January 12, 2014
Dear President Napolitano,
On behalf of the California Scholars for Academic Freedom we are writing to request that you make a public statement of support for the right of academics–students as well as professors–to refuse to turn over computers, phones, and other electronic information and documents, as well as field notes and other research related materials, when requested or ordered to do so by Customs and Border Protection agents in the absence of a warrant authorizing the search of their belongings. California Scholars for Academic Freedom is an organization devoted to defending academic freedom and representing hundreds of faculty at universities throughout California, the majority of them at the University of California.
During your tenure as Secretary of the Department of Homeland Security, you supported and enforced the policy of searching computers, mobile phones and other electronic devices and possessions of travelers without a warrant or even reasonable suspicion, at all points of entry to and egress from the United States. As you know, a federal judge just ruled that such searches are constitutional. We imagine this case will ultimately be heard by the Supreme Court.
As academics many of us travel frequently to the Middle East, North and sub-Saharan Africa and other Muslim countries, and work on the war on terrorism, socio-religious movements and other sensitive issues. We study and write about civil society and political protest movements across the Arab/Muslim world. There is thus a strong likelihood that we might possess sensitive and/or confidential information from colleagues, interviewees, government and other officials as well as activists across the region, some of whom might have views that are critical of US policies and those of its clients and allies in the region. This information is part of our research and as such, we believe, it is covered by the protections relating to academic freedom normally afforded scholars. Some of us also work as journalists, and are thus also covered by the protections afforded to journalists to maintain the confidentiality of their sources and research absent a court order compelling them to turn such information over to authorities.
As a matter of principle, if presented with a warrantless request or demand to turn over such materials our inclination is to refuse to turn such materials over. We believe not only that our work as academics affords us particular Constitutional protections from such warrantless searches but that, given the history of NSA, CIA and other intelligence agency collaboration and cooperation with foreign intelligence and security services, including those that mistreat, torture and even kill people like those whom many of us research and write about, such a position is a professional as well as ethical obligation.
While you enforced the policy of warrantless searches as DHS Secretary, you are now the President of the University of California, with a very different set of interests, principles and people to protect. In that capacity, we would like to ask you, for the record and explicitly, to inform us whether we can expect the University, UCOP and you to support our refusal to turn over such information in the event agents request or demand to examine it without a warrant. Further, while we are aware this is not a routine occurrence, we believe the seriousness of the intrusion into our civil and professional rights and obligations demands that the University issue a firm guideline and policy on this issue.
More specifically, there are several issues of concern, including: the judge’s belief that “it would be foolish, if not irresponsible” to store anything you didn’t want anyone to gain access to on one’s computer (thus placing the onus on us to clean out all our computers and belongings of any information we might not want government agents to view before arriving at an entry/exit port, a near impossibility in most situations); the fact that the buffer zone where such searches can take place extends, according to the ACLU, 100 miles inland from all borders (thus including all UC campuses); and the fact that Customs and Border Protection cannot even inform the public of the number of times such searches occur (although DHS figures are at least as high as 6,500).
Indeed, the case just ruled upon (Case 1:10-cv-04059-ERK, Document 36), in which you are named defendant, specifically involved a graduate student in Islamic studies who, upon returning to the United States, had his laptop seized and was handcuffed and held in detention for three hours after agents ordered him to open his laptop and show them its contents, which included photos of Islamist rallies he’d attended as part of his research. The agents kept his laptop upon his release. We find it unconscionable not merely that this occurred, but that no apology was made to the student, and that no guidelines were issued by DHS to ensure such violations of students’ rights would not occur in the future.
Would the University offer a legal defense of and provide counsel to protect our right to keep our notes and other information confidential and out of the hands of US security and intelligence officials without a warrant presented to us at the time of such a request? Whatever your response, could you please provide us with your legal rationale behind it, so that we may understand the basis for the policy and thus understand how best to proceed. Your status as a defendant in the case while you served as DHS Secretary should not preclude you or your office from providing a statement of official UC policy on this issue.
Thank you very much for your prompt attention and response to this query.
Sincerely and on behalf of California Scholars 4 Academic Freedom,
Research Professor of History
UC Santa Barbara
Professor of Comparative Literature
Clinical Professor of Psychiatry and Global Health Services
UC San Francisco
Distinguished Professor of Anthropology
Edmund Burke, III
Research Professor of Modern Middle Eastern History
UC Santa Cruz
Katherine Callen King
Professor of Comparative Literature
Professor of Modern Middle Eastern History
Distinguished Professor of English
Professor of Literature, and Ethnic Studies
UC San Diego
(The above signatures, one from each campus, are included for contact purposes. The letter represents the collective request of the CS4AF community, including hundreds of other UC, CSU and private university professors in California)
Cc: Chancellor Dirks, UC Berkeley
Chancellor Blumenthal, UC Santa Cruz
Chancellor Yang, UC Santa Barbara
Chancellor Block, UC Los Angeles
Chancellor Wilcox, UC Riverside
Chancellor Khosla, UC San Diego
Chancellor Drake, UC Irvine
Chancellor Desmond-Hellmann, UC San Francisco
Chancellor Leland, UC Merced
No comments yet.