In Search of a Stricter Standard

UPDATED: Mar. 04, 2014 at 9:53 p.m.

It has been a year since Harvard administrators disclosed the secret email searches that were carried out in the wake of the Government 1310 cheating scandal. Those searches were the result of poor judgment and vague policies; they violated the few rules that existed, betrayed the community’s trust, and harmed Harvard’s reputation. The scandal, particularly the ill-advised email searches, led to the creation of the Electronic Communications Policy Task Force, chaired by Harvard Law School professor David J. Barron ’89, a former Crimson president. That task force last week released a report and proposed policy regarding the proper procedure of searching college emails. The Task Force’s charge was to recommend future policies rather than relive past practices, but the context of the search scandal is important in evaluating the Task Force’s work. The proposed policy is more honest, transparent, and accountable than the old system, but the vague standards for searches in misconduct investigations are troubling in light of the administration’s checkered history in that area.

The proposal goes a long way towards fixing the policy part of the problem. If the policy is adopted, the University will have a single set of rules that apply to all electronic communications rather than a confusing patchwork that varies for students, faculty, and staff. To improve accountability, the Dean of the relevant school or division will have to authorize searches in the case of students or faculty, and detailed records will be kept. The new policy also strongly favors notifying the targets of a search. Perhaps most importantly, there will be an independent oversight committee charged with reviewing searches.

Even so, the policy is vague. For investigations of misconduct, the policy would require that searches only be conducted when the investigations “advance a legitimate institutional purpose.” While past searches of electronic communications have been very rare, the proposal leaves open the possibility that any investigation with any bearing on electronic communications could result in a search. The person authorizing the search is supposed to “weigh not only the stated reasons for access but also the possible effect of access on University values such as academic freedom and internal trust and confidence.” The proposed policy is clearer and more accountable than the former system, but it still requires that students, faculty, and staff trust that administrators who authorize searches have good judgment, sincere intentions, and the best interests of Harvard as a whole in mind.

The vague language points to the central trade-off of the electronic communications policy. If the policy were a prescriptive blueprint for when searches are permissible, it would leave out unusual or complicated cases. That sort of policy would be useless at precisely the time when a policy is most needed. The policy clearly needs to be flexible. The vague standard of a “legitimate institutional purpose,” however, is too broad. The policy should make clear, for example, that email searches are not warranted in most cases. The limited records of past searches suggest that they have only been conducted in extraordinary circumstances, but the proposed policy opens the door for searches in a much wider array of cases, depending on which purposes are “legitimate.” There are dangers in being too prescriptive, but the experiences of the past year weigh heavily in favor of restricting searches. The policy should require that searches in misconduct cases be limited to the target of the investigation and should only be conducted in the most serious cases.

The report and proposed policy are thoughtful, well-reasoned, and sorely needed. The main challenge is to find the appropriate balance between flexibility and protection for students, faculty, and staff. The Task Force has done extraordinary work in the face of a complicated problem, and the public comment period offers an opportunity for everyone in the Harvard community to weigh in on where that balance falls. The email search revelations of a year ago may seem like the distant past, but electronic communications policy matters just as much today as it did a year ago.

This editorial has been revised to reflect the following correction:

CORRECTION: Mar. 04, 2014

An earlier version of this article mistakenly claimed that Harvard Law School professor David J. Barron was in the Class of 1986.  In fact, he was in the Class of 1989.