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Computer Privacy
Bill Shields
To the Editor:
In Martha McCaughey's article on computer privacy in the September-October issue, she claims that "saying that the state has a right to seize and search an employee's computer files simply because it owns the computer is like saying a man gets to rape his wife simply because he's her husband." This statement conflates a whole series of legal, moral, and ethical issues. McCaughey quite rightly points out that computer privacy in the workplace presents some special challenges for employers and, indeed, for the courts and constitutional scholars. But this outrageous analogy does not serve McCaughey's interest, which appears to be defending academic freedom with respect to electronic files kept at work. All issues of personal and workplace privacy have become more complex in the Internet age. No one is immune, nor are college professors being singled out for ill treatment. That being said, it is important (as McCaughey argues) for employers, including universities, to have clearly stated policies that are consistent with current state and federal laws and legal decisions.
McCaughey argues that university privacy policies should "ensure that the electronic environment enhances, rather than erodes, academic freedom and civil liberties, lest the P in PC change from Personal to Police." I believe it is vitally important that as we struggle as a society with defining the right of privacy in the information age, we remain mindful that we are a nation of laws under a constitution. We are in no danger of becoming a police state. Moreover, suitable policies require the balancing of a number of important interests, among which may be counted the government's need and right to investigate crimes and to promote national security in a very dangerous age. Academic freedom is but one interest among many. While McCaughey was understandably upset at having her computer seized and searched, it appears that this was done in the course of a criminal investigation of vandalism at the very campus at which she worked. In forwarding the offending e-mail to a Listserv, rather than simply deleting it, McCaughey can hardly argue that she was attempting to keep the whole matter private.
As we discuss these important matters, we should consider our positions carefully, and with due regard for the many interests that must be accommodated. We do our society no good by bringing to the table ill-chosen analogies and proposals that have no basis in law or public policy.
Bill Shields
(Attorney in federal practice)
Vienna, Virginia
McCaughey Responds:
I argued that giving the state unregulated access to its employees' digital files is like giving a man unfettered sexual access to his wife. I used that comparison to question current assumptions about the politics of computer ownership and access—just as feminists questioned, and ultimately struck down, state rape laws that once exempted husbands who forced sex on their wives from the legal definition of rape. Just as we no longer define a woman's sexuality as property belonging to a man in marriage, we must not define professors' academic computer files as necessarily belonging to the university or the state. The integrity of academic freedom depends on this.
Policies and laws must balance interests of privacy, free speech, and academic freedom with equally important interests in workplace efficiency, public safety, and national security. Former U.S. attorney general Janet Reno wanted to achieve that balance in light of new information technologies, arguing in her 1998 memorandum on establishing the Department of Justice Privacy Council that the "improper use [of such technologies] either by law enforcement personnel or others may seriously and adversely affect a fundamental American value: privacy."
Is Bill Shields implying that I had no right to expect privacy in my electronic files at work? Is he suggesting that I was being "loose" with my computer and therefore deserved its seizure and search? If so, I would urge him to read the 1987 case of O'Connor v. Ortega, in which the U.S. Supreme Court ruled 5 to 4 that searches of government offices are subject to Fourth Amendment constraints. There are certainly times when police officers conducting a criminal investigation need to access someone's home, office, computer, and so on. I maintain, in line with the guidelines offered by the Department of Justice, that in such cases they use a legal instrument such as a search warrant or subpoena, and forgo such instruments only under exceptional circumstances, such as to prevent the death of, or serious bodily injury to, a human being (see www.usdoj.gov/criminal/cybercrime).
Police and employer searches at state universities that do not follow legal standards or systems of accountability in established policy have a chilling effect on academic freedom. Whether or not this is a sign of an impending "police state" was not part of my argument. But a national debate on civil liberties has emerged, and I hope AAUP members will continue to give it careful attention, working to fulfill the ideals that redeem our constitutional society.
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