This policy is akin to a “No Smoking” sign on the door of a building. Faculty, students and staff would be giving up their privilege to use publicly-owned equipment and internet connectivity for personal reasons to transmit (i.e., access, copy and/or send) threats, hate literature, harassment, defamation, obscenity, and pornography.
Yes. This policy is modeled after San Diego State University (SDSU) (http://security.sdsu.edu/policy/aup-operational.html). Their acceptable use policy is one page long. (Note: Cal Poly’s “responsible use” policy is over 80 pages long). In one section, SDSU Acceptable Use Policy states that
SDSU Policies do
not supersede federal or state laws. Actions that are illegal and may result in
prosecution include, but are not limited to:
·
Violation of applicable federal or
state laws and campus regulations, including but not limited to the transmission
of threats, harassment, defamation, obscenity, and pornography.
Some universities are under other similar State laws. As example, universities and public colleges in Virginia are bound by Virginia state law, Virginia code §2.1-805:
Except to the extent required in
conjunction with a bona fide, agency-approved research project or other
agency-approved undertaking, no agency employee shall utilize agency-owned or
agency-leased computer equipment to access, download, print or store any
information infrastructure files or services having sexually explicit content.
Such agency approvals shall be given in writing by agency heads, and any such
approvals shall be available to the public under the provisions of the Virginia
Freedom of Information Act (§2.1-340 et
seq.) of Title 2.1.
In
1998, this law was challenged in the U.S. Court of Appeals as violating the
First Amendment rights of the state employees.
The U.S. Court of Appeals (4ths District) ruled that because the speech
did not constitute a matter of public concern, the law does not violate free
speech rights as protected by the First Amendment. The U.S. Supreme Court supported the ruling by refusing to review
the case in 2000.
Censorsing is when “a person authorized to examine letters, books, films, etc. [removes] or [bans] anything regarded as harmful.” (Oxford American Dictionary). Censorship carries a particularly distasteful stigma at Universities because is insults the intelligence of individuals, assuming that they are not able to use their own discernment. In regard to banning material, this policy only clarifies what the State of California has already banned through their penal codes (PC 311-Child Pornography and Obscenity, PC 502-Computer Crimes Act). It also bans material in compliance with labor laws that require an employer to take all necessary steps to prevent harassment from occurring. However, this policy in no way “removes content” from computers. It is left up to the individual to comply with the policy.
Academic freedom refers to professors’ right to pursue truth in their profession without censorship[1]. Specifically, the American Association of University Professors says[2]
Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole. The common good depends upon the free search for truth and its free expression.
This policy in no way limits a
faculty member’s search for truth in their profession. Those who need to access restricted
information may do so after receiving authorization from the University
President. This authorization will
prevent criminal convictions under the Computer Crimes Act (California Penal
Code 502[3])
for those who are accessing unlawful information for legitimate work-related
purposes. This policy does not violate academic freedom.
You can ignore the proposed policy at your own risk. This policy could shift the responsibility for harassment from the employer to the individual creating the hostile work environment.
No. The First Amendment protects a private citizen’s right
to express themselves on matters of public concern. In fact, the original draft of the
resolution was in the form of “The freedom of speech and of the press, and the
right of the people peaceably to assemble and consult for their common good,”
(emphasis ours) (Examine Freedom of Expression-Speech and Press at http://caselaw.lp.findlaw.com/data/constitution/amendment01/). “The protection given speech and press was
fashioned to assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.” (Roth v. U.S., 354 U.S. 476, viewable at http://www.findlaw.com/casecode/supreme.html by entering
citation). Although freedom of speech has since been expanded to freedom of
expression in artistic or literary media, the U.S. Courts have maintained that
protected freedom of speech under the First Amendment refers specifically to matters
of public concern.
“[Constitutionally protected] speech involves a matter of public concern
when it affects a social, political or other interest of a community.” (Urofsky v. Virginia, U.S. Court of
Appeals (4th Districit), No. 98-1481 (1999)) The resolution refers to the access to specific information for personal reasons, not matters of public
concern. Personal interests (versus
matters of public concern) do not come under Constitutional protection as free
speech.
A recent high-profile case involving electronic filtering devices in libraries has left the public with a great deal of confusion. This case refers to PUBLIC ACCESS to information on PUBLICLY-OWNED equipment. Specifically, a court has decided that installing filtering devices on public library internet access (i.e., censoring) is a violation of the First Amendment right of free speech, primarily because the state of the filtering technology is such that it restricts access to information that comes under the protection of the First Amendment.
(Note: Our proposed resolution addresses PRIVATE access primarily by employees on publicly-owned equipment, not the public at large. Additionally, our proposal does not involve removing content through filtering.)
The resolution speaks largely to the University in its role as employer. From California Government Code Section 12940(k) “It shall be an unlawful employment practice…:(k) For an employer, … to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (The full text can be viewed by entering the citation under “Government Code” at http://www.leginfo.ca.gov/calaw.html)
The following is an excerpt from Tech Law Journal (text of article at http://www.techlawjournal.com/censor/19990212.htm)
Six college
professors employed by public schools in Virginia brought a suit challenging
the constitutionality of a Virginia law restricting state employees from
accessing sexually explicit material on computers that are owned or leased by
the state.
The February 10
opinion stated that the analysis for free speech rights of public employees
differs from that for citizens in general. The Court wrote:
A determination of
whether a restriction imposed on a public employee's speech is violative of the
First Amendment requires "'a balance between the interests of the
[employee], as a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees.'" ... This balancing
involves an inquiry first into whether the speech at issue touches upon a
matter of public concern, and, if so, whether the employee's interest in First
Amendment expression outweighs the public employer's interest in what the
employer has determined to be the appropriate operation of the workplace. ...
Speech involves a matter of public concern when it affects a social, political,
or other interest of a community.
The Court concluded
that viewing sexually explicit matter at work does not constitute "a
matter of public concern" and hence, the speech may be restricted.
From the actual text of the U.S. Circuit Court opinion in Urofsky v. Virginia, U.S. Court of Appeals (4th District), No. 98-1481 (1999):
“If a public employee's speech does not touch upon a matter of public concern, the [state], as employer, may regulate it without infringing any First Amendment protection. See Holland v. Rimmer , 25 F.3d 1251, 1255 n.11 (4th Cir. 1994).”
“A determination of whether a restriction imposed on a public employee's speech is violative of the First Amendment requires "`a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'" Connick , 461 U.S. at 142 (alteration in original) (quoting Pickering , 391 U.S. at 568 ). This balancing involves an inquiry first into whether the speech at issue touches upon a matter of public concern, and, if so, whether the employee's interest in First Amendment expression outweighs the public employer's interest in what the employer has determined to be the appropriate operation of the workplace. See Pickering , 391 U.S. at 568 ; see also Connick , 461 U.S. at 146 (noting that if a public employee's speech cannot be characterized "as relating to any matter of political, social, or other concern to the community," the constitutional inquiry comes to an end).”
“When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” (Connick v. Myers, 461 U.S. 138(1983) at 146 viewable at http://www.findlaw.com/casecode/supreme.html by entering citation)
Although this is partially true (child pornography is illegal and it is illegal to distribute obscenity), the resolution is not addressing the legality of pornography. It is addressing (1) the legality of using state-owned resources for personal access to pornography, (2) the requirement for employers to “take all necessary steps to prevent harassment from occurring,” and (3) the civility of the work/learning environment. A Cal Poly professor was convicted of a computer crime (California Penal Code 502(c)[4]) for accessing adult pornography on state equipment. So the primary issue is not whether viewing pornography is illegal; the issue is in part whether we, as government employees, are allowed to use the computing resources for these purposes.
We have not been able to find cases that support this statement.
Because something is hard to define does not mean that there should not be policy regarding it. For example, slander, libel, robbery and murder all involve elements of interpretation. However, our society has laws against them to protect the rights of the citizenry. The role of institutional policy is to raise awareness and articulate the values of an organization. It is up to individuals to choose to adhere to the policy.
The formal definition of enforce is “to compel observance of or obedience to: enforce a regulation.” (The American Heritage Dictionary). Although we have “law enforcement” agencies, these agencies are more in the business of arresting those who break laws, than they are in the business of forcing people to obey them. However, if the University desires to monitor internet activity for violations of the policy, this would be a simple matter with software products that are designed specifically for preventing hostility in the workplace (See the section below on Enforcing a policy would impose a huge financial cost.)
Some individuals argue that a University could not adopt a context-specific policy because it would create a “police state.” None of Cal Poly’s policies have a “police state” nature, this one wouldn’t either. Even the prohibition against firearms is not “enforced,” per se. Compliance for all policies is self-imposed by individuals who have internalized the values. For example, no one stops any of the thousands of people on campus each day to search for alcohol. Individuals do not bring alcohol onto campus because they are aware of the policy and they police themselves.
It is not the intent of
this policy to force individuals to comply with it. However, if the University desires to monitor internet activity,
inexpensive software is readily available.
Businesses and government agencies (such as NASA) regularly prohibit the
use of their equipment to view pornography in order to comply with federal
labor laws on sexual harassment. They
utilize one of many commercially available software packages that track
internet activity. For example, see www.securitysoft.com or www.spectorsoft.com or www.vnuvet.com.
Although there may be a blending of time personal and time corporate, the equipment and internet access are both corporate, as are the work and learning environment. The right to students, faculty and staff to enjoy a hostility-free work and learning environment outweighs the urgency of the desire for the few who would like to use state equipment for their personal sexual entertainment or other purposes that could create a hostile environment.
This statement may be referring to the Fourteenth Amendment of the Constitution: (abridged) No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. This may be true. However, the Constitutional Right to Freedom of Speech (or Expression) does not apply in this case, since the “speech” addressed in this policy is not a matter of public concern.
Clinical evidence does not support this belief. There is preponderance of clinical, and observation studies that converge on the conclusion that viewing pornography is strongly correlated with hostility towards women. As an example, “[S]tudy…results consistently showed a relationship between one’s reported likelihood to rape and responses associated with convicted rapists such as sexual arousal to rape stimuli, callousness attitudes toward rape, beliefs in the rape myths, and hostility towards women” Neil. M. Malamuth & Joseph Centi, Repeated Exposure to Violent and Non Violent Pornography: Likelihood of Raping Ratings and Laboratory Aggression Against Women, 12 Aggressive Behaviors 129-137, U.C.L.A. (1985). According to this and other studies done in the early 1980s, hostile behaviors (such as insensitivity to women’s issues) and attitudes toward women can result simply from viewing pornography. It is not necessary to have someone exposed to objectionable material in order to create a hostile work environment. It is reasonable to assume the same is true for hostility that can result from a steady diet of hate literature.
A summary of other evidence can found in the document Just Harmless
Fun? Understanding the
Impact of Pornography from www.enough.org.
THE STATEMENT ON PROFESSIONAL ETHICS[5]
1. Professors, guided by a deep conviction of the worth and dignity of the advancement of knowledge, recognize the special responsibilities placed upon them. Their primary responsibility to their subject is to seek and to state the truth as they see it. To this end professors devote their energies to developing and improving their scholarly competence. They accept the obligation to exercise critical self-discipline and judgment in using, extending, and transmitting knowledge. They practice intellectual honesty. Although professors may follow subsidiary interests, these interests must never seriously hamper or compromise their freedom of inquiry.
2. As teachers, professors encourage the free pursuit of learning in their students. They hold before them the best scholarly and ethical standards of their discipline. Professors demonstrate respect for students as individuals and adhere to their proper roles as intellectual guides and counselors. Professors make every reasonable effort to foster honest academic conduct and to ensure that their evaluations of students reflect each student’s true merit. They respect the confidential nature of the relationship between professor and student. They avoid any exploitation, harassment, or discriminatory treatment of students. They acknowledge significant academic or scholarly assistance from them. They protect their academic freedom.
3. As colleagues, professors have obligations that derive from common membership in the community of scholars. Professors do not discriminate against or harass colleagues. They respect and defend the free inquiry of associates. In the exchange of criticism and ideas professors show due respect for the opinions of others. Professors acknowledge academic debt and strive to be objective in their professional judgment of colleagues. Professors accept their share of faculty responsibilities for the governance of their institution.
4. As members of an academic institution, professors seek above all to be effective teachers and scholars. Although professors observe the stated regulations of the institution, provided the regulations do not contravene academic freedom, they maintain their right to criticize and seek revision. Professors give due regard to their paramount responsibilities within their institution in determining the amount and character of work done outside it. When considering the interruption or termination of their service, professors recognize the effect of their decision upon the program of the institution and give due notice of their intentions.
5. As members of their community, professors have the rights and obligations of other citizens. Professors measure the urgency of these obligations in the light of their responsibilities to their subject, to their students, to their profession, and to their institution. When they speak or act as private persons, they avoid creating the impression of speaking or acting for their college or university. As citizens engaged in a profession that depends upon freedom for its health and integrity, professors have a particular obligation to promote conditions of free inquiry and to further public understanding of academic freedom.
[1] See the “Statement on Academic Freedom” by the American Association of University Professors, attached to this document and at http://www.aaup.org/Com-a/index.htm
[2] Summary of
the Statement of Academic Freedom at
http://www.aaup.org/Com-a/index.htm
[3] Penal Code 502 is the Computer Crimes Act. The text of the act is long, but it basically refers to unauthorized writing of data or destroying of data to government computers.
[4] The actual text of 502(c) is: “c) Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense: (1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data. (2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network. (3) Knowingly and without permission uses or causes to be used computer services. (4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.”
[5] From the American Association of University Professors, http://www.aaup.org/statements/Redbook/Rbethics.htm
[6]From the
American Association of University Professors,
http://www.aaup.org/statements/Redbook/1940stat.htm