Washington, D.C.
October 16-18, 1996

Redefining Higher Education

Exploring Issues of the Network Service Provider

Fred Heath, Dean and Director of University Libraries
Texas A&M University

I would like to tell you of some of the efforts Texas A&M has made to develop information policy at a local level. Information policy issues as a concern at Texas A&M had their origins with the beginnings of the omnibus Telecommunications Act, when our legislative staff began following the actions of Senator James Exon. Mr. Exon created major new concerns for higher education with his efforts to protect children from the worst aspects of the Internet. He was the chief sponsor of the Communications Decency Act (CDA).

It was obvious to all of us who followed the working of the Communications Decency Act into that omnibus bill that the tenets of academic freedom of the First Amendment were in danger from the CDA. But, worst of all, the CDA heightened anxieties in many sectors of the general population regarding abuses on the Internet. Many people signaled a readiness to join Mr. Exon in holding higher education liable for the violations of the CDA within their facilities. Populist fires were lighted at the state and local levels.

This legislative activity, as it emerged and headed toward certain passage, was one impetus for the development of information policy at Texas A&M. Another reason was the coverage given to international concerns regarding pornography on the Web. Then there was Marty Rem’s headline-grabbing study at Carnegie Mellon University (CMU) and the subsequent notoriety generated by CMU’s reaction to the same. This study also generated considerable interest on our campus. Furthermore, specific instances of faculty members elsewhere being suspended for storing indecent materials and of students being charged with transmitting pornography also caught the administration’s attention.

But all of that took a distinct back seat to specific developments on our home campus. One of our coeds decided that the distinctly unremarkable campus architecture of Texas A&M could be “virtually” improved with her ample body. So when Shelly published her Aggie Landmark series across the Web, it was not a question of whether we would have an information policy, but rather how it was going to come into being. We dodged the bullet; it could have been by presidential edict.

The policy could have resulted from legal interpretation regarding how to turn off the .alt newsgroups, etc., as many campuses have entertained. We could have created technical interventions to shut down AOL and similar services. We were fortunate that none of those things happened and that we somehow stumbled toward a community solution, something that, in large measure, is due to my counterpart in Computer Information Services (CIS), who persuaded the President to establish a broadly-based committee to consider the issue.

We were fortunate to have strong leadership among the faculty and administration to head off short-sighted or near-term solutions. My colleague and former Associate Director, Marilu Goodyear, who is now at Kansas, chaired the committee. It was important to have in a key position a person from the library who could argue from the analog of our experiences with print over the decades. We were also fortunate to have the president of the faculty Senate, in addition to other faculty on our drafting committee. Our Student Affairs leaders were very strong, and the students who we pulled into the committee came to understand the First Amendment issues involved and contributed much to the case. Our legal counsel Mary Beth Kurtz, was also a strong advocate of First Amendment principles in this, and urged caution on the part of our Board and President. Our technical participation from CIS was also very strong and very effective.

The Committee looked to its colleagues around the country for guidance and decided to attempt to insure the location for information policy where it would reside in academic affairs at Texas A&M. As we looked around, we saw that in some cases responsibility for information policy reside in computing or information services, or in media or public relations. But our goal was to locate the authority in academic affairs, and our committee was a provostial committee.

The final report was approved early this year and set in place the systems that we have today, a committee within academic affairs that does its work via a complaint-driven system, as opposed to an active monitoring system.

The final report enunciated a set of principles to guide future work, including affirmation of First Amendment prerogatives and the Freedom of Inquiry; a general right of privacy, as, of course, mitigated by state Texas law and federal law; and the notion of authorized use, interpreted to ensure as broad a use as possible of computing facilities and resources on our campus. I am still a bit concerned that we were too accommodating in the concept of unauthorized use; nonetheless, we tried to interpret that as broadly as possible. Then, the issues of intellectual property call for the community to understand and protect intellectual property within the context of fair use, and for faculty to undertake to understand their rights, duties, and responsibilities on the Web.

As I said, this is a complaint-driven system, and CIS was given responsibility for implementing that. Their staff was trained on how to handle complaints, and two very high-level staff members were given oversight responsibilities for monitoring the system. The system is managed on an a priori software within their system that is used to track the problems.

Since February, when complaint monitoring began, we have handled more than a thousand cases. So as you can see, just a complaint driven system occupies the full time and attention of two very high-level staffers at about a $100,000 cost for their salaries alone. Now, because of the level of staff employed, there is a significant aspect of informal intervention and mediation at the beginning in an attempt to minimize administrative follow up. But if there is no resolution at the informal level, or if the nature of the complaint makes mediation inadvisable, we follow one of three channels handing the issues off to the appropriate agency. The first could be our very effective student conflict resolution channels, which, as you can imagine, handle the gamut of student problems. The second is when, on rare occasions, we will hand things to faculty channels, such as deans or department heads. And, finally, on a very rare occasions, when we must, we will resort to the use of legal counsel and law enforcement.

Since we have implemented this policy, there are several types of complaints with which we have had to contend, including the issues of “adult” materials on the Web; hate speech and harassment in all of its guises; privacy, particularly e-mail privacy; and copyright, which really isn’t the dominant problem at the moment; and then, something we need to be concerned about in our populist state, commercial uses of state property.

Adult Materials

Despite continual attack, as you can see from a fairly recent publication in the Electronic Engineering Times about our web page at Texas A&M, most indecent materials, in fact, remain on the student servers. We are able to handle the more offensive things through effective mediation. We are able, in most cases, to convince our students that this is not the First Amendment ditch in which they should choose to die. And, by and large, they have, so far, agreed. However, we have our first large obscenity case now pending. It came directly from the outside to our campus police department, and it bears some watching; it is a concern for all of us.

Hate Speech

Our student conflict resolution structure is very well suited for handling most of these issues and has been mostly successful. I think the unfortunate part of this is that most hate speech is, in large measure, protected by the First Amendment.

Harassment

Next there are harassment issues. Included under that heading are student issues, relationship problems, personal threats, and gender issues, all of which are unpleasant things that occur all too frequently. But, again, by and large, our student conflict resolution channels take that tributary, move it into their mainstream, and deal with it as they would things from real life, as opposed to virtual issues that arise in the electronics. I think that is something we sometimes forget; we set these electronic issues aside to be dealt with, when, in fact, they are just one piece of the universe of problems that we must handle on a campus.

Sexual harassment issues are things that we take very seriously, whether they are images on screens, printouts, or unwanted and unwarranted e-mail messages. We have policies within our system, stated in our Policies and Procedures Manual (PPM), and we handle all of those cases quickly and forcefully.

Privacy

Another concern is privacy in general, and e-mail privacy in particular. We have 115,000 electronic accounts at Texas A&M, available to the students for the asking, and so the reality is that we have created the virtual equivalent of a public forum, an electronic town square, if you will. It is very difficult for someone caught up in that to make an argument about privacy invasion, so it is often a difficult area to handle. Of course, there are privacy entitlements under law, which we do try to protect vigorously. Whenever we can tie hacking or other unlawful entry into private materials, we can use legal resources, which are particularly direct and forceful level.

Copyright

I mentioned copyright. This week we received an interesting complaint from England regarding poetry that a professor had mounted on his home page. I bet a lot of you are encountering this, too, especially as electronic reserves are moving from the library to the faculty member’s home page. That is a flaw with our policy because we don’t monitor; we are a complaint-driven system. And so what is happening? Every holder of intellectual property right on the face of the earth is out there, tirelessly monitoring, and those complaints are now beginning to flood in on a regular basis.

We do take abrupt intervention when informed, and so far we have avoided lawsuits. We have managed to persuade both parties involved that these instances involving individual home pages are not major violations. So far we have avoided litigation in all copyright issues. We have been very fortunate.

Commercial Uses of State Property

Our concern with unauthorized commercial uses of Texas’ state property are externally-driven sensitivities. We are always aware of what is going on in the Texas legislature in Austin, and we actively try to avoid problematic situations. However, there are instances where we are still confronted with problems. For instance, Shelley, who was mentioned earlier, decided to move from enhancing campus structures to enhancing the landmarks of Texas. She created a calendar, so, if you want to find Shelly in front of the Alamo, there is a pointer from her student home page to a server residing off-campus where, in fact, that calendar can be ordered. This is a concern we must deal with.

Just a quick aside about the cost of compliance. I read something from Gonzaga the other day, about how it would take them six people, 24 hours a day, to monitor obscenity on the net. I don’t know how large Gonzaga is, but I know that, with 115,000 electronic accounts, we still wouldn’t be able to monitor the net with a staff four times that size. It couldn’t be done. As I said, what we have now is computer services monitoring complaints, which requires two full-time employees of high level positions, at probably $100,000 in salary for them alone. By taking advantage of the extant Student Affairs conflict resolution channels we have been able to handle most of the student cases that come their way without additional cost. And, more importantly, it is there that we talk with our students about issues of civility, courtesy, and common etiquette on the Net that we hope will bring the number of problems down over time.

By way of a quick summary, I would like to address our concerns. We think that we have built a fence around the First Amendment, albeit a little fence that is pretty easily scaled. There are lots of pressures out there that we feel could overwhelm us. We feel that we are vulnerable to Eagle Forum kinds of tactics; patient people who oppose what we do in higher education and who tirelessly work to tie us up needlessly in litigation and complaints. We are beginning to see some evidence of that, and I wonder if that first externally-lodged case on obscenity comes from those origins; I don’t know yet.

We are untested by populist politics as yet. We are unseared by grave or sensational headline-grabbing incidents that could cause a board or others to brush aside First Amendment issues. We haven’t had that.

But mostly, my biggest concern is this: that our complaint-driven system is vulnerable to a court reversal of CDA, and the chance that we may be driven into an active monitoring kind of situation in order to keep our senior administrators out of jail. It is a grave prospect that is out there in front of us and one which I fear very much.

Copyright � 1998 by Fred Heath

Question and Answer Session

(Audience Member): Fred, you mentioned that you have two full-time employees who handle over a thousand complaints; that was surprising information for me. Is this going on in universities around the country? Are we seeing staff at that level? Are you seeing that level of complaints?

MR. HEATH: I don't know how many of you have staff assigned. I do know that in those occasions where we have encountered a colleague in a similar situation, they have not been surprised by the numbers.

What I would like to think is that our ability to get complaints, however minor, in front of conflict resolution people is why we haven't had a major headline-grabbing incident.

ARL will publish a SPEC Kit soon, hopefully this week, on the development of insitutional information technology policies (Shirley Leung and Diane Bisom, SPEC 218: Information Technology Policies, Oct. 1996).