Are the faculty
of CUNY correct in thinking that they have a right of privacy: protection
from intrusion into their personal and professional affairs by the
institution in which they work? Is it reasonable for them to hold
the expectation of privacy? Can they offer a pledge of
confidentiality to those whom for whom such pledges are needed in order
for them to provide information as related to research or employment?
Privacy or the right to privacy is something which faculty take as a given
in terms of their employment and work. Beyond the ordinary
assumption of citizens of a liberal state, faculty believe that their
academic work, their research and their relationships with students and
subjects and colleagues carries with them the presumption of
confidentiality, if not the pledge of such under certain circumstances.
Although there is case law and precedents to make clear that employers may
examine the uses to which their employees put the various devices and
communications equipment and systems provided by the employer most faculty
take it that an academic institution has a different relationship with its
faculty than that of the ordinary employer-employee type. In fact, the
academic institutions have the unique concept of academic freedom that
sets faculty apart from typical employees of any other form of employer.
Along with academic freedom comes the entailment of those conditions
necessary for the realization of such freedom and among those are privacy.
Faculty are not the same sort of employee as compared to the security
guards or the cleaning crew or the ground keepers. Faculty do the sorts
of things for which privacy needs to be presumed or reasonably expected.
Faculty are covered by the concept of academic freedom. The secretaries
and groundkeeper are not. When a college or university formulates
policies and regulations related to its employees, faculty must be
distinguished from all other employees. A single policy intended to
cover all employees will not suffice to respect that which is privileged
under academic freedom.
Faculty have an expectation of privacy
that is reasonable. This is a claim with serious implications for
where there is such a "reasonable expectation of privacy" then the
rights protected under the fourth amendment of the U S Constitution would
obtain for the faculty of CUNY or any other public university or public college.
The question of the concept of a "reasonable expectation of privacy" as
being applicable to the situation of a faculty member acting in accord
with the duties of that position is one which is ultimately for the courts
to decide but there is reason to believe that it would be so
adjudicated because previous cases in which the concept has been a crucial
issue the expectation of privacy has been held to vary with circumstances
and settings. The expectation of privacy is obviously different for
one in one's own home as opposed to walking on a public street.
Likewise the expectation would vary for an employee working at a desk in
the office of a manufacturing firm as opposed to a lawyer working with a
client in an office or a physician with a patient and so on. A
faculty member working in a classroom or office also has a different sort
of expectation of privacy. It is one born of the nature of the work
and the relationships involved of faculty member to students, advisees,
colleagues and so forth when faculty are teaching, advising,
counseling, researching, communicating about hypotheses, theories and when
ruminating and writing. So generally spread is the practice of
respect for another's privacy within the academy that there is a
wonder that the reasonableness of the expectation would be challenged
There are no previous cases over the fourth amendment protection that have
involved academic settings based on the concept of academic freedom. Perhaps this is precisely due to the
recognition that in the academic setting it is reasonable to expect
privacy and that such privacy is seldom violated.
In a statement of the AAUP in November of 2004 the following point was
There are genuine
academic freedom concerns that have not yet been recognized by the courts,
and that are less than fully or adequately reflected in most institutional
policies. The sensitivity of academic communications and the wide range of
scholarly purposes for which digital channels are invoked warrant a
markedly higher level of protection.
Academic Freedom and
Electronic Communications (2004):
EXPECTATION of PRIVACY
1) CUNY Faculty have an
expectation of privacy in their conduct of their professional activities
as educators and members of discipline professions.
2) CUNY Faculty have an
expectation of privacy that is reasonable.
3) The reasons for their expectations
include the following:
a) CUNY is an educational institution
not simply a business with employees
b) As an educational institution
CUNY has a responsibility to affirm and support Academic Freedom for its
faculty in order to enable its faculty to act as educators and
researchers and has done so.
c) Academic Freedom entails a number of concepts and privacy is one of
d) Privacy is necessary for the educator and researcher because there
can not be the free pursuit of new knowledge , the exploration of
alternative hypotheses and positions, the gathering of sensitive
information if there is concern that others not directly involved in the
research would be viewing or examining communications and information.
"The basic precept in the 1940
Statement of Principles on Academic Freedom and Tenure that
"teachers are entitled to full freedom in research and in the
publication of results" should apply with no lesser force to the use of
electronic media to conduct or disseminate research findings or data." AAUP
Statement on Academic Freedom and Electronic Communications.
e) faculty in a variety of
disciplines often interview people to obtain
sensitive information as part of their research that could not be
the offer of confidentiality.
the obligations the faculty has with those who provide the faculty with
confidential information, including the law governing human subject
f) the teacher student relationship
often involves exchanges of sensitive information that would not be
shared if it was known that third parties would be viewing or hearing it
g) faculty often advise and counsel
students and receive confidential information
h) what occurs in the classroom after
a brief time is dependent upon a relationship that is nurtured by the
educator with the learners and that set of relationships and atmosphere
can not be well developed if there is the possibility that what is
occurring in the class is being witnessed by parties not involved in the
" A basic precept of the 1940 Statement of
Principles is that "teachers are entitled to freedom in the
classroom in discussing their subject...." The scope of that principle
is relatively clear in the physical setting, where a "classroom" is
bounded by walls, floor, and ceiling. But where the learning site may be
a virtual space, the import of this principle is far less clear. The
focus of the course might be a web site or a home page. Each student
might post course material, even term papers, on his or her own web
page. Much of the course-related communication may occur through e-mail,
either individually targeted or addressed to the class as a group. Under
these conditions, the scope of the operative term "classroom" must be
enlarged to encompass electronic formats for those virtual spaces and
areas where the communication inherent in the teaching and learning
process may occur--web sites, home pages, bulletin boards, chat rooms,
and e-mail lists that convey or share information and ideas within the
context of a university class or course--as well as to the traditional
physical classroom in which much teaching will continue to take place." AAUP
Statement on Academic Freedom and Electronic Communications.
i) on search committees and on
personnel matters faculty often obtain and exchange and discuss
information that is and should remain confidential
j) information concerning the medical records and conditions of
faculty, students and staff are to be kept confidential by statute and
whether it is FERPA or HIPPA or other such regulatory agent.
The reasonable expectation of privacy,
precisely as a reasonable expectation, is not an expectation for privacy
that is absolute. Faculty understand and accept that privacy can be
breached for extraordinary and unavoidable circumstances:
a) a fire in a faculty members office or burst water pipe that is
destroying property and information would necessitate an invasion of
privacy of the office space
b) a computer system or network problem would require technicians to
files and bits of data to either analyze or effectuate repair of a
problem that might involve an invasion of the digital files including
email items of faculty.
c) a court order or warrant might compel university authorities to grant
access to or examine faculty offices and labs including information
d) a complaint or report of behavior that would be illegal could lead to
some investigative body being granted access by a legitimate authority
to what otherwise would be considered as private
ACADEMIC FREEDOM at CUNY
The City University of New York, through
its governing bodies, has recognized the principle of academic freedom on
In June 1946, when it reaffirmed the
AAUP’s 1940 “Statement of Principles,”
In November 1973 when its Council of
Presidents stated that the university “…should remain a forum for the
advocacy of all ideas protected by the First Amendment to the Constitution
and the principles of academic freedom,”
In October 1981 when the Board of Trustees resolved “That the University
pledges diligently to safeguard the constitutional rights of freedom of
expression, freedom of association and open intellectual inquiry of the
faculty, staff and students…,”
In December 2001 when the University Faculty Senate resolved that it
“strongly supports the 1981 Board of Trustees statement” and that it,
“along with the Council of Faculty Governance Leaders, affirms the full
AAUP Statement of Principles on Academic Freedom and Tenure,”
On April 20, 2004 when the
University Faculty Senate unanimously passed
a "Resolution Reaffirming the University’s Commitment To Academic
PRIVACY as ENTAILED by ACADEMIC FREEDOM
When the University affirms
Academic Freedom for its faculty it affirms its recognition of the privacy
rights of faculty. Privacy for faculty is part of the meaning of Academic
Freedom. Faculty must know that they are free from uninvited observations
of their communications and activities when they pursue research and when
they with their colleagues consider all forms of thought, particularly on
matters of controversy. Such inquiry that is part of scholarly research
and the expansion of knowledge and critical theory and analysis must be
conducted without concern that the communications involved in such
activities would be viewed by outside parties.
This right of privacy
includes but is not limited to all forms of communications and this
includes electronic and computerized means of communication and research.
The University should carry
out its legal and ethical duty to respect privacy and fulfill its
institutional responsibility to respect and protect academic freedom.
circumscribed and well scrutinized exceptional circumstances such as a
judicially sanctioned search warrant or wire tap order over which college
personnel have no control should ever be allowed to overcome the right to
privacy concerning faculty research activities and all forms of
All forms of communication
should be protected from unwarranted review. This includes not only
scholarly, scientific and academic research but union affairs and college
activities where faculty might engage in speculation and criticism of what
management may or may not be doing. Faculty must fulfill their
responsibilities to the university in their participation in the
governance of the university. Faculty should be able to communicate with
one another concerning what college policies they will support and which
they will oppose and why in order to fulfill that responsibility.
In a university setting privacy of
communications, files and research materials is an essential prerequisite
for academic freedom. When we commonly think about academic freedom we
think of freedom of inquiry and the freedom to express views free from
threat of sanction. If, for example, our research notes, raw data, or even
drafts of potential publications can be viewed by others without our
consent, then the threat of sanctions or just embarrassment is always
present. Lack of assurance for the privacy of such records or
communications may deter us from studying topics which could be
misunderstood by outsiders.
Consider as just one example that a
faculty member of wants to do research into the activities of hate groups.
In order to understand such groups the researcher might naturally visit
websites or read literature produced by such groups. Colleagues and
students might misunderstand an “interest” in the KKK or American Nazi
Party that was reported on the basis of the monitoring of correspondences
and communications by management. Similarly a political scientist or
sociologist might want to examine terrorism and need to do research and
communicate with others on that topic.
Another facet of privacy essential to an
academic community is the privacy of communications between and among
faculty. In a environment of shared governance faculty leaders need
assurance that their email and phone voicemail communications are not
subject to monitoring by administrators. Without such assurances faculty
cannot effectively fulfill their role in College governance.
The AAUP offers guidelines
with regard to email communications that can be more widely adapted to the
issue of privacy.
Academic Freedom and Electronic Communications (2004):
There are undeniable
differences among communications media, which may take some toll on
privacy. A college or university computing network legitimately "backs up"
some portion of each day's e-mail traffic. Information technology staff
members in the normal course of events have a degree of access to
electronic messages that would be unthinkable for personnel in the
university mailroom or the campus telephone switchboard. By its very
nature, electronic communication incurs certain risks that have no print
counterpart—for example, the potential invasion of the system by hackers,
despite the institution's best efforts to discourage such intrusions.
These risks are simply part of the reality of the digital age, and our
extensive reliance upon computer networks for the conduct of academic
discourse. Yet such claims as university "ownership" of the hardware and
phone lines, or the need to ensure that the university's business gets
done on time, could dangerously diminish the countervailing interests in
digital privacy. There are genuine academic freedom concerns that have not
yet been recognized by the courts, and that are less than fully or
adequately reflected in most institutional policies. The sensitivity of
academic communications and the wide range of scholarly purposes for which
digital channels are invoked warrant a markedly higher level of protection
responsive policy would reflect at least these criteria:
or university should make clear, to all computer users, any exceptions
it deems necessary to impose upon the presumed privacy of
communications, whether in print or in digital form.
There must be
substantial and meaningful faculty involvement in the formulation of
any such exceptions (for example, requiring formal approval or
endorsement by a faculty senate or comparable governance group).
standard for e-mail privacy should be that which is assured to persons
who send and receive sealed envelopes through the physical mail
system— that envelopes would not be opened by university officials
save for exigent conditions (e.g., leaking of a noxious chemical,
ticking or other indicia of an explosive, etc).
If a need
arises to divert or intercept a private e-mail message to or from a
faculty member, both the sender and the recipient should be notified
in ample time for them to pursue protective measures—save in the rare
case where any such delay would create imminent risk to human safety
or university property.
of any such messages that have been diverted or intercepted may not be
used or disseminated more widely than the basis for such exceptional
action may warrant.
occasion ever arise to suspend or terminate an individual faculty
member's access to the computer system, so drastic a step should be
taken only in response to a serious threat to the system, and should
be preceded by a hearing before a faculty committee on the specific
charge or charges of misuse or abuse.
Finally, similar safeguards should be fashioned (with full and
meaningful faculty involvement in that process) and applied to other
facets of electronic communications within the campus community—for
example, the posting of sensitive evaluations or course materials, as
to whose confidentiality may prove harder to maintain than might
initially be supposed. Careful consideration should be given to
privacy needs in myriad situations where unauthorized disclosure of
electronic messages and materials could jeopardize personal
reputations and other vital interests, and could ultimately deter free
and open communications within the campus community.
as these, designed as they are to ensure privacy of electronic
communications, will require careful and extensive study by each
institution, and the tailoring of specific responses consistent not only
with institutional needs and values, but also with state and local law.
This report is designed to facilitate that process.
Academic Freedom and
Electronic Communications (2004):
An example of
exceptions to privacy as listed by the University of Pennsylvania are
contained in the following statement:
cases, properly authorized University officials including the Vice
President for Audit and Compliance and the Information Security Officer
may access e-mail, voice mail or computer accounts without the consent
of the assigned user when there is a reasonable basis to believe that
to comply with legal requirements or process, or
information necessary for the investigation of a suspected violation of
law or regulations, or of a suspected serious infraction of University
policy (for example alleged research misconduct, plagiarism or
Is needed to
maintain the integrity of University computing systems, or
information needed to deal with an emergency, or
In the case of
Staff, will yield information that is needed for the ordinary business
of the University to proceed."
The problem with the listing
of exceptions as in the statement above is that there are too many phrases
that are vague and open ended enough to permit what most faculty would
think of as unnecessary and disturbing invasions of privacy. The
troublesome phrases are emphasized in this listing :
needed for the
ordinary business of the University to proceed."
suspected violation of law or regulations, or of a
suspected serious infraction of University policy
yield information needed to deal with an emergency
Delineation of the
exceptional circumstances should not be left open ended or include vague
phrasings. Exceptions to the assertion and exercise of that right and to
the burden of that duty are rare and need to be carefully delineated.
Such exceptions would share the characteristic of originating from outside
of and being beyond the control of the administration of the institution.
There should be a review of all requests for violations of privacy by a
review body that includes a faculty governance representative and a
collective bargaining representative along with administration
officials. The reviewing body should expeditiously review and agree as to
the exigency of the request based on the delineated exceptional
circumstances previously set out. Such a delineated listing would include
a judicially sanctioned search warrant or wire tap order over which
college personnel have no control.
As a university CUNY has
affirmed Academic Freedom for its faculty and thus it must impose a higher
standard of respect for a right to privacy for its faculty , as an essential component of
Academic Freedom, than the minimum that the law requires of employers in
relation to their
employees who do not labor under the umbrella of Academic Freedom.
CUNY should endorse the idea that, except in extraordinary
circumstances, faculty members of the university community can expect to have the
privacy of their research and communications preserved and protected
within the University. Not
to do so is inconsistent with its affirmation of Academic Freedom.
In the interests of Academic Freedom CUNY should affirm as a matter of
policy a higher level of protection for a right of privacy than may be
currently afforded by law (either statute or by a constitution). This
right of privacy includes but is not limited to all forms of
communications and this includes electronic and computerized means of
communication and research. CUNY can and must set as a policy which
is consonant with Academic Freedom. Such a policy should be derived
as the logical consequence of the CUNY affirmation of Academic Freedom.
If so, the result would be that no one in the administration or on the
faculty may without the voluntary consent of the faculty member who is
covered by the affirmation of Academic Freedom, violate that faculty
member's right to privacy except under circumstances carefully delineated
in the pertinent policy statement. There should be a review of all
requests for violations of privacy by a review body that includes a
faculty governance representative along with members of either the college
or university administration. Having faculty make the decision to
invade the presumed sphere of privacy for another faculty member is the
most direct way to on the one hand affirm the presumption of a reasonable expectation of privacy by faculty and on the
other hand the legitimacy of concern over circumstances that might warrant
an invasion of that privacy.
CUNY Statement on Academic Freedom
November 2, 1973
CUNY Computer User Responsibilities
AAUP Statement on Academic Freedom (1940)
with Interpretive Comments(1970)
AAUP Statement on Academic Freedom and
Electronic Communications(2000) :
Academic Freedom and Electronic
Communications Policy: University of California Office of the President
Reissued November 17, 2000
Privacy in the Electronic Environment: University of Pennsylvania