Harvard e-mail probe sparks privacy concerns

How far can an organization go in violating its employees' inboxes in pursuit of document leakers?

That's a question Harvard University is asking itself amid a wave of controversy over a probe it conducted into a confidential email message outlining how to deal with student issues, including cheating, as well as the nearly word-for-word disclosure of a confidential conversation at a meeting of the school's Administrative Board.

The investigation was conducted last fall, but the affected parties weren't told about the in-box snooping until this month. During the probe, university investigators reviewed header information in the email of 16 resident deans, one of whom was believed to be the source of the leak.

[See also: Privacy war heats up between ACLU, DOJ]

"This is, I think, one of the lowest points in Harvard's recent history -- maybe Harvard's history, period," Richard Bradley, a Harvard alumnus and author of a book on the school's former president Lawrence H. Summers, wrote in his blog. "It's an invasion of privacy, a betrayal of trust, and a violation of the academic values for which the university should be advocating."

The document that became public included advice to resident deans at the university on how to counsel student athletes implicated in a cheating scam at the institution.

An investigation was in order because the leak threatened the privacy and due process of the students who would be appearing before the board, the university reasoned.

After consultation with the university's general counsel and others, the school's IT department was instructed to perform a "very narrow, careful, and precise subject-line search" of the resident dean's administrative email accounts, Deans Michael D. Smith and Evelynn M. Hammonds said in a statement posted to the university's Faculty of Arts and Sciences website.

"The search did not involve a review of email content; it was limited to a search of the subject line of the email that had been inappropriately forwarded," the pair wrote. "To be clear: No one's emails were opened and the contents of no one's emails were searched by human or machine."

After the dean who was thought to be the source of the leak was identified and questioned, the investigators concluded the leak was an accident and closed the matter.

"Operating without any clear precedent for the conflicting privacy concerns and knowing that no human had looked at any emails during or after the investigation, we made a decision that protected the privacy of the Resident Dean who had made an inadvertent error and allowed the student cases being handled by this Resident Dean to move forward expeditiously," Smith and Hammonds said.

Regardless of the care taken by Harvard to limit the scope of its probe, it did violate certain expectations about email, said Neil Richards. a professor of law at Washington University in St. Louis. "There's an expectation of privacy in our emails, even emails that are administered by our employers," he said in an interview.

Harvard's justification for the investigation -- to protect the privacy of the students alleged with cheating -- is an interesting twist, he continued. "It's using privacy as a justification to invade privacy, which is somewhat ironic," he said.

If a person can't expect their communications to be private, it can have adverse effects on their productivity, he noted. "Our intellectual privacy is chilled when people are watching," he said.

Read more about investigations/forensics in CSOonline's Investigations/Forensics section.

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