"Censorship by Zoom and Other Private Platforms": The UC Academic Freedom Committee's Concerns

"The University’s responsibility to protect academic freedom and freedom of expression cannot be outsourced."

Just released; it's from the University's Committee on Academic Freedom, which is an organ of the faculty (the Academic Senate) rather than of the administration.

The University's responsibility to protect academic freedom and freedom of expression cannot be outsourced. As we all know, UC currently relies heavily on platforms such as Zoom to facilitate our teaching, research, governance, and the public dissemination of knowledge. UC cannot, however, rely on private companies to protect the academic freedom on which those core university functions depend.

The threats here are not just hypothetical. Zoom has already canceled political events and academic discussions at other institutions, after receiving complaints and finding violations of their terms of service.[1] UCAF's worries go beyond the facts of particular prior cases, which vary in potentially important ways. UCAF is concerned about dangers evident in UC's own contract with Zoom, under which Zoom retains largely unfettered discretion to control what content it hosts. We suspect that Zoom is not alone in this regard.

Zoom's Terms of Service,[2] which incorporate by reference the company's Community Standards,[3] currently prohibit all of the following:

• "posting or sending hateful imagery," where that is defined to include "symbols historically associated with hate groups (e.g. the Nazi swastika)," images of individuals altered "to include animalistic features," and "logos, symbols, or images whose purpose is to promote hostility and malice against others based on" protected grounds such as race, gender, or religious affiliation;
• "the celebration of any violent act that may inspire others to replicate it";
• depicting "any form of gory media related to death, serious injury, violence, or surgical procedures" or "media that depicts death, violence, or serious physical injury in graphic detail," including depictions of "visible wounds" and "bodily fluids";
• nudity, which is restricted "by default," though Zoom "may make allowances" when "the intent is clear" that nudity is shared for "educational or medical reasons";
• "impersonat[ing] anyone," defined as "pretending to be someone you are not";
• "use [of] another's name or image without their permission";
• engaging in activity that is false or misleading;
• communicating "any material that is . . . indecent."

Zoom encourages users to report violations of its Terms of Use and Community Standards through its online "Trust Form."[4]

From swastikas portrayed in history classes to nudity in art studios, from clinical training in the medical schools to impersonation by our theater clubs, mock trial teams, and school mascots, members of the University of California routinely violate Zoom's terms and standards in the course of regular instruction, research, and extracurricular activities. Of course, Zoom may never enforce its terms and standards to the absurdly broad extent that their vague language would allow. (Insofar as it would never do so, Zoom should have no objection to clarifying and limiting its contractual language.) Under our current contract, however, the power to decide what content to allow lies with Zoom, not the University. This is an astonishingly open-ended threat to the University's ability to carry out its fundamental mission.

Zoom has the ability to censor University content on the basis of criteria—such as indecency, falsity, goriness, or the promotion of hostility—that would be unconstitutional for the University to employ in some contexts, and a serious violation of academic freedom in many other contexts. This will surely make companies like Zoom an attractive target for those seeking to influence what gets said, taught, and studied at the University. The University needs to take steps to guard against such outside influence now—particularly now, when UC is so thoroughly reliant on the services of companies like Zoom.

To their credit, our colleagues in Academic Affairs and Information Technology at UCOP had begun meeting to discuss these issues even before UCAF raised them. On December 4, 2020, in a letter to the Council of UC Faculty Associations (attached [see pp. 6-7 of this PDF]), the University Provost also addressed the problem, reaffirming in his letter "that the University of California is committed to upholding and preserving principles of academic freedom." Bringing attention to these principles is always welcome, but the present threat to them requires a stronger response.

Provost Brown writes in his December 4 letter that "Zoom is a private company that has the right to set its own terms of service in its contracts with users." This is true, but incomplete: the right to set contractual terms is not Zoom's alone; the University of California is party to the contract as well. UC has already negotiated additions to its contract with Zoom on issues of data security and privacy. Protecting academic freedom is no less vital. The University of California has the responsibility—and fortunately also the stature and market power—to negotiate terms of service that do not just facilitate the University's core activities, but preserve the academic freedom that makes them possible in the first place.

UCAF therefore requests that Academic Council call on the administration to take the following steps:

First, negotiate with Zoom for contractual terms that protect the academic freedom of UC faculty and other teachers and researchers, the freedom of scholarly inquiry of UC students, and the First Amendment rights of the entire UC community. Content on University of California Zoom accounts should be censored only if hosting it would cause Zoom to violate the law. Any other content limitations should be left to the University.

Second, identify other platforms that UC faculty, students, and staff can use as an alternative if censorship by Zoom occurs or is feared. Provost Brown's recent letter encourages faculty to "contact their local Information Technology Department for recommendations as to other vendors." But the threat of censorship is one that affects the entire University. It results from university-wide contracting. A university-wide solution is therefore appropriate. UC should make available backup platforms that can be used for courses and other events while UC's negotiations with Zoom proceed (or, certainly, if its negotiations fail).

Third, since Zoom is not the only private platform or service the University uses to carry out its core activities, UC should identify other contracts that might raise similar threats to academic freedom and free speech. A renegotiated contract with Zoom could provide a model for negotiations with those contractors, as well as for other universities grappling with similar concerns.

The University of California has an opportunity to be a leader on this important issue. UCAF asks that Academic Council endorse this statement of concern and proposed responses. Thank you for your consideration.

Sincerely,

Brian Soucek, Chair
UCAF

[1] See, e.g., "Zoom Blocks Activist in U.S. After China Objects to Tiananmen Vigil," N.Y. Times (June 11, 2020), https://www.nytimes.com/2020/06/11/technology/zoom-china-tiananmen-square.html; Letter from CUCFA to UC President Drake (Sept. 24, 2020), https://cucfa.org/2020/09/potential-censorship-by-technology-providers/; Letter from AAUP to NYU President Hamilton (Oct. 28, 2020), https://academeblog.org/2020/10/29/aaup-urges-nyu-president-to-address-zoom-censorship/. But see "US Charges Ex-Zoom Employee with Shutting Down Tiananmen Square Events," BBC.com (Dec. 19, 2020), https://www.bbc.com/news/world-us-canada-55372493.

[2] https://zoom.us/terms/

[3] https://zoom.us/docs/en-us/community-standards.html

[4] https://zoom.us/trust-form

Disclosure: I'm a member of the UCAF (in my capacity as the Chair this year of the UCLA Academic Senate's Committee on Academic Freedom), and I generally agree with this letter, but I didn't take the laboring oar on it, and thus shouldn't get any of the credit.

Comments

[Absaroka]

Wouldn't this issue also apply equally to K-12 and, indeed, most government use of zoom?

[Don Nico]

The objection of UCAF might apply, but the statement of UCAF applies specifically to the contracts that UC entitites enter into.

[Dr. Ed 2]

It *should* and involves an aspect of how RFPs weren't written nor were these contracts bid. The free speech issues ought to have been explicitly stated in the RFP with it being a prerequisite for bidding.

[Don Nico]

Look Ed,
UC has rules about competitive bidding. When zoom was only used for conference calls the interest in such provisions is quite small. The decision to go to online instruction was made rather quickly in most universities so expediency was the driving interest. Now with online instruction likely to persist through the fall, the situation is different and the UC has different interests.

[Dr. Ed 2]

Yes, I've seen contracts expanded....

Long pause -- and I think that far more people at UMass ought to have been indicted than the few who were -- but I digress....

Like I said, you've got to insist that the institution follows the rules, and realizing that they aren't going to bother unless they know you will make a fuss about it. This means that the professors have to learn the nuances of the state contract rules and the rest -- but they are professors, they are smart, or at least ought to know how to read....

[Dr. Ed 2]

AND I've read the California K-12 laws -- at one point I had a photo of all the books on my desk, memory is that it was 15 of the standard 4" lawbooks. CA has at least twice as many K-12 laws as the next state, with some states just having a portion of one book.

[Don Nico]

Ed,
DO you understand that professors can't sign contracts that commit the university system? Very few can and those for very restricted items.. Wise up buddy before you spout off about matters that you're obviously ignorant about.

[Dr. Ed 2]

Professors have telephones, don't they?
Professors can't contact the media?

[Don Nico]

More BS from a master of it. This comment is completely irrelevant

[TwelveInchPianist]

Presumably government entities who contract with private entities to provide government services have an obligation to ensure that the services are provided in a constitutional manner, so you'd think people would have a remedy against UC if their rights were violated.

[Don Nico]

12inch,
The issue is not what i or is not constitutional, but what is the UC's interest as a world-leading academic institution. As the UC has an annual operating budget over $36B, it is well positioned to argue for its own terms and conditions.

[TwelveInchPianist]

OK, but according to the statement, the first step that the UC should take to further its interest as a world-leading academic institution is to "...negotiate with Zoom for contractual terms that protect...the First Amendment rights of the entire UC community."

One would hope that there's something a little more stick-ish to get UC to protect the community's first amendment rights.

[Don Nico]

Again, this is not about constitutional rights. It is about institutional values. Got the difference?
Fight the battle you can win.

[Don Nico]

12inch.
No one's rights were violated. The institution's academic standards were infringed.

[Dr. Ed 2]

"Presumably government entities who contract with private entities to provide government services have an obligation to ensure that the services are provided in a constitutional manner"

Actually, no. That's part of what the Jennifer Keeton case was about -- even though she was attending a state school, she was still bound by its contract with a private entity -- which also was the state's gatekeeper for a required state-issued license.

IMHO, this case was *far* more significant that a lot of people realized, not only as to barring entry to a power-of-law profession but as to how non-state actors can limit the First Amendment at a public university.

See: https://caselaw.findlaw.com/us-11th-circuit/1588822.html

[Dr. Ed 2]

I like to remind people that this is *not* about homophobia -- that the DSM I and DSM II considered that to be a "mental illness." (That is a fact -- look it up...)

Bible-belt state legislatures have every legal right to turn around and do the converse, i.e. eliminate the ACA (APA) authority to accredit programs for state licensure, instead replacing it with a group that believes in Leviticus 18:22 and the rest. I know of a half dozen states where people are actually considering stuff like this....

And that's why this decision ought to concern people -- that rule of precedent and all of that stuff....

[Don Nico]

This has ZERO to do with the constitution. Grow up and stop whining.

[Archibald Tuttle]

Wow. Sounds pretty sensible. In recent years, rationality is not what we expect from academics regarding free speech.

[shawn_dude]

Who is this "we" you speak of and why haven't they been going to these sorts of meeting for the decades they've been taking place?

I think there is a public perception that universities, especially the California publics, are hotbeds of censorship because that's the stuff the media finds newsworthy. There is and has always been an ongoing discussion about the appropriate limits, if any, of speech on campus. Sometimes that discussion gets loud and that's when you see the news cameras.

[Don Nico]

There is nothing new here about the faculty asking for the same protection on Zoom as they enjoy in the classroom and for the rules and boundaries to be set by the University rather than by Zoom. If Zoom will not provide that service characteristic, I am sure that another vendor will.

[santamonica811]

The post is worthwhile, for the important academic freedom principle, of course. But also for the inclusion of "laboring oar," which is a wonderful and underused English phrase. Let's all try to use it, to bring back its popularity and to embiggen our lexicon.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

It is a perfectly cromulent phrase.

[Krayt]

So who's gonna turn the millstone to get laboring oar back into common usage?

[VinniUSMC]

It takes a village.

[Tall Paul]

The idea of UC administrators complaining to anyone about censorship is just plain laughable.

[Eugene Volokh]

1. These are UC faculty members.

2. We UC faculty members often try to get UC administrators to do the right thing and protect free speech and academic freedom. That would be made harder if people laughed at the administrators when we succeed.

[Don Nico]

EV,
Thanks for a great statement. UC has the purchasing power to make this stick.

[Dr. Ed 2]

I know this was an "emergency" -- and CA isn't MA -- but a year into this there ought to have been a RFP (Request For Proposals) written and *that* is where you stop this BS.

You specify what you expect any successful bidder to offer and any bids that don't offer that are required (by law) to be rejected. At least that is how it works in Massachusetts, and I can't see California as possibly being less bureaucratic than the Brave New People's Commonwealth....

[Don Nico]

More crap from you about matter that you know nothing about.
How do you know that there was not a competitive bid? Moreover, I doubt that you know much about how procurements are made in MA given what you're yapping about.

[Dr. Ed 2]

I've written RFPs...

[Sarcastr0]

Solicitation is not selection.

[Don Nico]

So what. Big deal.
You did not answer the question at all.

[Krayt]

Instead of government threatening the hurt if companies don't censor, how about an option for all users to not have their own incoming feeds censored. Your outgoing may or may not be censored, but only on reception, according to that person's choice.

Then those who want the nanny state-approved speech can have it, and those that don't, won't.

[rsteinmetz]

Eugene,

I'd like to suggest that UC investigate Free Open Source software to replace Zoom. I don't know if any suitable candidates currently exist but UC has a long history of developing Open Source software.

A quick Google found these three;

Jitsi
BigBlueButton
OpenVidu

There may be others.

I believe you have some experience in this area.

[y81]

This is a good statement, but I gather from Prof. Volokh's comment above that the University's Committee on Academic Freedom is a basically powerless organ that "tries" to get the UC administration to do the right thing, but rarely succeeds. I suspect that it is one of those backwaters where libertarians and other oddball faculty members congregate, disdained by the majority of their colleagues and disregarded by their superiors.

[Don Nico]

The Committee is NOT authorized to sign a contract on behalf of the UC System. There are no mysteries here. Relatively few employees have such authority (except in narrowly delimited areas).

[Dr. Ed 2]

BUT the proposed contracts (usually) are public documents even if that fact isn't advertised, and you insist on being able to read them -- and find the time to do so -- with everyone aware that you'll raise hell if there is something in there....

[AtR]

You can raise whatever you want ... but the faculty don't make important decisions in most US institutions.

[Don Nico]

Ed can't help it. He is a know it able and do nothing.

[Don Nico]

Tell Ed. As every state college in MA has made such contracts in the past year, how many have you read or even asked to read?
And how many do you think took issue with the platforms terms and conditions? And why do think think that.
No crappola opinion. Tell us the facts about what YOU did.

[Dr. Ed 2]

It isn't just the state universities....

[Sarcastr0]

Tell us the facts about what YOU did.

[Don Nico]

He has no facts. He has done squat.

[AtR]

There are open-source alternatives to Zoom that can be quite effective - for example, Ben Gurion university uses https://bigbluebutton.org/.

The problem is that the administrators who make decisions about which technical products to use rarely have any interaction with either students or the faculty who will use those products.

[Don Nico]

The available products have evolved rapidly in the past year.
As you say, Atr, there are alternatives and UC willcan take its business elsewhere if they are not satisfied, For one example WEBEX has a toehold because they have implemented security safeguards sufficient for sensitive but unclassified information.

[DaveM]

The internet has been captured by corporations, just like our governments. Personally, I think trying to negotiate yourself out of being beholden to them is fruitless, unless you are plainly willing -- and able! -- to do without them.

And who better to fight a corporation than another corporation? A balance of power is the only real way to keep any one power from dominating. And that means we must, must have the freest form of capitalism we can live with.

Note, not completely unfettered capitalism, but least-fettered. That is the only way to maximize competition, which is what will keep us from being captured.

[Al S]

Interesting idea - using the bargaining power of the university to force changes to Zoom's TOS.

One wonders if the anti-230'ers could do the same thing at the federal government level. Say a budget provision that says: "no entity receiving federal funds may contract with an internet or telecommunications service whose TOS is permits it to censor speech, other than speech that would cause the service to violate the law."

[ReaderY]

Let’s suppose Zolm did one of the things mentioned in the email - shut down an art class for violating the rule against nudity, shut down a theatre class for violating the rule against impersonation, or shut down a Tianneman vigil because one of its employees is a Chinese government mole. Or similar.

Would the students or faculty involved have a cause of action against UC for violating their constitutional rights, in its capacity as a government actor? Or would the fact that Zoom is a private company insulate UC from liability?

[Don Nico]

No and yes.

[Religion and Politics, my life]

THis is the private analog of the public debate about administrative agencies. Even if you wanted Zoom to have the controls the university wants, you won't get them unless you enforce those rules against the university and it becomes in Zoom's interest commercially to facilitate that as much as it can