File spoon-archives/postcolonial.archive/postcolonial_2001/postcolonial.0111, message 127


Date:         Mon, 12 Nov 2001 00:32:32 -0700
From: Diane R Wiener <dianew-AT-U.ARIZONA.EDU>
Subject:      Tucson Weekly article (fwd)
To: CCLSAFF-AT-LISTSERV.ARIZONA.EDU


---------------------------------
Diane R. Wiener
dianew-AT-u.arizona.edu

"Wherever you go, there you are."

---------- Forwarded message ----------
Date: Sun, 11 Nov 2001 16:01:30 -0700
From: Kari McBride <kari-AT-EMAIL.ARIZONA.EDU>
Reply-To: Women's Studies <FEMLIST-AT-LISTSERV.ARIZONA.EDU>
To: FEMLIST-AT-LISTSERV.ARIZONA.EDU
Subject: Tucson Weekly article

Confidential Controversy
     _________________________________________________________________

The UA handed the FBI private student records, even before required to
by an intrusive new law.

By Tim Vanderpool

Among those feeling the sharpest edge of American anger are foreign
students. In Tucson, their plight only worsened when Hani Hanjour, who
studied at University of Arizona in the early 1990s, was listed among
the September 11 suicide hijackers.

As the atmosphere turns increasingly ugly, many of Tucson's roughly
3,600 foreign students find themselves swept into a growing web of
federal investigations. This includes the quiet, widespread release of
their confidential student records by the University of Arizona and Pima
Community College. The records were requested sometime around late
September or early October by the FBI, the U.S. Immigration and
Naturalization Service and local police.

In these scary times, the broad dissemination of foreign students'
confidential files probably doesn't evoke much sympathy. But it should.
Your privacy could be next.

Under the USA Patriot Act--signed into law by President Bush on October
26--law enforcement agencies now have far greater ability to spy on
citizens, and face far fewer legal hurdles in doing so. Under the act,
they can even search homes without warrants.

The legislation also gives the FBI easy access to an individual's
private financial, medical, psychiatric and educational records.

For their part, many campuses across the nation were a step ahead of the
congressional curve. According to a survey released October 4 by the
American Association of Collegiate Registrars and Admissions Officers,
or AACRAO, some 220 colleges and universities were contacted by federal
officials seeking confidential records. Fifty of those schools were
contacted by more than one agency; in most cases, this appears to
include the FBI and INS.

Among the 159 colleges agreeing to release confidential student files,
21 were told not to notify their students of these actions. And only12
of the requests came with a subpoena attached.

Since these releases predated the Patriot Act, they placed college
officials at some legal risk for violating students' privacy rights. But
such ambiguity is not a problem anymore, according to Barmak Nassirian,
AACRAO's associate executive director. "No matter what else one might
say about the [Patriot Act], at least it clarifies what compliance steps
need to be taken [by school officials]," he says. "It also eliminates
any liability these institutions may be confronted with."

But to student advocates and civil rights groups, the widespread release
of confidential records blatantly ignores constitutional guarantees
against unwarranted search and seizure. It also reveals a novel
interpretation of the 27-year-old Family Educational Rights and Privacy
Act, or FERPA. So says Corye Barbour, legislative director for United
States Student Association. She calls the releases "unconstitutional,"
and "a direct threat to students' privacy."

Under FERPA, records can be released only for health and safety
concerns. In the past, according to Barbour, this has commonly been
taken to mean the health and safety of individual students, such as when
documents are provided to medical personnel in emergencies.

"The intent of the health clause was to allow access to records, to
protect the safety of a particular student," she says. "It did not allow
for large-scale release of student records."

U.S. Department of Education spokeswoman Lindsey Kozberg disagrees.
FERPA does allow such record releases under its health and safety
clauses, she says. "We've been advising colleges that they do apply."
Nor does this stance set precedent; according to Kozberg, the same legal
interpretation justified mass record releases following the Oklahoma
City bombing.

MANY SCHOOLS surveyed by AACRAO consulted the Education Department
before opening their files to police. "We ... asked them to give us an
interpretation of what the FERPA guidelines meant," says UA spokeswoman
Sharon Kha. "They told us that requests for information connected with
September 11 were related to the FERPA exclusion pertaining to the
health and safety of the nation."

But for the rest of us, the UA's confidential document release is
shrouded in secrecy. Kha says that for specifics, such as which agencies
contacted the university, what types of documents they were seeking and
how many students were affected, the Tucson Weekly would have to file a
formal public information request. This newspaper has done so, and is
awaiting a reply, which often takes several weeks.

"I've told you already more than the [UA] attorney's office would like
me to say about these requests," Kha says. "This is brand new ground for
us."

When contacted by the Weekly, UA attorney Judith Leonard refused to
discuss the record releases. Through her receptionist, Leonard instead
referred a reporter back to Kha.

Local police and the FBI have also requested confidential student
records from Pima College "in the last 30 days," says John Gabusi, Vice
Chancellor for Enrollment Services. "We've provided them with student
information based on those requests." He says the released files
numbered "less than a dozen, maybe less than half a dozen."

Pima officials conferred with national associations such as AACRAO, "and
with the Justice Department, I think," Gabusi says. "Clearly, what they
were saying was, 'If you have any interpretation of FERPA that prevents
you from [releasing the information], that's not correct.'"

Attempts to contact INS officials for comment were unsuccessful. In
Phoenix, FBI spokesman Ed Hall said his agency wouldn't "confirm or deny
any [details] of the investigation."

UNDER THE PATRIOT ACT, not only will school officials avoid legal risks
for disclosing confidential information about their students, but law
officers won't have much trouble getting search warrants--even in
increasingly rare cases when they're needed. "In this situation, a
judge's signature just becomes a rubber stamp," says Eleanor Eisenberg,
executive director of the Arizona ACLU. "And this isn't going to be
limited to student records. This will apply to all of us."

For example, authorities can now seize anyone's medical files "without
proving just cause to a judge," she says.

The rights of foreign students have also further deteriorated under the
new law, according to a national expert on student privacy issues. The
court order needed under the Patriot Act "is a different kind of court
order than most of us are accustomed to," says the expert, who asked not
to be identified. "It suffers the near total absence of due process. It
also departs from 800 years of Anglo-Saxon common law, in terms of what
the judge gets to look at.

"The anti-terrorism bill has the attorney general, or an assistant
attorney general, producing nothing but certification that specific ...
facts support the request for expanded powers," the source says. "It
literally allows hunches to be used for access to records that would
ordinarily require a subpoena and probable cause.

"I guess we can all support the notion of a hunch being the basis of
actually capturing somebody who's doing something wrong," the expert
says. "I only wish that people who are not doing anything wrong would
not be compromised in the process. I guess the behavior of law
enforcement will determine whether this becomes a major problem."




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