Global Information Society Watch | September 2014
Years before Edward Snowden leaked his first document, human rights lawyers and activists have been concerned about a dramatic expansion in law enforcement and foreign intelligence agencies’ efforts to spy on the digital world. It had become evident that legal protections had not kept pace with technological – that the state’s practical ability to spy on the world had developed in a way that permitted it to bypass the functional limits that have historically checked its ability to spy. These concerns culminated in the International Principles on the Application of Human Rights to Communications Surveillance, a set of principles intended to guide policymakers, activists and judges to better understand how new surveillance technologies have been eating away at our fundamental freedoms and how we might bring state spying back in line with human rights standards.
Over a year and a half in the making, the final version of the Principles appeared on July 20, 2013, the first weeks of what we might call the Snowden era. An updated version was issued in May 2014. The Snowden revelations, once they started rolling in, affirmed the worst of our concerns. Intelligence services as well as law enforcement had taken it upon themselves to spy on us all, with little consideration for the societal effects. Lawmakers and even the executive had little comprehension of the capabilities of their own spymasters, and how our digital networks were being turned against all individuals everywhere. The need for the Principles was confirmed in spades, but the long and difficult job of applying them to existing practices was just beginning.
Since then, the Principles have, we hope, been a lodestar for those seeking solutions to the stark reality exposed by Snowden: that, slipping through the cracks of technological developments and outdated legal protections, our governments have adopted practices of mass surveillance that render many of our most fundamental rights effectively meaningless. The Principles have been signed by over 470 organizations and individual experts, by over 350,000 individuals throughout the world, and endorsed by the United Kingdom’s Liberal Democratic Conference, as well as European, Canadian, and German parliamentarians.The Principles have played a central guiding role in a number of the rigorous debates on the need to limit states’ increasingly expansive surveillance capacities. Their impact is already evident in, for example, the United States’ President Review Group on Intelligence and Communications Technologies report, the Inter-American Commission on Human Rights report and the the United Nations High Commissioner for Human Rights’ recent report on the right to privacy in the digital age. Their influence has also manifested in some of the administrative, legislative and administrative attempts to address surveillance problems post-Snowden. Perhaps most importantly, they have functioned as a rallying point for campaigning and advocacy initiatives around the world.
Below, we spell out some of the key features of the Principles. A more detailed explanation of the legal grounding for our conclusions in human rights jurisprudence can be found in a Legal Analysis and Background Materials document generated in support of the Principles.
Core Definitions in International Human Rights Law
The Principles begin with defining two core concepts that spell out the “what” and the “how” of measured surveillance. The first concept focuses on the type of data to be protected, while the second one ensures that a broad range of surveillance activity constitutes an interference with privacy rights. Outdated definitions of these two terms have led to expansive surveillance practices, as wide swaths of sensitive data or surveillance activities have been deemed outside the scope of legal protections. These definitional changes are designed to re-focus privacy protections away from artificial examinations of the kind of data or method of interference, and back on the ultimate effect on the privacy of the individual.
The Principles make clear that it’s time to move beyond the fallacy that information about communications does not pose as serious a threat to privacy as the content of communications. Information about communications, also called metadata, subscriber information or non-content data, can include the location of your cell phone, clickstream data, search logs, or anonymous online activity. Individually, these can be just as invasive as reading your email or listening to your phone calls. When combined and analyzed en masse, the picture painted by such data points can be far more revealing than the content of the communications they accompany. In spite of this reality, pre-Internet age (in fact, postal service-based!) legal conceptions have persisted in some legal systems, offering less or, in some instances, no protection at all to information that is not classified as ‘content’. What is important is not the kind of data is collected, but its effect on the privacy of the individual.
As explained in Legal Analysis and Background Materials which have been prepared for the Principles:
“The Principles use the term “protected information” to refer to information (including data) that ought to be fully and robustly protected, even if the information is not currently protected by law, is only partially protected by law, or is accorded lower levels of protection. The intention, however, is not to make a new category that itself will grow stale over time, but rather to ensure that the focus is and remains the capability of the information, alone or when combined with other information, to reveal private facts about a person or her correspondents. As such, the Principles adopt a singular and all-encompassing definition that includes any information relating to a person’s communications that is not readily available to the general public.”
This concern has been addressed by the latest report of the Office of the High Commissioner for Human Rights, who made clear that:
“From the perspective of the right to privacy, this distinction between [content and metadata] is not persuasive. The aggregation of information commonly referred to as “metadata” may give an insight into an individual’s behaviour, social relationships, private preferences and identity that go beyond even that conveyed by accessing the content of a private communication.”
Given the revealing nature of metadata and content alike, states should be restrained from unchecked interference with any protected information: from revealing a speaker’s identity if it is not public; from wantonly vacuuming up the websites or social media one has visited; from stockpiling information on all the people one has communicated with; and tracking the ‘when’, ‘from where’, and ‘for how long’ of all our digital activities. In the pre-Internet age, the much more limited amount and kind of “metadata” available to law enforcement was treated as less sensitive than content, but given current communications surveillance capabilities, this can no longer be the case.
Communication Surveillance: Much of the expansive state surveillance practices confirmed during the past year depend on confusion over whether actual “surveillance” has occurred and thus whether human rights obligations even apply. Some have suggested that if information is merely collected and kept but not looked at by humans, no privacy invasion has occurred. Others argue that computers analysing all communications in real-time for key words and other selectors does not amount to “surveillance” for purposes of triggering legal privacy protections. Still others seek to reduce privacy protections to ‘harmful uses’ of information. Such legal variations can mean the difference between reasonable and carefully targeted investigations and a surveillance state built on the continuous mass surveillance of everyone.
In the digital age, where the most sensitive portions of our lives are constantly communicated over digital networks, it has never been more important to ensure the integrity of our communications. It means little whether the interference takes the form of real-time monitoring of Internet transmission, hacking into individuals’ mobile devices, or mass harvesting of stored data from third party providers. The mere recording of Internet transactions – even if ultimately unviewed – can have serious chilling effects on the use of our most vital interactive medium. We have to ensure that all acts of communications surveillance are within the scope of human rights protections and, hence, are “necessary and proportionate”.
On this front, the Office of the High Commissioner for Human Rights (OHCHR) report, made clear that:
“any capture of communications data is potentially an interference with privacy and, further, that the collection and retention of communications data amounts to an interference with privacy whether or not those data are subsequently consulted or used. Even the mere possibility of communications information being captured creates an interference with privacy, with a potential chilling effect on rights, including those to free expression and association.”
To remedy this issue, the Principles define “communications surveillance” as encompassing the monitoring, interception, collection, analysis, use, preservation and retention of, interference with, or access to information that includes, reflects, or arises from or a person’s communications in the past, present or future.
Scope of Application
The Principles also address a long-standing problem arising from narrow interpretations adopted by some states regarding the extraterritorial application of their human rights obligations. Some have argued that the obligation to respect privacy and other human rights of individuals effectively stops at their national borders. In a world of highly integrated digital networks, where individual interactions and data routes defy any semblance of territorial correspondence, such distinctions are meaningless. The Principles therefore apply to surveillance conducted within a state or extraterritorially, and regardless of the purpose for the surveillance – including enforcing law, protecting national security, gathering intelligence, or another governmental function.
The OHCHR’s report explicitly underscores the principle of non-discrimination:
“Article 26 of the International Covenant on Civil and Political Rights provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law” and, further, that “in this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
In this regard, the OHCHR’s report has underscored its importance:
“measures to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance.”
The 13 Principles
The substantive Principles are firmly rooted in well-established human rights law. Generally, any limits on human rights should be necessary, proportionate and for a set of permissible purposes. These limits must be set out in law, and cannot be arbitrary.
Under international human rights law, each right are divided in two parts. The first paragraph sets out the core of the right, while the second paragraph sets out the circumstances in which that right may be restricted or limited. This second paragraph is usually called the “permissible limitations” test.
Regarding the right to privacy, the UN Special Rapporteur on Counter-Terrorism and the UN Special Rapporteur on Freedom of Expression have stated that the “permissible limitations” test under Article 19 of the International Covenant on Civil and Political Rights among other articles are equally applicable to Article 17 of the International Covenant on Civil and Political Right
The OHCHR report has neatly summarized these obligations with respect ot Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits the arbitrary or unlawful interference with privacy rights
“To begin with, any limitation to privacy rights reflected in article 17 must be provided for by law, and the law must be sufficiently accessible, clear and precise so that an individual may look to the law and ascertain who is authorized to conduct data surveillance and under what circumstances. The limitation must be necessary for reaching a legitimate aim, as well as in proportion to the aim and the least intrusive option available…Any limitation placed on the right (an interference with privacy, for example, for the purposes of protecting national security or the right to life of others) must be shown to have some chance of achieving that goal. The onus is on the authorities seeking to limit the right to show that the limitation is connected to a legitimate aim. Furthermore, any limitation to the right to privacy must not render the essence of the right meaningless and must be consistent with other human rights, including the prohibition of discrimination. Where the limitation does not meet these criteria, the limitation would be unlawful and/or the interference with the right to privacy would be arbitrary.”
Legality – No Secret Laws: The principle of legality is a fundamental aspect of all international human rights instruments and the rule of law. It is a basic guarantee against the state’s arbitrary exercise of its powers. For this reason, any restriction on human rights must be prescribed by law. The meaning of “law” implies certain minimum qualitative requirements of clarity, accessibility, and predictability. Laws limiting human rights cannot be secret or vague enough to permit arbitrary interference.
On that front, the Office of the High Commissioner on Human Rights made clear that:
“To begin with, any limitation to privacy rights reflected in article 17 must be provided for by law, and the law must be sufficiently accessible, clear and precise so that an individual may look to the law and ascertain who is authorized to conduct data surveillance and under what circumstances.”
The need to meaningfully and publicly explain rights-infringing practices—while important in all contexts—is key to any effective check on communications surveillance as such practices tend to be surreptitious and difficult to uncover. Given the highly technical and rapidly evolving nature of communications surveillance, it is also incumbent that laws are interpreted publicly and not through secret processes effectively free from public scrutiny. The state must not adopt or implement a surveillance practice without public law defining its limits. Moreover, the law must meet a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of, and can foresee, its application. When citizens are unaware of a law, its interpretation, or the scope of its application, it is effectively secret. A secret law is not a legal limit on human rights.
In her landmark report Pillay made clear that:
“Secret rules and secret interpretations even secret judicial interpretations of law do not have the necessary qualities of “law”. Neither do laws or rules that give the executive authorities, such as security and intelligence services, excessive discretion; the scope and manner of exercise of authoritative discretion granted must be indicated (in the law itself, or in binding, published guidelines) with reasonable clarity. A law that is accessible, but that does not have foreseeable effects, will not be adequate. The secret nature of specific surveillance powers brings with it a greater risk of arbitrary exercise of discretion which, in turn, demands greater precision in the rule governing the exercise of discretion, and additional oversight.”
Laws should only permit communications surveillance by specified State authorities to achieve a Legitimate Aim that corresponds to a predominantly important legal interest that is necessary in a democratic society.
Under international human rights law, any restriction on our fundamental freedoms must generally pursue a permissible purpose or “legitimate aim.” These purposes or aims are often enumerated within the Article itself. The Principles therefore require that communications surveillance only be undertaken in pursuit of a predominantly important legal interest. Such interests have been described by Germany’s highest court as “the life, limb and freedom of the individual or such interests of the public a threat to which affects the basis or continued existence of the state or the basis of human existence.”
Regarding the right to privacy, the UN Special Rapporteur on Counter-Terrorism and the UN Special Rapporteur on Freedom of Expression have stated that the “permissible limitations” test under Article 19 of the International Covenant on Civil and Political Rights among other articles are equally applicable to Article 17 of the International Covenant on Civil and Political Rights, which prohibits arbitrary interference with the right to privacy.
The Office of the High Commissioner on Human Rights has similarly affirmed, in its 2014 Report, that “any limitation to privacy rights reflected in article 17 must be necessary for reaching a legitimate aim”. The Report elaborates:
“Surveillance on the grounds of national security or for the prevention of terrorism or other crime may be a “legitimate aim” for purposes of an assessment from the viewpoint of article 17 of the Covenant. The degree of interference must, however, be assessed against the necessity of the measure to achieve that aim and the actual benefit it yields towards such a purpose.”
Finally, communications surveillance cannot be employed in a manner that discriminates on the basis of grounds such as race, colour, sex, language religion or national origin, as such discrimination constitutes an illegitimate purpose.
Necessity, Adequacy and Proportionality
International human rights law makes clear that any interference with our fundamental freedoms must be “necessary in a democratic society”. In its General Comments No. 27, the Human Rights Committee clearly indicates that it is not sufficient that such restrictions serve a legitimate aim, they must also be necessary to it. Restrictive measures must also be adequate or appropriate to achieving their protective function. They must also be the least intrusive options amongst those which might be expected to achieve the desired result, and they must be proportionate to the interest to be protected. Finally, any restrictive measure which undermines the essence or core of a right is inherently disproportionate and a violation of that right.
Applying these foundational principles to the context of communications surveillance, the Principles affirm that:
Necessity: Often, a surveillance objective might be achieved using far less intrusive mechanisms. While it is by no means necessary to exhaust other options, it should be recognized the communications surveillance is inherently invasive and should not be a tool of first recourse.
Adequacy: It is not sufficient to show that a given surveillance practice is necessary for achieving a given objective, it must also be adequate and appropriate to it. As noted by the High Commissioner, at minimum, communications surveillance which interferes with privacy “must be shown to have some chance of achieving [its] goal.”
Proportionality: Communications surveillance should be regarded as a highly intrusive act that interferes with human rights and poses a threat to the foundations of a democratic society. Communications surveillance for investigative purposes, in particular, should only occur once the state has convinced an objective third party – a judge – that a serious threat to a legitimate interest exists and that the communications mechanism in question will yield information that will assist with that serious threat.
No voluntary cooperation:
Current digital networks and interactions entrust vast amounts of personal and sensitive data in the hands of a wide range of third party intermediaries, including ISPs, email providers, hosting companies and others. Through their discretionary decisions to comply (or not) with state surveillance requests, these intermediaries can dramatically impact on the privacy rights of all. Such voluntary sharing bypasses due process and poses a serious threat to the rule of law. The Necessary and Proportionate principles therefore prohibit any state communications surveillance activities in the absence of judicial authorization.
Contrary to many official statements, the modern reality is that state intelligence agencies are involved in a much broader scope of activities than simply those related to national security or counterterrorism. The Necessary and Proportionate Principles state that communications surveillance (including the collection of information or any interference with access to our data) must be proportionate to the objective they are intended to address. And equally importantly, even where surveillance is justified by one agency for one purpose, the Principles prohibit the unrestricted reuse of this information by other agencies for other purposes.
The Office of the High Commissioner for Human Rights report also emphasized that point:
“The report explained that the absence of effective use limitations has been exacerbated since September 11, 2001, with the line between criminal justice and protection of national security blurring significantly. The resultant sharing of data between law enforcement agencies, intelligence bodies and other State organs risks violating Article 17 of the Covenant on Civil and Political Rights, because surveillance measures that may be necessary and proportionate for one legitimate aim may not be so for the purposes of another.”
Integrity of Communications And Systems:
No law should impose security holes in our technology in order to facilitate surveillance. Undermining the security of hundreds of millions of innocent people in order to ensure surveillance capabilities against the very few bad guys is both overbroad and short-sighted, not least because malicious actors can use these exploits as readily as state agents. The assumption underlying such provisions—that no communication can be truly secure—is inherently dangerous, akin to throwing out the baby with the bathwater. It must be rejected.
The Office of the High Commissioner for Human Rights report supports that conclusion, stating that:
“The enactment of statutory requirements for companies to make their networks “wiretap-ready” is a particular concern, not least because it creates an environment that facilitates sweeping surveillance measures.”
Notification And Right To An Effective Remedy
Notification must be the norm, not the exception. Individuals should be notified that access to their communications has been authorized with enough time and information to enable them to appeal the decision, except when doing so would endanger the investigation at issue. Individuals should also have access to the materials presented in support of the application for authorisation. The notification principle has become essential in fighting illegal or overreaching surveillance. Any delay in notification has to be based upon a showing to a court, and tied to an actual danger to the investigation at issue or harm to a person.
Before the internet, the police would knock on a suspect’s door, show their warrant, and provide the individual a reason for entering the suspect’s home. The person searched could watch the search occur and see whether the information gathered went beyond the scope of the warrant. Electronic surveillance, however, is much more surreptitious. Data can be intercepted or acquired directly from a third party such as Facebook or Twitter without the individual knowing. Therefore, it is often impossible to know that one has been under surveillance, unless the evidence leads to criminal charges. As a result the innocent are the least likely to discover their privacy has been invaded. Indeed, new technologies have even enabled covert remote searches of personal computers and other devices. Any delay in notification has to be based upon a showing to a court, and tied to an actual danger to the investigation at issue or harm to a person.
The OHCHR report lays out four characteristics that effective remedies for surveillance-related privacy violations must display:
“Effective remedies for violations of privacy through digital surveillance can thus come in a variety of judicial, legislative or administrative forms. Effective remedies typically share certain characteristics. First, those remedies must be known and accessible to anyone with an arguable claim that their rights have been violated. Notice (that either a general surveillance regime or specific surveillance measures are in place) and standing (to challenge such measures) thus become critical issues in determining access to effective remedy. States take different approaches to notification: while some require post facto notification of surveillance targets, once investigations have concluded, many regimes do not provide for notification. Some may also formally require such notification in criminal cases ; however , in practice , this structure appears to be regularly ignored.”
The 2014 OHCHR report continues, stressing the importance of a “prompt, thorough and impartial investigation”; a need for remedies to actually be “capable of ending ongoing violations”; and noting that “where human rights violations rise to the level of gross violations…as criminal prosecution will be required”.
Safeguards for International Cooperation:
Privacy protections must be consistent across borders at home and abroad. Governments should not bypass national privacy protections by relying on secretive informal data sharing agreements with foreign states or private international companies. Individuals should not be denied privacy rights simply because they live in another country from the one that is surveilling them. Where data is flowing across borders, the law of the jurisdiction with the greatest privacy protections should apply.
More to Be Done: The Necessary and Proportionate Principles provide a basic framework for governments to ensure the rule of law, oversight and safeguards. They also call for accountability, with penalties for unlawful access and strong and effective protections for whistleblowers. They are starting to serve as a model for reform around the world and we urge governments, companies, NGOs and activists to use them to structure necessary change.
But while the Principles are aimed at governments, government action isn’t the only way to combat surveillance overreach. All of the communications companies, Internet and telecommunications alike, can help by securing their networks and limiting the information they collect and retain. Online service providers should collect the minimum amount of information for the minimum time that is necessary to perform their operations, and to effectively obfuscate, aggregate and delete unneeded user information. This helps them in their compliance burdens as well: if they collect less data, there is less data to hand over to the government. Strong encryption should be adopted throughout the entire communications chain and, where possible, for data in storage.
It’s clear that under the cloak of secrecy, malfunctioning oversight and the limited reach of outdated laws, the practice of digital surveillance in countries from the far north to the far south, have overrun the bounds of human rights standards. We all hope to see activists around the world showing exactly where a country has crossed the line, and how its own policymakers and the international community might rein it back. We must call for surveillance reform to ensure that our national surveillance laws and practices comply with human rights standards and to ensure cross-border privacy are in place and effectively enforced. Working together, legal plus technical efforts like deploying encryption, decentralization of services and limiting information collected, can serve as a foundation for a new era of private and secure digital communications.
- International Principles on the Application of Human Rights to Communications Surveillance, updated July 2014 https://neccessaryandproportionate.org/text
- EFF, Article19: Legal Analysis and Background Materials: International Principles on the Application of Human Rights to Communications Surveillance, May 2014 https://en.necessaryandproportionate.org/LegalAnalysis
- The Right to Privacy in the Digital Agehttp://www.ohchr.org/EN/Issues/DigitalAge/Pages/DigitalAgeIndex.aspx
- Report of the High Commissioner for Human Rights on the right to privacy in the digital age
- Annual Report of the Inter-American Commission on Human Rights 2013. Annual Report of the Office of the Special Rapporteur for Freedom of Expression http://www.oas.org/en/iachr/expression/docs/reports/2014_04_22_%20IA_2013_ENG%20_FINALweb.pdf
- Human Rights Committee, General Comment 27, Freedom of movement (Art.12), U.N. Doc CCPR/C/21/Rev.1/Add.9 (1999).
- UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, A/HRC/13/37
- UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, A/HRC/23/40
Bureau of Investigative Journalism | September 15, 2014
The Bureau of Investigative Journalism is asking a European court to rule on whether UK legislation properly protects journalists’ sources and communications from government scrutiny and mass surveillance.
The Bureau’s application was filed with the European Court of Human Rights on Friday. If the court rules in favour of the application it will force the UK government to review regulation around the mass collection of communications data.
The action follows concerns about the implications to journalists of some of the revelations that have come out of material leaked by Edward Snowden.
These have made it clear that by using mass surveillance techniques, government agencies can not only collect, store and scrutinise the content of electronic communications but also analyse masses of metadata – the details about where digital communications such as emails originate and the subject area of those communications.
Gavin Millar QC, who is working on the case with the Bureau, believes UK authorities are routinely carrying out such data collection and analysis and says this enables a sophisticated picture to be developed of a journalist’s or organisation’s network of contacts, sources and lines of enquiry as well as materials, subjects and persons of interest to them.
Click here for a summary of the case.
Why data harvesting is a human rights issue – find out why we’re doing this.
Gavin Millar QC: A breach of international law.
In the true spirit of capitalism, I’ve identified a niche in the academic market and plan to fill it. First, let’s state the problem: the recent spate of campus firings from Yale to the University of Illinois (with earlier episodes at Princeton, Brooklyn College and other institutions) have left schools in the messy position of having to rid themselves of controversial, undesirable prospective faculty and, God knows, sometimes even chaplains. The ensuing bad publicity generated by activist troublemakers too often gives these institutions a black eye they don’t deserve.
Wouldn’t it be better if schools could vet job candidates with a group of trusted consultants who would explore their background (especially their Twitter feeds), seeking embarrassing material and ideologically suspect expression in order to save administrators the trouble of learning about it when it’s too late? I call this new product I plan on offering, ZioCredit™. It’s based on the model of accreditation committees which travel the country examining the fitness of universities to call themselves legitimate academic institutions.
In my case, for a small fee, schools throughout the United States (but especially in communities with large pro-Israel markets) may hire my company to ensure peace of mind. A few of the more cynical among you may liken what I propose to protection rackets in which the Mafia offered businesses protection from assault. Those who refused often met unpleasant ends. If that’s what you’re thinking, you can put your mind at ease. This is the 21st century after all. Not Little Italy in the 1950s. We don’t operate that way. We’re as clean and classy as our clients and sport academic pedigrees to prove it.
So this is how the process works: if we find a candidate in the ideologically lower-tier it would be best to be rid of him or her immediately. We can take care of that for you (no, you won’t find him at the bottom of the East River in cement shoes–I kid!). Why should you get your hands dirty?
We will accredit your university, department by department to ensure each one hews to a proper line. We will even examine course curricula and weed out overly contentious books, essays and ideas. We will examine individual job candidates and prepare them and their case files for presentation to hiring committees and boards of trustees. Earning our accreditation (hence the company name, ZioCredit™), is the pro-Israel Good Housekeeping seal of approval. Working with us will guarantee that you will never face the unwanted attention of the Israel Lobby because after all, we are the Israel Lobby! But we’re a manageable and cooperative version. We don’t aim to embarrass you publicly. And we ask for so little in return.
There may be a few of you Old School academics worried about values like free speech and academic freedom. I can assure you that your concerns are unwarranted. After all, these values are overrated. Like tenure, they’ve outlived their usefulness in the modern age.
The premise behind ZioCredit™ is that in this new academic age what students really want is comfort. They want to enjoy their academic experience. They want civility. They don’t want unpleasant interactions with alien groups they’ve never met in their life. Ideas should be challenging but not too challenging. After all, you don’t want to scare off your students by forcing them to face realities better off avoided.
We will help transform the campus environment from a raucous free-for-all, in which feelings become bruised and identities confused, into a polite, civil society in which everyone takes their turn and knowledge is parceled out in nice, bite-sized packages.
Back to my product, it takes into account that there may be some candidates who, though suspect, are still for various reasons beneficial to the faculty. They may fill an unspoken race or gender quota; or even an ideological quota. They may help promote the school within certain demographic profiles and market niches.
For an extra fee, my company will work with such candidates to reframe academic interests so as to be acceptable within the community. After all, academics are such unusual individuals raised like hothouse flowers in intellectual environments so alien to the average person (by which I mean any supporter of Israel). They need to be coaxed into the real world, to be shown proper manners and etiquette, if you will. In particularly awkward situations, we may even be engaged to cleanse reputations and eliminate particularly egregious examples of anti-Israel hate speech from a candidate’s internet identity.
If the University of Illinois had only had such a product available, it could’ve avoided all that Steve Salaita unpleasantness. So messy and so unnecessary.
Now I can hear a skeptic or two among you (a small minority of course) wondering how this consultancy will be structured. I assure you we will engage some of the foremost experts in the field of internet surveillance and Zionist identity politics. These will be individuals with impressive resumes and who are lionized by everyone who matters. Discussions have already commenced to hire such luminaries as Ayan Hirsi Ali, Carey Nelson and Alan Dershowitz. They know what a good candidate should bring to the table. Either they will help your job seeker to become the best pro-Israel candidate he can be; or they will tell you in no uncertain terms to toss him aside. After all, who wants to waste time on hopeless causes?
Since there is a growing acknowledgement that the customer should be represented at the table, we’re engaging students too, who’ve proven their allegiance to the cause, to sit on these vetting committees. Two of the stars of the field are Daniel Mael and Chloe Valdary. It’s a pretty tough environment for hiring such stellar young people. They have offers of employment at FoxNews and the Wall Street Journal respectively. But we hope to lure them with promises they will make the campuses of America safe for Israel. A more sacred mission I can’t conceive.
Though we believe this is a lucrative field we’re entering (creating, really), we don’t want our clients to think of us as money-grubbing capitalists. To that end, we plan on donating 5% of our net revenues (you didn’t think we were nuts enough to base this on gross revenues, did you?) to various worthy, non-political causes like Scholars for Peace in the Middle East, Daniel Pipes’ Middle East Forum, and one of our sister Israeli organizations, Im Tirzu. We’re proud of our association with our Israeli brethren who are bringing a “second Zionist revolution” to Israeli academe.
Please don’t get the idea that any of this is political. Zionism, after all, knows no denominations or sects. There are Christian, Jewish and heck, even Muslim Zionists. It’s entirely non-partisan. And that’s as it should be. There are so many enemies of the Jewish people out there flapping their mouths. God knows what they might say. But we know what’s right. And there isn’t a political bone in our body.
Don’t get the idea that we’re affiliated with one Israel Lobby group like Aipac. After all, how would it sound to say: Aipac Certified? That’s thinking too small. No, we’re going big. We want the whole enchilada. That’s why we call our process Zio Certification.
There may be a few holdout institutions who think they can do things the old-fashioned way. They can honor all the old cliches like academic freedom and pay the price by standing by faculty who speak inconveniently in public settings. To them I say, God speed. You don’t need our help. You need a time machine. You’ll find that you’re dinosaurs and this Brave New World we’re entering will soon pass you by.
My message to academe is: we’re ready to go–are you? Zionize or die.
Trustee James Montgomery, who last Friday publicly broached his misgivings about the university’s decision to hirefire Salaita, was the sole vote on behalf of Salaita. Though Montgomery had originally signed a statement supporting Chancellor Wise, he said, “I’m just someone who has the humility to be able to say that I think I made a mistake and I don’t mind saying it.” Here is his eloquent testimony.
Needless to say, the vote today sucks, and there is no use sugar-coating it. While it’s testament to the movement we’ve mounted that the Board was forced to publicly confront this issue, and that we managed to persuade one trustee to change his mind (from reports I’ve heard, other trustees did as well, but they are student trustees who have no voting power), our power and our principles proved in the end not to be enough to match the donors’ purse strings.
So it looks like a legal remedy will now be pursued. I’m using the passive voice because I have no idea what Salaita and his lawyers are planning, though the Center for Constitutional Rights, which is representing Salaita, did put out a statement after the Board vote. And the ever charming Chair of the Board of Trustees had this to say:
“I assume the attorneys will reach out and work something out or understand their position more clearly. We are not looking to be held up. We want to be fair but we don’t want to be pushovers,” board Chairman Christopher Kennedy said after the meeting. “Either they will sue or we will settle. It is hard to predict what another party will do. … Am I going to give you my playbook on a negotiating matter?”
The legal route is one path, an important path, but it’s not the only path, and more important, it’s not our path. That is, the path of all of us who have spoken out on this case.
Our path is not legal; it is political. It’s not about lawyers, it’s not about courtrooms. It’s about principles and movements, words on the web, bodies on the ground, and voices in the street. It is about power. How we deploy that power, I don’t know. That we will deploy that power, I am sure. Now is the time to think creatively and collectively.
In the meantime, I wanted to take note of a comment Chancellor Wise made in an interview to the Chronicle of Higher Education:
People are mixing up this individual personnel issue with the whole question of freedom of speech and academic freedom.
It’s a telling statement, revealing an archipelago of assumption that I’ve been tackling in all my work since my first book. In Wise’s world, freedom of speech stands on one side, employment on the other, and never the twain shall meet. It’s almost as if, to her mind, we’re making a category error when we speak of both in the same breath.
And it’s not just Wise who thinks this way. About two weeks ago on Twitter, I heard a similar remark from a young progressive journalist (I won’t link to the comment because I don’t want to draw negative attention or criticism to this person, who went on to express a willingness to rethink her position). Rights and repression are one thing, employment sanctions another. The philosopher Gerald Dworkin voiced an attenuated version of that argument, too.
Yet as I’ve argued on this and other blogs countless times, employment sanctions are in fact one of the most common methods of political repression in this country. Remember that anecdote Tocqueville reported in his journals, about how he asked a doctor in Baltimore why in a country that had so much formal religious freedom there was such a compulsion toward orthodoxy. Without hesitating, the doctor said it was all about the making and breaking of private careers.
If a minister, known for his piety, should declare that in his opinion a certain man was an unbeliever, the man’s career would almost certainly be broken. Another example: A doctor is skilful, but has no faith in the Christian religion. However, thanks to his abilities, he obtains a fine practice. No sooner is he introduced into the house than a zealous Christian, a minister or someone else, comes to see the father of the house and says: look out for this man. He will perhaps cure your children, but he will seduce your daughters, or your wife, he is an unbeliever. There, on the other hand, is Mr. So-and-So. As good a doctor as this man, he is at the same time religious. Believe me, trust the health of your family to him. Such counsel is almost always followed.
The state needn’t punish men and women for their heresies; the private sector will do it for them. That’s why during the McCarthy years so few people went to jail. Two hundred tops. Because it was in the workplace that Torquemada found his territory: some twenty to forty percent of employees, monitored, investigated, or otherwise subject to surveillance for their beliefs. The ruling elites in this country have always understood what Hamilton wrote in Federalist 79:
In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.
Which brings us back to Steven Salaita. As I argued on Labor Day, it’s easy to see his case as simply one of academic freedom or the rights of tenured professors. It is that, but it’s more. It’s about the use of employment sanctions for political ends, the peculiarities and particularities of Fear, American Style, which do not apply only to Steven Salaita. They apply to all at-will employees, to that terra incognita of private governance that is the American workplace. Salaita is but the latest in a long line of victims.
While the pro-Israel forces show no compunction about using the weapons of state to enforce their orthodoxies, the sphere of employment, particularly in the academy, where one most often hears views critical of Israel, will become increasingly the scene of the censor. It already has: as I said the other day, my first battle over Israel/Palestine was to defend an adjunct in my department who had been fired for his (mistakenly construed) views on Israel/Palestine.
The issue is not simply Israel/Palestine; it’s the growing assault on fundamental rights and the increasing push toward precarity that has become the experience of workers everywhere.
If we’re going to fight this in the academy, we’re going to have to fight it the way every worker has ever had to fight: not only in courts of law, but also in the streets; not just with the help of lawyers, but also with help of each other; not simply with our smarts, but also with our feet. With unions, strikes, boycotts—the entire repertoire of collective action and militancy that gave this country whatever minimal (and ever fading) semblance of decency it has managed to achieve.
Steven Salaita spoke today at the University of Illinois at Urbana-Champaign. According to the YMCA, where the event was held, some 400 students, faculty, staff, and supporters turned up.
Salaita opened with a statement. Here are some excerpts:
My name is Steven Salaita. I am a professor with an accomplished scholarly record; I have been a fair and devoted teacher to hundreds of undergraduate and graduate students; I have been a valued and open-minded colleague to numerous faculty across disciplines and universities. My ideas and my identity are far more substantive and complex than the recent characterizations based on a selected handful of my Twitter posts.
Two weeks before my start date, and without any warning, I received a summary letter from University Chancellor Phyllis Wise informing me that my position was terminated, but with no explanation or opportunity to challenge her unilateral decision. As a result, my family has no income, no health insurance, and no home of our own. Our young son has been left without a preschool. I have lost the great achievement of a scholarly career – lifetime tenure, with its promised protections of academic freedom.
Even more troubling are the documented revelations that the decision to terminate me is a result of pressure from wealthy donors – individuals who expressly dislike my political views. As the Center for Constitutional Rights and other groups have been tracking, this is part of a nationwide, concerted effort by wealthy and well-organized groups to attack pro-Palestinian students and faculty and silence their speech. This risks creating a Palestinian exception to the First Amendment and to academic freedom.
I am here to reaffirm my commitment to teaching and to a position with the American Indian Studies program at UIUC. I reiterate the demand that the University recognize the importance of respecting the faculty’s hiring decision and reinstate me. It is my sincere hope that I can – as a member of this academic institution – engage with the entire University community in a constructive conversation about the substance of my viewpoints on Palestinian human rights and about the values of academic freedom.
For me, the best part of his press conference was the Q and A with the media, which begins at 40:50 in the video below. I would encourage everyone to watch it because it gives you the best sense of Salaita the man, the thinker, and the teacher. As I’ve said, I don’t know Salaita personally, except through our interactions on Facebook and Twitter. I’ve never met him or heard him speak. I haven’t read his academic writings. But listening to and watching him field questions, it became clear to me why the American Indian Studies department was so eager to hire him.
My favorite exchange occurs at 43:30. Someone in the media asks him why he would want to still come and teach at UIUC. Looking around the room, which is filled with students, Salaita says:
The question is—and if I’m summarizing it incorrectly let me know—some people are wondering why I would want to work here after all of this has happened and whether it might be uncomfortable. The answer is… the answer is in this room.
One other point to note. At 55:00, one of Salaita’s attorneys is asked about what the litigation process would look like. The attorney replies:
There’s no question that if there is litigation there will be an intensive document retrieval process that will involve trying to get at the heart of exactly what the motivation was for this decision. We think, based on what is already known, the university is going to have some very hard arguments. But we will learn a lot. We will also be able to take depositions. And that is an opportunity to sit people down and ask them about their role in this process, their decision-making and other things. Again, Professor Salaita’s goal is not to have to go down that road. But he is prepared to do so if necessary.
I’ve long felt that one of the things that has to make the university nervous is the prospect of litigation. Yes, the university has tons of money and lawyers. But it also has interests. And one of those interests is protecting the privacy of its donors. I can’t for the life of me believe that the university really wants to risk the rage and rancor of donors having their names dragged into the harsh glare of the public spotlight. Once this case gets into court—and most experts, regardless of which side they fall, believe that Salaita has a good chance of getting into court—there will be discovery motions that will turn up all sorts of paper. What we’ve seen already is damning and embarrassing. But think about what could be coming down the pike: not only emails to and fro, but also records of phone calls, transcripts of meetings, and more. Even if the university were to win the case, they’d have to lose a lot in order to do so.
In other news, Chancellor Wise was interviewed by the Chicago Tribune.
On Monday, Wise acknowledged in an interview that she wished she had “been more consultative” before rescinding Salaita’s job offer, and said it could have led her to a different decision. She said the situation has been “challenging.”
She also said there was “no possibility” that he would work at the U. of I.
“I wish I had not consulted with just a few people and then written the letter to Professor Salaita,” Wise said. “I don’t know what the consultation would have led me to do.”
This is now the third time that Wise has said that she regrets not consulting with other voices on the campus. But this is the first time that she’s positively stated that not only did her firing of Salaita not reflect her own position, but also that she might have reached a different decision than the one she reached had she consulted other voices. Which is precisely the argument that so many of us have been making about whose voices Wise did and did not heed in this process. It almost seems as if she’s trying to give Salaita evidence for his case.
Last, Katherine Franke, who’s been leading the legal academic community on this issue, and Kristofer Petersen-Overton, a PhD candidate in political science at the CUNY Graduate Center, appeared today on Democracy Now.
I urge you to listen to the interview, in particular the part that begins at 47:00. There Kris, whom I know personally, speaks about his experience as an adjunct at Brooklyn College, where he was hired by my department to teach a course on Middle East politics for the spring of 2011 and then fired before the course began. Sound familiar? The reason he was fired? Pro-Israel forces objected to something he had written. Sound familiar? Here’s what one of the leaders of those forces, NYS Assemblyman Dov Hikind, said at the time about an academic paper Kris had written on suicide bombers:
Hikind, a staunch ally of Israel, sent a letter on Monday to Karen Gould, the college’s president, with a copy to CUNY Chancellor Matthew Goldstein, in which he questioned the adjunct’s appointment. Calling Petersen-Overton “an overt supporter of terrorism,” Hikind said he was “better suited for a teaching position at the Islamic University of Gaza.”
Hikind, who said he earned his master’s degree in political science from Brooklyn College, told Inside Higher Ed that he reached these conclusions after spending “countless hours” reading the newly hired adjunct’s work. This included, chiefly, his unpublished paper, “Inventing the Martyr: Struggle, Sacrifice and the Signification of Palestinian National Identity,” in which he examines martyrdom as it “embodies ideals of struggle and sacrifice” in the context of national identity. Hikind said such works reflect an effort to “understand” suicide bombers. “There’s nothing to understand about someone who murders women and children,” he said. “You condemn.”
Kris didn’t say anything about anti-Semitism becoming honorable, he didn’t say anything about settlers going missing, he didn’t say anything about necklaces of teeth. His crime was trying “to understand about someone who murders women and children.” As Dostoevsky did in Crime and Punishment. That was enough to get him fired.
This is why I come to this whole Salaita affair with a bit of skepticism about the tweets. It’s skepticism born of my own personal experience with four controversial fights over Israel/Palestine. If it’s not the tweets, it’s the grad student paper trying to understand suicide bombers. If it’s not the grad student paper trying to understand suicide bombers, it’s the Pulitzer-Prize-winning playwright who cannot receive an honorary degree because he’s voiced criticism of Israel. If it’s not the Pulitzer-Prize-winning playwright who cannot receive an honorary degree because he’s voiced criticism of Israel, it’s the New York City Council threatening CUNY’s funding because the political science department at Brooklyn College is co-sponsoring—not endorsing, not organizing, not funding, but co-sponsoring—a panel on BDS. If it’s not the New York City Council threatening CUNY’s funding because the political science department at Brooklyn College is co-sponsoring a panel on BDS, it’s the NYS Legislature threatening a college’s funding if it financially supports individual faculty membership in the American Studies Association, which supports the academic boycott of Israel.
Every time it’s the same goddam story: supporters of Israel, increasingly anxious over the way the conversation about Israel is going in this country, flexing their muscles to muzzle a voice, to stop a debate. (Just today Buzzfeed is reporting that AIPAC is looking for ways to pass federal legislation to stop BDS in its tracks.) A Palestinian exception to the First Amendment?
Thankfully, in Kris’s case, we were able to rally a national campaign of prominent academics, particularly in political science, to support his reinstatement. We made his case a national story. Sound familiar?
And here’s the best part, dear reader: We won.
Since I came onto the interwebs, I’ve been involved in five fights over the place of Israel/Palestine in academe: the Petersen-Overton fight, which we won; the Tony Kushner fight, which we won; the BDS at Brooklyn College fight, which we won, the NYS Assembly fight, which we won, and now the Salaita affair.
There is a Palestinian exception to the First Amendment. And we’re fighting to end it. Because that’s the way the First Amendment has always advanced in this country: not simply through reasoned argument, but through struggle.
The United States has instructed Europol, the European Union’s police agency, to withhold its own annual internal data-protection review from EU lawmakers because the report was written without the US Treasury Department’s permission.
Europol drafted the data-protection report “without prior written authorisation from the information owner (in this case the Treasury Department),” according to the US, violating “security protocols” that could “undermine the relationship of trust needed to share sensitive information between enforcement agencies.”
The report, drafted by Europol’s Joint Supervisory Body, outlines how data concerning EU citizens and residents is transferred to the US, according to the EUobserver. The document is mainly known to monitor implementation of the EU-US Terrorist Finance Tracking Program, or TFTP. Basically, the US Treasury Department is quite territorial about how the TFTP is adhering to European data protection compliance.
EU ombudsman Emily O’Reilly said Europol refused to allow her to see the report based on US demands. O’Reilly then confronted US ambassador to the EU Anthony Gardner in July. Gardner confirmed the order.
On Thursday, O’Reilly said she sent a letter to the European Parliament asking the body “to consider whether it is acceptable that an agreement with a foreign government should prevent the Ombudsman from doing her job.”
“If the US says ‘No disclosure’ then it won’t be disclosed, which is ridiculous because we are EU citizens, we vote, we pay taxes, we have EU laws, and we decide what happens on this continent. Nobody else,” Dutch MEP liberal Sophie In’t Veld told EUobserver. In’t Veld first requested the report in 2012.
In’t Veld said there is no top-secret information in the report that should be viewed as overly sensitive.
“There is no operational information, there is no intelligence, there is nothing in the document. So you really wonder why it is kept a secret,” she said.
The TFTP has received scrutiny in the last year after documents supplied by former US government contractor Edward Snowden showed mass spying by the US National Security Agency on citizens and officials across the world, including in the EU.
The Snowden leaks showed the NSA had gained a “back door” entrance into the SWIFT servers – SWIFT being a financial-record sharing program, which revealed the banking details of millions of European citizens, despite the fact that access to this financial data was limited by the TFTP.
While all eyes are on the disturbing evidence of police militarization in Ferguson, are you paying attention to what’s happening with law enforcement in your own back yard?
In the San Francisco Bay Area, the answer is yes. A coalition of community groups has come together to call attention to Urban Shield, a four-day long “preparedness” exercise for law enforcement and other agencies that will take place from September 4-8. They’ve organized a week of education, including a march and demonstration outside of the event on Friday, September 5. To these community groups, Urban Shield represents state violence and political repression, not public safety.
The reasons for protesting Urban Shield are clear. It is one of the ways that local law enforcement gets access to, and romanced by, military and surveillance technologies like the ones we’ve seen turned against protesters in Ferguson, as well as low-level crimes, across the country.
Urban Shield is coordinated by the for-profit company Cytel Group, and in addition to training exercises, it also functions as a marketplace and testing site for new militarized technologies. The accompanying trade show includes exhibitors from armored vehicle manufacturers to a “counter-terrorism magazine.” In 2013, companies were encouraged “to place their products and technology directly into the hands of SWAT, Fire, EOD, and EMS professionals.” Vending at Urban Shield is touted as a way to get “invaluable real-time feedback for vendor product[s]” since “at the end of every scenario the teams are questioned concerning the benefits and drawbacks of each piece of technology used in that scenario.” It’s unsurprising that Urban Shield has a “try it out” component for law enforcement, since there is an incredible amount of profit to be made from such products, often with federal funds (i.e. taxpayer dollars) footing the bill.
The event is part of the federal Urban Areas Security Initiative (UASI). UASI is a grant program administered by the federal Department of Homeland Security’s Homeland Security Grant Program (the same program that funds fusion centers). In the San Francisco Bay Area, the grants are coordinated by the Bay Area UASI, a regional coordinating body. UASI grants are supposed to go to “planning, organization, equipment, training, and exercise needs of high-threat, high-density Urban Areas.” The grants have gone to law enforcement agencies all over the country— but the program has been the subject of scathing critique from grassroots groups and lawmakers.
Much of the criticism around UASI is that the grants enable purchases of equipment that no community should adopt without a public conversation. The obvious examples are armored vehicles and so-called “less-lethal” weapons like tear gas and rubber bullets, like those used to violently suppress demonstrators in Ferguson. But UASI funds can also be used to purchase sophisticated surveillance equipment that, absent safeguards, could allow local law enforcement to spy on activists before demonstrations ever take place, or to racially profile people of color in communities like Oakland. Senator Tom Coburn’s 2012 report “Safety at Any Price” lists some of the equipment that has been purchased with UASI money, and it reads like a laundry list of privacy advocates’ concerns: surveillance cameras, mobile fingerprinting devices, automated license plate readers, armored vehicles, and drones. To make matters worse, as Senator Coburn’s report points out, there is no evidence that these purchases make anyone safer.
It should also be noted that Urban Shield is not limited to the San Francisco area. Boston and Austin also participate in similar trainings, as has Jordan. And Jordan isn’t the only international connection. As the Urban Shield website boasts, “In 2014, teams from Singapore and South Korea will participate.” Teams in the past have included the French National Police and teams from Israel, Brazil, Jordan, and Bahrain. Police departments from across the country participate as well, including SWAT teams from Newark, Dallas, Chicago, and Travis County, Texas.
None of this has escaped the attention of organizers, who have made it clear that Urban Shield is linked to surveillance of activists and violence against communities of color across the country, but also to political repression internationally. In their words: “The line between police and military is blurring as parallel military tactics are being deployed globally to repress dissent and increase state control over people who are calling for freedom and justice.”
More than a dozen “fake cell phone towers” could be secretly hijacking Americans’ mobile devices in order to listen in on phone calls or snoop on text messages, a security-focused cell phone company claims. It is not clear who controls the devices.
ESD America, which markets heavily-encrypted cell phones built within the body of a Samsung Galaxy S3, said it was able to locate numerous towers intercepting mobile communications – but does not know who is running them.
Speaking to Popular Science, ESD America CEO Les Goldsmith recently said that the company has used its phone – the CryptoPhone 500 – to map 17 different fake cell phone towers, dubbed “interceptors,” across the United States. Locations include New York, Chicago, Los Angeles, Seattle, and more.
“Interceptor use in the US is much higher than people had anticipated,” he told the website. “One of our customers took a road trip from Florida to North Carolina and he found 8 different interceptors on that trip. We even found one at South Point Casino in Las Vegas.”
Although these interceptors act as fake cell phone towers, they are not necessarily large, physical structures. They could simply be small mobile devices that act exactly like a real tower, deceiving phones into giving up information. Such devices are known as “stingrays,” after the brand name of one popular type of interceptor.
Once connected to a person’s phone, they can bypass the mobile device’s encryption to either listen in on calls or capture texts. In some cases, they are also powerful enough to take over a device or make it seem as if it has shut down – only to leave the microphone on in order to eavesdrop.
The American Civil Liberties Union has been attempting to pry information about government and police use of stingray equipment, but its efforts have been met with resistance from federal officials.
According to Ars Technica, the Federal Communications Commission pledged in August to investigate the “illicit and unauthorized use” of interceptors – with a primary focus on foreign governments, criminals, and terrorists – but denied a Freedom of Information Act request to reveal more data about current stingray use.
For Goldsmith, determining who is using the interceptors is important. He speculated that the operators could be American agencies or foreign governments.
“What we find suspicious is that a lot of these interceptors are right on top of US military bases. So we begin to wonder – are some of them US government interceptors? Or are some of them Chinese interceptors?” he told PopSci. “Whose interceptor is it? Who are they, that’s listening to calls around military bases? Is it just the US military, or are they foreign governments doing it? The point is: we don’t really know whose they are.”
Outside of national governments, local law enforcement agencies are also beefing up their stingray/interceptor capabilities. In Oakland, California, police are looking to spend hundreds of thousands of dollars to upgrade their cell phone surveillance system.
Meanwhile, police in Tacoma, Washington have caught the eye of civil liberties advocates after the News Tribune revealed they have been using interceptor equipment to catch cell phone calls for the last six years. Some, including Mayor Marilyn Strickland, said it was legitimate for police to do so as long as people’s rights were not violated. However, the ACLU disagreed, arguing it was like “kicking down the doors of 50 homes and searching 50 homes because they don’t know where the bad guy is.”
This is part 2 of a two-part post. In the last post, I read through the Salaita Papers, which were released under Illinois’s Freedom of Information Act; in this one, I canvas the other events of the day.
First, last night’s report that Chancellor Wise would be forwarding Salaita’s appointment to the Trustees was wrong. Several members of the UIUC faculty met with her today. According to Michael Rothberg, chair of the English department:
Together with two colleagues I just met with Chancellor Wise, at her invitation. The main message from our discussion was that there is no change in the status of the case. It seems that the students were not accurate in their impression. She doesn’t know if the Board of Trustees will be voting on the case at their 9/11 meeting, but she indicated that she thought a reversal was very unlikely.
So status quo. I’ll come back to that 9/11 meeting at the end of this post.
Second, tonight, the English Department became the fourth department at UIUC to take a vote of no confidence in the leadership of the University of Illinois—the trustees, the president, and Chancellor Wise. From what I’m hearing, the departments of history, comparative and world literatures, and East Asian Languages and Cultures will be voting on similar motions sometime this week.
Third, the number of canceled events grows. We now have a second cancelled conference. Today, Columbia law professor Katharine Franke canceled series of lectures she was to give at the UIUC in late September. This was an especially nice touch:
I have long held the view that the use of boycotts as a tactic to protest an unjust practice by a state, business or academic institution may be appropriate in the right context, such as the current crisis at the UIUC, but that those who pledge to honor a boycott cannot rest their political commitments exclusively on a promise not to do something. Rather they should also pledge to affirmatively engage the injustice that generated the call for the boycott. For this reason, rather than merely boycotting your institution, I plan to travel to Urbana-Champaign in mid September at my own expense to participate in a forum (located off campus) with members of the UIUC community in which we will explore the manner in which the termination of Professor Salaita’s employment at UIUC threatened a robust principal of academic freedom.
I just found out that University of Nebraska philosophy professor Mark Van Roojen canceled a scheduled lecture as well. In fact, the list of canceled lectures and events seems to have exploded overnight. There’s now a poster listing all of the cancellations. John Protevi’s also keeping track over at his blog. If you’re cancelling something, please let him know.
Fourth, a group of graduate students has now organized its own boycott pledge. It’s one of the more powerful statements, as it dramatizes the real long-term costs of the Salaita dehiring.
As the rising generation of scholars and public intellectuals, we are troubled about what this signals about the work environments, hiring conditions, and the larger academe we are working to enter.
UI-UC’s actions have signaled to the graduate student community that in order to secure employment, we should stay silent on political questions, eliminate our online interactions with others in the public and in the scholarly community, and cease researching and asking tough questions that may displease those in authority. These conditions trouble us all, and will deter many graduate students from applying to faculty positions at UI-UC in the future.
We hold that the value of scholarly efforts must not be determined by how readily they appease the powerful or cater to the status quo; instead, such efforts must be weighed by their degree of due diligence and attention to the ethical pursuit of knowledge, as well as the imperative to voice righteous criticisms when necessary. To constrain our research and public engagement in such a way as to protect ourselves from the treatment Professor Salaita has received promises to strip the academy of all relevance to society as an institution that values intellectual debate.
If you’re a grad student, please sign it.
Fifth, the American Historical Association, the official professional body of historians, issued a scorching denunciation today of Chancellor Wise’s decision.
The First Amendment protects speech, both civil and uncivil. It does so for good reason. The United States made a wager that democracy can flourish only with a robustly open public sphere where conflicting opinions can vigorously engage one another. Such a public sphere rests on the recognition that speech on matters of public concern is often emotional and that it employs a variety of idioms and styles. Hence American law protects not only polite discourse but also vulgarity, not only sweet rationality but also impassioned denunciation. “Civility” is a laudable ideal, and many of us wish that American public life had more of it today. Indeed the AHA recommends it as part of our own Statement on the Standards of Professional Conduct. But imposing the requirement of “civility” on speech in a university community or any other sector of our public sphere—and punishing infractions—can only backfire. Such a policy produces a chilling effect, inhibiting the full exchange of ideas that both scholarly investigation and democratic institutions need.
If allowed to stand, your administration’s punitive treatment of Steven Salaita will chill the intellectual atmosphere at the University of Illinois. Even tenured professors will fear for their job security, persuaded that their institution lacks respect for the principles of academic freedom. The unhappy consequences for the untenured will be even more pronounced. A regimen of defensive self-censorship will settle like a cloud over faculty lectures and classroom discussions. Faculty will be inclined to seek positions elsewhere. This, surely, is not the future you wish for your historically great institution.
The AHA joined the Modern Languages Association, the professional organization of literature and language scholars, and the American Studies Association, in putting the weight of a major disciplinary organization behind Salaita’s case. I hope American Political Science Association, the American Sociological Association, and other disciplinary organizations join in soon.
It has become clear from various UIUC faculty I’ve spoken with that the trustees are now the main focus of our campaign. Between now and 9/11, we have to bombard them with emails and phone calls urging them to do the right thing.
Unfortunately, we don’t have all of their contact information, but Thanks to John Protevi’s heroic efforts (and a little angel who came to my aid after this post went live), we have most all of them. Here they are (plus a few others that are relevant).
If you’ve already joined a boycott, signed the petition, and emailed Chancellor Wise, I want to ask you—all of you, in the tens of thousands now—to rattle the trustees with your voices. As John says: “Be polite but firm, open, frank, forthright, unapologetic, and exigent when writing these folks.”
Christopher G. Kennedy, Chair, University of Illinois Board of Trustees: email@example.com
Robert A. Easter, President: firstname.lastname@example.org
Hannah Cave, Trustee: email@example.com
Ricardo Estrada, Trustee: firstname.lastname@example.org
Patrick J. Fitzgerald, Trustee: email@example.com
Lucas N. Frye, Trustee: firstname.lastname@example.org
Karen Hasara, Trustee: email@example.com
Patricia Brown Holmes, Trustee: firstname.lastname@example.org
Danielle M. Leibowitz, Trustee: email@example.com
James D. Montgomery, Trustee: firstname.lastname@example.org
Pamela B. Strobel, Trustee: email@example.com
Thomas R. Bearrows, University Counsel: firstname.lastname@example.org
Susan M. Kies, Secretary of the Board of Trustees and the University: email@example.com
Lester H. McKeever, Jr., Treasurer, Board of Trustees: firstname.lastname@example.org
There are many developments today in the Salaita affair, so I’m going to do this as a two-part post. Part 2 is here.
This morning, the News-Gazette released 280 pages of documents obtained under the Illinois Freedom of Information Act revealing extensive donor pressure on Chancellor Wise.
As news spread in late July about a new University of Illinois faculty hire and media outlets began publishing some of his profanity-laden tweets, a number of wealthy donors threatened to stop giving money to the university, recently released documents show.
The letters about professor Steven Salaita started arriving in Chancellor Phyllis Wise’s inbox July 21, and the writers did not hold back.
“Having been a multiple 6 figure donor to Illinois over the years, I know our support is ending as we vehemently disagree with the approach this individual espouses,” wrote one UI business school graduate.
The letters from donors, some of them identifying themselves as members of the UI’s $25,000-plus “presidents council,” have also raised questions about the motivation behind the administration’s decision to not forward Salaita’s name to the board of trustees for formal approval last month.
The chancellor, however, through a spokeswoman, maintains her decision was not influenced by them, but was based out of concern for the students, campus and community.
Then tonight Phan Nguyen sent me 443 pages of documents he had posted online. These are all the documents released by the UIUC in response to four different FOIA requests from various news organizations. I’ve now spent the entire evening reading through these documents and here are some of the highlights.
When the Salaita story first broke in the local press, Associate Chancellor for Public Affairs Robin Kaler said, “Faculty have a wide range of scholarly and political views, and we recognize the freedom-of-speech rights of all of our employees.” That was on July 21. The UIUC documents reveal that not only was Chancellor Wise apprised of that statement minutes after it was emailed to the media, but that she also wrote back to Kaler: “I have received several emails. Do you want me to use this response or to forward these to you?” (p. 101) In other words, this was not the rogue statement of a low-level spokesperson; it reflected Wise’s own views, including the view that Salaita was already a university employee. Even though Wise already had been informed of Salaita’s tweets.
In the days following this forthright defense of Salaita, the Chancellor and her associates begin to back-pedal. Around July 23, Wise starts reaching out to select alumni, trying to arrange phone calls (and in one instance, struggling to rearrange her travel schedule just so she can meet one alum in person [pp. 78-94]). To another such alum, she writes, “Let me say that I just recently learned about Steven Salaita’s background, beyond his academic history, and am learning more now.” (p. 293) That “beyond his academic history” is going to get Wise in trouble on academic freedom grounds.
In the background of this change of tune are the donors and the university’s fundraising and development people. In a July 24 email to Dan Peterson, Leanne Barnhart, and Travis Michael Smith (all part of the UIUC money machine), Wise reports about a meeting she has had with what appears to be a big donor. In Wise’s words:
He said that he knows [REDACTED] and [REDACTED] well and both have less loyalty for Illinois because of their perception of anti-Semitism. He gave me a two-pager filled with information on Steven Salaita and said how we handle this situation will be very telling. (p. 206)
Once Wise and her team start back-tracking, the trustees are brought into the picture. On July 28, Susan Mary Kies, who is the secretary of the Board of Trustees, writes Wise, who had been apologetic about “filling your inbox” with Salaita info, “No problem, we will place the letters in weekly dispatch (as we did last week) so the trustees can see the depth of the matter!” (p. 62) The next day, Kaler starts writing to complaining alums that the final decision regarding Salaita lies with the trustees (this is the first we hear of what will become the ultimate strategy of the administration: putting it all on the trustees):
While I cannot comment on any specific employment decisions of the university, pursuant to the governing documents for the university the final decision for any faculty appointment at the level of assistant professor or above rests with the Board of Trustees. I, therefore, have passed your concerns along to the Secretary of the Board of Trustees. (p. 62)
What’s most stunning about these documents is that they show how removed and isolated Chancellor Wise is from any of the academic voices in the university, even the academic voices on her own team. As she heads toward her August 2 decision to dehire Salaita, she is only speaking to and consulting with donors, alums, PR people, and development types. Ilesanmi Adesida, the provost and vice chancellor for academic affairs, makes exactly one appearance in these 443 pages. That is on Tuesday, July 22. Even though Wise has been inundated with emails about Salaita for days, she only finally emails Adesida about the matter a day after the story has broken in the local press. His response: “Thanks for sending these emails. I was not aware of any controversy on this person until yesterday!” (p. 95) And he’s never heard from again.
Then on August 4, two days after Wise has informed Salaita and Robert Warrior, chair of the American Indian Studies department, that Salaita won’t be hired, Warrior writes Brian Ross, interim dean of the College of Arts and Sciences, to find out what happened. Warrior first gets an email back from one of Ross’s associates, who says, “Brian is not in the office today, and I’m not sure he knows anything about this because I presume he would have discussed it with me if he had” (p. 361). And then Ross himself writes back, “i am in NY, traveling back tomorrow. I have not seen the letter but have a request in and will let you know when I hear any more” (p.362). In other words, even two days after the Chancellor has dehired Salaita, she still hasn’t informed the dean of the largest college at the UIUC of her decision.
What’s also clear from reading these documents is just how high up the chain Salaita’s appointment had gone, and how ensconced at the university he was becoming—up until the day that he wasn’t. On September 27, 2013, for example, Reginald Alston, one of two associate chancellors who works directly in Phyllis Wise’s office, writes the following report on Salaita’s candidacy (pp. 238-239):
After closely reviewing Dr. Steven Salaita’s dossier, I support the Department of American Indian Studies’ (AIS) request to grant him the rank of Associate Professor with indefinite tenure at the University of Illinois. The uniqueness of his scholarship on the intersection of American Indian, Palestinian, and American Palestinian experiences presents a rare opportunity to add an esoteric perspective on indigeneity to our cultural studies programs on campus.
Again, I support offering Dr. Salaita a tenured position because of the obvious intellectual value that his scholarship and background would bring to our campus. His presence would elevate AIS internationally and convey Illinois’ commitment to maintaining a leading academic program on the historical and sociopolitical intricacies of American Indian culture.
On January 15, 2014, his appointment is approved by the Office of Diversity, Equity, and Access, which is one of the key and most powerful offices in any university hiring decision; if they don’t sign off, the appointment goes nowhere (p. 398).
Then, between July 22 and July 25, while the chancellor and her aides are formulating their strategy to deal with the backlash, Salaita and Warrior email back and forth about Salaita’s moving expenses. The UIUC had originally promised to cover up to $5000 of Salaita’s expenses (p. 387), but when the University-approved moving company comes back with an estimate of $7500, the department decides to cover the difference (pp. 341-347).
And then, when the tech support start asking Warrior about Salaita’s computer needs (“Did Steven Salaita say he had any special PC laptop needs? Does he run SPSS or any other resource intensive applications? Does he need something geared toward video work or any other special area?”), Warrior replies, “He’s pretty much a meat and potatoes user. Nothing complicated” (pp. 341-347).
That was on August 1. The next day, Chancellor Wise fired Salaita.
Update (12:20 am)
Apparently, Carol Tilley on Twitter revealed earlier today the identity of that the alum whom Wise scrambled to rearrange her schedule over. His name is Steve Miller; the UIUC redactor failed to catch it. Tilley then tweeted some other information about Miller. He’s a huge venture capitalist. In 2010, he donated a half-million dollars to endow a professorship in the UIUC business school. He’s given money for years to endow the Steven N. Miller Entrepreneurial Scholarships. He believes in “venture philanthropy.” And he’s on the board of Hillel.
We are getting reports out of the University of Illinois that Chancellor Wise is going to forward the Salaita appointment to the Board of Trustees for a vote on September 11. A group of Gender and Women’s Studies students reports the following:
From GWS Undergraduate Stephanie Skora’s report back on meeting with Chancellor Wise on Monday, September 1, 2014:
The meeting with Chancellor Wise was a success, and we have gained some valuable information and commitments from the Chancellor!
We have discovered that the Chancellor HAS FORWARDED Professor Salaita’s appointment to the Board of Trustees, and they will be voting on his appointment during the Board of Trustees Meeting on September 11th, on the UIUC campus! Our immediate future organizational efforts will focus around speaking at, and appearing at, this Board of Trustees meeting. We will be attempting to appear during the public comment section of the Board of Trustees meeting, as well as secure a longer presentation to educate them on the issues about which Professor Salaita tweeted. Additionally, we are going to attempt to ensure that the Board of Trustees consults with a cultural expert on Palestine, who can explain and educate them about the issues and the context surrounding Professor Salaita’s tweets. It has been made clear to us that the politics of the Board of Trustees is being allowed to dictate the course of the University, and that the misinformation and personal views of the members of the Board are being allowed to tell the students who is allowed to teach us, regardless of who we say that we want as our educators. We will not let this go unchallenged.
Additionally, Chancellor Wise has agreed to several parts of our demands, and has agreed upon a timeline under which she will take steps to address them. The ball is currently in her court, but we take her agreements as a gesture of good faith and of an attempt to rebuild trust between the University administration and the student body. She has not agreed unilaterally to our demands, and but we have made an important first step in our commitment to reinstating Professor Salaita. In terms of his actual reinstatement, the power to make that decision is not hers. This is why we have shifted the target of our efforts to the Board of Trustees, because they alone have the power to reinstate and approve Professor Salaita’s appointment at the University. In regards to the rest of our demands, which we have updated to reflect the town hall meeting, we have made progress on all of those, but continue to emphasize that it is unacceptable to meet any of our demands without first reinstating Professor Salaita.
We have made progress, but we all have a LOT of work left to do. We must organize, write to the Board of Trustees, and make our voices and our presences known. We will not be silent on September 11th, and we will not stop in our efforts to reinstate Professor Salaita, regardless of what the Board of Trustees decides.
Please keep organizing, please keep making your voices heard, and please#supportSalaita!
Also, feel free to message or comment with any questions, comments, or concerns.
Assuming the report is accurate, I can think of two interpretations of what it means.
If the UIUC is thinking politically, it would be an absolute disaster for them to open this can of worms, to act as if Salaita’s appointment is now a real possibility, to raise expectations for two weeks or so, to encourage all the organizing this will encourage (I can imagine the phone calls and emails that will now start pouring into the Board of Trustees), only to have the Board vote Salaita down. From a political perspective, this would be a disaster for the university. The strongest weapon the UIUC has always had is the sense that this is a done deal, that they will not budge, that we can raise all the ruckus we want, but they simply don’t care. Opening the decision up again calls that into question. Where does this line of reasoning lead us? To the possibility that the UIUC Trustees will vote to appoint Salaita on September 11, throw Chancellor Wise under the bus (remember, the Executive Committee that upheld her decision is only comprised of three Trustees, not the full Board)*, and say it was all a misunderstanding wrought by an incompetent chancellor. Who’ll then be pushed out within a year. The advantage of this approach is that it will effectively bring this story to a close. There will be angry donors, but everything I’ve ever read and experienced about that crew suggests that their bark is often worse than their bite. The ongoing atmosphere of crisis and ungovernability on campus is not something any university leader can bear for too long, and this threatens to go on for a very long time.
The other possibility is that the UIUC is thinking legally. One of the many weak links in their legal case was that Wise never forwarded Salaita’s appointment to the Board of Trustees for a vote. She basically did a pocket veto. Salaita’s offer letter stated that his appointment was subject to approval by the Board of Trustees, but Wise effectively never allowed the Board to approve or disapprove. So the UIUC’s lawyers could have decided that the better thing to do would be simply to carry out the full deed.
Many questions remain. Stay tuned. Regardless of which interpretation is correct, we have to operate on the assumption that the first is a very real possibility and that we have a lot of work to do in the next ten days.
*John Wilson reminds me in this post that all the members of the Board did sign a letter supporting Wise’s position, which I had forgotten about.
Update (11:15 pm)
Just to clarify my blog post: Like all of us, I have no idea what Wise and the Board are thinking (though we can assume that they are making this decision together). But while I think we have to be as strategic and smart about this as possible (fyi: John Wilson thinks I’m wrong; he may have a point), and gather as much information as we can, there’s always a tendency in these situations to play armchair strategist, to try and read the tea leaves, to figure out the pattern of power, as if we didn’t have hand or a role in shaping that pattern of power. Particularly when questions of law get involved (in a country of lawyers, Louis Hartz reminded us, every philosophical question is turned into a legal claim.) We have to resist that tendency. We have to treat this announcement, assuming it’s true, as a golden opportunity. To use the next 10 days as a chance to shift the balance of power on the ground. Remember the Board will be meeting and voting on campus. There are students, faculty, and activists on and around that campus. That’s an opportunity. Remember these trustees are individuals who can be called and emailed round the clock. That’s an opportunity. Between now and 9/11 (they really chose that date), let’s be mindful of the constraints, but also be thinking, always, in terms of opportunities.
More than one hundred university professors in New York City have signed an open letter, which was published on Monday, to administrators throughout the City University of New York (CUNY) system regarding the “principles of freedom of speech and assembly, and how such freedoms apply to students involved in organising with Students for Justice in Palestine (SJP) at several of the CUNY colleges”.
In the letter, the professors explain that: “We have viewed with great concern instances of unequal and unfair treatment of SJP by members of the CUNY administration over the past few years. These have been well documented by legal rights groups such as the Centre for Constitutional Rights, the National Lawyers Guild, and Palestine Solidarity Legal Support, as well as by students involved in SJP at CUNY and their faculty advisers. These include arbitrary changes in policies regarding student groups, aimed specifically at curtailing SJP activities; the over-policing of SJP events and activities, including simple actions like handing out fliers, in a way that has caused intimidation to students; and making unfounded accusations that lead to ‘investigations’ into widely publicised events. All of these actions have a chilling effect on free exchange and open dialogue.”
The letter calls “upon members of the administration throughout the CUNY system to treat SJP as they would any other student organisation, respecting their right to organise events and activities within the existing rules and practices governing such organisations and refraining from setting up unfair barriers or subjecting SJP to standards different from those applied to other student groups. These students are acting within the traditions of intellectual inquiry and public responsibility that have guided CUNY since its inception.”
The CUNY professors urge the administrators at their university to “show courage in upholding the principles of freedom of speech and assembly”. They point out that while not all faculty members who have signed the letter always agree with the views expressed at SJP events, they support “unconditionally” the students’ “right to express these views without fear of reprisals or unfair treatment by this university.”
Amongst the many dozens of esteemed faculty in the CUNY system who signed the letter are: David Harvey, Distinguished Professor of Anthropology, Earth and Environmental Sciences, and History; Talal Asad, Distinguished Professor of Anthropology; Linda Martín Alcoff, Director, Women’s Studies Certificate Program and Centre for the Study of Women and Society; Moustafa Bayoumi, Professor of English; Corey Robin, Professor of Political Science; Susan Buck-Morss, Distinguished Professor of Political Science; Stanley Aronowitz, Distinguished Professor of Sociology; Ervand Abrahamian, Distinguished Professor of History; and Sarah Schulman, Distinguished Professor of the Humanities.
To view the full letter and its list of signatories, please visit here.