FIRE is replying to this Politech message: "More on Univ. of NC, private email, and a twist on open records" http://www.politechbot.com/p-02958.html --- Previous ones in the thread: "Univ of NC student's father replies to Politech: 'abusive and libelous'" http://www.politechbot.com/p-02961.html "Did Univ. of NC at Wilmington divulge a professor's private email?" http://www.politechbot.com/p-02957.html -----Original Message----- From: Harvey Silverglate [mailto:hasat_private] Sent: Thursday, January 10, 2002 5:11 PM To: declanat_private Cc: david_smithat_private; Greg Lukianoff; Thor Halvorssen Subject: FW: FIRE's response concerning the NC Public Records Law Hey Declan, FIRE has finally composed its response to the allegation that we took advantage of the supposed "ignorance" of our readers and tried to pull a fast one by failing to admit that the administration of the University of North Carolina-Wilmington was legally obligated to investigate the e-mails of Prof. Mike Adams, and then turn over logs to student Rosa Fuller, in the aftermath of Ms. Fuller's complaint that he'd libelled etc her. (In the first place, it's kind of absurd to think one would find an ignorant, gullible audience on your list-serve, of all places!) The response, done by FIRE's Director of Legal and Public Advocacy Greg Lukianof, with input from me (as FIRE's co-founder and co-director and vice-president), is below. Greg may have sent it to you separately, but here it is again, just in case. Would you please post it to the list-serve. Is there anything else that needs to be done in order to put this to rest? (I hate letting unfair, not to mention occasionally scurrilous accusations, go unanswered, as you know.) Happy New Year, fella. To all of us in 2002, and to liberty! Harvey Silverglate hasat_private P.S. In fairness, I'm copying FIRE's accuser (and, thus, my accuser as well), David Smith. H ---------------------------------------------------------------------------- ---------------- Shortly before the New Year, David Smith (david_smithat_private) accused The Foundation for Individual Rights in Education (FIRE; www.thefire.org) of "depending on the ignorance of … readers" in seeking to foist on them, and on the public, FIRE's belief "that privacy laws trump state open records policy" in North Carolina. This concerned the row at the University of North Carolina at Wilmington involving student Rosa Fuller's accusations against Prof. Mike Adams, and Fuller's demand that she be provided with copies of Adams's e-mail traffic. Shortly after this, FIRE closed for its annual holiday break, explaining this belated response to this serious and false accusation. I'm responding, as FIRE's Director of Legal and Public Advocacy. We at FIRE spelled out our position in our first letter and in subsequent releases. While FIRE believes that Adams's communications simply do not fall under the North Carolina Public Records Act, we did not base our argument on privacy law, but rather on the threat to academic freedom and free speech at this public university that would recur if, every time a professor disagreed with a student, that student would be allowed to read all of that professor's e-mails or even e-mail logs. Consider how this would chill professor's speech and kill robust debate. As we said in our prior correspondence, Rosa Fuller was trying to punish or chill Prof. Adams's protected political speech by making charges of "defamation", "false representation", and "intimidation" for his response to her letter (I'd be happy to send anyone a copy of his response, which is shockingly mild in light of these accusations). His response to her letter was utterly outside the definitions of defamation, false representation, and threats and within the core protections of political speech of the First Amendment. That such clearly protected speech by a professor was being legally assaulted indicated that the student's exercise was one of intimidation and retribution, not of seeking legitimate redress. The student actually made threats that she would bring a lawsuit: "If it is found that Adams sent his false representation of me to others, inside or outside the University community, and if these others acted on his false representation, and sent me abusive e-mail messages, then I also shall accuse him of libel." FIRE believes that it was the university's moral and legal obligation to protect academic freedom in this clear instance of attempted intimidation. Although a lawsuit would be frivolous in our view, she did pursue claims of sexual harassment against one of her critics and claims of libel against Professor Adams through the university system. An excerpt from her October 29, 2001 complaint says "I, therefore, accuse Mike Adams of libel in violation of the University's Computing Resource Use Policy. I ask the University to investigate my allegation and, if warranted, hold Adams accountable for his conduct under all applicable University policies and procedures. Rosa Turrisi Fuller." This e-mail complaint was filed only after she received the list of e-mails Adams had sent. It proves that not only did she intend to use the University's help to punish Adam's protected speech, but that she actually followed through on her threats once the University granted her request. As for our stance on the North Carolina Public Records Law (132-1), our position is that it was far from clear that it could be applied to what Fuller was looking for, in light of the serious privacy, free speech and academic freedom countervailing concerns. Consequently, UNCW should have resisted in deference to its moral and legal duty to protect privacy, free speech and academic freedom. The North Carolina Public Records Law applies only to "documents…made or received according to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions." What constitutes a public record, by this definition, is by no means clear in the case law pertaining to the university setting. Rosa Fuller was looking to discover whom Adam's forwarded his response to ("I have reason to believe Adams may have sent copies of his false representation of me to others, inside and outside the University community"). Who Adams chose to share his personal opinions with is not a matter of "public business" by any but the most dangerously overbroad definition of "public business." By this definition, there would be virtually no such thing as a confidential message on a college campus, outside the few exceptions (which, incidentally, were far from exhaustive) listed in the Public Records Law. None of us would want to be on such a campus, I suspect. The definition of public records is limited to matters "in transaction of public business," which, in FIRE's view, exempts Adams's private e-mails to his friends and family that were disclosed to Rosa Fuller by Hal White. There is no need to seek specific exceptions, as these e-mails did not fit within the scope of the law. There is no case law in North Carolina to contradict our interpretation of "public records," and it is certain that everyone on the UNCW staff, with few exceptions, understood this distinction between public and private records. While in some instances the line might be difficult to draw, in the case of Professor Adams's e-mail, which the unfortunately released records show were sent to friends and family, it is clear they were personal. There is a commonly known and accepted zone of private communication that is explicitly recognized and respected at many universities (to see the schools that do, please visit the Electronic Frontier Foundation's website at www.eff.org/CAF/faq/email.policies). Almost all colleges recognize a student 's and a professor's right to privacy through usage, custom or other less formal approaches. The fact that the UNCW Computing Policy states that users should have "no expectation of privacy" is irrelevant, as that is contradicted by other stated policies and other practices of UNCW. Further, this policy was likely propagated by the computing resource center without the required process to make it an actual rule at a public university. (For anyone who doesn't understand the limited power of these sorts of rules, please read Carl Kadie's critique of UNCW's policy at www.eff.org/CAF/policies/uncwil-edu.htm. FIRE agrees with Carl's stance on these issues.) UNCW was not at all confident that the Public Records Law applied to Adams's e-mail. Indeed, the university's strongest statement that these records may have been covered by the Public Records Law was in the faculty minutes for November, which only stated: "It is possible that a court could find that all documents, emails, etc. produced at work or on stored on university property are public records. " (www.uncwil.edu/facsen/minutes/Nov01.htm) Since UNCW had constitutional, federal, state and ethical concerns that argued against going into Adams's private e-mails in this situation, it should not have acted unless the duty to do so was clearer than this. Interestingly, there was almost no risk for UNCW if it had taken a principled stand to protect privacy, free speech, and academic freedom in this case. There are procedures in the Public Records Law to deal with a situation like this. Under 132-9, Fuller would be allowed to get an immediate hearing with the General Court of Justice to compel the e-mail's release. FIRE deems it unlikely that the case would have been pushed this far, and even more unlikely that her request would be granted. Even if the University were to lose, the only sanction allowed against UNCW would be attorney's fees, which would be the small cost of filing an open records claim. But even this minor penalty seems unlikely as, under 132-9(c)(1), attorney's fees will not be awarded if the party refusing had "substantial justification." Privacy interests, academic freedom and the First Amendment are "compelling interests, " providing far more than the required "substantial justification." >From the record, virtually everyone at UNCW knew the problems moral and legal—of this invasion of privacy, from the lab techs, to the faculty, to the General Counsel who carried out the orders. UNCW was aware of the threat to academic freedom and free speech this case represented. They had no clear basis for believing that the Public Records Law even applied to what was being demanded, and they risked little (and potentially had much to gain) if they had chosen to defend, rather than to sacrifice, these personal rights and institutional interests. Under these circumstances, FIRE remains appalled that UNCW capitulated. The day that liberty is deemed a more important interest warranting protection by a university, rather than avoidance of any theoretical liability regardless how remote, is the day FIRE shall consider its mission largely accomplished. Until then, we will be vigilant. Greg Lukianoff Director of Legal and Public Advocacy, FIRE gregat_private ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. Declan McCullagh's photographs are at http://www.mccullagh.org/ To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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