ASU continues to navigate the COVID-19 pandemic, and students, faculty and staff have different perceptions regarding the administration’s response. While the university offers a combination of in-person and online instruction until Nov. 29, these questions will only persist throughout the semester. In Tempe and around the other campuses, the search for a new normal is unfinished.
Providing testing statistics
Unlike UA, which publishes COVID-19 test results online, ASU initially refused to share this quantitative data. According to The Arizona Republic, the university declined to release these statistics as recently as mid-August, specifically citing “privacy issues.”
However, a number of prominent lawyers said privacy concerns are unrelated to the pandemic’s broad data trends, which are only documenting the number of people who have tested positive for COVID-19 instead of naming individuals.
“They seem to have really welded themselves to this legal interpretation, but it’s certainly not the prevailing legal interpretation around the country,” Frank LoMonte, director of the Brechner Center for Freedom of Information, told The Arizona Republic.
While sharing personally identifiable information is illegal under federal law, UA’s documentation of 103 positive tests did not reveal any individualized data. Instead, it only showed the number of COVID-19 tests given — along with the number of infections — between July 31 and Aug. 31.
According to Clay Calbert, Dan Kozlowski and Derigan Silver’s “Mass Media Law,” a textbook that outlines local, state and federal stipulations, public disclosure of private facts holds a clear definition under the Restatement (Second) of Torts. This interpretation supported UA’s position, wherein no private details were publicly shared in order to provide information about the pandemic.
“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that a. would be highly offensive to a reasonable person, and b. is not of legitimate concern to the public,” the text stated on pages 295 and 296.
A different article in The Arizona Republic offered a follow-up perspective: In a decision similar to UA’s, ASU released COVID-19 statistics that avoided sharing any personal information. According to the story — which was published Aug. 25 — 161 students and employees around the university tested positive for the virus. However, a more recent story in The State Press documented 452 cases, or an increase of at least 100 daily confirmations since the first information was released.
Despite these figures, the percentage of positive cases remained fairly low, with The Arizona Republic documenting a 2% clip after approximately 40,000 tests. Statistics at UA were slightly less severe, indicating a positivity rate of 0.9% after 11,000 COVID-19 tests were given around the university community. However, the UA website showed that 31 positive cases were confirmed Aug. 24.
Although NAU’s in-state counterparts shared COVID-19 statistics, the university has not followed that pattern. Spokesperson Kimberly Ott said the Coconino County Dashboard is updated weekly with positive cases in NAU’s ZIP code, but this system can fail to demonstrate actual numbers.
Holly Poytner, a public information officer for the Arizona Department of Health Services, told The Arizona Republic that the ZIP codes on COVID-19 cases can reflect different addresses used for health insurance plans or childhood residences. While cases are supposed to use primary addresses — such as college dormitories — this distinction can take a while to identify.
“It is important to note that a case in a particular ZIP code does not necessarily indicate that the infection happened in that ZIP code,” Poytner told The Arizona Republic.
Despite the inaccuracy of using ZIP codes to track case numbers, Ott said “NAU will also provide updates on current positive cases from time to time throughout the semester. As of today [Aug. 27], NAU has 7 known cases of students, on and off campus, who have tested positive and are currently in isolation care.”
These results followed NAU’s testing surge, which allowed 2,640 students, faculty, staff and Flagstaff residents to administer self-applied nasal swabs between Aug. 10 and 27. Ott also said approximately 7,000 students moved into campus housing over the last three weeks, and negative test results were required beforehand. However, she provided no legal justification for why the university will not provide regular information about positive infections.
Coconino County’s website indicates that 51% of cases around the county are in the 20 to 44-year-old demographic, and multiple testing locations are still offered around campus and Flagstaff.
ASU coronavirus parties
The former Instagram account named “asu_covid.parties” is facing litigation from ASU and the Arizona Board of Regents (ABOR), even after the profile was removed from social media.
According to The State Press, the lawsuit alleged trademark violations, false advertising and the spread of harmful misinformation about public health. Before the profile was deleted, it had 23 posts and over 970 followers, while the account’s biography stated, “THROWING HUGE PARTIES AT ASU” and “follow before we go private.”
Sean D. Garrison, a partner at Bacal & Garrison Lawgroup, signed the lawsuit on behalf of ASU and ABOR on Aug. 20. The accompanying paperwork specifically referenced trademark violations, reputation damages and other adverse consequences amid the pandemic, while also seeking relief against Facebook as a contributory infringer of ASU’s intellectual property rights.
“Copyright law, along with trademark law, patent law and trade secret law, constitutes one aspect of a larger body of law known as intellectual property — intangible property that a person cannot touch, hold or physically lock away for safekeeping,” “Mass Media Law” stated on page 510.
While the effects of “asu_covid.parties” are not obvious or physical, the account holder could have damaged the university’s reputation as an academic institution. As mentioned in the lawsuit, some members of the university community believed the Instagram profile was officially affiliated with ASU, which threatened public health messaging regarding COVID-19.
“Other posts by ‘asu_covid.parties’ encourage against wearing masks, which directly contradicts, undermines and interferes with the actual health-related message, consistent with the local law that mandates wearing of masks at this time, and that ASU is attempting to provide to its students and the community,” the lawsuit alleged.
However, a Techdirt blog post from Mike Masnick mentioned that “asu_covid.parties” falsely claimed to beat ASU in a lawsuit, even winning a court-ordered “$500,000 in damages.” While these allegations are completely untrue, they prove that the account was unaffiliated with the university and even competed against it.
Meanwhile, the profile’s usage of ASU’s signature maroon and gold branding could also represent a trademark violation, which was referenced in the lawsuit and page 512 of “Mass Media Law.” Tiffany & Co.’s blue jewelry boxes and Owens Corning’s pink insulation wrappings are examples of this phenomenon, the textbook added, which distinguish a specific company’s goods and services.
According to the lawsuit, ASU has utilized this combination of maroon and gold since 1898, and it was applied to the university’s merchandise, website, social media and advertisements. This color scheme also helped consumers recognize the college’s identity, which the “asu_covid.parties” account allegedly jeopardized.
Despite these claims, a response from Instagram on Aug. 14 stated that “the reported party appears to be using your trademark to refer to or comment on your goods and services,” which could be legally permissible under a fair use defense.
Additionally, Bacal & Garrison’s lawsuit addressed other falsehoods perpetuated by the former Instagram account, including a partnership with Teva Pharmaceuticals, the distribution of hydroxychloroquine and the use of a consulate in Tempe. The identity and location of the account holder are also unclear, with some speculation that “asu_covid.parties” is based in Russia.
“Further worsening the situation, the initial investigation indicates that the parties behind this account may be located in Russia and are using the account to sow confusion and conflict and to interfere with the health of the Arizona State University community by trying to worsen the pandemic here,” Bacal & Garrison wrote. “This lawsuit is also necessary in part to discover the true identity of the parties behind this account.”
The student and administrative response
While there is no evidence that “asu_covid.parties” hosted actual events, The Arizona Republic reported nine party citations from the Tempe Police Department on the weekend of Aug. 22. Furthermore, six of these incidents were related to students gathering.
According to an email from ASU President Michael Crow, noncompliant behaviors like partying threaten public health and are subject to further punishment. Students, faculty and other members of the university community need to follow appropriate protocols, he added, such as wearing a mask, practicing physical distancing and washing hands regularly.
“Here is the most important thing to remember: COVID-19 is here and will be here for the foreseeable future, so everyone needs to take personal responsibility for their actions and behavior,” the email stated.
Additionally, students who are “hosting or attending” social gatherings — on or off campus — are likely to face suspension under the student code of conduct.
ASU junior Alex Hayden said he opposes this approach, especially because it regulates student behavior separate from the university.
“The recent changes in policy feel a little extreme, given that no large-scale outbreaks have happened,” Hayden said. “I disagree with ASU’s decision to suspend students if they violate public health guidelines while they are off campus on their own time.”
Although some students side with ASU’s policies — or think they are too extreme — others are unsure if existing safety precautions are actually enough. ASU junior Avianna Martin said one of her classmates tested positive for COVID-19 in March, but the university’s administration never informed her of this result. Instead, Martin explained that she heard about the infection from someone else.
In contrast, Crow’s email to the student body claimed ASU has monitored COVID-19 since the beginning of the calendar year, which supposedly included contact tracing protocols.
“Since January of 2020, ASU has been managing COVID-19 cases on and off our campuses,” the email stated. “The university has protocols in place to manage students who test positive or may have been exposed to someone who is positive.”
And while the university released official case statistics on Aug. 25, Martin said this information does not specify the number of infections at each dormitory or residence. ASU has four locations in the metropolitan Phoenix area — the Tempe, Downtown, West and Polytechnic campuses — but it is unclear where the positive tests were confirmed at each community.
For example, ASU shared details that Tempe had 205 students in isolation as of Aug. 28, but it did not clarify the exact location of these positive cases.
Martin added that without identifying specific outbreaks and informing the general population, these numbers are meaningless. With 452 positive cases, the infections could be spread around different parts of Phoenix or clustered all together.
“Administratively, they’re just thinking about the business as a whole, instead of each individual student who attends their university,” Martin said.
Furthermore, she explained that the students who pay thousands of dollars to attend ASU have no idea what is going on. Although Martin has learned about COVID-19, contact tracing and safety precautions in recent months, she said most of this knowledge came from secondary sources and not the university.
“All these specific little things we have to worry about as students, we didn’t know until a couple of weeks before classes started,” Martin said. “It’s just being in the dark 90% of the time, until you find out — usually by accident — how things are going to go.