Monday, June 13, 2011

U.S. and British Governments Subpoena Oral Histories

Last month, the United States Attorney’s office filed a subpoena for two tapes that were recorded as part of the Boston College’s Oral History Archive on the Troubles in Northern Ireland. It did so at the request of the Police Service of Northern Ireland, part of the British Government. As reported by the New York Times, British authorities apparently want the tapes for an investigation into murders and kidnappings committed decades ago.

According to the Times, interviewer Anthony McIntyre, described as "a former I.R.A. member who was imprisoned in the North and who has a doctorate in history," promised his narrators that the contents of their interviews would remain sealed until their deaths. I have not seen a detailed description of how this promise was conveyed, but it seems from the story that McIntyre did not warn participants that their words could be subject to a subpoena.

Predictably, someone has seen in this a reason for IRB review of oral history. Juliette Kayyem, former assistant secretary for intergovernmental affairs with the U.S. Department of Homeland Security, wrote in the Boston Globe that

The project managers may in some respects be the victims of inexact academic norms when it comes to narrative research. Universities have long struggled over how to address standards of research involving human subjects. The history is not pretty. At the end of WWII, the Nuremberg trials exposed a line of defense from Nazi physicians who forced prisoners to undergo appalling and inhumane procedures in the name of clinical research. Federal standards were established to protect the fundamental rights of scientific research subjects. Now, where subjects are utilized in research, institutional review boards are convened to ensure that the researcher is honest with his subjects.

Over the years, these standards expanded to cover the social sciences as more and more academic institutions began to demand some oversight over the liberal arts. The Oral History Association balked at the notion, arguing in a 2003 statement that the nature of oral history does not lend itself to formalistic review. BC spokesman Jack Dunn confirmed that their decade-old oral history project was never reviewed by the board . . .

Oral history may be a unique form of academic research, but well-known standards require notification that confidentiality cannot override a subpoena.

The question is, well known to whom? Not to the University of Arizona, which released information from an IRB-approved study over the objections of the researchers. Not to the IRBs whose forms were reviewed by John Neuenschwander.

In 2001, Joan Sieber told the National Bioethics Adisory Commission, "There is now a literature of virtually hundreds of approaches to protecting privacy or assuring confidentiality. This literature is rarely sought out by IRBs, researchers, or teachers of research methods. Most are not even aware that it exists. . . . Many IRB chairs, members, and staff persons are not in a position to effectively guide or teach their clientele, or to gain the respect of their clientele." I have seen nothing to suggest that things have gotten better since.

Nor has the federal government offered the same protections to historical research it has to medical research. In particular, the NIH offers certificates of confidentiality only for studies "within a mission area of the National Institutes of Health, including its Institutes, Centers and the National Library of Medicine."

Kayyem is quite right that the Boston College interviewers should have been more careful not to make promises they could not keep. But historians are more likely to get sound advice from their professional organizations than from IRBs.

Ultimately, policy makers need to ask what will be gained if historians cannot offer confidentiality to the people they interview. If subpoenas like this become common, narrators will simply stop talking about crime. This would be a loss to posterity with no gain for the cause of justice.

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