principles of academic messages of Professor James Wright, editor of the freedom.44 journal that published Regnerus’s study. The Because electronic communications are court rejected the university’s claims that the accessible almost instantaneously around the e-mail communications are not university globe, scholars need to be aware that statements records. 41 they post on blogs or websites or that they It is apparent, then, that faculty members at communicate by other electronic means may be public universities in Texas, Florida, and other subject to the laws of other countries. This fact states without scholarly exemption from public- was highlighted in 2013, when a publisher in records laws should be aware that titles of books India announced its intent to sue for libel a they request from the library, peer-review librarian at the University of Colorado at Denver, comments they offer and solicit, and tentative whose popu lar blog contains a running list of ideas they share with colleagues may be matters open- access journals and publishers he deems for public scrutiny under state FOIA laws.42 questionable or predatory. On the blog, the In this light, faculty members should be librarian accused the Indian publisher of spam- advised to segregate, as much as possible, personal ming scholars with invitations to publish, quickly from professional correspondence and also accepting their papers, then charging them a segregate correspondence that concerns university publishing fee of nearly $3,000 after a paper was business from other professional correspondence, accepted. A letter from the publisher’s attorney such as work for scholarly publications and sought $1 billion in damages and warned that the organizations. Moreover, given the uncertainty librarian could be imprisoned for up to three years surrounding state FOIA laws, faculty members at under India’s Information Technology Act.45 public colleges and universities should consider Such a suit would likely have little chance of the possibility that every e-mail message they success in US courts, but some other countries’ send and receive might become public. Lastly, libel laws are less stringent, although in India when such requests are made, faculty members allegations of misuse of the Information Technol- should immediately seek the advice and support of ogy Act have led the Indian government to their union (if one exists at their institution) or of modify its rules to make them stricter. The legal counsel. all- too- common practice of pursuing libel judgments in other countries, most often En gland VIII. Defamation or Wales, where there is a presumption that Faculty blog posts, although public and open to derogatory statements are false, has been dubbed all, may be targets of libel actions. In 2013, in “libel tourism.” In response, the US Congress in separate incidents, two university librarians were 2010 unanimously passed the SPEECH Act, which sued by the Edwin Mellen Press and its founder, made foreign libel judgments unenforceable in US who claimed that negative comments about the courts, unless those judgments are consistent with

53 the First Amendment.46 However, a judgment the reality of the digital age and a result of our unenforceable in the United States might still be extensive reliance on computer networks for the enforceable in the country where it was fi led and conduct of academic discourse. At the same time, which a scholar may need to visit. Those who not some privacy risks are the product of business only communicate and publish in other countries imperatives rather than technical necessities. but also travel there for research or teaching Privacy risks are likely to increase as institu- should be aware of the legal environment tions are called on to address more aggressively governing their expression in those countries. the security of college and university networks, as researchers increasingly use digital instead of IX. Privacy of Electronic Communications printed resources, and as distance education and Electronic communications have greatly enhanced electronic-communications technologies are more the ability to teach, to learn, and to inquire. Such generally relied on to execute institutional technologies have made collaboration over great missions. distances much more effi cient and enabled people Faculty members also bear responsibility for to work effectively at any hour and in almost any protecting privacy in electronic communications. place. At the same time, the structure of With the proliferation of BYOD policies, sensitive electronic- communications technologies can institutional data are sometimes stored on constrain inquiry. Such technologies are designed consumer- level devices. Thought must be given to to document communications and thus amass the storage of student and research data on records of intellectual activities. These records can personal and portable devices in case these devices distort interactions because electronic communi- are compromised, lost, or stolen. cations often lack the subtlety of in-person The sensitivity of academic communications exchanges. They can also be used to investigate and the wide range of scholarly purposes for individuals in ways that were impossible just a which digital channels are used warrant a de cade ago. Efforts to protect privacy in electronic markedly higher level of protection. A fully communications are an important instrument for responsive policy would refl ect at least these ensuring professional autonomy and breathing criteria: space for freedom in the classroom and for the freedom to inquire. Although privacy is framed as 1. The policy should recognize the value of an individual right, group or associational privacy privacy as a condition for academic freedom is also important to academic freedom and to and the benefi ts that privacy and autonomy ensuring a culture of trust at an institution. bring to the individual, to groups, and to the When Congress passed legislation to govern culture of an institution. The institution the privacy of e-mail and other electronic- should recognize that faculty members have a communications technologies, these technologies reasonable expectation of privacy in their were used primarily by businesses. As a result, electronic communications and traffi c data. some drew the conclusion that the degree of 2. The policy should clearly state that the privacy appropriate to digital communications is university does not examine or disclose the substantially lower than that expected for contents of electronic communications and traditional media. In the intervening years, traffi c data without the consent of the indi- however, the use of these technologies has vidual participating in the communication blossomed among businesses and individuals except in rare and clearly defi ned cases. Calls alike. to examine electronic communications or The nature of a communications medium may transactional information should consider the take some toll on privacy. An institutional special nature of the academy, weigh whether computing network legitimately “backs up” some the examination would have disproportion- portion of each day’s e-mail traffi c. IT staff ately chilling effects on other individuals or members in the normal course of events have a the institution generally, and contemplate technical degree of access to electronic messages alternative or less invasive approaches to that would be unthinkable for personnel in the preserve privacy in communications. university mailroom or the campus telephone 3. Employees who operate and support electronic- network. By its very nature, electronic communi- communications resources regularly monitor cation incurs certain risks that have no print transmissions for the purpose of ensuring counterpart— for example, the potential invasion reliability and security of those resources and of the system by hackers, despite the institution’s services and, in that process, may observe best efforts to discourage and even prevent such certain transactional information or the intrusions. Some of these risks are simply part of contents of electronic communications. Except

54 in specifi cally defi ned instances or where social-media postings, and texts can be forwarded required by law, they should not be permitted to countless people instantaneously. to seek out transactional information or contents when those are not germane to X. The Role of Faculty and Shared Governance system operations and support or to disclose or Some faculty members mistakenly believe that otherwise use what they have observed. institutional IT policies are strictly under the 4. Faculty members should be involved in the purview of technology offi ces, which are thought setting of institutional policies surrounding to possess the requisite expertise to address net- the monitoring of and access to content and work security, provision of bandwidth, out- traffi c data in electronic communications. sourcing, and similar issues. But the interests of Policies on electronic communications should faculty members are not always consonant with enumerate narrow circumstances where those of IT offi ces. The latter may be charged, institutions can gain access to traffi c logs and for example, with conserving resources, while content unrelated to the technical operation of faculty members need broad access to information these services. If a need arises to get access to and ideas. electronic- communications data, a designated Some technology offi ces may be tempted to university offi cial should document and handle employ software features “just because they can,” the request, and all parties to the communica- without full consideration of their implications for tion should be notifi ed in ample time for them to academic freedom and learning. For example, pursue protective measures— save in the rare recent learning- management software allows an case where any such delay would create institution to disable features that invade privacy. imminent risk to human safety or university But some technology offi ces may have a cavalier property. Accessed data may not be used or attitude toward privacy or simply desire to offer disseminated more widely than the basis for all the “bells and whistles” available. Electronic such exceptional action may warrant. communications are too important for the 5. As reliance on electronic- communications maintenance and protection of academic freedom technologies grows, more faculty online to be left entirely to such offi ces. Faculty members activities will be subject to being logged. must participate, preferably through representa- Institutions are encouraged to use several tive institutions of shared governance, in the strategies encapsulated by the idea of “privacy formulation and implementation of policies by design” to reduce the risk to free inquiry governing electronic-communications technologies. and association from this logging. These However, in order for the faculty to play an strategies include creating logs at the aggregate active and constructive role in the development level, where individuals are not identifi able, and execution of such policies, those faculty when possible; carefully controlling access to members who participate in such work need to these logs; removing identifying information become more informed about both the technical from them; and deleting them according to issues involved and the broader academic- freedom some reasonable retention policy. These implications of their decisions. This report is strategies must, of course, be balanced to designed to facilitate that pro cess. accommodate legitimate security obligations. Specifi cally, we recommend the following:

Such principles as these, designed as they are 1. Policies and practices regarding information to ensure the privacy of electronic communica- technology should be within the purview of a tions, will require careful and extensive study by representative faculty committee. Any new each institution and the tailoring of specifi c policy or major revision of an existing policy responses consistent not only with institutional should be subject to approval by a broader needs and values but also with state and local law. faculty body such as a faculty senate. At the same time, it must be acknowledged that 2. The faculty committee may be drawn from the whatever legal and policy protections may be faculty senate or elected as an ad hoc commit- available, all faculty members should recognize tee by the faculty; its members should not be that in practice the privacy of electronic commu- appointed by the administration. nications cannot always be protected. In addition 3. Faculty members participating in the commit- to the issues raised previously about FOIA laws, tee should be familiar with and informed about faculty members need to recognize that even relevant developments in communications encrypted messages can be hacked and even the technology so that they are able to recognize “safest” fi rewalls can be breached. Moreover, even potential confl icts with principles of academic the most sensitive and private e-mail messages, freedom.

55 4. The members of the faculty committee should Systemwide Move,” Chronicle of Higher Education, be provided with all relevant contracts and August 5, 2013. technical materials necessary to make 10. One example of such a collaboration may be informed decisions about policies governing found at http:// www .philosophersimprint .org /, an electronic communications. open-access online resource for philosophy scholarship, the mission of which is “to overcome [the] obstacles to 5. Whenever policies are proposed or administra- the free electronic dissemination of scholarship.” tive actions taken with respect to information 11. For more on library privacy and confi dentiality technology that may directly or indirectly policies, see http:// www .ala .org /offi ces /oif /statementspols implicate academic freedom, faculty members /otherpolicies /rfi dguidelines. must be consulted. 12. “Academic Freedom and Artistic Expression,” 6. In those institutions with collective bargain- Policy Documents and Reports, 40–41. ing, faculty unions should seek to include in 13. Ginsberg v. New York, 390 US 629 (1968). In their collective bargaining agreements 1997, the Court struck down the Communications protections for academic freedom in electronic Decency Act, and in 2009, it declined to review a communications as described in this report. decision by the US Court of Appeals for the Third Circuit striking down the Children’s Online Protection Act. Reno v. American Civil Liberties Union , 521 US Notes 844 (1997) and ACLU v. Mukasey, 534 F.3d 181 (3rd 1. Academe 91 (January– February 2005): 55– 59. Cir. 2008), cert. denied, 555 US 1137 (2009). 2. Robert M. O’Neil, Academic Freedom in the 14. Richard Pérez-Peña, “Universities Face a Rising Wired World (Cambridge, MA: Harvard University Barrage of Cyberattacks,” New York Times, July 16, Press, 2008), 179– 80. 2 0 1 3 , h t t p : / / w w w . n y t i m e s . c o m / 2 0 1 3 / 0 7 / 1 7 / e d u c a t i o n 3. Carl Straumsheim, “Device Explosion,” Inside /barrage -of -cyberattacks -challenges -campus -culture Higher Ed, September 5, 2013, http:// www .insidehigh- .html . ered .com /news /2013 /09 /05 /wireless -devices -weigh 15. Ibid. -down-campus -networks . 16. Steve Kolowich, “The Academic Twitterazzi,” 4. O’Neil, Academic Freedom in the Wired Inside Higher Ed, October 2, 2012, http:// www . World, 181. insidehighered.com /news /2012 /10 /02 /scholars -debate 5. Scott Jaschik, “Reacting to Aaron Swartz’s -etiquette -live -tweeting -academic -conferences . Suicide,” Inside Higher Ed, January 14, 2013, http:// 17. Ibid. www . insidehighered .com /news /2013 /01 /14 /academe 18. Colleen Flaherty, “Not-So- Great Expectations,” -reacts -aaron -swartzs -suicide . Inside Higher Ed, October 18, 2013, http:// www 6. Colleen Flaherty, “Could Have Done More,” Inside . insidehighered .com /news /2013 /10 /18 /professors Higher Ed, July 31, 2013, http:// www .insidehighered -afforded -few -guarantees -privacy -internet -age . . com /news /2013 /07 /31 /mit -releases -report -its -role -case 19. The AAUP has been concerned with this issue -against-internet -activist -aaron -swartz . since its 1915 Declaration of Principles on Academic 7. Lawrence Lessig, “Prosecutor as Bully,” Lessig Freedom and Academic Tenure, which stated, “Discus- Blog, January 12, 2013, http:// lessig .tumblr .com /post sions in the classroom ought not to be supposed to be /40347463044 /prosecutor -as -bully . utterances for the public at large. They are often 8. AAUP, Policy Documents and Reports, 11th ed. designed to provoke opposition or arouse debate.” In the (Baltimore: Johns Hopkins University Press, 2015), 1980s, a group called Accuracy in Academia encouraged 264. students to record professors’ classroom statements and 9. As of August 2013, more than 175 universities send them to the or ga ni za tion to be tested for “accu- had endorsed open access. That month, for instance, the racy.” According to a 1985 statement the AAUP issued University of California Academic Senate adopted an jointly with twelve other higher education associations, open-access policy that will make research articles “The classroom is a place of learning where the freely available to the public through eScholarship, professor serves as intellectual guide, and all are California’s open digital repository. The policy applies encouraged to seek and express the truth as they see it. to all ten of the system’s campuses with more than The presence in the classroom of monitors for an eight thousand tenured and tenure-track faculty outside orga ni za tion will have a chilling effect on the members and will affect as many as forty thousand academic freedom of both students and faculty research papers a year. Faculty members can opt out or members. Students may be discouraged from testing ask that their work be embargoed for a period of time, their ideas, and professors may hesitate before as many journal publishers require. In a departure from presenting new or possibly controversial theories that many other institutions’ open-access policies, UC would stimulate robust intellectual discussion.” researchers will also be able to make their work 20. Bastiaan Vanacker, “Returning Students’ Right available under commercial as well as noncommercial to Access, Choice, and Notice: A Proposed Code of Creative Commons licenses. UC researchers get an Ethics for Instructors Using Turnitin,” Ethics and estimated 8 percent of all US research money and Information Technology 13 (2011): 327– 38. produce 2 to 3 percent of peer- reviewed scholarly 21. The Guard Publishing Company, d/b/a The articles published worldwide every year. See “Open Register Guard, 351 NLRB 1110 (2007), supplemental Access Gains Major Support in U. of California’s

56 decision, 357 NLRB No. 27 (2011); Hispanics United of . u s c u p s t a t e. e d u / u p l o a d e d F i l e s / O f fi ces/Communications Buffalo, Inc., 359 NLRB No. 37 (2012). /social /Social %20Media %20Policy %20Approved .pdf . 22. See http://aaupcolorado.org/2014/01/20 34. Kansas Board of Regents, “Policy Chapter II C /colorado-conference- responds- to- csu- pueblo- president Suspensions,” http:// www .kansasregents .org /policy _ - lesley- di- mare- regarding- the- censure- of- professor- ti chapter _ii _c _suspensions . m- mcgettigan/ for more information about the 35. AAUP, “AAUP Statement on the Kansas Board Colorado incident. of Regents Social Media Policy,” http:// www .aaup .org 23. AAUP-recommended procedures for the / fi l e / K a n s a s S t a t e m e n t . p d f . imposition of sanctions, whether minor or severe, may 36. “Protecting an In de pen dent Faculty Voice: be found in Regulation 7 of the “Recommended Academic Freedom after Garcetti v. Ceballos,” Policy Institutional Regulations on Academic Freedom and Documents and Reports, 126–29. Tenure,” Policy Documents and Reports, 85. 37. For a summary of key events in the Mann case, 24. University of California Electronic Communica- s e e h t t p : / / w w w . a a u p . o r g/ o u r- p r o g r a m s / l e g a l - p r o g r a m tions Policy, http:// policy .ucop .edu /doc /7000470 / legal -roundup -2012 #iii . /ElectronicCommunications . 38. Ibid. 25. Outsourcing of instruction through online 39. Sweezy v. New Hampshire, 354 US 234, 250 education offered by outside providers, however, is a (1957). (“The essentiality of freedom in the community quite different matter. of American universities is almost self-evident. . . . 26. The abbreviation IT is used here and subse- Scholarship cannot fl ourish in an atmosphere of quently in reference to those university offi ces and suspicion and distrust.”) functions variously called “information technology,” 40. Policy Documents and Reports, 62. “instructional technology,” or “institutional 41. Zachary M. Schrag, “Happy Goldfi sh Bowl to technology.” You, Professor,” Zachary M. Schrag (blog), November 27. Scott Jaschik, “Reprimand for a Blog,” Inside 28, 2013, http:// zacharyschrag .com /2013 /11 /28 /happy Higher Ed, April 12, 2013, http:// www .insidehighered -goldfi sh -bowl -to -you -professor /. .com /news /2013 /04 /12 /fl orida -atlantic -reprimands 42. A recent survey of how state FOIA laws govern -professor-over -his -blog . requests for material from public universities found 28. The survey was conducted by the Babson Survey that only twenty-fi ve states offer various degrees of Research Group on behalf of Pearson Learning exception for academic materials, with the best statutes Solutions. See Jeff Seaman and Hester Tinti-Kane, in Alaska, Pennsylvania, and Georgia. See Ryan C. Social Media for Teaching and Learning (Boston: Fairchild, “Giving Away the Playbook: How North Pearson Learning Solutions, 2013), http:// www Carolina’s Public Rec ords Law Can Be Used to Harass, .pearsonlearningsolutions .com /higher -education Intimidate, and Spy,” North Carolina Law Review 91 / social-media -survey .php . (2013): 2117–78. See also the memorandum about state 29. Social-media communications may also be used FOIA laws available at http:// www .law .gwu .edu /News by the social- media site itself for data- mining purposes. /2013 -2014events /Documents /ATIvUVA /State _FOI _ 30. Lauren Ingeno, “#Penalty,” Inside Higher Ed, List .pdf . August 7, 2013, http:// www .insidehighered .com /news 43. Colleen Flaherty, “Price of a Bad Review,” Inside /2013 /08 /07 /fat -shaming -professor -faces -censure Higher Ed, February 8, 2013, http:// www .insidehigh -university. ered .com /news /2013 /02 /08 /academic -press -sues 31. “Hopkins (Briefl y) Asks Professor to Remove -librarian-raising -issues -academic -freedom . Blog Post,” Inside Higher Ed, September 10, 2013, 44. Ry Rivard, “Call In the Lawyers,” Inside Higher http:// www .insidehighered .com /quicktakes /2013 /09 Ed, April 1, 2013, http:// www .insidehighered .com /news /10 /hopkins -briefl y -asks -professor -remove -blog -post . /2013/04 /01 /mellen -press -continues -its -legal -maneuvers 32. Scott Rothschild and Ben Unglesbee, “Professor -against-critics . Getting Death Threats over NRA Tweet, Colleagues 45. Jake New, “Publisher Threatens to Sue Blogger Support His Free- Speech Rights,” Lawrence Journal- for $1-Billion,” Chronicle of Higher Education, May 15, World, September 23, 2013, http:// www2 .ljworld .com 2013, https:// chronicle .com /article /Publisher -Threatens / news /2013 /sep /23 /fi restorm -over -guths -comment -to-Sue /139243 /. -continues -university - /. 46. 124 Stat. 2480– 84. SPEECH is the acronym for 33. University of South Carolina Upstate, “Social “Securing the Protection of our Enduring and Estab- Media Policy and Procedure Guidelines,” https:// www lished Constitutional Heritage.”

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