“To the Extent the Law Allows:” Lessons from the Boston College Subpoenas

J Acad Ethics DOI 10.1007/s10805-012-9172-5 Defending Research Confidentiality “To the Extent the Law Allows:” Lessons From the Boston College Subpoenas Ted Palys & John Lowman # Springer Science+Business Media Dordrecht 2012 Abstract Although in the US there have been dozens of subpoenas seeking information gathered by academic researchers under a pledge of confidentiality, few cases have garnered as much attention as the two sets of subpoenas issued to Boston College seeking interviews conducted with IRA operatives who participated in The Belfast Project, an oral history of The Troubles in Northern Ireland. For the researchers and participants, confidentiality was understood to be unlimited, while Boston College has asserted that it pledged confidentiality only “to the extent American law allows.” This a priori limitation to confidentiality is invoked by many researchers and universities in the United States, Canada and Great Britain, but there has been little discussion of what the phrase means and what ethical obligations accompany it. An examination of the researchers’ and Boston College’s behaviour in relation to the subpoenas provides the basis for that discussion. We conclude that Boston College has provided an example that will be cited for years to come of how not to protect research participants to the extent American law allows. Keywords Research confidentiality . Boston College . Belfast Project . Legal cases . Limited confidentiality . Ethics-first Although in the United States there have been dozens of subpoenas seeking information gathered by academic researchers under a pledge of confidentiality (e.g., Cecil and Wetherington 1996; Lowman and Palys 2001), few cases have garnered as much attention as the two sets of subpoenas issued to Boston College in 2011 by the US Attorney General acting on a request from the United Kingdom under the UK-US Mutual Legal Assistance Treaty (MLAT) regarding criminal matters. The subpoenas sought interviews from Boston College’s “Belfast Project,” an oral history with former republican and loyalist paramilitaries The authors thank Chris Bray, Anthony McIntyre, Ed Moloney, Russel Ogden, John Russell, and an anonymous reviewer for their comments. T. Palys (*) : J. Lowman School of Criminology at Simon Fraser University, Burnaby, BC, Canada V5A1S6 e-mail: [email protected] T. Palys, J. Lowman who had first-hand knowledge about bombings, kidnapping and murders committed during The Troubles1 in Northern Ireland. Many aspects of the case contribute to its notoriety, particularly the conflict that developed between Boston College, which coordinated the project and is the legal guardian of the archive housed in its Burns Library, and the researchers over the degree of confidentiality that was promised to research participants. The conflict exemplifies the two approaches that have developed over the past 40 years to the threat of court-ordered disclosure of confidential research information. On the one hand the researchers—Mr. Ed Moloney, the Project Director, Dr. Anthony McIntyre, who interviewed republicans, and Mr. Wilson McArthur, who interviewed loyalists—advocate an ethics-first approach (Lowman and Palys 2007). According to this doctrine, the researcher’s primary commitment is to protect the welfare of research participants. In the absence of a more compelling ethical motive, this commitment means that they would maintain confidentiality even if it means defying a court order to disclose confidential research information and being jailed for contempt of court.2 On the other hand are researchers and university administrators who advocate a Law of the Land approach (Brewer 2012; Clayman 1997; Comarow 1993), which holds that academic institutions and researchers must always obey the law, including a court order to violate research confidentiality. Consequently, in the interest of obtaining informed consent, they must declare this limitation to confidentiality to research participants at the outset. The researchers have made it clear at every point that the pledge of confidentiality they made was not limited in any way and have stated they will do whatever it takes to protect research participants, including defying any disclosure order and refusing to participate in any attempt to prosecute the participants. It is less clear what Boston College pledged, because its account has changed over time and in different sources.3 The major emphasis of Boston College’s spokesperson Mr. Jack Dunn since Judge William Young of the District Court of Massachusetts initially ordered that two sets of interviews be turned over to the UK has been on a section in the College’s agreement with Moloney that stated: Each interviewee is to be given a contract guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Bums Library, including terms of an embargo period if this becomes necessary, as outlined herein. An appropriate user model, such as Colombia University’s Oral History Research Office Guidelines statement, should be adopted.4 1 The Troubles constituted the most recent period of armed conflict over the sovereignty of Northern Ireland dating back 300 years. The conflict involved mostly Catholic republicans seeking to unite Ireland under independent rule in armed conflict with mostly Protestant loyalists, who support Northern Ireland’s continued membership in the U.K. The Good Friday Agreement of 1998 led to formal ceasefires by the main republican and loyalist paramilitary organizations involved (http://www.dfa.ie/uploads/documents/Anglo-Irish/ good%20friday%20agreement.pdf). 2 The literature reveals two instances in which researchers actually went to jail—Samuel Popkin, a Harvard University political scientist, in 1972, and Rik Scarce, a Washington State University graduate student in sociology, in 1994 (see Popkin 2001; Scarce 1994). 3 See Boston College confidentiality—Public references to agreement at http://bostoncollegesubpoena. wordpress.com/2012/01/02/boston-college-confidentiality-public-references-to-agreement/ and http://boston collegesubpoena.wordpress.com/2012/02/26/boston-college-confidentiality-public-references-to-agreement-2/ 4 In RE: Request from the United Kingdom Pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom on Mutual Assistance in Criminal Matters in the Matter of Dolours Price. (hereafter In RE: Request from the UK re Dolours Price). M.B.D. No. 11-MC- 91078. Moloney Agreement. Attachment to affidavit of Robert K. O’Neill. Document 5-6. Online at http:// bostoncollegesubpoena.wordpress.com/exhibits/respondent-moloney-agreement/ Defending Research Confidentiality “To the Extent the Law Allows” Dunn has asserted the phrase “guaranteeing to the extent American law allows” referred to the length to which Boston College was prepared to go to defend confidentiality in the event of a subpoena. However, Boston College did not articulate this claim in its initial Motion to Quash the first subpoenas, and the College’s “Agreement for Donation” (hereafter the Donor Agreement) did not inform participants about this alleged limitation. Moloney believed the two sentences in his contract referred not to participant confidentiality but to Boston College’s desire to ensure unambiguous copyright and clarify conditions of access to the archive (Moloney and McIntyre 2012). If that was not the case, then presumably the College would have ensured that its agreement with interviewees included this vital proviso on which the study hinged. Interviewees would not have consented to be interviewed had they known that the Belfast Project archive was not truly confidential, nor would the researchers have conducted the interviews in the first place. When Boston College received the first set of subpoenas, it brought a motion to the District Court to have them struck down. But the College decided not to appeal a subsequent order to release one particular interview, and handed dozens more to the court. Its actions thus raise questions about what it would mean for Boston College to defend research- participant confidentiality “to the extent that American law allows.” An examination of the College’s behaviour in this important case is useful for that reason alone, but has broader applicability as Boston College is not the only institution to limit its pledge of confidentiality to research participants to the extent that law permits. For example, after a student at Simon Fraser University became the first Canadian researcher ever to be subpoenaed and asked to divulge confidential information to a court, the university’s Vice President for Research attempted to introduce a policy that would have required any researcher who anticipated hearing about illegal behaviour to pledge that confidentiality would be maintained unless disclosure was “required by law” (Clayman 1997; Lowman and Palys 2000). The university eventually withdrew that policy after recognizing its imposition to be a violation of academic freedom. SFU now allows researchers to choose whether they will adhere to their ethical commitment to confidentiality or their obligation to disclose in response to a legal order. However, at least one other Canadian university still requires researchers to limit confidentiality by law (Bernhard and Young 2009; Palys and Lowman 2010; Social Sciences and Humanities Working Committee on Research Ethics 2004) notwithstanding the Tri-Council Policy Statement’s respect for the ethics-first

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