Confidential Controversy

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

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 only 12 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."