1. Privacy and Academic Freedom in the Age of Cloud Computing James L. Turk Executive Director Symposium: Exploring the Future of E-mail, Privacy, and Cloud Computing Ryerson University February 24, 2011

2. Unique features of the university that support academic freedom 1. Ownership of Intellectual Property

3. Intellectual Property “…to protect the unfettered pursuit of knowledge that is necessary for scholarship, it is accepted, in the context of employment at a university, that academic authors have copyright ownership of their writings, unless they agree to assign the copyright to the university, a publisher or someone else.” -- Dorsey arbitration award, UBC http://www.caut.ca/uploads/MaryBrysonArbitrationAward.pdf

4. Unique features of the university that support academic freedom 1. Ownership of Intellectual Property 2. Tenure System 3. Collegial Governance 4. Custody and control of our records 5. Freedom from intrusive surveillance

5. AAUP 1915 Declaration of Principles of Academic Freedom “[the university] should be an intellectual experiment station, where new ideas may germinate and where their fruit, though still distasteful to the community as a whole, may be allowed to ripen until finally, perchance, it may become a part of the accepted intellectual food of the nation or of the world.”

6. Outsourcing to Google/Microsoft Problems Outsourcing to Google or Microsoft exposes academic staff to two dangers: application of American law provisions in the Google contract

7. Outsourcing to Google/Microsoft Problems – US Law All your email –- content, transaction data, attachments and all linked information -- become subject to American law with its especially troubling provisions brought in through the USA Patriot Act following 9/11 and other subsequent legislation.

8. Outsourcing & U.S. Law As part of the arbitration regarding Lakehead University’s contracting out to Google, CAUT presented the expert opinion of Professor Stephen J. Schulhofer, Robert B. McKay Professor of Law at New York University. Professor Schulhofer is one of the leading American authorities on criminal justice and author of leading works on the implications of American anti-terrorism laws. The following are from his opinion:

9. Outsourcing & U.S. Law “Prior to the Google agreement, such all-foreign communication, such as Canada-Canada or Canada- China communication, would not necessarily pass in its entirety through a server located in the United States, and as a result U.S. intelligence and law enforcement authorities would not readily have access to it, except with the cooperation and under the laws of Canada or other countries.”

10. Outsourcing & U.S. Law “The Google agreement has the effect of routing such all-foreign communications in their entirety through a node in the United States and of concentrating subscriber information about the Lakehead faculty member in the hands of a private sector entity located in the United States. As a result, such information becomes available to U.S. intelligence and law enforcement authorities through the tools available – and subject to the limits imposed – under U.S. law. In particular:

11. Outsourcing & U.S. Law “U.S. law … confers express statutory authority for prospective content surveillance of law-abiding Lakehead faculty members, with neither probable cause, nor a warrant, nor any suspicion of criminality.”

12. Outsourcing & U.S. Law “In contrast, with respect to communication between Canadian faculty and correspondents located outside the United States, the level of confidentiality is substantially affected by the jurisdictional location of the ISP. The Google agreement renders Canada-Canada or Canada- China email exchanges readily subject to prospective content surveillance by U.S. intelligence and law enforcement authorities without probable cause or a warrant or any suspicion of criminality.”

13. Outsourcing & U.S. Law “In contrast, when the ISP is located outside the United States, the confidentiality of email exchanges of this sort is protected by the laws of Canada and other countries.”

14. Outsourcing & U.S. Law “U.S. laws can compel disclosure of email information for foreign-intelligence purposes even when the affected faculty member is not suspected of involvement in terrorism or any other criminal activity. “Under U.S. laws, an investigation requiring disclosure of email information can be based on the faculty member’s political viewpoint, religious activity, or exercise of academic freedom. “Under U.S. laws, Lakehead faculty members are treated differently from one another on the basis of nationality.

15. Outsourcing & U.S. Law “Under U.S. laws, the confidentiality afforded to some faculty members differs from that afforded to others who are in most respects similarly situated. “Under U.S. laws, the typical Lakehead faculty member faces (by comparison to faculty at Lakehead who are U.S. citizens and faculty at U.S. universities who use the same Google services) an objectively significant loss of confidentiality in his email information.

16. Outsourcing & U.S. Law “Under U.S. laws, the typical Lakehead faculty member faces (by comparison to faculty at Lakehead who are U.S. citizens and faculty at U.S. universities who use the same Google services) an objectively significant infringement of his freedoms of speech, religion and political association. “The decision to provide email services to Lakehead faculty members through a U.S.- based ISP exposes them to objectively lawless surveillance.”

17. Problems Arising from Google Apps for Education Contract--Privacy “Information you provide – When you sign up for a Google Account, we ask you for personal information. We may combine the information you submit under your account with information from other Google services or third parties in order to provide you with a better experience and to improve the quality of our services. For certain services, we may give you the opportunity to opt out of combining such information.”Google Accountpersonal information Google Privacy Policy http://www.google.com/privacy/privacy-policy.html http://www.google.com/privacy/privacy-policy.html

18. Google Apps for Education: Definition of “Personal Information” “’Personal information’ is information that you provide to us which personally identifies you, such as your name, email address or billing information, or other data which can be reasonably linked to such information by Google.” http://www.google.com/intl/en/privacy/faq.html#toc-terms-personal-info

19. Problems Arising from Google Apps for Education Contract--Privacy 6.3 – “Required Disclosure”: “Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.” The Google Apps for Education Agreement http://www.google.com/apps/intl/en/terms/education_terms.html http://www.google.com/apps/intl/en/terms/education_terms.html

20. Problems Arising from Google Apps for Education Contract--Privacy “6.4 b – Third Party Requests Customer is responsible for responding to Third Party Requests. Google will, unless it is prohibited by law or by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request in a manner permitted by law; (b) comply with Customer’s reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer with the information or tools required for Customer to respond to the Third Party Request. Customer will first use the Admin Tool to access the required information, and will contact Google only if it is insufficient for Customer’s needs.” The Google Apps for Education Agreement http://www.google.com/apps/intl/en/terms/education_terms.html http://www.google.com/apps/intl/en/terms/education_terms.html

21. “Customer” in the Google contract In all quotes from Google Apps for Education, “customer” refers to the univeristy that is doing the contracting. Academic staff are the “end users” and are not a party to the contract.

22. Problems Arising from Google Apps for Education Contract—Academic Freedom “You agree not to, and not to allow third parties or Your End Users, to use the Services: for any unlawful, invasive, infringing, defamatory, or fraudulent purpose; to violate, or encourage the violation of, the legal rights of others; to use the Services, or a component of the Services, in a manner not authorized by Google http://www.google.com/apps/intl/en/terms/use_policy.html http://www.google.com/apps/intl/en/terms/use_policy.html

23. Problems Arising from Google Apps for Education Contract— Intellectual Property “7.1 Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Google owns all Intellectual Property Rights in the Services.” Google Apps for Education Agreement http://www.google.com/apps/intl/en/terms/education_terms.html http://www.google.com/apps/intl/en/terms/education_terms.html

24. Problems Arising from Google Apps for Education Contract—”Governing Law” “14.10 Governing Law. This Agreement is governed by California law, excluding that state’s choice of law rules. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA. [emphasis in original] The Google Apps for Education Agreement http://www.google.com/apps/intl/en/terms/education_terms.html http://www.google.com/apps/intl/en/terms/education_terms.html

25. Problems Arising from Google Apps for Education Contract—Fees “3.2 Service Term. The initial term for the Service is four years… “3.4 No Fees. Google may charge a fee for the Services after the initial term, and may charge a fee for new functionality or optional enhancements that may be added by Google to the Service. Google may also offer a premium version of the Services for a fee. Prior to Google charging Customer as stated in this section, Google and Customer will negotiate either a new agreement or an amendment to this Agreement. The Google Apps for Education Agreement http://www.google.com/apps/intl/en/terms/education_terms.html http://www.google.com/apps/intl/en/terms/education_terms.html

26. Final note Decisions about technological services for academic staff should not primarily be about money nor about access to the latest technological niceties. They should be about the University adopting a means for facilitating communication for its academic staff so as to enhance their ability to do their primary jobs of pursuing knowledge in a way that protects their rights and academic freedom.