FC: FIRE replies to Politech post on Univ of NC flap, open-records law

[Declan McCullagh <declan () well com>]

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:has () world std com]
Sent: Thursday, January 10, 2002 5:11 PM
To: declan () well com
Cc: david_smith () unforgettable com; 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
                                                                                        has () thefire org

P.S.  In fairness, I'm copying FIRE's accuser (and, thus, my accuser as
well), David Smith.

                                                        H

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Shortly before the New Year, David Smith (david_smith () unforgettable com)
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
        greg () thefire org




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