Social scientists have warned of the dangers to freedom of ethics regulation since at least 1967, when political scientist Alfred de Grazia explained,
It is easy to foresee that the federal government may both promote a number of intrusions upon privacy and liberty in this regard and also impose onerous restrictions of all types on the use of research funds, in the name of defending liberty. This is a formidable bureaucratic problem that may be inevitable and permanent. The long chain of command and line of communications from the subject through the research organization through all the agencies of government including the police and justice agents may end up in a depressing tangle in which neither individual right nor free research is helped.
[U.S. Congress, House Committee on Government Operations, Research and Technical Programs Subcommittee, The Use of Social Research in Federal Domestic Programs: Part III—The Relation of Private Social Scientists to Federal Programs on National Social Problems (90th Cong., 1st. sess., 1967), 75.]
For nearly half a century, scholars have expressed similar concerns, right up to March 2013, when the American Association of University Professors (AAUP) published a report which I helped draft, a successor to earlier reports published in 1981 and 2006.
Canada has shown that the freedom of inquiry can be woven into a human subjects research policy, finding that
In order to maximize the benefits of research, researchers must have academic freedom. Academic freedom includes freedom of inquiry, the right to disseminate the results of that inquiry, freedom to challenge conventional thought, freedom to express one’s opinion about the institution, its administration or the system in which one works, and freedom from institutional censorship. (TCPS2, chapter 1)
Indeed, Rena Lederman, a member of the NRC committee, herself co-authored a comment on the ANPRM that championed free inquiry:
those of us working in US colleges, universities, news media, and research institutions have inherited traditions of free inquiry whose continuation is vital to this country's political, economic and social life. It would be deeply ironic if a regulatory system put in place to protect human beings were transformed into a device focused on restricting their power to know the world.
I found none of this sentiment in the new NRC report. The term "freedom" appears only once, as a reference to giving "IRBs the freedom to be flexible without diminishing human subjects protection, while being supportive of researchers." (69)
Even when it cites champions of academic freedom, the report ignores this concern. Philip Hamburger's 2007 essay, terming IRB censorship an "outrageous assault on [the First] Amendment," is cited only as a criticism of "an immense bureaucracy engaged excessively in correcting minor flaws in research protocols." And the only mention of the AAUP is its recommendation that universities "uncheck the box."
Instead, the committee questions IRB jurisdiction on purely instrumental grounds. It "strives to balance respect for the individual persons whose consent to participate makes research possible and respect for the social benefits that productive research communities make possible," then enumerates those social benefits as "Lives, Health, Environment, Improved Ways of Life," such as reduced energy consumption and treatment for substance abuse. (10, 16-17)
That's all very well and good, but narrowing the benefits of research to such instrumental ends puts the NRC in league with those who would strip universities of those activities that do not produce the most outside funding and the highest-paid graduates.
Freedom is a scholarly enterprise. Freedom is an ethical value. Freedom is a social benefit.