Tuesday, March 12, 2013

Email Snooping Update

Deans Smith and Hammonds put out a very helpful statement yesterday, which has been widely reported. It contains a limited apology ("we apologize if any Resident Deans feel our communication at the conclusion of the investigation was insufficient," which is limited in two ways -- it is restricted to not informing the deans that their email had been searched, and limited only to the deans who had certain feelings and not to the others). Part of it was immediately denied by one of the few people mentioned specifically in the statement, Sharon Howell. The Globe reported

Senior resident dean Sharon Howell disputed a portion of the statement that said administrators had told her about the search shortly after it took place. Howell maintained that she had not been officially ­informed until last week, after the Globe approached Harvard asking about the search, which was sparked by the leak of a confidential ­e-mail about last year’s cheating scandal.
The story goes on to cite a second, anonymous source claiming to know that there was no plan to inform Howell.  This detail is maybe a bit of a distraction, but it does not help the deans' credibility, on a matter that is so much about trust in their good judgment,  to have a specific fact they state denied almost immediately. It also does not give a good impression of Harvard's communications apparatus not to have shown the statement, or at least the part describing her, to someone specifically mentioned in the statement.

But the good news is we probably understand now how the email, meant to be confidential, got to the Crimson. Harvard Magazine connects the dots in the most reasonable way:
From the language of the Smith-Hammonds statement about the resident dean reviewing e-mails and confirming that she or he had forwarded the memo to two students, and the timing (August 16), it seems plausible that at a time when the enormous academic-conduct investigation was taking shape (with more than 100 students involved), resident deans were scrambling for guidance to offer to the students involved; that this memo from the AB appeared, containing some broad outlines of courses of action; and that it seemed natural simply to pass it along, particularly, perhaps, to student-athletes involved in the investigation, who had to worry about their future athletic eligibility. It could simply be the case that whoever forwarded the memo was extraordinarily busy keeping up with the demands of the burgeoning investigation.
I can, perhaps, shed a little light on this because, ironically, I probably played a role in the creation of the "leaked" email. On August 15, I got a concerned email from a friend, who wanted to talk to me. I told him to call me in Montana where I was on vacation. He told me that his child was in Gov 1310 and was being accused of academic dishonesty. He was pretty calm about all that. The problem was that the child and the child's friends in the same situation in different Houses were getting differing and confusing advice about what was going to happen and how they would have to respond. The resident deans were plainly not all on the same page. I offered to call the Ad Board secretary, just to let him know how much confusion was in circulation. I did so, either on August 15 or on the morning of August 16, and sometime on August 16 I called my friend back to say that based on my call with the Secretary of the Board, I hoped a more consistent explanation of next steps would be forthcoming.

The Secretary's email (posted on the Crimson's web site) went out at 5:46pm on August 16. I am sure I was not the only one reporting that students were confused and that the resident deans were giving inconsistent advice. My friend's child had no issue about athletic eligibility, so the need to clarify that certainly came from somewhere else. (By the way, few herrings in the shoals of the "cheating scandal" discussions have been as red as the claim that Harvard should not have been helping its students navigate the complexities of the hundreds of pages in the NCAA and Ivy League rule books, which describe in confusing, legalistic language the contractual relations between the student, the University, and the NCAA and Ivy League.)

The point of relating my personal role here is simply to provide one data point for the suggestion Harvard Magazine makes, that the resident deans were "scrambling for guidance to offer the students involved," and that they were doing so at a moment that even in a normal year is a pressure point--because they are processing readmission petitions and various other start of term business. The deans felt they were flying blind, talking to student after distressed student and with almost nothing concrete to tell them, no exam paper to go over with them, no sense of how scores of cases were going to be processed or on what time table. And suddenly a carefully worded explanation of good general advice arrives, plainly not confidential in the sense that it mentions any student or even any ongoing policy discussion. And probably some dean just figured, hastily and unwisely, "S--t. I could rephrase this in separate emails to my two students, but I am more likely to screw things up if I paraphrase it. Nothing sensitive in here --I'll just forward it."

And then, probably, forgot all about it as the crush of work continued.

If this is correct, then saying "the dean leaked" would be very legalistic. True, the dean shared something the dean should not have shared. But the dean, it would seem, did so in the interest of giving the best possible advice as quickly as possible, having been put, by the College, in the position of counseling perhaps a dozen frightened students, one at a time, with no adequate way of counseling them.

The statement goes on to refer to one or possibly two other incidents that heightened the concerns of the senior deans: One in which "confidential data from an Administrative Board meeting was shared with the Crimson" and one in which "nearly word-for-word disclosure of a confidential board conversation" appeared in the Crimson. There is no explanation of precisely what Crimson story or stories are referred to here, but both the Globe and Harvard Magazine link off to a September 11 story, "Cheating Scandal to be Reviewed Case-by-Case"--a barely newsworthy bit of news, though I suppose worth reporting. The story turns out to be based on an an anonymous IvyGate blog posting, in which a student reports what the student's dean told him or her. Here seems to be the offending paragraph:
Citing his or her resident dean, the tipster identified four ways the Ad Board would proceed in specific circumstances—ranging from possible exoneration for students whose similar answers resulted from notes or study guides shared before the exam came out, to a failing course grade and a requirement to temporarily withdraw from the College for students who discussed the exam while it was out.
There is more, but it is all Ad Board boilerplate, mapped onto the particularities of this open book exam. Especially with the "possible" preserved all the way from mouth to mouth to blog to the Crimson, this just sounds like a dean giving a student good general advice--once again, probably a student desperate for advice and a dean trying his or her hardest not to get it wrong in a moment of great stress and uncertainty.

From this, the statement continues, Deans Smith and Hammonds decided there was a risk of confidential student information becoming public. I fail to see any evidence of such a risk. As far as I know, at no point in this extraordinary year of tens of thousands of pages of individual student-private documentation did one shred of it land in the hands of the Crimson or any other public source. The statement says nothing to suggest that anything like that has happened. At worst I see a couple of deans (no reason to think they are the same person) trying a little too hard to give their students accurate advice.

Not a firing offense.

Nor an offense worth combing through email boxes.

Especially as this second issue, the IvyGate blog posting, is unrelated to any email, and the search was not designed to turn up anything about it. It is hard to see that Crimson story as helping to justify the email search.

So bottom line, the email search was undertaken because of the "leakage" of good advice from the deans to their students.

But, the statement goes on to explain, the resident deans had their chance. They were asked to 'fess up and none of them did. They were warned that an investigation would take place if nobody came forward.

But apparently they were not specifically told that their email accounts would be searched. They were not told to go back and check their sent-mail folders to be sure they hadn't forgotten something.

In retrospect it is perhaps easy to assume that if someone tells you he is going to conduct an investigation of the leakage of an email, that means that everybody's email accounts are going to be checked. But reading other people's email is so far beyond the cultural pale here I have no trouble at all understanding why it might not occur to the RDs that the University was about to read their email. In any case, what was to be lost by being just a bit more specific about explaining what you are about to do before you actually do it, just to be sure? (Individual deans could not have made the ghostly traces of their sent mail vanish.) Reading other people's email is a big deal and every other avenue should have been exhausted before going down that one.

So this seems to me a crucial process slip. Something to remember for next time, as they say.

That brings us to the question of not telling people afterwards. The statement reads,
Operating without any clear precedent for the conflicting privacy concerns and knowing that no human had looked at any emails during or after the investigation, we made a decision that protected the privacy of the Resident Dean who had made an inadvertent error and allowed the student cases being handled by this Resident Dean to move forward expeditiously. 
Several reports have found this explanation puzzling, and so do I. I suppose what is implied here is that if the deans all knew their email boxes had been searched, they would also have to be told that the culprit had been identified, and then the buzz of peer pressure would have outed the guilty party, and then that person would then have to resign, and then that dean's students would have been disadvantaged. Make up your own mind about the risks of all that happening, and the dean's peers being unwilling to give him or her a break for the kind of slip that any of them might have made themselves, vs. the standard assumption embodied, for good reason, in the Faculty policy (which is also consistent with the Golden Rule, I think) that people want to know if someone has gone into their mail box for any reason. So a bad call there, I think. And I am not convinced that the explanation offered is the real reason. Occam's Razor would suggest a simpler explanation: they just knew the RDs would be pissed off, because they knew they wouldn't have realized what an "investigation" actually meant in this case. So the RDs weren't told.

And that actually gives a second argument for telling the RDs, in addition to the ethical one. Universities are actually surprisingly good at keeping confidential information confidential, given the amount of it they have. But universities are better at keeping information secret if it is a kind of information around which there is a community consensus that confidentiality is important. Attempts to keep things secret fail more often when they are things that many members of the community think are wrong. So there was a tactical as well as principled reason to tell the deans. It was too likely to get out eventually, and the costs of mopping up multiplied by the nontrivial risk factor exceeded the benefit of not letting the resident deans know.

Personally I am not too impressed with the argument that this was a mechanical rather than human search, that it was checking subject lines, and so on. It is hard to have confidence that these were really considerations taken into account in advance, since it just so happens that a simple search like this was all that was needed to find the culprit. Which provides another interesting factoid: Apparently the dean who did this did not even bother to change the subject line to say "I have some advice for you!" or something like that--another dot confirming the hastiness of the action and the innocence of the intent.

So the whole business remains a bit puzzling. The statement concludes that forwarding the email was "inadvertent," and I am glad that the conclusion lines up with the facts and that no action has been taken against the dean. According to the statement, however, the investigation was undertaken because of "the need to determine whether a member of the Administrative Board had compromised the confidentiality of case information." But the search did not, and COULD NOT HAVE, settled that question at all. Having cited the limited nature of the search in justifying it, the deans are suggesting that they would not have stooped to do a more invasive search if this one had failed. But then all the search could do is figure out who forwarded the message--and then only if the forwarding had been done innocently, without bothering even to change the subject line. No part of this "investigation" had a prayer of determining anything about inappropriate disclosure of case information, which in any case there is no reason to think ever happened. If they hauled in the dean who forwarded the email and asked, "Did you ever disclose any case information?" and the dean answered "no, what possible reason do you have for thinking I might have?" was that really worth breaking the sacred seal on email boxes?

And to rise back up to the big question again: How serious does a situation have to be before the University will go into an email box, either a staff member's or a faculty member's? While I absolutely believe that there are some situations in which it has to be done, putting everything about this case together as I now understand it, I remain worried that the operative answer at Harvard is, "not very."


  1. Thanks for sharing your expertise, Prof. Lewis. I'm confused about one point. You say, "True, the dean shared something the dean should not have shared." I'm afraid I've seen nothing in what has been reported publicly that I classify as not suited for sharing. Surely everyone at Harvard already knew that athletes would be treated differently than non-athletes? As you indicate, the NCAA constrains student-athletes in various ways, and the College is right to be cognizant of that.

    I'm bothered by the appearance of an organized "plea bargain" process, in which students submitted themselves to discipline on the advice of resident deans, so that the Ad Board wasn't required to determine the "guilt" of those students. Others probably see nothing wrong with that process, but they should have the courage of their conviction. If a "plea bargain" process is just, then what is harmed by its publicity? If unjust, what is gained by its secrecy?

    Other than those two points, I'm at a loss for what could motivate all the secrecy. I'll understand if you don't wish to identify the specific content of the forwarded email that should not have been shared, but can you at least characterize it in a general manner? We have to remember that secrecy is not a basic value for Harvard. Harvard faculty and officers should value secrecy only when it contributes to the university's actual goals.

    1. Jess,
      Excellent question about why I say this email should not have been forwarded, given that nothing in it is sensitive. The Crimson apparently does not reprint the entire text of the email; instead, just above the text of the email, the editor states: "Ellison's contact information and a confidentiality statement, which were both printed in the footer of the letter, have been omitted." So the dean who forwarded the letter apparently was forwarding something that was marked confidential, so that really was a mistake.

    2. Harry,
      Don't you think the footer appears automatically on any e-mail the Secretary sends? If he invited ABRDs and significant others to an Ad Board dinner, your reading would suggest an ABRD would err by forwarding the invite to his/her spouse.

      Great post.

    3. I think that is exactly right, it is boilerplate. I would be very interested to see the boilerplate because it's possible the specific choice of wording might shed some light on the grievousness of the wrong, or whether it was really wrong at all. Just because it's boilerplate doesn't mean it can be ignored, obviously. If the Crimson is watching, maybe they could post the actual footer, here or on their own site.

  2. Harry,

    Great post, particularly the last paragraph.

    I have a question. The President said she didn't know about the searches when they were happening? Why not? Why did Smith, Hammonds, Iuliano decide to authorize this very unusual (and potentially contentious) search without letting their boss know it was going to happen. And afterward, even if they thought that RDs were not faculty and did not have to be notified about the search, how could they not notify her on such a sensitive topic as this?

    I don't doubt DGF's statement on this. I do doubt the wisdom of the other three in not keeping her informed. In the real world the CEO would make sure they were gone immediately.

    Sam Spektor

    1. I actually think it's another red herring to pull Faust into this. This is a Faculty matter unless a violation of University policy was an issue. It doesn't seem wrong to me that the appropriate vice-president would have been in the loop but not the president.

      A more interesting question is the general one -- whose bright idea was this and whom did they consult about it. I can't imagine, if they asked around a bit, they wouldn't have been advised that this was a bad idea on principle and one that was likely to end badly.

  3. Sorry to disagree with you. It's not a question of pulling Faust into this. She is President of the university.

    Who were they going to ask? You ask your boss on a very sensitive topic like this. A school's reputation is as stake and you want your boss to know how you might compromise it.

    Perhaps I'm old school, but that's the way it's done in the real world.

    1. Never apologize for disagreeing with me!

      In this case, you ask half a dozen battle scarred veterans of academic administration what they think of this idea. Had that been done, and had the deans the humility to listen to what they would be told, this misadventure would never have happened.

      And anyway, if the president had in fact been briefed by her legal counsel, they wouldn't need to tell us that.

  4. But she wasn't briefed by Iuliano, and President Faust is now very much pulled into it.

    Much better to have told her ahead of time what they were planning to do.

  5. Hey Harry,

    As a former chair of the Board, how do you like seeing a statement by the Deans refer to the "due process afforded students before the Board"?

    It's like a klaxon only litigators can hear.

    For myself, I'm appalled that they had a lawyer write this instead of writing it themselves...

    1. Harry,

      Sorry for egging you on there -- it's a good policy you probably have not to criticize Deans of the College too directly.

      In this case I think Hammonds was less involved than she should have been: my read is now that Smith wrote the Monday statement, and Hammonds signed off over-hastily and had her name added to it. This explains why the statement errs in describing the nature of the notification Hammonds and the Secretary gave to Howell in September, and why it uses the inappropriate phrase "due process" when referring to students before the Ad Board.

      I post this addendum because I notice from the Harvard Magazine story that Smith used the same inappropriate phrase when referring to students before the Board back in the fall.


    2. Yes, nobody writes the final version of their own stuff any more when there is potential litigation out there somewhere; it's not news that lawyers bulletproof it. It's too bad, but it happens when you are pretty sure there are going to be lawsuits. I can't see any reason to infer too much from these particular verbal tics.

      SE, I wept when I read your comment on SITD about Howell's letter. It really made me nostalgic for that old place we served in which people all around the Ad Board table talked like that about the life of the mind and the academic mission. What a privilege it was for me to listen in.

  6. I learned from the work, of course, Harry, and from those battle-scarred veterans who were hanging in there; but the primary credit for things I manage to get right goes to my wonderful predecessor CBL. You taught her well and then she gave me the crash course of a lifetime.

    Long term I keep telling myself that exile makes me a better reader of Dante.

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