Q&A with David Barron

David Barron ’89, J.D. ’94, Harvard Law School’s Honorable S. William Green Professor of Public Law, was recently asked by Harvard University President Drew Faust to chair a new email policy task force that will make recommendations regarding access to, and confidentiality of, electronic communications that rely on University information systems. Barron, who served as acting assistant attorney general for the Office of Legal Counsel in the United States Department of Justice from 2009 to 2010, sat down with the Gazette to discuss the task force’s mandate.

GAZETTE: Who will make up the task force?

BARRON: The idea is to have a broad representation of the various components of the University, the various Schools that make it up; FAS [Faculty of Arts and Sciences] obviously, but the professional Schools as well, and a range of different actors within the University community, from faculty to administrators. [A list of the task force members.]

GAZETTE: What is the task force’s mandate?

BARRON:  The goal is to develop forward-looking recommendations concerning electronic communications and our policies regarding privacy of them, and access to them. The precipitating event was the controversy over the searches that became known relatively recently, but our real mandate is to devise recommendations about what the policy should be for the University community going forward with respect to electronic communications generally.

GAZETTE: Can you describe the process you will undertake?

BARRON: The first stage is information gathering. The way I think of it is if you are going to make recommendations about a policy, you really need to establish the baseline first; what is the existing policy? And there’s actually some confusion about that, either because policies that are in place aren’t known, or policies aren’t in place, or policies may be in conflict with one another. Part of the existing baseline consists of the actual practices, which we want to get a better understanding of, as well as what peer institutions do. We also want to get a feel for what the general expectations in a university community have been so that we can make sensible recommendations on the basis of a clear understanding of what is already in place or is understood to be in place, even if it’s not clearly in place.

At our very first meeting we’ll explore as much as we already know about what’s out there, but I think a main task of the committee is going to be to figure out what it is we need to know. We are absolutely going to look at other schools and many other contexts in which this issue arises within institutions that seem relevant. I think we want to know about other schools, but we also want to know about other workplaces, not necessarily because they map on to ours, but seeing the differences in how they’ve constructed polices might give us insight into what’s different about our community.

GAZETTE: Beyond the initial meetings, what will the process look like?

BARRON: I have every expectation that the recommendations of the committee will be a product of a broadly consultative process with the University community. For them to be meaningful recommendations, they are going to have to be the result of a lot of discussion with a lot of different communities within the University, including students, faculty, and staff.

GAZETTE: Will the recommendations be made public?

BARRON:  The aim of the task force is to assist the president and the University as a whole with coming up with a set of policies that would be better than whatever is in place now, and for that to happen they have to be known.  We ultimately are reporting to the president and the Corporation, and the president has said the recommendations will be submitted for community discussion.

GAZETTE: How will you incorporate the work of Michael Keating, the Boston lawyer who is conducting an outside review of Harvard’s recent email searches?

BARRON: To make meaningful recommendations we have to have a good understanding of what the baseline we are operating against is, and part of that baseline will be reflected in his findings, because that will give us a sense of, at least in this one salient incident, how the policies actually operate in practice.

GAZETTE: Is email privacy different at private universities vs. public ones?

BARRON: I am sure there are legal differences because we are not subject to state Freedom of Information Act laws, and sunshine laws and open records laws in the way public universities can be. But I’d say as a class, universities and particularly large-scale universities, complex universities like Harvard, are unusual institutions on a variety of dimensions because of their mission, but also because of their complexity and the variety of roles that they play, which aren’t even typical of a traditional employer, and so all of that has to be considered in making a recommendation about what kind of electronic communication privacy policy we should have.

GAZETTE: Are there different levels of privacy needed to protect academic freedom, as opposed to administrative work being performed by administrators, many of whom are also faculty members? If so, is it possible to have a policy that distinguishes among those areas?

BARRON: There are a lot of different ways the committee can think about this issue. There’s the issue about the nature of the information that’s in question, there are issues about the position of the people who are handling the information and there are issues about the purposes for which the information is being sought. All of these are dimensions of the problem that the committee is going to have to think through.

GAZETTE: How do you feel like your background at the Justice Department, and your experience at Harvard, both as student at the College, and a student and professor at Harvard Law School, will help you in your role as the head of the task force?

BARRON: The legal issues in the government context of email and electronic communication privacy is something that I encountered at the Justice Department, so there is that level of familiarity with it, and there is a legal dimension to some of the questions that surround email privacy both in terms of legal obligations to disclose in certain instances, and in terms of legal rights to maintain privacy.

But fundamentally the issue here is a policy issue for the University, as to how it wants to structure, within the legal bounds that there are, its privacy policy concerning electronic communications, and that’s something that my role as a faculty member prepares me for much as anything. I have been part of the Harvard community for now nearly 30 years on and off, as a student, as an untenured faculty member, as a faculty member, as a member of a committee, now as a member of a University committee, in a professional school, being taught by people at FAS, as a member of the campus newspaper, so like a lot of people who have been here for a long time, and that’s one of the great virtues of a university, you play many, many different roles and you see lots of ways in which the university operates and serves its mission. And I think like every person on the committee, including people who have a spent a lot of time at other universities and therefore have the perspective of what the expectations of those communities are, really it’s that insight as much as anything that will be most useful on the committee.

GAZETTE: Why is it important to get this right in the broader context of the principles that are important in an academic landscape?

BARRON: The recent controversy highlighted for people in the University something that in many other domains people are becoming increasingly aware of, which is their incredible dependence and engagement with electronic communications as the oxygen for their productive engagement in whatever endeavors they do, and at the same time their recognition of the privacy concerns that that engagement raises. And it’s not a shock that the University as a community would have to collectively figure out how it wants to manage that balance. But recent events have given an occasion to really think through those issues in a serious way, and I think the main aim of the task force is to help lead that reflective process and then turn it into something that’s operational and practical if we can.

GAZETTE: How will the University be able to ensure effective implementation of any recommendations?

BARRON: This is something that every lawyer knows, but every person also knows, that there’s the formal established policy, then there is the way things actually operate, and we want to be very mindful of making policy recommendations that are sensitive, particularly in this area, to making sure that they are transparent to people and they are useable at the same time. In this realm, a lot of attention needs to be given, not to just what the policies are, but how you communicate those policies to people.

GAZETTE: Do you anticipate that this process will result in an overarching University policy?

BARRON: It’s too early to assess that, but certainly one of the aims of the committee is to figure out for the University whether it makes sense to have a uniform University policy. I think at the level of principle, we are fundamentally a university and have an academic mission. We are in the business of educating, and researching, and learning together, and any policy for the University is going to grow out of that mission. But at the same time we are an incredibly large, complicated, multifaceted institution and any policy is going to have to be sensitive to that reality, too. So I think a major charge of the committee is to figure out for the University what is the best way going forward in devising an electronic communications policy; how sensitive does it have to be to these contexts and in what ways can it be more general. And I think that is going to be the focus of our efforts over the next many months.

GAZETTE: Will the recommendations apply to students?

BARRON: The mandate of the committee is to the entire University, which obviously encompasses students. There are unique questions that are posed by student communications and we are going to consider how our broad recommendations would engage with that.  An important task of the committee is going to be to consult with student representatives and those who are responsible for students to make sure we have a good understanding of that set of questions.