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How to Protect Faculty Members From Outside Attacks | #itsecurity | #infosec | #hacking | #aihp

This essay is excerpted from a new Chronicle special report, “Building a Faculty that Flourishes,” available in the Chronicle Store.

Most faculty members can remain largely anonymous outside the world of higher education for their entire careers, never attracting public attention, let alone public ire. Yet, in an instant, statements made in class, an academic paper, or an offhand social-media post can trigger highly orchestrated and widespread digital attacks from organized activists across the country.

Some of the attacks are illegal, such as doxing and making threats. But changes in the law haven’t kept pace with technological advances, so the permissibility of other forms of cyber-harassment, like incessant heckling and intimidation, is murkier. The law is unlikely ever to make a priority of protecting academics, but in the coming decades we will probably see more regulation of proper digital behavior. Until then, professors will continue to be the victims of coordinated attacks.

Though the chances are small that a faculty member will become the latest focus of online outrage, colleges should be prepared to navigate the legal waters. Whether they are inclined to publicly defend the controversial faculty member or to punish the employee for reported improprieties, neither option is straightforward from a legal standpoint. Institutions need to tread carefully. Here are some tips:

Do your due diligence before responding. Colleges shouldn’t take a position before careful fact-checking. It can be defamatory to attribute statements to a speaker who never made them — or to twist someone’s words. So disciplining an employee hastily, without proper regard for the context of a controversy, invites legal challenges, including costly wrongful-termination claims. Alternatively, if college administrators lash out and engage digital attackers, those officials risk publishing something defamatory. Even simply retweeting the expression of others runs legal risks.

Prepare for digital warfare. Every campus should have protocols for anticipating cyber-outrage and procedures for dealing with it. Table-top exercises will help to clarify roles, policies, procedures, and responses. This will reduce the likelihood that a minor incident will blow up legally because of a poor initial response. Cabinet-level administrators, consultants, and lawyers should meet to discuss how to manage real-world scenarios — such as racist statements made in a classroom — to prepare for actual digital controversies. Digital war-gaming is critical for planning who will move first and how quickly. If instead of following institutional protocols, an administrator takes it upon himself or herself to react to a rapidly evolving social-media dispute, that decision could unwittingly lay the basis for costly litigation against the college.

Tailor responses to specific audiences. To defend a faculty member’s reputation, a president might respond to a social-media attack by writing to the campus community at large. That is a fine step to take, but if it is the president’s only action, a court is unlikely to see it as a strong deterrent to harassers. If a professor sues a digital attacker, a jury may want to know what was said, when, to whom, and for what purposes. A stronger response from the administration or professor at the outset would be a “cease and desist” communication directed specifically at the offending entity or speaker. Even stronger would be to sue.

On a related note, administrators must make it clear to faculty members that their institution will protect basic freedoms of expression. An institution will face reputational harm and consequences from faculty-rights organizations for throwing someone under the bus in an effort to quell a controversy.

Fight back and create protective legal rules. The current cultural climate baits institutions into accepting the axiom that every campus, for almost all purposes, is a marketplace of ideas and that the institution itself is merely a referee for the speech of others. This is First Amendment hooey, even at public colleges and universities. A campus can certainly choose to become a media outlet or a public forum in all its operations. But it need not. Colleges have the rights of any business to protect their operations from unlawful interference, and a court would probably agree that a coordinated digital attack on a professor, waged to drive that professor from campus, qualifies as such interference.

Colleges also have unique rights to intercede when digital harassment materially interferes with legitimate academic function. There are rights to teach and learn free from disruption; a college has no duty to tolerate cyber-rage culture when it crosses legal lines.

Learn about media law. Academic expression is increasingly influenced by how the law is applied to media outlets. By gracing a private dispute with a public response, a college could transform a situation legally into a matter of public concern; or it might transform the faculty member in question into a legal public figure. Either could limit that person’s legal rights to protect his or her reputation.

Consider the following scenario: An administration comments publicly on a controversy — now brewing on social media — that began as a simple interpersonal dispute between a student and a faculty member. The comments elevate the matter by framing the dispute as a free-expression issue. The administrative response draws more interest to the matter, and now the student and the faculty member become known widely by name and likeness — and are associated with a growing public narrative. Voilà! An erstwhile private dispute becomes a matter of public concern, with newly minted figures in the public space. Both the professor and the student may now have diminished protection from cyber-harassers.

A word of caution: Once a college enters the legal land of “public concern” or “public figures,” exit is nearly impossible. Some cyber-outrage comes from organizations and entities that know media law well. Think before biting the hook.

Mid-20th-century legal rules related to academic freedom and expression protected academics and the academy from attacks in the pre-digital world. But we now live in very different cultural and legal times. The waters ahead may be treacherous but are navigable, especially if you are equipped with a stronger working knowledge of the evolving legal world of cyber-communication.

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