Harvard Still Doesn't Get Electronic Privacy

I asked the following question at today's FAS meeting. Hopefully the news media present will report the reply, as I cannot comment on it until the person who gave it authorizes some reporting on it. I will just say that I found the response unsatisfactory. The incident is just as bizarre as it sounds, and I don't know much more about it that I can disclose.

Madam President, I learned recently from two of my faculty colleagues that students in their courses had been surreptitiously photographed throughout the past spring term using cameras trained on the seats in the lecture hall. This was done under the cloak of research on class attendance. A senior university official called in these professors and explained that by means of this electronic monitoring, images of all the students in attendance had been captured at each class. These faculty colleagues, neither of them tenured, first learned that their classes had been under surveillance when this senior Central Administration official called them in, without informing the Computer Science area dean, and asked them to comment on the attendance data. And contrary to a basic principle of research involving human subjects, the students who were subjects of this study still, I believe, have not been informed that their images were captured and analyzed.  

This study raises many important and troubling questions. Questions about the oversight relations between faculty, deans, and department heads in the FAS, and the plethora of provosts we now have. Questions about who controls the classrooms in which we teach—this study seems to me at odds with a vote of this Faculty that describes the classroom as “a special forum” where the teacher determines the agenda. But I will focus on just the most obvious and urgent action item.  

This university took great efforts under your leadership and Professor Barron’s to get a grip on issues of electronic privacy. Yet some basic principles seem not to have sunk in everywhere. Just because technology can be used to answer a question doesn’t mean that it should be. And if you watch people electronically and don’t tell them ahead of time, you should tell them afterwards. 

We would all benefit, I think, from more peer feedback on our teaching. But none of us, students or faculty, want to be treated like inmates of some academic Panopticon, never knowing for sure whether we are being or have been under scrutiny while we were going about our daily business of teaching and learning.  Can we have your assurance that all the students and faculty who were subjects of this nonconsensual study will be informed that they were under photographic surveillance? 

Detail on the Law Professors' Objections to Harvard's Sexual Harassment Policy

Janet Halley, Royall Professor at Harvard Law School and one of the 28 who signed the letter cited in my previous blog post, has written a detailed memo on the issues. Here is the preface:

Today colleges and universities around the country enjoy a moment of special opportunity: a chance to change slipshod, dismissive and actively malign handling of sexual harassment claims, and to offer genuine remedies for victims. But it is also a moment of danger: because one such remedy involves discipline for wrongdoers, the rules must define misconduct to include the conduct we want to sanction and deter (and not socially valuable or unharmful behavior), and to process complaints in a way that is fair to all parties. The new University Policy and Procedures realize these dangers: they provide an overly broad definition of sexual harassment, far beyond anything that federal courts recognize; they trench directly on academic freedom and freedom of speech; they threaten stigmatized minorities with unjustifiable findings of responsibility; they will rush low-income students who cannot afford counsel to unfair judgment; and they are defective on every known scale of equal procedural treatment of the parties and due process.

 

This memo is written in the spirit of improving Harvard‘s approach to sexual harassment discipline. It is premised on my firm belief that we can provide a full and robust response to complaints while also guarding vigilantly against ratifying frivolous claims, damaging academic freedom, harming stigmatized minorities, depriving accused students of the support they need, and violating the due process and equality rights of the parties to these disputes.

A crucial meta-argument is not about the policy per se but about the process by which it came into being and the presumption that "we had to do it, the feds were holding a gun to our head." Professor Halley writes,

This memo is thus addressed to an unclear situation. University officials have acceded to mandates from federal regulators that, in my view and the view of many others, were adopted without proper procedures and lack any grounding in the statutes that the regulators are charged with enforcing. As I attempt to show in Parts I and II of this memorandum, many of these mandates, and hence many of the resulting provisions of the University Policy and Procedures, offend basic principles of fairness – what you could call constitutional values. But it is often said that the University and its sub-entities are without choice in installing and implementing these policies. This claim presents our community choices of a different kind, ones that may have Big C Constitutional implications.

In responding to government pressure in the current crisis, institutions of higher education – Harvard included – bear responsibility for far more than sheer compliance with federal regulators inventing ever-new requirements in the name of sexual harassment enforcement. They bear responsibility for victim protection and redress, justice for all parties, due process for the accused as well as complainants. They must protect not only women but also other vulnerable minorities. They must advance, not undermine, the cause of free speech and academic freedom; must preserve respect for the autonomy and privacy of adults in their relationships; and must think not only in punitive but also in public health terms about harmful cultural practices among our students. All of this can be done without giving up the current opportunity to make protection and redress for victims of sexual harassment far better than it has been in the past.

Thanks to Professor Halley for inviting me to link to her memo.

So here is a crucial question. To resist, must a university wait until the feds have charged it with some specific malfeasance as a result of a Title IX complaint -- which if true, would be a very unattractive proposition, risking huge amounts of federal funding under circumstances when there would be enormous public sympathy for the complaint against it? Or could it pro-actively protest on principle, and, without any presenting complaint against it, seek to have statutes, regulations, and executive dicta overturned because it thought it was being unlawfully or even unconstitutionally required to comply with them?

I am trying to get a clear answer to that question.

In the meantime, it is interesting to note that much of the meta-argument of certain FAS faculty about the adoption of the new health benefit policies is exactly the same: The policy was adopted too quickly and without adequate consultation, not merely with the rank and file of faculty and students but with members of the faculty who would bring nationally recognized expertise to the deliberations. (NB: Professor Mary Lewis, who will on Tuesday formally move that the FAS ask that the new policies be suspended, is not related to me.)

The Title IX Mess

I have refrained from commenting on Harvard's Sexual and Gender-Based Harassment Policy because I figured the University was just doing what it had to do. If the federal government announces that universities have to do X or risk loss of their federal funding, they should, almost always, do X. The rare cases of resistance have had mixed results. Years ago, Brown University resisted a Title IX complaint having to do with what exactly it meant to offer equal athletic opportunities to men and women -- and lost. On the other hand, MIT resisted the antitrust consent degree the other members of the "Overlap Group" signed -- and won. In this case it seemed to me likely to be very risky to resist. At some point prudent fiduciaries have to instruct the executive to settle up with the feds and save their litigation to resist incursions that are closer to the core of the institutional mission.

That said, I have thought, since the policy was announced, that it was a disaster to any sense of justice in the American tradition. What has happened here (I wrote about this in EWAS) is that frustration has mounted over the low conviction rate in charges of sexual assault, typically peer sexual assault between drunken undergraduates with no witnesses other than the principals. Rape being a serious felony, Harvard and most other institutions have long observed something like the standard in the criminal justice system, that a pretty high level of certainty should be required before someone is declared a rapist. Universities have never been required to do that, since they are not sending anyone to prison, but it has always seemed the right thing to do given the social consequences of labeling someone a rapist.

Of course that resulted in low conviction rates, which have long been a source of frustration for victims and their advocates--in universities just as it is in the "real world." What has happened is that, for fundamentally political reasons (with Joe Biden hugging sexual assault victims and all), the executive branch of the federal government has re-cast rape as a civil rights violation, and insisted that "equity" here means that the two parties have equal standing in colleges and universities receiving federal funds. Findings must be on a "preponderance of evidence" standard -- essentially a 51-49 standard, rather than a beyond-a-reasonable-doubt standard. If one party can appeal the finding of the college judiciary, the other side can too. And so on. More of the guilty will most certainly be convicted in this way -- and more of the innocent too. This isn't what we used to think "fairness" meant -- it used to mean giving an individual defendant a fair shake against the overwhelming power of the prosecutorial entity. If anyone needs a refresher, go look at what is happening in Hong Kong, where the city is fighting about which of the "two systems," democratic or authoritarian, will ultimately govern it.

A diverse group of Harvard Law School faculty protested Harvard's Title IX policy, arguing in essence that Harvard caved too easily to the feds. The new policy involves measures, they say, that "are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation." That last phrase is important. What exactly Title IX, the law, requires is very murky -- see Why Colleges Are on the Hook for Sexual Assault - Students … for a good explanation of how scope of the law has expanded over the years far beyond anything the enacting legislators anticipated. What surprises me is the statement that the policy goes beyond anything that regulations require, and that Harvard "decided simply to defer to the demands of certain federal administrative officials." Is that right? We know that managing risk is among the highest priorities of Harvard's governing boards. Did they really instruct the university administration to placate a handful of federal bureaucrats?

The Law School letter is worth reading. But I want to point out an inherent contradiction in Harvard's policy that has not been highlighted to my knowledge: The contradiction between the obligation not to allow a "hostile environment," and the obligation to protect the right to free speech. Here are the relevant passages from Harvard's policy. On what's a "hostile environment":

Sexual harassment is unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, graphic, or physical conduct of a sexual nature, when: (1) … [quid pro quo]; or (2) such conduct is sufficiently severe, persistent, or pervasive that it interferes with or limits a person’s ability to participate in or benefit from the University’s education or work programs or activities (hostile environment).

… verbal, nonverbal, graphic, or physical conduct may create a hostile environment if the conduct is sufficiently persistent, pervasive, or severe so as to deny a person equal access to the University’s programs or activities. Whether the conduct creates a hostile environment may depend on a variety of factors, including: the degree to which the conduct affected one or more person’s education or employment; the type, frequency, and duration of the conduct; the relationship between the parties; the number of people involved; and the context in which the conduct occurred.

Clear as mud. On free speech:

 Nothing in this Policy shall be construed to abridge academic freedom and inquiry, principles of free speech, or the University’s educational mission.

Really?

I have no idea how to reconcile those two passages. In America, under the First Amendment, we tolerate all kinds of offensive and odious speech, because we fear that the inhibition of obnoxious speech by empowering the government to regulate it would not be worth the price in restricting free expression. Just as we require a high standard of proof for crimes because we judge that it is better for the government to have to act with one hand tied behind its back, and let some bad guys walk free, than to risk over-reach by a more unconstrained federal prosecution.

It may be that we have to do as Harvard's policy states, outlaw "hostile environments" even with the exquisitely vague definition of what they are. It may even be exactly the right thing for us to do. But how can we, with a straight face, state that outlawing hostile environments in no way entails a restriction on what people can say? The First Amendment allows all kinds of hostile speech, as long as it falls short of actual threat. The Harvard policy outlaws hostile environments, including hostile verbal environments. Let's be honest, or risk having the whole policy dismissed as a political statement. We're outlawing the whole band of speech between hostile and threatening, aren't we?

Meanwhile, from another decade and in another country, …

Brooks Newmark, AB'80, Conservative Member of Parliament for Braintree in the UK, has resigned his position as Minister for Civil Society, after sexting allegations emerged. Newmark was slated to be the president of the Harvard Alumni Association next year, but has resigned from the board. He has announced that he will not seek re-election as MP.

The journalism itself has complications in the UK, which has weaker protections for the press than the US does, because the journalist seems to have deceived Newmark into sexting after picking up a rumor; only later did a woman report that he had sexted her. So the journalist is under investigation by the Independent Press Standards Organisation (IPSO).

Ugh.

Updated 9:15pm October 20 to reflect new information that Newmark has resigned his position on the HAA board.

Young Harvard Goes to Washington?

At least three young alums are running for Congress, and one for Senate:

Ruben Gallego, AB'04, is running for a Congressional seat in Arizona as a Democrat.

Elise Stefanik, AB'06, is running for a Congressional seat in New York as a Republican.

Seth Moulton, AB'01, is running for a Congressional seat in Massachusetts as a Democrat.

Tom Cotton, AB'99, already a Congressman from Arkansas, is running for Senate as a Republican.

Pretty unusual group. Gallego and Moulton both served in the Marines, Cotton in the Army. Moulton was decorated for bravery, something he never mentioned and the Globe, apparently, turned up only while routinely checking his military records.

Are there others?

"Public service" is a term that tends to be used at Harvard to mean community service, Teach for America, and so on. With all the "Excellent Sheep" blather about the myopia and narcissism of Ivy League graduates, it's nice to see alums in their 20s and 30s serving in the armed forces and running for public office.

It's one of the stated purposes of our General Education program to "prepare students for civic engagement." It would be nice to the university signal to its students that it takes that seriously. How about an "I voted!" sticker on the lapel in some November 5 Gazette photo of Faust, Smith, or Khurana?

Professor Mary Lewis's Question at the Faculty Meeting about Health Benefits

As the Crimson reported, Professor Mary Lewis of the History Department asked a question at the October 6 FAS faculty meeting about the recently announced changes in health benefits for nonunion Harvard employees, including faculty and "exempt" staff. (Any changes for unionized employees would, of course, be subject to collective bargaining.) The question was quite succinct and quite powerful. I reprint it below with Professor Lewis's permission. (We are not related.)

My question regards the administration’s recent announcement of changes to the health benefits package for Harvard Faculty, Professional and Administrative Staff not in a Bargaining Unit, effective with the coming “open season.”  Although depicted in the e-mail sent on September 3 as a cost-sharing plan with lower monthly premiums, what the plan actually does is substantially increase the annual expenses of those members of the Harvard community who are most vulnerable to illness or likely to need hospitalization.  By introducing deductibles, much higher co-pays for the emergency room, and very substantial out-of-pocket expenses for hospitalizations, the Harvard administration moves in the opposite direction of nationwide trends to amortize risk across large groups of individuals.  Instead, it places the burden of expenses on those of us with family members who have pre-existing chronic illnesses making them more likely to need hospitalization, to say nothing of individuals who suddenly and unexpectedly face serious illness or a catastrophic accident.  Instead of sharing risk, as the Affordable Care Act reminds us is the best way to lower healthcare costs in the long run, Harvard is asking those most at-risk to pay more.  For these individuals, the change in policy is in essence a pay cut.  I would like to know how and when this policy can be reversed.  

The Phony Law Enforcement Panic over Apple's Encryption

When Apple announced end-to-end encryption, meaning that it had no way to decrypt user data in at least some communications, I did not react strongly. I was not surprised with Eric Holder and others from law enforcement started hollering. They are reaping what they have sown, I figured. Post-Snowden, Apple and other technology companies are no longer trusted abroad. Foreign governments and foreign companies have good reason to think that US companies will turn over to the US government whatever our government demands. Whatever damage the Snowden revelations did to our relations with Anglea Merkel are not nearly as significant as what they cost the business interests of US technology companies. Apple's response is exactly right and exactly what is to be expected.

And Holder's reaction should have been expected too, except that I figured law enforcement had learned its lesson the first time around, during the first time the US threatened to require special backdoors so the government could get access to encrypted communications. Those were the Crypto Wars of the 1990s, and we told the story in Blown to Bits.

The ensuing, often heated negotiations, sometimes referred to as the “crypto wars,” played out over the remainder of the 1990s. Law enforcement and national security argued the need for encryption controls. On the other side of the debate were the technology companies, who did not want govern- ment regulation, and civil liberties groups, who warned against the potential for growing communication surveillance. In essence, policymakers could not come to grips with the transformation of a major military technology into an everyday personal tool.

On January 24, 1991, Senator Joseph Biden, a co-sponsor of antiterrorist legislation Senate Bill 266, inserted some new language into the bill:

It is the sense of Congress that providers of electronic communica- tions services and manufacturers of electronic communications service equipment shall ensure that communications systems permit the gov- ernment to obtain the plaintext contents of voice, data, and other communications when appropriate authorized by law.

This language received a furious reaction from civil liberties groups and wound up not surviving … 

…very little email is encrypted today. Human rights groups use encrypted email. People with something to hide probably encrypt their email. But most of us don’t bother encrypting our email. In fact, millions of people use Gmail, willingly trading their privacy for the benefits of free, reliable ser- vice. Google’s computers scan every email, and supply advertisements related to the subject matter. Google might turn over email to the government in response to a court order, without challenging the demand. Why are we so unconcerned about email privacy?

… although outright prohibitions on encryption are now impossible, the social and systems aspects of encryption remain in an unstable equilibrium. Will some information privacy catastrophe spark a massive re-education of the Internet-using public, or massive regulatory changes to corporate prac- tice? Will some major supplier of email services and software, responding to consumers wary of information theft and government surveillance, make encrypted email the default option?

The bottom-line question is this: As encryption becomes as ordinary a tool for personal messages as it already is for commercial transactions, will the benefits to personal privacy, free expression, and human liberty outweigh the costs to law enforcement and national intelligence, whose capacity to eavesdrop and wiretap will be at an end?

 So it was with astonishment that I read today's editorial in the Washington Post, calling for "compromise":

A police “back door” for all smartphones is undesirable — a back door can and will be exploited by bad guys, too. However, with all their wizardry, perhaps Apple and Google could invent a kind of secure golden key they would retain and use only when a court has approved a search warrant. Ultimately, Congress could act and force the issue, but we’d rather see it resolved in law enforcement collaboration with the manufacturers and in a way that protects all three of the forces at work: technology, privacy and rule of law.

Huh? The editors seem to have no idea what they are talking about. They are basically parroting what FBI Director Louis Freeh said about encryption back in 1997:

The looming spectre of the widespread use of robust, virtually uncrackable encryption is one of the most difficult problems confronting law enforcement as the next century approaches. At stake are some of our most valuable and reliable investigative techniques, and the public safety of our citizens. We believe that unless a balanced approach to encryption is adopted that includes a viable key management infrastructure, the ability of law enforcement to investigate and sometimes prevent the most serious crimes and terrorism will be severely impaired. Our national security will also be jeopardized. 

Have we learned nothing? Moreover, the usefulness of these warrants to get at encrypted data is being vastly exaggerated, as Bruce Schneier explains in a devastating analysis:

FBI Director James Comey claimed that Apple's move allows people to place themselves beyond the law" and also invoked that now overworked "child kidnapper." John J. Escalante, chief of detectives for the Chicago police department now holds the title of most hysterical: "Apple will become the phone of choice for the pedophile."

It's all bluster. Of the 3,576 major offenses for which warrants were granted for communications interception in 2013, exactly one involved kidnapping. And, more importantly, there's no evidence that encryption hampers criminal investigations in any serious way. In 2013, encryption foiled the police nine times, up from four in 2012 -- and the investigations proceeded in some other way.

Susan Landau also does a good job explaining the situation. My goodness, I did not think the Crypto Wars would get fought again so soon, and certainly not with the Washington Post lining up on the wrong side of the ball.