Friday, April 25, 2008

Michael Rowe on Situational Ethics

Bill Hart kindly referred me to Michael Rowe, "Tripping Over Molehills: Ethics and the Ethnography of Police Work," International Journal of Social Research Methodology 10 (February 2007): 37-48. Rowe, a criminologist at Victoria University, New Zealand, explains the ethical challenges he faced as a participant observer with British police in 2004.

Rowe comes across as an unusually conscientious researcher. He writes, "while designing the project, and discussing it with academic colleagues and gatekeepers within the police service, I read many of the methodological texts on ethnography and accounts by previous researchers who had used similar methods with the police." (38) Some of this preparation was overkill, in that Rowe did not himself face some of the greatest challenges of previous researchers, like witnessing excessive force, false charges, or corruption. But it did sensitize him to some important issues about police work, and the result seems to have been a careful study, respectful at once of the police, the citizens with whom they interacted, and the scholarly pursuit of truth.

Rowe concludes that generic ethical advice and rigid rules are poor guides to researchers doing fieldwork:

It is the nature of ethnographic research that the principles contained in methodological textbooks or professional codes of conduct will be stretched and perhaps distorted as they are applied in dynamic situations. Since policing is unpredictable, the ethical dilemmas police researchers might face cannot be easily anticipated . . . If an absolute code of ethics is not feasible, researchers must be prepared to be reflexive in terms of ethical dilemmas and the methodological difficulties experienced in securing informed consent and meaningful access to research subjects. (48)

Though Rowe does not mention ethics committees in this article, it is striking how much his preparation diverged from the typical requirements of IRBs, at least in the United States. Rowe's experience points to the benefit of reading as specifically as possible in preparation for fieldwork. But the standardized training programs required by most IRBs, such as the CITI Program, present highly generic information about such topics as informed consent, and nothing about topics as specific as police ethnography. And while Rowe emphasizes the researcher's need to remain flexible, IRBs focus on protocol review. By making researchers pledge in advance what they will and will not do, protocol review reduces, rather than enhances, researchers' flexibility to adapt to unexpected situations. In other words, the IRB system is structured to hamper the kind of ethical preparation that Rowe recommends.

As I've mentioned before, the University of Pennsylvania's policy on evolving research promises to relieve the second part of this problem, since some researchers, at least, are spared the need to file a "fixed research protocol."

But Penn still requires its researchers to "have documented discipline-appropriate education regarding human subject protection, in accordance with certification standards defined by the Vice Provost for Research." While Penn staff have refused me permission to see the approved training modules, from corresponding with people at Penn, I get the sense that they are pretty generic. Rowe's article suggests that such programs are not helpful, and what is really needed is for each researcher to prepare an ethical bibliography, based on problems faced by researchers who have conducted similar work. That way, each researcher would be equipped with the ethical guidance most relevant to her particular case. And in assembling the bibliography she would exercise the very independent judgment she will need in the field.

(Thanks to Rebecca Tushnet for discussing with me the idea of an ethical bibliography.)

Wednesday, April 23, 2008

How Talking Became Human Subjects Research

The Journal of Policy History has accepted my article, "How Talking Became Human Subjects Research: The Federal Regulation of the Social Sciences, 1965-1991," drawn from my book-in-progress on the history of IRB review of the social sciences and humanities. The article is tentatively scheduled to be published in spring 2009, but in the meantime you can read a draft at SSRN: I welcome feedback.

Friday, April 11, 2008

Do UCLA Researchers Have Permission to Read This Blog?

In July 2007, the UCLA Office for Protection of Research Subjects (OPRS) issued a policy statement, "Human Subjects Research Determinations," stating that:

The UCLA OPRS/IRB has the sole authority to determine whether an activity conducted by UCLA faculty, staff, or students (or conducted on UCLA students) meets the regulatory definition of “human subjects research” and therefore requires IRB review and approval or certification of exemption from IRB review. UCLA faculty, staff, and students who intend to conduct activities that might represent “human subjects research” do not have the authority to make an independent determination that UCLA IRB review and approval or certification of exemption is not required.

As a result

Investigators who intend to conduct activities that might represent “human subjects research” must submit a description of the proposed activities to the UCLA OPRS/IRB for a determination of whether UCLA IRB review and approval or certification of exemption is required prior to the UCLA investigator’s involvement in the proposed activities.

Might represent to whom?

This policy can mean one of two things:

1. UCLA researchers should seek IRB permission before drinking a cup of coffee, reading the newspaper, talking with their spouses, or riding the bus. After all, any of these activities "might represent 'human subjects research,'" and the researcher can't be trusted to figure it out.

2. UCLA researchers should not seek IRB permission before drinking a cup of coffee, reading the newspaper, talking with their spouses, or riding the bus. Instead, they must ignore the literal meaning of the policy and instead make an independent determination that UCLA IRB review and approval or certification of exemption is not required.

The OPRS has just taken a step toward the first interpretation. As reported on a UCLA library blog, the new policy statement 42 gives university faculty, staff, and students blanket permission to use data from the U.S. Census and other publicly available datasets. If UCLA researchers must rely on such policy statements to read publicly available, public domain data on the friggin' internet, what can they possibly do without permission?

The 2007 policy statement ambiguously lists as references various state and federal documents, without directly claiming that any of them require or authorize the policy. As far as I can tell, they do neither. As reported on this blog, for example, OHRP staff make independent determinations of what is and is not human subjects research. UCLA's OPRS is just making up powers for itself.

Thursday, April 10, 2008

Researchers Honored for Harming Human Subjects

It's Pulitzer Prize season, and once again my dear Columbia University has showered medals on reporters who placed the subjects of their stories at risk of criminal or civil liability or damaged their financial standing, employability, or reputation, all without IRB oversight. This year's board seems to have been particularly bloodthirsty, giving two prizes--rather than the usual one--for investigative reporting, as well as honoring muckraking work with prizes for public service, local reporting, and international reporting.

Since at least the 1970s, IRB critics have asked why such work is honored when a reporter does it but condemned--at least by IRBs--when a scholar is asking the questions. I have yet to find a clear answer from defenders of the system. Here's a typically fuzzy response--Dr. Jeffrey Cohen's statement before the October 2001 meeting of the National Human Research Protections Advisory Committee:

This is a very difficult issue and it borders on the whole issue of the distinction between journalism and research . . . And that is a really murky, murky area. As a matter of fact, it is one of the conversations I had at the Oral History Association because the oral historians are in that same sort of issue. I think that clearly there is a need for more guidance on distinguishing between journalism and research.

I think the courts are doing that. I mean, the courts are addressing what constitutes journalism and the extent and scope of the First Amendment rights, especially in the context of the internet. Publishing something on the internet, does that make it journalism and so forth? And so I think that the human protections movement should look to the courts for guidance on some of that.

There's also a distinction, though, between -- in a sort of common sense way -- between journalism and research. Journalism is done for the public knowledge and for the public good in the sense of providing information the public needs to know. Research has a sort of different context and that is, you know, further -- the development and furthering of generalizable knowledge, which is a somewhat different thing than the public's right to know, although they're blurred.

So I think that it is very clear in practice that the government, institutions and IRBs do have sort of a right or a responsibility particularly when it is focusing not on censorship but on protecting the rights and welfare of the subjects of research to review that, and I think the courts have upheld that. Particularly, I think, was the University of Minnesota case,* which wasn't particularly about human subjects but it was on research integrity. The courts upheld that right as opposed to journalism where infringing on that would be censorship. There is a murky area in between.

There's also the sort of traditional knowledge that your right ends at the tip of my nose. And so that you can't yell fire in a crowded theater. And so there are things that even though we have constitutional rights, we also have the right to protect subjects and that there's a balancing there that needs to be done. It is not that there's an easy answer to that.

The reason that the distinction remains a "really murky, murky area" is that the Department of Health and Human Services has failed, with all of its various commissions and advisory boards, ever to convene a group whose primary mission was to determine the rights and responsibilities of social scientists. (An exception might be the 1966 NIH conference at which social scientists asked to be left alone, but their recommendations were ignored.) Dr. Cohen's statement suggests that in lieu of such an investigation, the matter be turned over to the courts. That may yet happen, but I doubt it will be pretty. The courts can restrain the worst abuses of the present system, but a lawsuit is no substitute for sound policy-making, based on careful fact-finding.

Were regulators to take a serious look at the sort of journalism honored this week, they might find that different modes of inquiry involve different ethical practices, and different ethical goals. But once they concede that, their whole edifice starts to crumble.

See also, "James Weinstein's Anti-Intellectualism."

* Note: I don't know the nature or name of the "University of Minnesota case." I've sent a query to Dr. Cohen, and I hope to replace this footnote with his reply.