Should E-Mail Be Private? : UC, Employees Tangle Over Rights of University to Access Computers of Staff on Leave

In 26 years as a UC Irvine librarian, Irene Wechselberg has been a complete stranger to controversy. But the tentacles of the communications revolution, which reach into her rare books department, changed that.

Because university policy has failed to keep pace with the rapidly expanding use of computer e-mail, the soft-spoken librarian finds herself caught between an employee’s right to privacy and an employer’s right to know.

Like 20,000 students, staff and faculty at UC Irvine, Wechselberg frequently makes use of e-mail, primarily professionally, but occasionally personally. Earlier this year, the 57-year-old Long Beach resident took a medical leave, which led to a request from her supervisor for her e-mail password.

Wechselberg refused. The university, citing a pressing need to keep abreast of work-related business, countered by diverting Wechselberg’s e-mail to her supervisor’s computer.

“That’s just an invasion of privacy,” said Wechselberg, who is considering legal action against the university.

Her case highlights the difficulties facing the entire University of California system in its struggle to establish an e-mail policy in the absence of firm legal precedent. The draft policy, which would grant officials access to files of employees on extended leave, is raising concerns that such powers might have a chilling effect on free expression at universities.

“The policy is at best an evolving and constantly moving target,” said Duran Bell, chairman of UC Irvine’s Academic Senate committee on academic freedom, which is studying the policy. “I think it would cause an explosion if they acted precipitously now and approved it.”

Critics fear that the five-page proposal allows universities too much room to abuse an undisputed need to monitor the e-mail system. The proposal’s language is vague, critics argue, which might permit officials unrestricted access to e-mail accounts.

Critics are particularly wary of the proposal’s statement that officials may delve into a person’s e-mail “as required by university legal and audit purposes, and for legitimate university operational purposes.” The university argues that ownership of the computer equipment entitles the school to that.

“Just because the university owns the public buildings, does that mean the state has the right to install cameras in the bathroom?” asked Daniel Tsang, a UC Irvine bibliographer and host of a campus radio show called “Subversity,” which criticized the proposal. “The university ‘purpose’ equates to Big Brotherism.”

But university officials say that such fears are overblown, and that a final policy, due out in six months, will reflect the privacy concerns of university workers.

“I would find it quite surprising if the university adopts a policy to read a person’s e-mail,” said Terry Colvin, a spokesman for the UC system. “That would be repugnant to the university and its administrators who are familiar with the tenets of academic freedom and the 1st Amendment.”

The intent of the policy is not to quash free expression, Colvin said, but to warn computer users that e-mail should be regarded as public record.

“It’s really like talking on an open party line,” Colvin said. “We need to treat e-mails like any other public record the university generates.”

Also, university officials maintain that the policy needs to prevent employees from abusing the system, from excessive personal use to running a private business on a university computer.

Even before the draft policy began circulating this summer, university officials had been counseling users to treat computer communications as they would telephone calls or regular mail. If university workers heed the advice, the invasion of privacy that critics worry about won’t arise, officials say.

“I can call my wife [on an office phone] and say I’m going to be late for dinner, but I can’t monopolize it for three hours,” said William Parker, associate executive vice chancellor and director of academic computing. “And if I sent a letter to accounting, I would expect it might be looked at by any accountant. But if I sent one to a colleague in the physics department and then the department chair looks at it, I’d be extremely upset.”

But university officials realize that e-mail differs from other forms of communication and requires its own set of rules. Unlike regular mail, e-mail is extremely difficult to permanently destroy. Skilled computer operators can retrieve a person’s e-mail even though it may have been deleted from a computer.

Because of the newness of the technology, courts have yet to issue a definitive ruling on regulating e-mail. They will have to respect state laws that protect workers from eavesdropping and wiretapping, while giving employers substantial control over communications at their business, legal experts say.

But those calling for strictly private e-mail may be disappointed, according to attorney Calvin House, an adjunct professor at the Irvine campus of Western State University’s College of Law.

“I think we can expect if employers own the equipment that they will be able to look at e-mail,” House said. “I don’t think it’s likely a court will rule against that.”