The question is not whether the Republicans can say nasty things
about William Cronon. The question is whether they can get access to
his e-mails or not, under the open records law. The Republican
contention is essentially that Cronon was acting in his capacity as
a government official when he wrote a letter to the New York
Times. Within officialdom, there are two kinds of people.
There are people holding patronage appointments, who exercise
independent judgment, and there are people holding civil service
status who do not exercise independent judgment, and who obey lawful
orders. The governor's speechwriter belongs to the former category,
a welfare disbursing clerk to the latter. Professors do not
fit into this dichotomy.
I understand that the law of E-mail is still rather undefined, as
yet. E-mail is simply too new to have much of a body of case
law. However, if one looks at the established law of
paper mail, the offense of paper mail tampering is defined in
a reasonably expansive way, as in the Carslake case cited below.
Carslake accepted letters from the postal carrier, saying in
effect, yes, I can deliver these to the person named, and then he
turned around and maliciously retained and destroyed the letters for
his own profit. In accepting mail for someone, you take on
responsibilities to deliver it. You can't just open someone's
mail because it comes to the office. This applies especially if you
do something overt like putting up a mailbox with someone's name on
it. Of course, some kind of reasonable accommodation has to be made
for junk mail, and spam in the e-mail sphere, but that is a
separate matter.
A letter a professor receives, let us say, in his capacity as
chairman of the admissions committee, does fall within the scope of
official business. However, a letter concerning his writings which
fall within the scope of academic freedom does not. I
grant you that academic freedom does not necessarily include the
freedom to do nothing, but the obligations are not closely
tied to employment either. For example, someone who has published
much more than anyone else in the department, before he
came to a given university, and who was hired to tenure, is
effectively immune to criticisms of not having
publishing anything recently. The obligation is not so
much to publish, as to be a person who has published,
and the grade of Assistant Professor is simply a concession to the
fact that most people do not have enough private means to
carry them along until their merit is clearly
established.
In e-mail practice, official communications tend to be segregated
out, to a greater extent than in snailmail. There is a designated
address for applying to graduate school in a particular department,
as well as one for each search committee. Likewise, it is
increasingly common to create separate e-mail accounts for
particular sections of particular courses in particular terms, so
that all the homework papers get sorted out. It is much easier
to create new e-mail addresses than to carve new holes in the
wall separating the department office from a corridor and to install
new cubbyhole mailboxes in that space. A standard mail-client
running on a personal computer can methodically gather up mail from
any number of different accounts. For that matter, there used
to be a distinction between standard letters, where one stuck
a stamp on a letter-sized envelope, and dropped it in a blue mailbox
on the street, versus big manila envelopes, which one had to carry
to a post office, so that a clerk could weigh them and assess
postage. That sort of distinction has largely dropped
out with e-mail. At any rate, the residue of e-mail arriving
in a professor's named e-mail account tends increasing to be
material relating to his identity as a scholar, not his identity as
an academic official.
Now, as it happens, institutions such as universities have assumed
much of the role for e-mail and internet access which the post
office performs for snail mail. The military paid for e-mail,
and the internet, in the first instance, when it was a new
technology, and rolled it out to universities via DARPA. There were
arrangements whereby, once you were affiliated with a university,
you could keep an e-mail address even if you cease to be employed or
enrolled. You got your e-mail address with your alumni T-shirt, so
to speak. This worked out to the universities taking on the role of
the post office. That only works on the assumption that
they play by the same rules. The whole public utility
standard. The mayor is not allowed to turn off the water to your
house because you disagree with him in the local newspaper. Comcast
keeps insisting that it has the right to sell your
confidential information for its own profit. The universities
represent the principal bulwark against that kind of
thing. The generals and the admirals were entitled to assume
that the universities would operate e-mail and internet access
with the same commitment to integrity and universal access as the
United States Postal Service. If the military had not trusted
professors, they would have rolled out e-mail through the Post
Office instead. The pattern of E-mail is not something unique.
In the nineteenth century, for example, the United States Navy
had a practice of giving Annapolis-trained naval officers
paid leave-of-absence so that they could become
professors of mechanical engineering in state land-grant
universities. The idea was that the Navy would carry the new
professors in a new field across the awkward interval before they
could draw salaries from the state legislature. The pattern was
simply reproduced for computers. The military recognized the
universities as agents of the public interest.
There are technical improvements which can be made in e-mail, of
course. I can envision a system in which e-mail travels encrypted,
and you have to download a key from a separate website. This
is not unbreakable, of course, but it does turn the act of
reading someone's e-mail into an overt act, similar to tearing
open a letter, and it might be much cheaper to implement than
personal cryptographic certificates. If both parties have
certificates, they can publish these wherever they post their
e-mail addresses, and the correspondence can be
encrypted from the first. One interesting proposal, some years ago,
was that everyone should have his own personal home or office e-mail
server, similar to a telephone answering machine, and quite possibly
built into one. That would eliminate the need to store e-mails in
public facilities. It would give an e-mail the same "sealed against
inspection" quality of a first-class snailmail letter.
You understand, or perhaps you may not, that the marginal cost of an
e-mail, in terms of computer resources, is on the order of a
millionth of a cent. If you stay late in your office, and
consequently have to visit the "gents" before going
home, that costs the institution much more money than an
e-mail. As a general rule, most of the money a
computer support department spends is in running a tutoring
service to teach people how to use computers, especially people who
do not take to it like ducks to water. That is what is
expensive. That and addressing the needs of new groups of customers
who are doing things which the computer establishment had not
previously foreseen. These are often related concepts, eg.
redesigning a computer system so that it can be used by
someone who flunked math. The purpose of restrictions on e-mail is
not to save money, but to control people.
Obviously a manager in the state highway department is supposed to
build roads where the governor says to build roads. The governor,
being elected, does have the right to set policy. A manager in the
state highway department would probably be in trouble if he
criticized the governor, writing at home, using his own private
e-mail account, and not using his official title. Some jealous
rival would point out that he was the author of such and
such a piece. What the governor objects to, of course, is the
statement that "I am John Smith, and I know all about roads by
virtue of having built a lot of them, and in employing me, the
government concedes that I am a good road engineer, and I
think this piece of government policy is a dumb idea."
Of course, there is a certain justification to the
governor's viewpoint. A manager in the highway department has
operational responsibility. He might not make the extra
effort to make something work if he thinks it is a dumb idea in the
first place.
People like that generally feel they need pseudonyms. For example, I
know of a man called "6," though I don't know his real name. He's a
patent examiner, or at least he says he is (and I believe
him, based on circumstantial evidence), and he critiques the
patent office from within. The patent system is fantastically
corrupt, you understand, not merely in the sense of being beholden
to powerful interests, but in the more basic sense of being
dominated by petty corruptions, like the policeman who steals things
out of stores on his beat, and doesn't even feel the need to conceal
his thefts, and who pays his desk sergeant a percentage. That level.
Like "Junius" before him, "6" needs to be anonymous.
For what it's worth, Maarja Krusten, [a historian employed at the
National Archives,noted for her role in preserving the Nixon tapes],
seems to worry at least as much about showing that she wrote things
during her break time as about not using government computers.
Universities are different from the ordinary civil service.
Professors are paid to think, and often to think about political
matters. If you combine that with allowing the
Governor to set policy, you get Moscow State University,
where the history department was required to "prove"
that the Communist Party of the Soviet Union is the best of
all possible worlds, and that the the Great Purge,
the Liquidation of the Kulaks, and the Gulag Archipelago never
happened. And so on and so forth. For example, Andrei
Amalrik, the famous author of _Will the Soviet Union
Survive Until 1984_ (*) and _Involuntary Journey to Siberia_,
started his career as a political dissident when he wrote a
university thesis suggesting that there might have been a
Scandinavian component in the early Russian state of
Kiev, circa 900 A.D. They flunked him out, of course, and he
was launched on his career as a subversive. One of the things
he did was to run an underground art gallery in his dormitory room,
where dissident painters could sell their work. Inevitably,
the KGB came down on him for "social parasitism." Intelligent
Russians tended to steer away from humanities and social sciences
toward things like basic science which were reasonably apolitical.
The case for an independent professoriate is not dissimilar
to the case for an independent judiciary.
(*) He was only off by six years.
------------------------------------------------
Here is an illustrative case. Reduced to essentials, the defendant,
Carslake, recruited Russian guest-workers on false pretenses,
employed them as ice-cream-truck drivers, housing them in apartments
controlled by a confederate (presumably about ten to a room), and,
by fraud and terror, sought to reduce them to a condition of
slavery. When the immigrants filed for working papers, in
order to find another employer, they were obliged, presumably for
want of any alternative address, to use their employer's address.
Carslake intercepted mail sent to the immigrants by the United
States government, in order to hang onto his labor force.
He pled guilty to Obstruction of Mail, presumably in a plea
bargain to avoid more serious charges.