Tuesday, March 4, 2014

The Barron Committee Does Its Job

After it came to light last year that the email of several of Harvard's resident deans had been read in an overreaction to something printed in the Crimson, the president appointed a committee to recommend policies on the privacy of electronic communications. That committee has now issued a fine report. It doesn't cover every base--it doesn't explain the status of searches of post.harvard.edu email addresses for alumni, for example. (Those are not actual email accounts, just proxies for the alums' own off-campus email addresses. I don't know that anything sent to post.harvard addresses is stored at all, but in principle Harvard could access messages on the fly.) But it gets all the big ideas right, at least approximately.

I won't repeat what I blogged last year (starting just a year ago, on March 9, see also this and this). The Barron Committee recommendations include a number of elements of the FAS Faculty email policy which, depending on your point of view, either existed or never did. In particular, the notice requirement, which was in the FAS policy, is in the new policy, with only a little wiggle room. The would-be FAS policy language:
 in extraordinary circumstances such as legal proceedings and internal Harvard investigations, faculty records may be accessed and copied by the administration.  Such review requires the approval of the Dean of the FAS and the Office of the General Counsel. The faculty member is entitled to prior written notice that his or her records will be reviewed, unless circumstances make prior notification impossible, in which case the faculty member will be notified at the earliest possible opportunity.
(Authorization at the level of the dean of the faculty and the general counsel are also part of the proposal.) The Barron Committee language:

When the University intends to access user electronic information, notice ordinarily should be given to that user. All reasonable efforts should be made to give notice at the time of access or as soon thereafter as reasonably possible. 
I consider this provision extremely important, as it provides the best gating mechanism. If you are going to have to explain yourself to the party being searched, you are probably going to use a pretty high standard before doing the search. The language is not unequivocal, but I am willing to grant that there may be edge cases I haven't thought of (aside from the obvious ones, separately treated in the committee report, of searches required by government agencies which prohibit notice to the individual being searched). The creation of an oversight body will also suppress the instinct to peek; another good proposal from the committee.

In the Globe story that broke the news of the search, I observed, "Why not tell them what was being done if it was really an OK thing to do?" I drew some flak for that comment, which was my completely spontaneous and unfiltered reaction when the reporter told me what had happened. It always just seemed to me common courtesy, whatever the policy, and I am glad that what should all along have been good manners will likely become an official rule.

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