Saturday, February 14, 2009

Less Flexibility, More Freedom

Defenders of the present IRB system often boast of the "flexibility" offered by current regulations. (See, for example, Dr. Jeffrey Cohen's report from the November PRIM&R meeting.)

But flexibility--when combined with the possibility of punishment--can actually empower censorship. Here is how Human Rights Watch describes an analogous system, China's censorship of the Internet:

The display of politically objectionable content can result in reprimands to company management and employees from the MII, the State Council Information Office, the Communist Party's Propaganda Department, and/or various state security organs, accompanied by warnings that insufficient controls will result in revocation of the company's license. In order to minimize reprimands and keep their licenses in good standing, BBS and blog hosting services maintain lists of words and phrases that either cannot be posted or which cause monitoring software to "flag" the content for manual removal by employees.

Search engines likewise maintain lists of thousands of words, phrases and web addresses to be filtered out of search results so that links to politically objectionable websites do not even appear on the search engine's results pages, even when those websites may be blocked at the backbone or ISP level . . . Such lists are not given directly to Internet companies by the Chinese government; rather, the government leaves the exact specifics and methods of censorship up to companies themselves. Companies generate their "block-lists" based on educated guesswork plus trial-and-error: what they know to be politically sensitive, what they are told in meetings with Chinese officials, and complaints they may receive from Chinese authorities in response to the appearance of politically objectionable search results.

But the complicity of companies is even more direct: they actually run diagnostic tests to see which words, phrases, and web addresses are blocked by the Chinese authorities at the router level, and then add them to their lists, without waiting to be asked by the authorities to add them. And because they seek to stay out of trouble and avoid complaints from the authorities, many businesspeople who run [Internet Content Providers] in China confess that they are inclined to err on the side of caution and over-block content which does not clearly violate any specific law or regulation, but which their instincts tell them will displease the authorities who control their license. In all these ways, companies are doing the government's work for it and stifling access to information. Instead of being censored, they have taken on the role of censor.

In other words, by keeping secret the exact terms that will trigger a license revokation, the Chinese government achieves more censorship than it could by publishing a list of forbidden terms, and it makes Google, Yahoo!, and other U.S. companies complicit in the censorship. Similarly, OHRP's vagueness about what will trigger a shutdown fails to assure universities that they can safely deregulate research, so universities restrict research that should be exempt from review.

Fortunately, OHRP's new director, Jerry Menikoff, understands this. In the Winter 2009 issue of AAHRPP Advance he writes,

We often hear that it’s better not to provide specific guidance—that the absence of guidance allows people greater flexibility in interpreting the regulations. In my experience, the opposite can be true. Guidance can empower individuals and advance both research and research protections. In the absence of guidance, people tend to be reluctant to take certain actions out of fear that they are violating the rules. In some instances, important research is not even attempted, all because of a misunderstanding. Guidance could eliminate the misconception and clear the way for research.

I'm delighted that Dr. Menikoff takes this approach, and I look forward to more specific guidance from OHRP that would clear the way for research.

[Thanks to Rob Townsend for altering me to Menikoff's comments.]


Pete Jones said...

In reference to your comments on Chinese censorship, I just read a fascinating study by Rebecca Mackinnon entitled China's Censorship 2.0: How Companies Censor Bloggers.

It goes into greater detail on the mechanisms of censorship than the discussion you quote, but comes to the same conclusions- that flexible guidelines, instead of providing flexible responses to a "problem" instead cause inappropriately harsh reactions and censorship of legitimate work.

Zachary M. Schrag said...

Thanks for the link.


Anonymous said...

Interesting post. I take your point, but it's not clear to me that the problem is with flexibility, rather than uncertainty.

The problem with censorship regimes isn't that the criteria for censorship are flexible, it's that they're unclear.

Why can't the problem be described as follows: IRB's are charged with applying a set of rules, if those rules are unclear, then they feel they have to come down on the side of 'caution'. The problem is epistemic: they do not know what the rule is so they worry about breaking it.

Where a system is properly flexible it is clear where decision makers have discretion.

Zachary M. Schrag said...

Thanks for the comment.

I think that in these cases, "flexibility," "uncertainty," and "obscurity" are all names for the same phenomenon: the failure of rulemakers to demarcate acceptable and forbidden behavior.


Anonymous said...

Maybe, but I'd argue that the problem is that ethics review is thought of as a matter of applying rules, rather than as a collaborative process for ensuring that research is done in the most ethical way.

I wonder what would count as adequate rules here? You wouldn't want, for instance, to say 'there must always be an information sheet', because although that's usually a good idea it isn't always the best way to do things (I'm sure you can think of lots of examples).

But maybe that's your point? If you treat ethics review as just a matter of applying a system of rules, then you need impossibly precise rules-- so best not have that sort of review system?

Zachary M. Schrag said...

Dr. Menikoff's comment about guidance came in an essay in which he also called for the deregulation of low-risk research. His point, I believe, was that giving institutions the confidence to deregulate requires specific guarantees that they won't be punished for doing so. OHRP, and its predecessors, have done a poor job of this.