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Higher Education @ Risk

by Tracy Mitrano

presented at
Northwest Academic Computing Consortium
2007

Also available as PowerPoint slides

Formerly, and to be Incorporated ...

Soup to Nuts: Copyright, Social Networking and Electronic Surveillance

Thesis

Higher education is at risk of losing its relative autonomy because of the encroaching influences of government regulation, commoditization of information and knowledge, and commercialization of its services.

Quick Background

  • The 1,000 year institution
  • Always in, but not always of, the world around it (in western society)
    • Precedes the Roman Catholic church but was born of its institution
    • Protestant Reformation spawned innumerable institutions and incalculable learning
    • Secularism and the scientific revolution continue to fuel it

Jewel in the Crown of American Society

  • My Frye experience
    • What do you mean we are not considered by American society to be the leaders?
  • In historical perspective, higher education might be regarded as one of the United States’ greatest achievements
    • Best of separation of church and state realized
    • Cornerstone of upward mobility and middle class
  • Diversity of institutions is its hallmark
    • Liberty University and Facebook

Relative Autonomy

  • To be diverse ...
    • Big-small, state-private, religious-secular
  • ... has allowed for the flowering of its missions
    • Teaching
    • Research
    • Outreach
  • Without traditional state or religious encroachments and in the float of a free- market, individualistic, middle-class society

So What's the Problem?

Are we so busy looking backward in time to higher education’s flourishing away from autocratic governments and controlling religious institutions that, like frogs in the pot of hot water, we fail to experience how we are getting cooked by the newer, powerful controlling influences in American and global society?

Government Regulation

  • Different from autocratic governments, not a total dictation, but a "getting pecked by ducks" effect of increasingly burdensome regulation
    • Classified research; select agents regulation
    • USA-Patriot Act amendments to the Electronic Communications Privacy Act (and Foreign Intelligence Surveillance Act)
    • Student Exchange Visitor Information System
    • Communications Assistance Law Enforcement Act
    • E-Discovery
    • Technical solutions to "technical problem of file sharing" in the Reauthorization of the Higher Education Act?

Electronic Surveillance: Let's Review

  • Electronic Communications Privacy Act of 1986 (ECPA)
    • "Wiretapping Act" that collapsed telephony and data networking technologies
    • Always had a content/conversational detail component aligned with Fourth Amendment jurisprudence
      • Content: probable cause of criminal activity + judicial supervision
      • Conversational detail: easy access with a subpoena
    • Problem?
      • Different technologies offer different content

When Last We Visited the USA Patriot Act...

  • Passed October 2001 and renewed in 2006, including "sunset" provisions that
    • Amended both ECPA and the Foreign Intelligence Surveillance Act
      • FISA: separate court system, ex parte motions, originally passed in 1978 but under current circumstances assumed new meaning
    • Allowed for easy access to conversational detail

ECPA and FISA Amended

  • The standard for content of communications remains the same under both Title III and FISA Courts:
    • Probable cause of criminal or terrorist activity respectively
  • Patriot Act lowered the bar to access for conversation detail
    • File a paper with a clerk in the FBI

No Wonder!

  • Saturday New York Times, March 10, 2006
    • "FBI Head Admits Mistakes in Use of Security Act"
      • Talking about Patriot Act, and the use of "administrative letters" generic phrase for conversational detail requests

What's the Problem?

  • "Mueller conceded that the bureau had improperly used the USA Patriot Act to obtain information about people and businesses."
    • No central clearing house, database or repository for these requests
    • No oversight for appropriate use
    • Confusion over content/detail = content

Consequently...

  • Inaccurate reporting to Congress
  • No one really knows how many letters have been issued
  • Or where the records are of either the requests or the responses
  • Or what has been done with the responses in either criminal or terrorist investigations

Fundamental Principles

In addition to the fact that our forefathers did not intend the federal government to wield such power out of balance with the Bill of Rights, due process and government accountability, the foundational question remains: are we becoming so overburdened with regulation that we cannot pursue our missions?

Commoditization of Information and Knowledge

  • Copyright, copyright, copyright
    • Because the protocols are free, whoever controls what is on the Internet controls the Internet
  • Patent, patent, patent
    • Intellectual property becomes the end not the means of a business model
  • Trademark, trademark, trademark
    • Trademarks, service marks, together with copyright, will come to control every image, design and even our language ... and it is all about branding.

Copyright: Let's Review

  • The law and technology are out of sync with current business models and social norms
    • Google Library Project and the fair use question
    • Viacom sues YouTube/Google for $1 billion
    • Peer to peer technologies, including web-based products such as BitTorrent
      • 85% of allegedly copyright-protected material transmitted over commodity networks, according to private sources
      • Industry sources place the figure at 44%
      • In either case, it is shifting away from higher education (big pipes, fast-feed software and a favorable demographic population) to private, commodity, residential use (broadband, "natives" and lower age – early middle school – without much education in the lower grades about law and policy of the Internet.

Higher Education: Academic Delivery

  • American Association of Publishers pre-litigation letter to Cornell University
    • Two letters from the provost to all faculty advising them of compliance
      • 70% less use of e-Reserve Materials
      • If it is behind authentication, does that make it okay?
    • Cornell Electronic Course Content Copyright Guidelines
    • Fair use checklist and faculty sign-off with input into course management systems.

Berkman Center White Paper

The Digital Learning Challenge: Obstacles to Educational Uses of Copyright Material in the Digital Age

http://cyber.law.harvard.edu/media/files/copyrightandeducation.html

Recording Industry Association of America (RIAA)

What's going on...

  • Waitin' on the new business model
    • "We designed the CD to last 10 years..."
      • Carey Sherman, President of the RIAA, 2003
  • In the meantime, have the means become the end?
    • Taking a page out of patent law's playbook, has intellectual property become the business model instead of the product in the entertainment arena?

Why is Higher Education in the Bull's Eye of the Target?

  • Object lesson for commercial ISPs?
    • Bruised by Verizon v. RIAA, gearing up for another session?
  • Who among US Congress will defend us?
    • Follow the money...
  • Because they are looking for the deep pocket?
    • The irony of technical fixes = loss of conduit status
  • Because we actually care about our students and missions?
    • Citizenship, appropriate use and code of conduct

At what cost to our missions?

Patent

Blackboard and Blackberry

Trademark

I'm Lovin' It® and Always Always®
And Cornell®

Fundamental Principles

Higher education requires the raw materials of information and knowledge to exercise its missions.

At what point does the commoditization of knowledge so impoverish us, due either to costs or mere access, that we can no longer properly pursue those missions?

Commercialization of Services

  • Well, how about the Internet
    • Built with your tax dollars and mine ... and by many of the people in this room or our compatriots in higher education
  • Proprietary layers are up for sale and in competition with each other:
    • Applications: Intellectual Property
    • Logical: Free ... until someone patents them
    • Physical: the Telcoms and Brand X
  • And that is what "Net Neutrality" is all about

Administrative Systems: Oracle v. Kuali

  • Pro
    • The collaborative, higher education past is the future.
    • It is in the spirit of higher education.
    • Ultimately it will save us money and be tailored to our needs.
  • Con
    • The past is past, commercial is the future.
    • Higher education can't keep up with commercial products and we shouldn't fight the trend.
    • Too much money; let's pressure vendors to tailor to our needs.

Outsource E-Mail?

  • Pro
    • Students use it anyway or don't mind if we did...
    • Too expensive to maintain, so give it away...
    • They are better at it!
  • Con
    • Commercialization of university services...where to draw the line?
    • Privacy: we know they scan it, and what will alumni think of those advertisements?
    • Control over our own systems and data, especially for emergency contacts?
    • What impact on FERPA obligations?
    • They are not as good as you think!

What is the effect of Google's acquisition and categorization of knowledge?

  • Mission:
      Google's mission is to organize the world's information and make it universally accessible and useful.
  • Means
    • Do no evil
    • AdWords and AdSense
  • Effect
    • on traditional library missions and holdings and cataloguing?

Web 2.0: Social Networking

Do we...

  • Block the sites?
  • Use the sites?
  • Have a policy about our use of the sites?
  • Educate students about the use of the sites?
  • Advertise and/or announce on the sites?
  • Negotiate with .com for communications, especially in emergency circumstances?
  • Build our own?

Web 2.0: Second Life

  • Do we buy an island?
  • Teach on the sites?
  • If so, who owns the intellectual property?
  • Way to go, no more Blackboard!
  • Whoa ... what are the policies?
  • And implications for teaching and learning if we use commercial sites?

Fundamental Principles

At what point does the commercialization of services that undergird our missions leave us so out of control of those services that we are no longer able to support those missions?

Conclusion

Is there a point at which government regulation so overburdens us, commoditization of information and knowledge so impoverishes us, and the (rapid) drift towards commercialization leaves us so out of the control of those services that we no longer have the appropriate degree of relative autonomy to pursue our missions?

Epilogue

Is there a way to get out from the trees to see the forest of this challenge?

Do we have the criteria by which we know where the tipping points lie, individually and collectively?

Do we have the courage to push back?

Challenge

Imagining a global future of (American?) higher education with the glorious experiences of its past.