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Counsel says Harvard searched e-mail in good faith

Investigator gives new details

An outside counsel hired by Harvard University to investigate covert searches of instructors’ e-mails by college administrators found that all of the searches “were undertaken in good faith,” while revealing for the first time that about 14,000 e-mail accounts were searched for contact with a Boston Globe reporter.

Attorney Michael B. Keating, however, found that no administrators read any of the e-mails unearthed in the searches.

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Keating’s report, released by the university Monday, describes in far more detail than previously known the efforts Harvard officials undertook last fall to determine how information about a massive student cheating scandal was leaked to the news media.

While Harvard officials have apologized and acknowledged some mistakes, such as failing to notify instructors that their e-mails were being searched, administrators believed they were following internal policies at the time, Keating concluded. One policy posted on a Harvard website indicated that the instructors should have been notified, but Keating found that few people at Harvard — and no lawyers in the general counsel’s office — knew it existed.

“Hopefully, it will never happen again,” William F. Lee, a member of the Harvard Corporation, said in an interview. Keating delivered his findings to the corporation, Harvard’s governing board, and Lee said that the report was made public in its entirety.

Even with “the unprecedented nature of the events, the urgency of the events, the fact that students’ privacy and individual rights were involved, it’s clear that the policies that we as a university had in place were inadequate to the task,” Lee continued.

A separate committee is discussing recommendations for how Harvard’s privacy policy should be revamped, and it is expected to finish by the end of the fall semester.

The goal, Lee said, is that “the next time there is a similar event [officials] will have sufficient guidance on what to do, how to do it, how to document what has been done, so there will never be a situation [like] where we are today.”

Last fall, about 125 undergraduates were facing accusations of cheating on the take-home exam in a government class. Campus discipline is supposed to be confidential, and federal laws require student privacy to be safeguarded.

But it became a major national news story. As tidbits about the case leaked into the Harvard Crimson, the Globe, and elsewhere, administrators grew increasingly alarmed, Keating found.

The searches, which targeted the accounts of resident deans — a group of advisers who also teach and play a role in the disciplinary process — “arose in the context of an unprecedented event in the history of the university,” Keating wrote.

Still, Keating said in an interview that “this was a very measured and limited search.”

“Over and over again the attorney stated [to technical staff], ‘We do not want these e-mails read; we want confidentiality,’ ” he said.

Many professors and students were alarmed that the university would search instructors’ e-mail at all, and even more were concerned that administrators’ initial versions of what happened contained major omissions. Furor over the e-mail investigation is widely seen on campus as having precipitated the departure in May of Evelynn M. Hammonds, dean of the college.

Keating, a partner in the law firm of Foley Hoag and a Harvard Law graduate, said he had full cooperation and access to documents. He reviewed hundreds of pages of e-mail and other documents in pursuing the inquiry.

The general nature of the searches has been known for several months, with one exception. Keating’s report disclosed that a search was undertaken for e-mails to and from Mary Carmichael, a former Globe reporter who had obtained a copy of a confidential message discussing aspects of the disciplinary process for students accused of cheating. It did not contain any information about specific students.

According to Keating, Carmichael’s address became the subject of a wide-ranging search because two of the resident deans’ e-mail accounts were hosted by a department that did not keep logs of e-mail subject lines, meaning the subject could not be searched as it was for the other resident deans.

Instead of isolating the accounts of those two resident deans before searching for e-mails involving Carmichael, the Harvard information technology department searched a log containing metadata from 14,000 accounts, but not the contents of the messages.

Neither the general counsel’s office nor anyone in the administration had directed the information technology department to search for Carmichael’s e-mails, Keating wrote.

“Technically, [information technology] could have constructed a more narrow query but believed the approach they utilized was the most effective under the circumstances,” Keating wrote in an e-mail.

The broader query was faster and involved fewer steps, he said.

The search did not uncover e-mail between Carmichael and the two resident deans.

Several professors and a resident dean said Monday that they had not had enough time to review the report to comment.

Those who did largely focused on their hope that a coherent and transparent policy would avoid similar problems in the future.

Noting that the resident dean who was found to have inappropriately shared a confidential e-mail had apparently done so in an effort to help students the dean was advising, classics professor Richard Thomas said, “I think in this case there was something of an overreaction to a resident dean who was simply trying to inform students.”

Harvard president Drew Faust issued a statement Monday reiterating her view “that we need much clearer, better, and more widely understood policies and protocols in place to honor the important privacy interests that we should exercise the utmost vigilance to uphold.”

Referring to her remarks, computer science professor and former dean of the college Harry Lewis said he was glad that Faust “said to the community that the searches fell short of appropriate standards for privacy and free speech and that she’s determined that that will not happen again.”

Marcella Bombardieri can be reached at bombardieri@globe.com. Follow her on Twitter @GlobeMarcella.
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