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Report on Harvard's Secret Email Search Released

In the fall of 2012, Harvard University administrators secretly searched the email accounts of 16 “resident deans.” They did so in an attempt to catch the resident dean whom they suspected of releasing, to student reporters, an email about how to advise students implicated in the Harvard cheating scandal. In other words, Harvard administrators wanted to plug a leak.  Harvard’s faculty email policy promises complete confidentiality in faculty email accounts—except in extraordinary circumstances, in which case the Dean of the Faculty and General Counsel must both approve the searches. Faculty whose email accounts are to be searched are additionally entitled to written notification. Yet no one warned the resident deans, and only one resident dean was informed of the search before The Boston Globe broke the story in March 2013. (Some ambiguity exists as to whether resident deans are administrators or faculty; the least controversial answer is that they’re both.)  Following intense backlash from students and faculty, Dean of the Faculty Michael Smith and Harvard College Dean Evelynn Hammonds released a statement saying the searches were limited to the resident deans’ administrative (rather than personal) accounts. In a later statement to the faculty, however, Hammonds contradicted her earlier assertions, admitting to additional email searches, one of which was of a resident dean’s personal email account. In the wake of this controversy, Dean Hammonds announced her resignation from her deanship (she denies that she was asked to step down), and Harvard President Drew Faust ordered an independent review of the circumstances of the email searches, to be conducted by Harvard Law School alumnus and Boston attorney Michael B. Keating.  Keating has now released this report, dated July 15. The Keating Report is light on new details, but heavy on uncritical support for the Harvard administrators’ chosen version of what happened. Though Keating describes how administrators searched resident dean email accounts without giving them notice and, in some cases, without even obtaining proper permission from the Dean of Faculty and the Office of General Counsel (OGC), Keating concludes that these administrators “believed that they were acting in compliance with applicable email privacy policies” and did not “intentionally” violate Harvard’s policies. In other words, they just didn’t know any better. But Keating does not appear to have asked: Wasn’t it their job to know better? And if they found Harvard’s policies excessively complicated, wouldn’t it make more sense not to act, especially in secret, until they had a better grasp on the rules? As The Boston Globe quoted former Harvard College Dean Harry Lewis as saying: “Why not tell [the resident deans] what was being done if it was really an OK thing to do?” Keating reasons: “Faced with inadequate University policies governing the privacy of email communications, FAS administrators acting in good faith undertook the searches described in this Report in order to proceed with and complete the disciplinary proceedings of the Administrative Board and to protect the confidentiality of that process.” The Keating Report does not explain its criteria for determining that the administrators acted in “good faith.” It also does not explore the question of who really benefits from confidential university disciplinary processes that in this case allegedly justified extraordinary measures to plug what turned out to be an innocent release of innocuous information. Does Harvard require that students sign confidentiality agreements regarding their disciplinary cases for—as administrators claim—students’ own good, or is it to protect administrators themselves from media and public scrutiny of what passes for campus due process? Keating argues that the searches “were undertaken with the understanding that no email identified by the searches would be read” and that most of the searches were “log” rather than “mailbox” searches, the difference being that log searches do not provide access to the main body of the email text (although the searches do reveal the subject line). Keating reports this is “akin to looking at the information on an envelope but not the letter sealed inside.” I’d say this is more akin to the post office opening every letter and reading the first sentence to see what it is about. But either way, if disregarding the content of the emails was so important to administrators, why did OGC save the emails in their entirety rather than save just the logs or nothing at all?  Perhaps most crucially, Keating’s report leaves unanswered the vital, underlying question of why a world-renowned liberal arts institution is conducting leak investigations as if it were the NSA, rather than an institution supposedly committed to openness and Veritas. As FIRE’s Robert Shibley put it in his piece for “It comes down to a broken institutional culture at Harvard—a culture that puts ‘message control’ front and center, while pushing considerations like privacy, academic freedom, and freedom of speech to the side.” This cultural breakdown is what the Harvard Corporation most urgently needs brought to its attention. Unfortunately, that won’t happen by way of the Keating Report.

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