Society of American Archivists Government Affairs Working Group Notes Debate About "Archival Privilege"
On February 11, the SAA GAWG posted a Discussion of the Boston College/IRA Oral History Situation. This document claimed that
The researchers, apparently acting in the belief that additional assurances of confidentiality made to the oral history subjects could be supported in case of legal action, made additional written promises to participants in the oral history project that went beyond those offered by Boston College, but project staff did not disclose to participants that these additional assurances were made on behalf of the project staff and did not represent the position of Boston College. These additional assurances apparently were founded in the researchers’ belief in a legal theory of “archival privilege” previously rejected by a federal court.
The document also notes that
The belief that there should be an archival privilege of confidentiality requires careful and thorough discussion within the archival profession. Although some members of the profession clearly believe that such a right should be asserted, others believe that asserting such a right could be interpreted as an unfortunate exercise in absolutism that would be detrimental to the broader public interest. At the very least, such a right would have to be nuanced carefully and placed into a context of mutual rights and responsibilities that others might legitimately assert for the availability and use of archival material under certain circumstances.
Ed Moloney Replies
On February 27, former project director Ed Moloney replied to the SAA document. He disputed its account and blamed Boston College for drafting a donor agreement that could not withstand subpoena:
Do you seriously think that a) we considered ourselves or were in any way competent to draw up a contract that would apply in a country where we did not live and whose laws we were unfamiliar with and b) do you think Boston College would allow a bunch of amateurs living 3,000 miles away who were ignorant of American contract law to draw up an agreement dealing with the ownership rights of such an archive, especially considering that its unique and singular nature would, with time, bestow upon it considerable value?
The answer to both questions is an emphatic ‘No’, as common sense would tell you.
Lowman and Palys Lament Betrayal
In an article for the journal Research Ethics John Lowman and Ted Palys link the Boston College case to two cases in which United Kingdom universities failed to support researchers who wished to ask about illegal behavor. [“The Betrayal of Research Confidentiality in British Sociology.” Research Ethics (March 20, 2013). doi:10.1177/1747016113481145.]
Lowman and Palys call on universities to support researchers' willingness to "accept imprisonment" to preserve confidentiality.
No Good Choices
Taken together, these documents show the difficulty of conducting research about criminal behavior, past, present, or future. Warning participants that their words may be released under subpoena can kill a project. Had such a warning been included in the Belfast Project consent form, Moloney writes, "so many red lights would have ﬂashed that the project would have been stillborn, certainly on our side of the Atlantic." And Lowman and Palys note a U.S. case in which
the court held that, because research participants had been warned that a court might require the information, now that the court did require the information, it should be handed over, because this was precisely the limitation to confidentiality about which participants had been warned. Instead of buttressing a researchers’ ethical commitment to confidentiality, a priori limitations could sabotage a researcher’s ability to invoke privilege on the participants’ behalf. Warning the participant that a court might order disclosure devolves into a form of caveat emptor dressed up as ethics, allowing the researcher to roll over without a fight, sacrificing participant rights at the altar of informed consent.
Lowman and Palys write that "The implications of the Law of the Land doctrine [instructing researchers to submit to legal requests for their confidential data] for sociology and criminology are truly disturbing. Already, the Belfast Project subpoenas have had a chilling effect on research." But the implications of their "ethics-first perspective" are pretty disturbing as well, since it would mean that only researchers willing to accept imprisonment could conduct the most sensitive research. Either way, we face the problem they identify: "How complete is our knowledge of society’s underdogs and those with the most power when the only people who get to be heard are government-approved spokespersons and administrative hacks? There could be a huge price to pay if the state is able to turn researchers into informants."
Lowman and Palys seem more hopeful about the certificate-of-confidentiality model, but they note that certificates cover only "sensitive topics that fits under the mandate of the National Institutes of Health." The National Institute of Justice's privacy certificates are a better fit, but it is hard to see how they could work for an oral history project, since they demand the eventual "removal of identifiers" or complete destruction of research records. And I haven't heard anything to suggest that legislatures, agencies, or courts are working to expand these kinds of regimes.