February 2013 Archives

On turning down a job

Fairly recently, I was approached by a graduate professional program to teach a short, for-credit, winter-term course on copyright. I was really excited by the opportunity - I mostly lead one-shot sessions, and I was looking forward to getting into more depth with a group of students. I'd started planning my syllabus, finding (open access, of course!) readings and videos I wanted to use, contemplating assignments and assessment. I think they even got as far as generating me a staff ID card.

But I don't have that staff ID card today, and I didn't teach that course. I don't know if anyone did. Late in the hiring process, the folks in the graduate program admin office remembered a new policy, and told me about it. I didn't like it. The institution's administration (not the administration of the professional program in question) would not consider changing their policy, and were quite surprised that I would think there was anything wrong with this policy! Then they were really shocked (and the grad program administrators truly left hanging, for which I'm very sorry) when I said I'd have to turn down the job.

I actually think it's quite likely that many of you'd agree with them that there's nothing wrong with their policy. They just wanted me to undergo a criminal background check.

But the fact that maybe a lot of you think this was a reasonable request is why I'm writing this.

Background Checks Are Sometimes Necessary

I can get behind background checks for people who handle money for an organization, or do executive-level decision-making. Those people have the power, as employees, to significantly affect the institution's interests. For any position that requires specific qualifications and an employment history, both the qualifications and the employment history should be rigorously checked. Even in these situations, hiring the best candidate for a position requires nuanced review of the information that results from a vetting process.

I also support background checks for people who work with children, teens, and vulnerable adults. There are inherent power imbalances in those situations, which can lead to exploitation of vulnerable individuals. I actually think criminal background checks are insufficient to guarantee the safety of vulnerable individuals, and a lot of extra checks and protections need to be built in to the functioning of groups that serve those populations.

Yes, sometimes a criminal history is a good reason to disqualify people from a particular job - but an overall acceptance that it is always reasonable to disqualify anyone with any kind of criminal record from any job is a pretty big problem. It is harmful to the individuals who have been convicted; they deserve to have a chance to move on with their lives. But it's also harmful to us as a society: social isolation and unemployment of ex-offenders contribute to recidivism (though other factors are also involved) - and to extended harmful effects for ex-offenders' families and children.

And the proliferation of background checks for jobs in which employees have little to no power over vulnerable populations, and for jobs in which employees have little to no power to directly affect an organization's interests - that's what I find really problematic.

Background Checks Are Not Really About Student Safety

Even (and perhaps in some instances, more so) in graduate school, it's true that instructors do have power over students, and where there are power imbalances, there is a potential for abuse. However, in a graduate program where all my students would also be independent adults, the kind of potential safety risks that a criminal background check would supposedly reveal (violent or abusive tendencies, history of manipulative fraud, etc.) are also risks that my students would pose to me, and to each other.

I am not suggesting students should have to submit to background checks before enrolling in a graduate program. At all.

I am suggesting that in many situations where it may be reasonable to -want- to know about someone's past, it is not reasonable to actually -get to access- that information. It's reasonable for my next door neighbors to -want- to know whether I have a criminal history, but it's not reasonable for them to get to run a background check on me before I move in.

Quite cynically, "student safety", for all some administrators may believe that's what they're doing, is pretty much a red herring. Universities want to run background checks on instructors because it's semi-affordable (I bet some of them even offload the cost to applicants), it's decent insulation in some kinds of lawsuits, and because it probably lowers their insurance rates.

If they really wanted to ensure safety, and really thought background checks improved safety for reasonably equal adults in the same room together, they'd run checks on all their students. But that would cost a lot of money - and might deter enrollment.

Background Checks Are Coercive

Most adjunct instructors do not have the luxury of turning down a job opportunity when the hiring institution asks them to do something invasive. Most adjunct instructors are barely scraping by. While not going into details, the amount I was offered to teach this for-credit class for a month was less than I often am paid for a half-day speaking gig. And I do not make amazing money speaking.

But most importantly...

Background Checks Are Inherently Unjust

I have absolutely zero criminal record; there's no way this could've affected my getting hired. But one reason I have absolutely zero criminal record is because I'm a white woman from an educated and economically privileged background. I got suspended from school once - and there was never any question that my playground misdeeds (we stole ketchup and mustard from the school cafeteria and used it to paint snowbanks in the parking lot) would result in an arrest. Although the "School-to-Prison Pipeline" problem has been growing most rapidly in recent years, there is no question that in this country the people most likely to have been convicted of a crime are also very likely to be poor, to be members of racial minorities, or to otherwise be members of socially marginalized groups.

If you believe that the U.S. criminal justice system isn't heavily biased towards arresting, convicting, and giving longer sentences to people who are members of groups that have less power in the world, I have no idea what to say to you. (Other people do, though. Lots of other people.)

But if you admit that there is bias in the criminal justice system, then you have to admit that criminal background checks - whose result is, presumably, to disqualify individuals with convictions in their past - are likely to increase disparities that are already highly problematic in many workplaces, and especially in higher education. Background checks will not reveal violent, abusive, or manipulative pasts of people who were never arrested, or never convicted, for those activities. But otherwise qualified instructors (i.e., those with the requisite qualifications -and- good accounts from former employers) who engaged in far less dangerous or threatening activities, but were members of groups against which the criminal justice system is biased, may never get a foot in the door. Who is more likely to have a conviction on his record: the white man who repeatedly got in drunken public altercations during college, or the black man who got in a public fight once?

Not a Big Deal... For Me

I was able to turn down this job because I already have a full-time job that pays me well, and because I have outside income from speaking. And, quite honestly, although I am proud of my work, my professional status is itself due, in many ways, to the various unearned advantages that have contributed to my relatively smooth ride through life.

I don't know if I'd take this hard-line a stance if the job was one I really wanted or needed. I don't look down on others who choose to comply with such a request. Being -able- to turn down a job is an incredible luxury. But because I do have that luxury - that privilege - I thought this was a time when I could use that privilege to highlight, however ineffectively, something I believe to be an injustice.

(ETA: many thanks to the friends who read this post over ahead of time and offered really helpful feedback. Even more so to my friend Amity Foster, who has done the most to bring the issue of fair hiring practices into my awareness.)
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What is the government's interest in copyright? Not that of the public.

Like many other geeklaw & policy folks, I was baffled from the get-go by the decisions of federal prosecutors to pursue massive criminal charges against Aaron Swartz for downloading papers from JSTOR. I could understand that his activities constituted problematic behavior, but not the blustering punitive response.

If Aaron's wrongful act was unauthorizedly copying articles, copyright law would seem to have been the appropriate venue for a response. JSTOR declined to bring a civil suit against Swartz. State officials had no intention of bringing criminal charges against him, either. But then the federal prosecutors stepped in, and charges blossomed all over the place. But -not copyright charges-.

Even though prosecutors' rhetoric in PR statements and press briefings invoked the rhetoric of "theft", "stealing", and unauthorized copying, the criminal charges were not based in copyright law. Instead, the prosecutors brought charges under the Computer Fraud and Abuse Act and other similar statutes. If the harm truly was in the unauthorized copies, why not bring charges of criminal copyright infringement? It's possible the prosecutors might have had a hard time making such charges stick (only one of the three definitions of criminal copyright infringement even plausibly applies); it's possible the prosecutors didn't think the penalties for criminal infringement were punitive enough.

Which raises the question: why criminal charges at all? The supposed distinction between civil cases (where person Q can sue person R) and criminal cases (where the government brings charges against person R) is that criminal cases involve harms to society, to all of us. Was Swartz's downloading a harm to all of us? The federal prosecutors certainly invoked the social harm of theft of copies - but didn't bring the charges the law provides to address that act. And if the social harms of copyright infringement, the damages to the businesses of content providers, are such terrible things that violators deserve extensive jail time (in excess of that available if the charges had actually been brought for copyright infringement), what to make of the fact that there is no law that provides criminal penalties for patent infringement? 

So it was with all these concerns floating in my head, that I read in an email yesterday that the U.S. Department of Justice is considering intervening in a civil copyright case - considering intervening on behalf of commercial publishers against the proposition that there is any legal right to make copies for non-profit, educational use. They are not considering intervening on behalf of the educational users, despite the fact that the copyright statute invokes "multiple copies for classroom use" as an example of legal, permitted fair use.

I am incensed that DOJ staff time was used to even draft this motion - they are asking for more time to decide whether they should get involved in the case, but they have clearly indicated that there is no way they will get involved in the case on behalf of legal educational users. In theory, the government brings charges in criminal cases because there is societal harm. The Georgia State litigation is not a criminal case. This is a case where two parties disagree about the legitimate interpretation of a law.

This situation is as if McDonald's decided it did not approve of the way some of its customers ate their burgers, sued them for violating a law that left open the possibility that the way the customers were eating their burgers was perfectly fine, and instead of letting the usual court processes decide the disagreement, the government decided that they should help McDonald's make their customers eat the way McDonald's wants them to. For the government to even consider intervening in this case signals (incredibly much more intensely than I have thought in my most cynical moments) that they do not think there are any valid interests in copyright other than that of business entities engaging in commercial, market activities.

Anyone who relies on fair use in any part of their lives (and we all do, these days), should be very concerned. The idea that there is an actual public interest related to copyright - despite the ways copyright is increasingly intensely entwined in basic activities of our daily lives, and in issues of free and fair access to information, cultural participation, and democratic engagement - remains (and is perhaps increasingly) an alien concept to our government. 
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About this Archive

This page is an archive of entries from February 2013 listed from newest to oldest.

January 2013 is the previous archive.

March 2013 is the next archive.

I'm Nancy Sims, the Copyright Program Librarian at the University of Minnesota Libraries.

Though I am a lawyer as well as a librarian, no content on this blog constitutes legal advice; if you need direct advice on your legal rights or responsibilities, please consult your own attorney. This blog represents only my own opinions and not those of my employer.

I'm @CopyrightLibn on Twitter.

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