WI Republican Party uses open records law to intimidate its most moderate critic

This is ALEC influence in action. It’s in Michigan now too:
http://www.dailykos.com/story/2011/03/25/959927/-Mother-Jones:-Michigan’s-Mackinac-Center-Heritage-ALEC-Behind-EFM-Law-(Stories-and-More)

Another thing to think about is how this is a very effective tactic of intimidation. If it goes through, won’t you think twice about your political speech if you work in a public university?

Where I teach instructors and students are REQUIRED to communicate via work email. But hey, that’s OK because the America-hating James Buckley made it possible to protect students’ academic privacy rights.

William Cronon seems to have been an unfortunate choice from the point of view of the Republican party to lean on, both because he tells us he is extremely careful about keeping his work-related and his other emails separate, and because thanks to this brou-haha, the American Legislative Exchange Council is fast becoming a household word, precisely apparently what the Republicans were trying to avoid. Let’s hope that the rest of us working on state-owned computers using university email have been equally careful.

I suspect they don’t know who he is, but, really, a 5 minute use of google could have told them this was a bad bet.

Why bother googling? He’s an academic, and therefore a raging, howling at the lefty. Foul ups like this are to be expected when one believes one’s own propaganda.

Sympathies to your colleague.

The Wisconsin GOP, unsurprisingly, is sticking to its guns. Cronon has this remark in response, quoted over at Talking Points Memo:

I had naively hoped that the Republican Party might be receptive to a moderate, fair-minded, well-reasoned appeal on my part. […] I had honestly hoped for a more thoughtful response from them.

I think Cronon is about to become much less moderate, very quickly. I hope he survives this attack: the resources the Wisconsin radical right has at its disposal make it possible for them to do him a great deal of harm.

By the way, Talking Points Memo is front-paging the dispute.

There was a Supreme Court case at least ten years ago to the effect that you have no right of privacy using employer-provided resources, including email. A lot of professors indeed use their .edu address for personal business – for one thing, they tend to have a higher regard for their employers’ benevolence than in private industry, and many believe in the tenure system’s promises of Free Speech – but it’s pretty clear that they are playing with fire by doing so, should they ever develop any real enemies. And it can be very hard to implement a strict business-only rule when it comes to email: I (who won’t be a professor for several years yet, and that only if I’m very lucky) mostly use my .edu address for academic business – but I also use it for friendly chatter within my research lab, and beyond that other people know several of my addresses, and are wont to send me personal emails to my .edu address instead of a more private address. Presumably such incoming emails could render me liable despite my best efforts.

Beyond even that, when I’m at work the university is my ISP. I can use a privately owned computer (and, indeed, do so) and use a private email provider – but couldn’t a dedicated enemy put a tap on the router, potentially with full legality and indeed backed by Open Records?

Thing is, in academia people don’t necessarily distinguish between their work and personal lives very well. I grew up in an academic household, and my parents had students, colleagues, and visiting speakers over for dinner or for a weekend afternoon outing every week or two. My father was at the university for long but sometimes irregular hours, and spent many more hours at home working in his office. The two realms bleed into one another in the academic lifestyle, and it’s a risk. For example, I know of an extremely distinguished (but not very likable) professor who developed enemies and was threatened with criminal charges because his administrative assistant, employed by the university but paid by his research grants, handled his schedule – that is, not only his duties at the university, but also his private consulting work and related travel. There are a lot of pitfalls out there, once people with an official position are looking for your scalp.

FERPA would be satisfied by redaction of individually identifying information, wouldn’t it?

I suspect you are right (although I’m no expert on FERPA), but the idea of preserving privacy by removing personally identifying information is becoming obsolete. An excellent article by Paul Ohm, here (gated) and available elsewhere by googling the title, is worth reading on the topic.

If I were a student and I knew the Republicans were after scandal, I would not trust to removal of PII to preserve my privacy.

Having had my own e-mails subpoenaed for a court case, I can attest that all personal emails of oneself and any student can be eliminated if one wishes. In fact the whole process is essentially one of following the honor code and releasing what one deems pertinent. I took the policy of releasing virtually everything that might be pertinent, since I thought the case being put against the university was total bullshit. But one could easily pull an Oliver North and shred away. But I wouldn’t worry about student confidentiality.

It’s worth remembering, also that the attack on Prof. Cronon is probably due to his public discussion of ALEC, which is a national political organization. I do not think this is the Wisconsin State Republican leadership behind this. And if you don’t know what ALEC is, and want to find out, I know no better place to start than Cronon’s post that triggered this massive over-reaction.

Professor Cronon’s thoughtful and dispassionate blog post yesterday (24/3) concluded with a reference to another landmark academic freedom case involving economist Richard Ely. For commenters who (a) have read Cronon’s own post(s) and (b) might be interested in reading something of Ely’s, I happened to come upon the following last week while preparing for a planned visit to Pullman, Illinois in late May: http://www.library.cornell.edu/Reps/DOCS/pullman.htm. Ely is a thoroughly compelling writer, and his (equally thoughtful and dispassionate) critique of Pullman, written shortly after its construction was completed in 1885, was remarkably prescient.

On a different note, is it really possible that no one glanced at Professor Cronon’s bonafides? He is inter alia the President-Elect of the AHA …

To mimic the inestimable phrase of Brad DeLong (who has a fine piece up today on Adam Smith’s TMS: http://delong.typepad.com/sdj/2011/03/is-adam-smith-partly-an-economist-or-wholly-a-moral-philosopher.html), “That is all”.

When I was in grad school, I wrote to several of my professors explaining the details of a family tragedy so that they would understand why I was going to be missing class. I would be furious if those emails and their responses were shared with a third party. This is very upsetting. It’s not just professors who “might have something to hide,” clearly these GOP bullies aren’t thinking of the students who may have shared personal things with their teachers.

Warren,

I apparently was not clear.

This case seems to me to be a pretty typical FOIA case–the information provided will either require very careful review (costly and time-consuming), or will publicize information that some people have a legitimate interest in having private (in this case, students and personal associates), or, most likely, both. These are very typical problems with FOIA information. (A quick google gets me this for example.

I do not think that the police manuals case is very similar; I merely mentioned it as a possible source of personal bias in favor of FOIA, as I am friendly with the people involved.

This FOIA request is just really stupid, from the Republicans’ point of view. It will end in shedding more light on their dark corners. Indeed the Republicans have been making the same big mistake, in lots of little ways. Their central problem is unavoidable: they have the wrong political model for the future. The Republicans are a top-down organization and their reliable grassroots is perhaps 25% of the population. They have used mainstream media, which is one-way, to promote their ideas without a lot of critical argument, and they have used secretive organizations to aid campaigns and influence legislation, on a continuous basis, since the parallel rise of their 70’s thinktanks to provide the half-baked ideas for public consumption.

But the whole thing is turning over. The mainstream media is quickly losing its dominance to the internet, and the Republican message is going to lose the fight on the internet. Because their arguments don’t stand up to scrutiny, and most of the country doesn’t think the way they do. Most commentary on the internet demonstrates that the U.S. is a centrist country, perhaps even center-left on some issues. The U.S. is in reality a bit more liberal than Reaganism would ever allow. Just go through the comment threads under any looney rightwing op-ed anywhere, in the Wall Street Journal for example — take Sen. Ron Johnson’s despicable characterization of healthcare reform just two days ago. Very few of the comments are sympathetic to him. In short, the Republicans are top-down; they have to control the conversation or else they lose it; Reaganism has intellectually imploded; and their most reliable supporters are the Tea Party. This approach is going to fall apart.

Those who claim that academics tend to merge their work and personal lives more than people in private industry have clearly never worked in executive support in a large corporation. And I’m not not even referring to the guy who got his company car stolen while he was with a hooker in the tenderloin on his lunch hour. (True story, I withhold his name, just noting that it didn’t cost him his job.) And it’s not just the top level people that do this — if anything in my experience academics may be a little more careful, except perhaps the differing conventions with regard to e-mail.

I’m afraid my reaction was to buy one of Mr. Cronon’s books.

I must disagree with I Have Been There (@18). If the requesting party is not satisfied by voluntarily disclosed material, highly likely in the Cronon case, then everything is sent to a judge for an in camera review. The judge decides what is privileged and what must be released. This is likely to be a very expensive, time-consuming process with motions and cross-motions over the court’s decision.

I can only hope that the university will aggressively litigate the records request. And point out that the request is a frivolous waste of money in a state the Republicans claim to be broke.

So, the bill has been published, apparently, despite the restraining order and instructions from the sec’y of state.

Props to Gene O’Grady for a great idea. I always wanted to read his Chicago book, and now is the perfect time to buy it. Call it the Cronon Defense Fund and Self-Education Society.

Miller of the Legislative Reference Bureau has published the law after meeting with Fitzgerald. Miller says the law is not yet in effect. Walker and Fitzgerald say that it is and will now be enforced.

A crucial point Cronon makes later is that without confidence in confidentiality many correspondents might either not email, or be less than frank in their emails.

This is the same defense used by the Bush administration to protect themselves from disclosing meetings with lobbyists. I didn’t find it convincing then, and I’m pretty sure that I don’t find it convincing now, as an argument in isolation. As a component of academic freedom, as a component of educational mentoring, confidentiality is useful and, as such, should be afforded to faculty except when we’re acting in an administrative capacity (admissions and hiring, for example).

Don’t get mad, get even

Are the e-mails of the gov and state legislators subject to FOIA requests? Even if the rules don’t let you go after such high-value targets directly, surely there must be second-stringers on their team whose e-mail is subject to such, who may have written embarrassing things to their high-value targets.

Now, if your idea is that such uses of FOIA are illegitimate and abusive, fine, let’s change the laws to prevent such abuse. But that’s only going to happen after our side is back in power. Until then, we shouldn’t let the class warfare be one-sided.

Of interest, there was a failed attempt in the Utah legislature to abolish academic tenure.

Kirsten – It may differ in different state laws but in the one I was in they definitely could publish the e-mails obtained through FOIA-style request. And did, in distorted ways, on extremely right-wing sites.

Dr. Hilarious – That’s interesting and fair enough. Pity the poor judge who has to read through everyone’s emails. It didn’t happen in our case, I guess because we were basically open and let it all go out. There was nothing to hide, anyway. What I do retain is the conviction that emails about students’ private circumstances, marks, etc., did not have to go to the requester, and that it is protected.

The standard of student confidentiality is pretty high in most states. I don’t know about Wisconsin in particular. Faculty are generally not permitted to reveal student grades when writing a letter of recommendation to a potential employer. Instead the student must authorize release of an official transcript.

Professors must expect to receive many emails along the lines of “Why did I only get a C on this assignment, I thought I did better.” Any release of grading information is highly sensitive and strongly protected.

Maybe in the case of the Unabomber the public’s right to know outweighs other considerations, but for the typical student, they should expect a right to privacy in respect to their medical history, sexual history, academic performance and whatever other areas they feel necessary to discuss with their teachers.

This is a principle of ancient origin, and worth fighting to preserve.

I have no idea ow why that bold got in there. I blame the Kochtopus.

A quick glance at the statute and Wisconsin case law turns up this case:

Schill v. Wisconsin Rapids School District, 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177. It can be accessed here: http://scholar.google.com/scholar_case?q=Schill+v+Wisconsin+Rapids+School+District+&hl=en&as_sdt=4,50&case=1674659384356592323&scilh=0

The issue in that case was whether the personal emails of teachers, sent and received using district emails accounts on district computers, were subject to a records request by a third-party.

In a 3-2 decision, the court held that they were not. Interestingly, the majority was somewhat divided as to the rationale.

One justice made a threshold determination that the personal emails were not really “records,” – because their content had no relation to the business of the government-entity – and so not subject to the request.

Two other justices, writing separate concurrences, determined that the emails were records, but that the balance of interests weighed against their disclosure.

The majority generally agreed that the purpose of the statute was to shine a light on to the workings of government, and that the statute should be interpreted with that purpose in mind.

Given that case, I would imagine that the professor and university here have a very strong chance for success if they decide to release only those emails that involve the business of the university or the discharge of the professor’s professional duties – leaving out his involvement in various associations, his scholarly conversations and musings, and so forth.

Jacob,
Biddy Martin is a she and, I would argue, massively brass-balled politicians is one of the causes of the current mess. More humility and less machismo, I say.

Here is NYT coverage which is actually better than that on the BBC site right now –

http://www.nytimes.com/aponline/2011/03/26/world/europe/AP-EU-Britain-Protest.html?_r=1&hp

In reply to Jacob, 45 above:

Jacob, can’t you come up with anything other than “grow a pair.” Maybe you need to educate yourself with some Cronon books.

Glen Tomkins@42 seems to have the right answer here. Professors aren’t the only government employees who send e-mails.

As Krugman points out, citing the climate change e-mails, it’s a mistake to assume that Cronon will be let off the hook merely because there’s nothing incriminating in his e-mails. There is always something that can be made to look bad, once the context is altered or removed.

For better or worse, we live in a new age of public information. Defending against intimidation is important, but it’s not enough.

Steve at 27 (and many others) have a hopeful interpretation of this that I do not share:

The more Republicans and the likes of ALEC resort to thuggery, the more they educate moderates- like Cronon- about the class war going on in this country, in which up to now only one side has been fighting.

Moderates (and I’m not speaking about Cronon specifically here) are largely ineducable in this stuff. They think that Republicans will respond to reason – and if not, they think it’s still inappropriate to respond in-kind.

The more-or-less unbroken record of rightwing political success in my adult lifetime is testimony to the failure of this approach.