Anne Arundel Community College teaches wrong lesson: Break Maryland law and get what you want
The unfair treatment of instructor Bert Hubinger
Colleges should not break the law.
Background: In Maryland, recording a private conversation requires the consent of both parties. Secretly recording a conversation falls legally under the heading of an “intercept,” as defined in “Wiretapping and electronic surveillance” in the Annotated Code of Maryland (“Courts and Judicial Proceedings, Title 10. Evidence, Subtitle 4.)
The law on being recorded in a conversation without consent varies from state to state. As shown in a number of similar or parallel incidents, numerous states permit audiotaping or videotaping a conversation, even a private conversation, if only one party to the conversation consents. Maryland, where Anne Arundel Community College is located, is not one of these states.
On March 31, AACC adjunct English professor Bert Hubinger met by prior arrangement with one of his students, Michael A. (Mike) Fowler, 38. The meeting took place in the classroom, after everyone else had left—“I don’t really have an office,” says Hubinger, who has taught at AACC since 1998—to discuss issues arising from Fowler’s conduct, including non-attendance and disruptions in class.
Hubinger was interviewed by telephone and has communicated several times by email and phone. Fowler responded to questions by messages through his Facebook page.
After receiving a grade of 65 on his first essay in Hubinger’s English 112 class, Fowler was “furious,” Hubinger wrote to AACC administrators, telling Hubinger that he knew better how to teach, because he taught swimming, and that he had a military background in Special Forces. Fowler’s Facebook page lists his major as psychology. Hubinger’s wife is a child psychologist. Hubinger says that he assumed Fowler had dropped the course after missing classes from March 10 to March 29, when he returned but stormed out mid-class.
The March 31 meeting was their second private talk. Fowler told Hubinger that he had complained about Hubinger to the English department chair, Ronald A. Deabreu. Hubinger wrote to AACC administrators, “He said that he had gone to DeAbreu to complain about me, and that DeAbreu’s instructions to him were to instruct me to help him catch up on all the work he had missed during his absences.” DeAbreu has not responded to a call for comment.
Hubinger, who says he “used the f-word twice,” adds that “Fowler even had the impertinence to tell me what I could say or do. That’s when I reached my limit, and cursed at him.” Hubinger says that he angrily refused to make up for the student’s missed work after being repeatedly insulted. Fowler, he says, seemed to stay calm in the individual conference despite his previous anger and disruptions. At the end of the conversation, Fowler exited the classroom, pulling his cell phone camera out of his pocket and waggling it at Hubinger, who says Fowler smiled at him and said, “Got you! Thanks!”
Fowler posted the video clip online the same day, posting it on his Facebook page, on YouTube, and at toshcommunity.comedycentral.com. He also joined the Tosh.O online community March 31, but his page at toshcommunity.com has no profile and no other postings. The video remained on Facebook Apr. 26, captioned “AACC Professor Bert Hubinger goes way to [sic] FAR!” It has since been removed from Facebook but appears on other web sites, some dedicated to practicing English.
Fowler also sent a copy of the video to DeAbreu, the English Department chair, “as a precautionary measure,” he says. He has not replied to a question whether he sent the clip to anyone else at AACC.
Under Maryland law, every further transmission of the original illegal recording is also a violation of law.
AACC Interim Director of Public Relations and Marketing Laurie Farrell, returning a call for comment, says only that the college “does not discuss personnel or student actions, or any actions, if any, taken by the college with regard to either.”
“I haven’t seen it myself”
Links to the video bring up the message “This video is private.” “I haven’t seen it myself,” says Hubinger. Fowler has not replied to questions whether he would allow viewing access to Hubinger, or to a journalist.
At Tosh.O on May 11, the video shows 92 views. Heading: “AACC Professor Bert Hubinger Uncensored!! Watch it . . .”
- Caption: “English professor Bert Hubinger and I had a bit of a disagreement..It is a bit slow in the begining..wait for it because he GOES WAY OUT OF LINE FOR A PROFES…”
- Tags: “Uncensored English Professor Categories: Tosh.0 College Campus Invasion”
Hubinger was shortly informed by superiors that “certain people,” meaning administrators, had seen the video. He was also informed that his teaching services would not be needed in fall 2011, and his tutoring—a regular part of his job, approximately ten hours a week–was terminated immediately.
Fowler is 38 according to his MySpace page. Asked about the incident, Fowler begins cautiously: “What position are you taking with this article?”
Responding to further questions, he writes, “I posted the video shortly after the situation occured..and no the video is completely unedited..I sent a copy to the english department head as a precautionary measure.”
The audio-visual aid worked with unusual effectiveness. As stated, Hubinger was informed by superiors that he was not going to be offered tutoring or fall classes. Hubinger says that Fowler was transferred to another class.
Back to the law
The Maryland statute is commendably clear; see “§ 10-402. Interception of communications generally; divulging contents of communications; violations of subtitle”:
“(a) Unlawful acts. –Except as otherwise specifically provided in this subtitle [law enforcement] it is unlawful for any person to:
(1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(2) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or
(3) Willfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle.
(b) Penalty. –Any person who violates subsection (a) of this section is guilty of a felony and is subject to imprisonment for not more than 5 years or a fine of not more than $10,000, or both.”
In a nutshell: An Anne Arundel Community College student broke Maryland law when he video-recorded a private conversation without the professor’s consent, broke the law again when he posted the video online, and broke it again transmitting the video to the department chair. Any administrator who then transmitted the video access to others, aside from legal counsel, also violated the statute.
That no administrator viewing the video saw fit to give the instructor himself access to it looks as snaky as the initial videotaping.
Even for a non-lawyer, it is easy to understand why school administrators refuse to discuss a matter involving personnel or a student. It is particularly easy to understand in a matter where administrators have not only the official obligation to protect others’ privacy but also the constitutional protection against self-incrimination.
But it is more difficult to understand why AACC, or any institution funded by Maryland citizens, would not have a policy of compelling its students to abide by Maryland law in the first place.
As clarified by Raquel Guillory, Public Information Officer for Maryland Attorney General Douglas Gansler, “It doesn’t matter whether a student is on campus or not, they have to abide by Maryland law. Being on campus doesn’t make them immune.” Guillory adds, succinctly, “The student issue is not an issue. If you’re in Maryland, you have to abide by Maryland law.”
The same principle should apply to campus administrators.
Too bad it was not applied in the Hubinger incident.
Fowler has not responded to further questions. Hubinger has filed charges with Anne Arundel County and with the State’s Attorney for AA County. “We’ll see what happens,” he says.
It will be interesting to see, going forward, what if any legal costs AACC administrators try to stick the public with. A more economical as well as more principled route in future would be to inform incoming college students of the right not to be secretly taped in Maryland, and of available channels for complaint or redress on campus.
To be continued
[This article, deleted by the system among hundreds of articles and blog posts in summer 2011, is re-posted using archives and Word files.]