Email Surveillance in the Workplace: USM Could Set an Example
Since the University of Southern Mississippi's current Computer Use Policy was adopted in the October 2002, the administration of President Shelby Thames has claimed the authority to read any email sent from or received on a university computer, to copy the contents of any hard drive on any university computer, and to seize computers from employees at any time, for any reason.
Although the policy is more starkly worded than most, it doesn't differ in essentials from those presently in force at other universities, or in the corporate world. It appears that under current law, a company-owned computer has the same status as a company-owner meat slicer or drill press. The same managers and administrators who would be prohibited from opening snail-mail sent or received by employees, or from listening to their telephone conversations without their permission, can legally read any employee's email whenever they feel like it.
I might add that from Shelby Thames' point of view, as revealed in the open hearing on April 28, it would seem that merely using university computers to send emails inquiring about Angeline Dvorak's credentials or making negative comments about Shelby Thames' performance constituted a"misuse of university equipment." Thames took the greatest offense, in his testimony, at the low opinion of him expressed in some of Gary Stringer's emails. Under the Computer Use Policy currently in force, the expression in email of any sentiment not approved by Shelby Thames could be taken to constitute misuse of university equipment.
From a legal standpoint the USM Computer Use Policy would presumably pass muster. (I leave aside the issues raised by Thames' monitoring of student emails, which his April 28 testimony revealed he was also doing.) But an organization in which management retains the power to read every employee's email is an organization in which management is proclaiming that it trusts no employee and brooks no criticism or dissent from any employee. Indeed the prevalent reaction to Thames' email surveillance, from the media and the public, has been revulsion. Marshall Ramsey's May 22 cartoon in the Jackson Clarion-Ledger says it all. (For those who have not been following the saga, Larry Templeton is the Athletic Director at Mississippi State; around May 19 his performance seemed to be a much more urgent concern to the ruling clique on the state College Board than Shelby Thames' was.)
So here, you would think, is a golden opportunity for the faculty of USM, via their respresenatives in the Faculty Senate, to put forward a model electronic communications policy for the university. The question is not what is allowed under current law. What matters is what kinds of rules should be followed and what kinds of practices ought to prevail in a good organization.
In fact, a simple, bold, clear policy could be formulated: Email sent and received on university computers is presumed private. Neither email surveillance nor copying of hard drives nor seizure of computers will take place, except when the university is cooperating with a law enforcement agency in investigating a violation of the law. And in those cases, a public announcement as to who was subject to email surveillance, over what period of time, will be made as soon as charges are brought against the individual, or the decision is made not to bring any. Actions taken in violation of the new policy by any university employee, including the president, will constitute grounds for termination.
Of course, Shelby Thames will accept such a policy over his dead body. But that does not matter, for even if he could somehow be prevailed on to accept the policy, no one would ever trust him to abide by it. The important consequence is this: once the policy has been put in front of him, Thames, his flunkies, and his political sponsors will bear the burden of explaining, to the media and to the public, why they are rejecting it. Meanwhile the faculty can make endorsing the new policy a condition of acceptability for any new President of USM.
The USM Faculty Senate is the body that would normally be expected to act on this kind of issue. But it has yet to take the initiative. Indeed, the recent compromise regarding Angie Dvorak's misrepresentations on her vita looks like a reversion to Faculty Senate business as usual. Even if the deal was cut in anticipation that she would leave USM (and of course Angie Dvorak is still on the payroll, drawing the same salary for a job with perhaps half of her old responsibilities), it let her off too easily.
Here is what has happened instead. The President's Council, a body of persons handpicked by administrators that Thames created for public relations purposes in early May, offered a weak proposition that Thames consult with a two or three-person advisory committee before undertaking any email surveillance. Thames indicated that he might accept this arrangement, but has yet to make any commitment to it. There is a real question, in fact, whether Thames will end up consenting to any proposal that comes out of the PC. Many observers believe that Thames is simply waiting a few months, until the IHL Board is ready to declare itself content with his efforts to"improve communication" on campus--at which point he will disband the PC or quit bothering to meet with it.
Why the email surveillance issue is so important is revealed by the following exchange at the May 26 meeting of the President's Council:
Thames seemed surprised that some in the university community distrust his administration.
"I think I made a statement last week to this group that e-mails are not being monitored," he said."Are you telling me people don't believe that?"
The response was a chorus of"Oh, yeah."
At the meeting, Thames had insisted Glamser and Stringer were the only employees whose email he had monitored since he became President of USM in May 2002. Lee Gore, the University Attorney, had further claimed that only 4 such investigations had been done in the last 14 years. (Of course, by the date when Thames allegedly ordered the investigation of Glamser and Stringer, Gore had been shouldered aside in favor of Thames'"Director of Risk Management," Jack Hanbury. And why should Lee Gore be expected to know who was subject to email surveillance while he was out of the loop and doing his time in Siberia?)
Since at the public hearing on April 28, Thames read intercepted emails from Gary Stringer dating as far back as January 31, 2003, virtually no one believes that Thames gave the email surveillance order to Jack Hanbury on January 16, 2004, as he claimed in his testimony. In late May, Thames responded to the Hattiesburg American's request for details under the Mississippi Public Records Act with the assertion that there was no written record of his supposed order on January 16, 2004 to Jack Hanbury to spy on Frank Glamser and Gary Stringer's email.
Many observers believe that there is no such documentation because there was no such order. Instead, they maintain that Angie Dvorak herself had already arranged for surveillance to be done on Gary Stringer. What's more, the surveillance may have begun as far back as May 2003. Dvorak could easily arrange for Stringer's email to be intercepted and his hard drives to be copied via her relationship with Pileum Corporation, whose contract with USM to manage information technology she oversaw. Not only was Jill Beneke, the President of Pileum, sitting near Thames at the April 28 hearing; Thames pointedly included in his testimony an email to Gary Stringer from an anonymous source, suggesting that Stringer investigate the university's contract with Pileum Corporation. Yet in his 30-minute statement at the end of the hearing, Stringer said he had not followed up on the tip, and in fact had no idea what Pileum Corporation was or what it did. If Stringer had known about Pileum, Thames would have ended up with very few intercepted emails to read out loud.
Meanwhile, the adoption of such a policy could have wide-ranging impact. Employees in many organizations fear that their email is being read by managers. And it is common for professors and other university employees to avoid using both university email and university phone lines when discussing matters they do not want administrators to know about. It is worth noting that employees of many universities--not just USM--frequently believe that nothing they say over a university phone line is private, even though there are legal prohibitions against listening in on telephone conversations.
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David T. Beito - 7/9/2004
Others should follow suit with their faculty senates and urge similar protections. Jim Otteson is now on the Faculty Senate at the University of Alabama and I will urge him to act. I don't believe that our Alabama Supreme Soviet will do anything but it may serve to publicize the issue.