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Montana State pledges to end Big Brother COVID policy following legal warning

Resembles Chinese government spying on students in North America

Authoritarian governments routinely demand that dissident organizations hand over their membership lists – or just spy on them – so that individuals can be tracked and intimidated.

Montana State University tried the same thing under the guise of public safety, but is now pulling back after receiving a legal warning from a civil liberties group.

The taxpayer-funded institution ordered student organizations in July to track attendance at their events, even closed meetings, through two apps maintained by Montana State, according to the Foundation for Individual Rights in Education.

Purportedly implemented to track the spread of COVID-19 among a population that faces no real risk from it, the mandatory attendance tracking has two major problems, FIRE told President Waded Cruzado in a letter Wednesday.

Beyond the First Amendment threat from banning anonymous expression and association, the government entity also failed to provide crucial limitations on the use of and access to the data on student attendance:

An FAQ document was later circulated to student organization leaders, explaining that, while the attendance records created using the Campus Labs and Corq applications will not be publicly available, the Office of Student Engagement (“OSE”) will have access to the records. This information will additionally be shared with the Gallatin County Health Department upon request.

The FAQ does not disclose the existence of any policy limiting the purposes for which OSE may access the lists, nor does the FAQ indicate how long lists will be kept. To the contrary, the FAQ indicates that student organizers may “go back in the past event and download” attendee lists.

MSU is going far beyond any justifiable COVID-related excuse for mandating attendance tracking in the absence of even a suspected infection in a given student organization, wrote Lindsie Rank, program officer in FIRE’s Individual Rights Defense Program.

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She cited two MSU student organizations “that espouse viewpoints that others may find controversial,” the libertarian Young Americans for Liberty and the socialist Marx Forum: “A university would doubtlessly abridge the First Amendment right to anonymity if it stationed staff members to identify the attendees of each event; it follows that drafting students to do so implicates these same First Amendment concerns.”

In a footnote, Rank cited recent efforts taken by faculty at Princeton University and Amherst College to “anonymize” the class contributions of their Chinese students, responding to China’s new national security law. She also noted that students had been filmed at a Uyghur activist’s event at Canada’s McMaster University last fall, and the video turned over to the Chinese consulate in Toronto.

Rank rebuked the university for imposing rules without a “substantial relation to” its public health rationale and which are not the “least restrictive means” to achieve it, as constitutionally required.

There’s not even a “time limit related to COVID19’s incubation or infectious periods,” she wrote: A narrowly tailored restriction would task student organizations with maintaining “their own attendance records for a short period of time,” to be consulted by campus officials or health authorities if contract tracing revealed a student had attended a specific event or meeting.

Rank noted several municipalities have rescinded similar requirements for restaurants following concerns about their constitutionality.

Montana State took the legal warning seriously, responding to FIRE the next day, the group said Monday.

Vice President of Communications Tracy Ellig said the Office of Student Engagement was “in the process of crafting and disseminating new language regarding attendance guidelines to make it clear there is no requirement that student clubs record attendance and then provide those records to the university.” (Her response misstated the date FIRE contacted the university, which was Aug. 26.)

Read FIRE’s warning letter and university’s response.

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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