Professors afforded few guarantees of privacy in the Internet age
Rachel Slocum, assistant professor of geography at the University of Wisconsin-LaCrosse, was stunned earlier this month when what she thought was an innocuous if impetuous e-mail to students about why they couldn’t access census data to complete an important course assignment became national news.
Her e-mail, which blamed the “Republican/Tea Party controlled House of Representatives” for the shutdown and consequent U.S. Census Bureau website blackout, appeared on Fox News, the Daily Caller and in her local paper, after a student posted a screen shot on Twitter. It also caused uproar on campus, prompting numerous calls and e-mails to Chancellor Joe Gow, who sent an e-mail to students, faculty and staff distancing the university from Slocum’s “highly partisan” comments.
Slocum said she probably wrote the e-mail too quickly upon hearing her students couldn’t access the site, without sufficient explanation of her political reference. But the chain reaction was hard to believe, given that she never intended – or thought – that her e-mail would be seen by anyone outside of her geography course. (Note: An earlier version of this story incorrectly named Slocum's discipline.)
“This had never happened to me before so it was a new, unexpected and unpleasant experience,” Slocum said in an e-mail. “And I didn't expect it because my e-mails to students are the boring stuff of ‘Why didn't you turn in that’ or ‘Here are some important points to remember,’ rather than anything that might cause fury on the Internet.”
Politics aside, Slocum’s case and others like it in recent months raise an important question: In the age of social media and smartphones, what expectations – if any – should professors have for privacy for lectures and communications intended for students?
Very little, said Slocum – but that’s “an acknowledgement of fact, of the way the Internet works, rather than a normative statement.”
Privacy and intellectual property experts agreed, saying that such communications are fair game for students to share. Higher education has a complicated relationship with copyright and other ownership questions, experts said, due to historical concerns about academic freedom. Legally, however, most all of what professors say to students in lectures and in e-mails would pass the "fair use" doctrine test, making it O.K. for students to record, share and comment on even copyrighted material for non-commercial purposes.
“All of us have to figure out what our expectations should be in an age of smartphones and the Internet,” said Jessica Litman, a professor of law and information at the University of Michigan who specializes in intellectual property -- professors included.
If Slocum was exposed via Twitter, YouTube was the medium of unwitting choice for William Penn, a tenured professor of creative writing at Michigan State University. His teaching duties were reassigned after he embarked on what’s been described as an anti-Republican “rant” on the first day of class in August.
And Facebook helped Santiago Piñón, assistant professor of religion of at Texas Christian University, make headlines last month, when a student he invited via e-mail to a study session for “students of color only” posted the message on her page. Almost instantly, the invitation, which many said discriminated against other students, went viral.
In Penn’s case, a student anonymously videotaped the incident, which went largely unnoticed by the university until the video surfaced on the conservative website Campus Reform and on YouTube about a week later. To date, an edited version of the video has been viewed more than 173,000 times.
Penn’s suspension from teaching and the details surrounding the incident prompted concern from faculty and free speech groups, such as the American Association of University Professors and the Foundation for Individual Rights in Education, as well as his fellow professors at Michigan State. The Faculty Senate there has formed an ad hoc committee to examine social media usage in the classroom, through the lens of academic rights and responsibilities. Penn did not respond to request for comment on this article.
Sue Carter, professor of journalism and Faculty Senate chair, said in an e-mailed statement: “I anticipate the members will provide guidance on the subject including First Amendment rights, intellectual property, privacy and notification. Our swiftly changing technology makes this a rich, but complicated environment.”
But Litman said it would be hard to argue that Penn’s speech could be considered intellectual property protected by copyright, which she called a “red herring” in the discussion.
“Copyright doesn't protect extemporaneous utterances unless they are recorded with the permission of their author -- here, the speaker -- so he would have no copyright claim,” she said.
If Penn’s lecture had been written down – including the “rant” – he could have a copyright claim, Litman said. But in that case, the student who recorded it would have a plausible fair use defense, she added, referring to the section of copyright law that allows for unlicensed, non-commercial use of copyrighted material.
Corynne McSherry, director of intellectual property at the Electronic Frontier Foundation, agreed that students recording and sharing parts of professors’ theoretically copyrighted lectures for commentary, not commercial profit, likely would be protected by fair use doctrine. Although it’s given that employers own the work of their employees in many sectors, McSherry called copyright and ownership over lectures in academe a “thorny little thing,” given historical concerns about academic freedom. But professors who expect more privacy for that reason probably shouldn’t, she said.
The same goes for e-mails to students, such as Penn’s and Piñón’s.
McSherry said she didn’t see that as a bad thing, however. “It feels a little disturbing that people who are concerned with academic freedom would question sharing and commenting on what’s happening in the classroom.”
AAUP says otherwise. Greg Scholtz, director of academic freedom, tenure and governance, said via e-mail that “surreptitious recording of classroom speech and activity and the distribution of such recordings infringes on the academic freedom of both professors and students.” E-mailed communications are subject to the same expectations of privacy as traditional mail, he added: that they shouldn’t be opened by anyone but the intended recipient (AAUP policy doesn't touch on whether or not they should be shared once opened, however).
Slocum said she saw close monitoring of professor’s words by watchdog groups as potentially chilling to free speech, and as a means of waging the nation’s current political battles on a new front, to the detriment of higher education overall.
“My sense is that the tweet from my student was part of the hardening of positions we see in the political arena and the ongoing attack on teachers and other public servants,” she said. “It is perhaps encouraged by the idea that students are 'consumers' of education from professors who are there to provide a 'service.’ ”
Gow, Slocum’s chancellor, said that kind of political attention was an unfortunate byproduct of the situation he felt obligated to respond to “unequivocally” earlier this month -- and that he would have responded "exactly the same way" if Slocum's e-mail had blamed Democrats or any other group for the shutdown. Both he – a longtime communications scholar – and LaCrosse value free speech and academic freedom, he said, but now more than ever the actions of faculty and staff can influence public support for higher education.
Ultimately, Gow said, the Internet has "greatly blurred" the line between what's public and what's private, "and we do need to remember that what we're saying to students may be shared more broadly."
“Academia is connected into the bigger culture more than ever,” he said. “It’s not often that we’re an ivory tower anymore, are we? That has the potential, as we see with MOOCs, to really open things up, and be really very healthy. But it also has the effect, as we see here, of magnifying controversy.”
Gow said that ideally, a student who was offended by a professor's speech would try to settle the matter internally, first through a conversation with that professor, then through more formal complaint mechanisms as needed. LaCrosse also takes student evaluations seriously in personnel decisions, he said.
Slocum expressed similar views, saying that taking complaints to the Internet before the institution “seems a breach of trust” and removes them from their context.
“Can students rightfully make public professors' e-mails? I assume it's free speech," she said. "There may be times when it could constitute whistle-blowing, which absolutely should be protected.… But I think it is wrong for students to step outside the university's internal complaint process and let the court of public opinion judge professors.”
Litman, at the University of Michigan, said one way to regulate privacy is to do so at the institutional level, incorporating it into university policy. Her university, for example, prohibits students from recording lectures without the instructor’s permission. Slocum pointed to confidentiality disclaimers some administrators include in their e-mails at LaCrosse as a means of regulating the sharing of e-mails, but called it an "unfortunate solution that shouldn't be necessary in the professor-student relationship."
At LaCrosse and other institutions that lack such a policy, Gow suggested that professors make up their own rules and include them on course syllabuses -- as some faculty at various institutions, including Michigan State, already do (presumably, Penn did not). But, the chancellor said, enforcing those policies could be another, complicated matter. "That's kind of uncharted territory there, isn't it?"