Upcoming SCoSAA Event on Boston College Subpoena case at Simmons

SCoSAA Reads!
Student Chapter of the Society of American Archivists
When: Friday, March 29, 2013, 5:00 p.m. – 7:00 p.m.
Where: SMOB M222
SCoSAA Blog
Simmons Graduate School of Library and Information Science

The topic will be the Boston College IRA oral history tapes case. Former Oral History Professor Gail Matthews-DeNatale will be speaking about the various issues around this case. SCoSAA will be providing reading material in the near future. Light refreshments will be served at this event.

SCoSAA Reads
We are excited to announce TWO spring semester SCoSAA Reads events:
Thursday, March 21, from 4:30-6pm in P206, will discuss the book Quiet: The Power of Introverts in a World That Can’t Stop Talking by Susan Cain.
Friday, March 29, from **5-7pm in room 222 of the School of Management Building will feature a lively discussion of the Irish Republican Army (IRA)-Boston College situation and the related Oral History issues. Adjunct professor of oral history, Gail Matthews-DeNatal, will be joining us for this event!

We know you have plenty of other readings to do, but hope these two events entice you to go outside the standard archives, library and information science texts and think about other related materials.

For the March 21st event, the entire book Quiet is highly recommended, but for the purposes of the SCoSAA Reads discussion we will point you to the Introduction and Chapter 9-“When Should You Act More Extroverted than you Really Are?” These excerpts will help us jump into a conversation about cultural biases associated with introversion, the importance of self-awareness, and the wide variety of strengths a new professional can exhibit no matter his/her personality type. Note that this discussion will take place the day before the New England Archivists Conference, and is a great opportunity to seek some confidence-boosting before diving into that!

For the March 29th event, we have provided two documents (one recommended by the Boston College Archives and the proceedings from the actual court case) for you to get an overview of the major issues and players. A lot has been written about the IRA/Boston College situation, both within the archival and oral history fields, as well as the mainstream media and legal journals, meaning there is an overwhelming amount of material at our disposal. Or check out a  quick overview provided by the SAA. We will provide additional recommended readings as we get closer to the event.

We hope to see you at one or both of our SCoSAA Reads events!
Access the readings for both of these events here.
E-mail SCoSAA Webmaster Elise Dunham (dunhame@simmons.edu) for the password.

SAA: Discussion of the Boston College/IRA Oral History Situation

Boston College/IRA Oral History Project Discussion Document
Discussion of the Boston College/IRA Oral History Situation
Prepared by the SAA Government Affairs Working Group for Council Discussion in January 2013; Revised and Posted on February 11, 2013

March 2013: NOTE: This document is currently under review and being revised.

Discussion Document re: the Boston College/IRA Oral History Situation

Prepared by the Government Affairs Working Group (GAWG), this piece includes background information, a timeline of legal actions, and a discussion of the merits of the case.

See Also:

March 2013: NOTE: This document is currently under review and being revised.

Several SAA members have brought to the attention of the Council an ongoing legal case in which oral histories conducted on the subject of the Irish “Troubles” and housed at Boston College have been subpoenaed by the United States government at the request of the Police Service of Northern Ireland to be used as potential evidence in a murder investigation begun in 1972. Honoring of the subpoena would violate the confidentiality terms agreed upon by those interviewed and the individuals who conducted the interviews. A federal district court and the First Circuit Court of Appeals have ruled that the subpoena is legal. A request to have the case reviewed by the United States Supreme Court is pending.

Members of the Society have both asked that SAA intervene in the specific case and posed the question of what broader issues are raised by this matter, in particular if there is or should be a legally recognized right of “archival privilege” that would shield archivists and those who donate material to archives from unwelcome legal action.

Presented below is a discussion of the case itself and the matter of “archival privilege” that was prepared by SAA’s Government Affairs Working Group. The SAA Council believes that it is inappropriate for the Society to take a formal position on the case or on the concept of “archival privilege” at this time. The Council does, however, welcome and encourage discussion across the profession in the hope that it will result in a preponderance of professional opinion regarding the matter.

BACKGROUND

Boston College began an oral history project in 2001 when an agreement was reached to conduct interviews regarding the “Troubles in Ireland” with members of both the Irish Republican Army (IRA) and individuals tied to the Loyalist UVF/Red Hand Commandos. The agreement apparently was signed on behalf of Boston College by Robert K. O’Neill, director of the John J. Burns Library, Boston College, and Thomas Hatchey, executive director of Boston College’s Center for Irish Programs.

This agreement stipulated that confidentiality of the interviews was guaranteed “to the extent of [sic] American law allows and the conditions of the interview and the conditions of its deposit at the Burns Library, including terms of an embargo period.”

Subsidiary agreements between the scholars undertaking the project and the interviewees apparently did not make clear that confidentiality was limited to “the extent of American law.”

  • Ed Moloney, a Northern Ireland journalist, served as director of the project.
  • Anthony McIntyre interviewed 26 IRA provisional members
  • Wilson McArther interviewed an unspecified number of Loyalist participants.

The project was completed successfully and remained largely unnoticed until 2010, when Moloney published a book, Voices from the Grave: Two Men’s War in Ireland, based on the oral histories of two, now deceased, interviewees. An introduction to the book was written by O’Neill and Hatchey.

The book subsequently was made into a documentary that aired on Radio and Television Ireland (RTE) on October 26, 2010. The book and documentary made widely known both the existence of the oral histories and their pertinence to an ongoing murder investigation regarding Jean McConville.

  • McConville was a mother of ten children who disappeared in December 1972. At the time she was alleged to be a police informer. Her family denied the accusations. In 1999 she was declared to be a victim of the IRA. In 2003 her body was discovered.

The “Disappeared Commission” of the Police Service of Northern Ireland (PSNI) had begun an investigation of the abduction and presumed killing of Jean McConville and eight others in December 1972. Given the public revelation of new evidence in the case, PSNI requested access to the interviews under the United States-United Kingdom Mutual Legal Assistance Treaty.

  • Acting upon this request, a subpoena was duly served on the John J. Burns Library of Boston College on May 11, 2011.

Boston College resisted the subpoena in Federal District Court but surrendered the oral histories, without appeal, when they lost their case. Eventually the entire body of oral histories in their possession was surrendered to the Court.

At the same time, Anthony McIntyre, who also had been subpoenaed, declined to turn over material in his possession regarding these interviews, in particular passages deemed relevant to the McConville investigation.

On September 1, 2011, McIntyre and Moloney asked a federal court to “quash the subpoenas” against both McIntyre and Boston College.

On December 16, 2011, McIntyre and Moloney’s request was denied in Federal District Court.

The decision was appealed.

On January 23, 2012, Massachusetts Senator John Kerry wrote to Secretary of State Hillary Clinton and Attorney General Eric Holder to express his concern regarding what impact the release of the information sought by the PSNI “may have on the continued success of the Northern Ireland peace process.” At least eight U.S. Senators and 11 Members of Congress have written to the Secretary of State asking her to intervene in the matter based on these concerns.

  • Apparently the hope is that through State Department intervention, the British Governor could be persuaded to voluntarily withdraw its request for the oral histories, thus ending the legal proceedings. It is unknown whether Clinton has honored the request that she intervene.

In July 2012 the First Circuit Court ordered compliance with the subpoenas.

On October 17, 2012, Justice Breyer stayed the First Circuit Court’s order, pending the Supreme Court’s ruling on a request by McIntyre and Moloney that the Supreme Court review the case.

That ruling currently is pending.

DISCUSSION

On the Merits of the Specific Case:

Boston College officials appear to have been clear, when an agreement initially was reached to undertake this project and house the resulting oral histories in the college library, that all promises of confidentiality made to interviewees were subject to U.S. law.

  • Boston College officials failed, however, to exercise ongoing diligence over the project.

Boston College staff either failed to review or reviewed insufficiently the agreements drawn up for participants’ signatures. Such review should have led Boston College staff to draw this matter to the attention of the project staff in order to utilize appropriate language in the agreements regarding confidentiality.

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.
  • In 1986 a federal court was asked to rule specifically on an alleged “archival privilege” of confidentiality. At issue was a subpoena issued against a closed collection at the Wisconsin Historical Society. The Court ruled, “…the situation before the Court is one where a member of the plaintiff class seeks to insulate otherwise discoverable documents from disclosure simply by virtue of the fact that she has placed them in an archive under an agreement restricting access … In such a case, the access restriction agreement must yield to the judicial process’ search for truth.”1

As in 1986, in the current case both the Federal District Court and the First Circuit Court ruled in favor of the government and held that access restrictions specified in the deed of gift were not sufficient to withstand a court subpoena.

1 Harold L. Miller “Will Access Restrictions Hold Up in Court? The FBI’s Attempt to Use the Braden Papers at the State Historical Society of Wisconsin.” The American Archivist 52 (Spring 1989): 185.

  • Boston College’s legal response to the subpoena seems minimal. Although Boston College did contest the initial subpoena served upon it, the College seems to have failed to defend confidentiality “to the extent of [sic] American law allows” by declining to appeal the adverse ruling to the Federal District Court.

Although it is not relevant to the legal case, Moloney’s decision to use two oral histories to publish a book, which clearly was within the terms of the relevant donor agreements, nevertheless drew unwelcome attention to those and other interviews—a situation that the author might reasonably have expected to occur and might reasonably have been prepared to deal with in a realistic way.

  • In 1999 Moloney risked jail time when he refused to reveal information he possessed regarding the murder of Pat Finucane, an IRA lawyer allegedly killed by Loyalists.

Although Moloney eventually won this case (arguing before the Court as a journalist, not a historian) and was not required to disclose the material desired, this experience should have made him acutely aware of the possibility that authorities might seek information regarding the murder investigation of Jean McConville.

Boston College officials share culpability in the matter of publication in that O’Neill and Hatchey wrote an introduction to Moloney’s volume, thus making clear that they were aware of the publication project and, at least in appearance, giving their imprimatur to the work. They, and Boston College, also should have been prepared to deal in a realistic way with the likely consequences resulting from the book’s publication.

Given these circumstances—that the project staff, for whatever reason, chose to ignore existing case law and assure participants that a greater level of confidentiality could be given the oral histories than could reasonably be assumed, and that Boston College failed to carefully review the legal agreements signed by participants for conformity with the promises about confidentiality made by the College and to insist that those promises be represented in writing—the Government Affairs Working Group suggests that SAA take no position on the case at hand.

On the Issue of a Legally Recognized “Archival Privilege” to Maintain Confidentiality:

The Government Affairs Working Group notes, for the record, that the question of “archival privilege” has been raised previously with the SAA Council. In 1986 the Council declined to take action when it was asked to do so in a case regarding a federal subpoena issued against a closed collection at the Wisconsin Historical Society. A federal district court sustained the legality of that subpoena. (See Harold L. Miller, “Will Access Restrictions Hold Up in Court? The American Archivist 52 [Spring 1989]: 180-190.)

Based on the Miller article, the claim that there is a legal privilege to confidentiality that archivists may invoke to gain exemption from a court order or other appropriate legal process currently is without legal standing.

The belief that there should be an archival privilege of confidentiality rests on the “need of history” for honest information, and thus the need to shield honest answers from potential legal consequences. Clifford M. Kuhn, a past president of the Oral History Association, has warned that sources “will be far less likely to take part in such activities” if oral history participants cannot be guaranteed confidentiality.

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.

Although the Council might encourage professional discussion on the subject of a legally recognized archival privilege of confidentiality, we recommend that the Council take no position on the matter.

Professional discussion should also make clear the consequences to donor relations if archivists and others involved in obtaining historical documentation are perceived to be giving legal advice that has little chance of being supported in court. We believe that the archivist’s responsibility to donors is to represent any legal matter as best reflects current law. Potential donors should make informed decisions based on the likely legal ramifications of their actions, not on legal speculation.

Boston College Oral History Project to be Focus of Spring Archives Speaker Series

Boston College Oral History Project to be Focus of Spring Archives Speaker Series
Kathleen DeLaney, archvist/reference librarian
Under the Dome
Your Source for Canisius College News
February 26, 2013

The Canisius College Archives & Special Collections is pleased to announce the Spring Archives Speaker Series: “The Past That Has Yet to Pass: Archives and The Belfast Project,” Tuesday, March 5, 2013 at 2:30 pm.

Christine Anne George, JD, MSIS, will present on The Belfast Project, an oral history project conducted at Boston College that captures the dark period of Northern Irish history known as “The Troubles.” George will discuss this controversial project, in the news since May 2011, when U.S. attorneys subpoenaed Boston College for oral history interview tapes and began an ensuing legal battle that reaches to the Supreme Court.

The Belfast Project was back in the spotlight this past month, on both sides of the Atlantic, with the death of Delours Price, whose oral history interview sparked debate on possession of the interviews, ramifications for the Northern Irish Peace Process, the future of archival privilege and other standards of archival practice.

Christine George received her BA from Bard College, her JD from St. John’s University School of Law, and her MSIS from the University of Texas at Austin School of Information. She currently works at the Charles B. Sears Law Library at SUNY Buffalo Law School where she serves as a faculty services and reference librarian and oversees the law library’s archives. She began researching legal and ethical issues surrounding The Belfast Project for her thesis, “Whatever You Say, You Say Nothing: Archives and The Belfast Project.” George has presented on the topic at archives symposia and conferences. An article on The Belfast Project is forthcoming summer 2013 in The American Archivist.

Daily updates on the case can be found at: http://bostoncollegesubpoena.wordpress.com/2013/01/29/university-files-to-close-belfast-project-case/

The Society of American Archivists has been closely following The Belfast Case, and developing informational pieces and tools for archivists to help them consider the impact on their work and profession.

The Canisius College Archives Speaker Series showcases scholars with a special understanding of archival research, based on their own experiences; and, who have completed an expression of scholarship reliant on archival research.

Please join us for the presentation followed by a Q&A and light refreshments, students are encouraged to attend. Seating is limited. For more information, contact Kathleen DeLaney, archivist, at delaneyk@canisius.edu or Ext. 8421

Georgetown Law Library: Should a legal right to “archival privilege” be established?

Should a legal right to “archival privilege” be established?
HANNAH MILLER
Due Process
Georgetown Law Library Blog
FEBRUARY 26, 2013 ·

The recent blog post, “Should a legal right to ‘archival privilege’ be established?” posted on the blog Off the Record poses an interesting question which centers around the Boston College case involving the Belfast [Oral History] Project. 

In brief, Boston College was subpoenaed on May 11, 2011 by Federal District Court for access to closed confidential oral histories that could contain information that might shed light on a murder inquiry in Northern Ireland.

While Boston College appeals the request maintaining the “confidentiality” of the oral histories and the case is “pending” in the Supreme Court, the questions among archivists linger — will confidential remain confidential and should there be an established legal right to “archival privilege”? 

This provocative blog post illustrates this current dilemma.  “Do U.S. courts currently recognize an absolute or almost absolute legal right to confidentiality for scholars or archivists? And if they do not recognize such a right, should they?” 

Many archivists have varying perspectives on this issue. Archivists have a professional duty to curate many types of materials, some of which contain confidential information.  More thought provoking is the potential outcome of this case and how it will effect what people will be willing to archive in the future, inevitably impacting what will be remembered for generations to come.

Calling Privilege a Right is Just Plain Wrong

Calling Privilege a Right is Just Plain Wrong
Society of American Archivists – Issues and Advocacy Roundtable
Christine Anne George

Greetings and salutations, all. Christine Anne George here. Perhaps you remember me from post #5 where I wrote about the Belfast Project back in November. Well I’m back to talk about it again in light of the document from the Government Affairs Working Group (GAWG) on the subject and the latest post on SAA president Jackie Dooley’s blog, Off the Record (OtR). In the interest of full disclosure, there are a few things you should know. I believe that archivists should begin advocating for archival privilege now. I also think that SAA should file an amicus brief if the case is heard before the Supreme Court. However, my reasons for thinking this are not in line with those outlined in the OtR post.

This is a big picture issue that’s getting the narrow lens treatment from SAA’s leadership.  Sure the legal battle centers on the Belfast Project interviews, but for archivists, the ultimate physical location of the interviews does not matter as much as future legal implications for archival policy.  The problem is that academics, heritage groups, and lawyers have been talking about archives while archivists and the national organization that represents them remain silent.  As archivists, we know about archival best practices; those outside the profession don’t.  Whenever archives are mentioned, archivists should be front and center, making sure that the profession’s best interests are being served.  The situation surrounding the Belfast Project is not your average archives story, but no one is going to know that if archivists don’t tell them.

Amicus briefs are filed by parties with an interest in the outcome of a case. They can be filed in support of one side or the other, but they can also be filed in support of neither side. SAA is an interested party in the Belfast Project case, even though the legal issues in the case involve the interpretation of an international treaty and not explicitly archival privilege. It is in the best interest of the archival community that, should the Supreme Court rule on the Belfast Project case, it makes a narrow ruling. In other words, that the Court acknowledges that its ruling is applicable in a very specific set of circumstances and is not all-encompassing. When a judge delivers an opinion in a case, he or she rules on a particular legal issue, and that ruling becomes law. However, judges often include their beliefs or opinions—which are called dicta—that go beyond the issues of the case. The legal issue for the Belfast Project case is the interpretation of an international treaty. However, concepts of academic freedom and archival privilege keep creeping into the case, and it is possible that the Justices may address those topics in their decision. Although dicta are not technically law, they have some weight and can be used either in support of or against a particular issue at a later date. The archival community has not made a decision about archival privilege, so it’s probably best that the highest court in the land not make a comment in its discussion of the case that archival privilege shouldn’t exist.

I would be remiss if I didn’t mention that there are several inaccuracies in both the OtR post and the GAWG’s document, some of which are:

  •  The first time that archival privilege was invoked in the 1986 case Wilkinson v. Federal Bureau of Investigation the district judge did not explicitly state that archival privilege did not exist. The opinion stated that no one had ever attempted to invoke archival privilege before, but that, ultimately, archival privilege could not be applied in that particular instance, given the facts of the case.
  • The district judge in the Belfast Project made several concessions including acknowledging in his opinion that this particular instance warranted higher scrutiny, and allowing the interviews covered by the second subpoena to be reviewed in camera, or in private, so that the details of the interviewees would not be revealed.
  • Archival privilege is by no means a legal right. Privilege is a very fragile protection that is incredibly difficult to obtain and beyond easy to break. No individual or group has a right to privilege. In fact, if you want the protections of privilege, you have to actively invoke it. It is never assumed. It is also something that will take archivists decades to achieve, as evidenced by journalists who sought their own privilege.
  • Boston College has taken far more legal action than the GAWG document acknowledges. It appealed to the First Circuit—although not for the Dolours Price interview, but rather the interviews that fell under the second subpoena. Boston College also moved to vacate the district court’s decision after Delours Price’s death.

Finally, I’m concerned that we, as a profession, are only beginning to talk about archival privilege and the Belfast Project while others have been since May 2011, and we still lack any concrete plan to continue and foster discussion. How about a forum at the 2013 meeting to discuss it? Or actively soliciting opinions from the membership? The Oral History Section created a site devoted to providing information about the Belfast Project and the legal situation. This microsite is a great starting point. Discussions about archival privilege need to happen and keep happening.

As a shameless plug, if you happen to be attending the MARAC conference in Erie, PA in April, come find me. I’ll be talking about this in one of the advocacy panels.

 


Issues and Advocacy Roundtable

The Issues & Advocacy Roundtable tracks issues of importance to archivists and the archival community. The I&A Roundtable has a global mission and works with individuals at the local, national, and international level. The issues of importance include: tracking laws and legislation affecting archives, increasing diversity, increasing access for disabled researchers and archivists, advocacy for improving working conditions, maintaining wages and institutional budgets.

Should a legal right to “archival privilege” be established?

Should a legal right to “archival privilege” be established?
Society of American Archivists President Jackie Dooley
Off the Record – Join the Conversation with SAA Leaders
February 14, 2013

Egad, it’s been way too long since the last OTR post! I’ll assign fault to the rather substantial work involved in prepping for and cleaning up after (so to speak) an SAA Council meeting and my final push to publish a major research report (forgive the plug for my terrific day job, but consider taking a look!).

You may have seen SAA’s discussion statement about the Belfast Project at Boston College that has drawn lots of concern from archivists and historians over the past two years. The Oral History Section also has posteda lot of useful information. Today we hear from Frank Boles, SAA past president and chair of our Government Affairs Working Group, who led the work to develop our statement. He and his merry band of GAWGers always do excellent research and thinking before they send a document to Council, and this one is no exception.

*********************

Virginia Raymond has asked whether “One of these things is not like the others …. spouse, priest, oral historian, psychiatrist, attorney.” This grouping of professions stems from her discussion of a legal case involving the Boston College Library, which was subpoenaed on May 11, 2011 by a Federal District Court to surrender closed oral histories the court believed relevant to a murder investigation in Northern Ireland. Many appeals have ensued, and a request to review the case is pending before the U.S. Supreme Court. At the heart of the case is a simple question: how much confidentiality can an archivist legally guarantee to a donor, such as a donor of an oral history?

I have heard some archivists argue that an “archival privilege” of confidentiality exists, or should exist, to shield an archives from a hostile court’s order. They assert that, like spouses sharing the daily intimacy of life, a priest counseling a penitent, a psychiatrist caring for a patient, or a lawyer talking to a client, an archivist’s relationship to a donor is such that a legally sustainable sphere of privacy should extend to any material donated with donor-imposed restrictions on use.

The case raises two questions: Do U.S. courts currently recognize an absolute or almost absolute legal right to confidentiality for scholars or archivists? And if they do not recognize such a right, should they?

The short answer to the first question is no. Two federal district judges and the First Circuit Court of Appeals have explicitly found that such a right does not exist. Although the Supreme Court may take up the case, for the time being the honest answer to a potential donor is that in most, if not all, instances, an archives would be required to surrender material subpoenaed by a court.

As for the second question, I noted above that some archivists believe that a legal right of archival privilege is needed. They have recommended that if the Boston College case is heard by the Supreme Court, SAA should file an amicus brief asserting such a privilege. Their justification is that if society wants donors to give honest, unaltered records regarding controversial subjects for eventual historical use, archivists need a mechanism to ensure confidentiality.  No archivist wants to see a donor end up in federal prison. If legally recognized, archival privilege would make it possible to close a collection against any unwanted inquiry, regardless of the source. While this may seem a reasonable argument, it asserts, in effect, that the needs of future research always transcend the societal needs of the present. Not all archivists would agree.

I have been asked if the profession really believes that archivists should withhold essential legal evidence found in a closed collection no matter what. Should the nature of the case matter? What if a collection contained proof of the widespread release of dangerous chemicals that would justify medical claims of those injured? Would the obligation to confidentiality apply if an archivist knew there was proof that someone had been convicted in error? If an innocent person is given a death sentence, does the bond of confidentiality still hold?  Is history always more important than justice?

Such examples clearly are extreme, but the claim of an absolute right to honor and protect donor-imposed restrictions creates an absolute obligation with difficult ethical implications.  Before arguing before a court that a legal right to archival privilege exists, SAA would need to determine whether there is consensus within the profession, how that consensus might be balanced against competing legal and ethical demands, and what the appropriate processes would be for resolving differences of opinion.

In the end, we should recognize how easy it is to for any of us to rise up in indignation; moving beyond to encourage thoughtful and productive conversation requires more resolve. Action movies aren’t made about people who ask for thoughtful conversation. I look forward to a professional conversation to discuss a slight variant on the question posed by Ms. Raymond: spouse, priest, archivist, psychiatrist, attorney–do they really go together?

 

For comments in response to the article, click here

The Belfast Case: Information for SAA Members

The Belfast Case: Information for SAA Members

The Belfast Case: What’s the starting point for archivists?
Background information aggregated by the SAA Oral History Section, for SAA Members
Society of American Archivists
February 2013

Between 2001 and 2006, Irish researchers conducted forty oral histories with Irish paramilitarists active on both sides of the violence between loyalists and unionists of Northern Ireland, otherwise known as “The Troubles.” The recordings were housed at Boston College’s Burns Library, with the understanding that each interview would remain closed until the subject’s death. However, as part of an investigation into the 1972 murder of an alleged British informant, the Police Service of Northern Ireland sought to access two of the interviews, and in March 2011, the US Justice Department issued a subpoena on behalf of the British government. Though the confidentiality agreement allowed each subject to provide an honest and detailed record of their involvement in The Troubles, the legality of such agreements is now being challenged, and the outcome could have lasting and serious effects for oral history programs and archival collections across the country.

Archivists from across SAA groups have recognized in various formal and informal ways the seriousness of the Boston College/Belfast Project Supreme Court case, including and especially the impact that decisions will have on the work that we do and the communities within which we practice.

SAA Council, the Government Affairs Working Group (GAWG), and the Oral History Section (OHS) agree that at this time, an official statement by SAA and/or any SAA group would be premature and inappropriate. However, as the court battle continues, this case provides archivists an opportunity to evaluate our code of professional ethics, and consider the ways in which legal frameworks may or may not support our work.

In lieu of crafting an official statement, the OHS would like to help offer opportunities for SAA members to connect with information and with each other, in order to foster understanding and dialogue. In the interest of keeping section members informed, we’ve compiled this short list of links to try to help members learn more about this complicated case, and stay informed as the case progresses.

The Oral History Section steering committee is also working on more in-depth tools and informational pieces, to help us all consider the impact to our work and our profession. Please look for additional resources in the near future.

Selected links for getting started: 

1. Discussion Document re: the Boston College/IRA Oral History Situation

Prepared by the Government Affairs Working Group (GAWG), this piece includes background information, a timeline of legal actions, and a discussion of the merits of the case.

See Also:

March 2013: NOTE: This document is currently under review and being revised.

2. Major Legal Challenges Facing Oral History in the Digital Age (Oral History in the Digital Age Essay)

A very good essay by past Oral History Association President and Oral History and the Law expert John Neuenschwander, who is also a retired Professor of History at Carthage College and former Municipal Judge for the City of Kenosha, Wisconsin.

3. Boston College Subpoena News

Though the authors clearly have a strong bias towards keeping the interviews closed to police investigation, this weblog seems to be the go-to site for the latest news about the case. It offers background information, aggregated links to media about the case, an AAUP petition, as well as numerous court documents available to download, including a copy of the recent Amici Curiae Brief to the US Supreme Court.

4. Oral History and the Troubles

Oral historian and Austin Community College Adjunct Professor Virginia Raymond provides a lengthy and opinionated piece on the history of the case, which includes the challenges that oral historians face when interviewees may divulge sensitive information, and recommendations for those collecting such interviews.

5. Defending Research Confidentiality “To the Extent the Law Allows:” Lessons From the Boston College Subpoenas (Journal of Academic Ethics, Volume 10, Issue 4, December 2012, pp. 271-297)

*requires journal subscription

6.  College Fights Subpoena of Interviews Tied to I.R.A.

We call attention to this NYT piece, because Oral History Association (past) President Mary Larson makes a statement in support of fighting the subpoenas.

No Sanctuary in the Ivory Tower

No Sanctuary in the Ivory Tower
Why didn’t MIT defend Aaron Swartz?
BY CHRIS LEHMANN
In These Times
FEBRUARY 26, 2013
University administrators, eager to kowtow to their federal paymasters, become surrogate enforcers rather than principled defenders of academic freedom.

When Aaron Swartz took his own life with the approach of trumped up legal proceedings of evidence poised to threaten his freedom, he became a national symbol of two notorious failings of our legal system: federal prosecutors who, with an eye on their conviction scorecard, overcharge cases and bully defendants into submission; and the enforcement of proprietary computer terms-of-service agreements as if they were the republic’s first line of defense against mass sedition.

But the Swartz case brought home a third failing: the abject capitulation of MIT to the dictates of the U.S. attorney’s office. In 2011, Swartz used MIT’s computer system to access the proprietary academic-research site JSTOR, and thereby briefly liberated more than 4 million journal articles from behind the site’s paywall. MIT administrators meekly permitted federal prosecutors access to Swartz and his computer, without benefit of a search warrant. And after JSTOR declined to press charges in Swartz’s low-stakes hacking case, MIT chose to remain a complainant in the take-no-prisoners prosecution mounted by U.S. Attorney Carmen Ortiz, who multiplied the counts against Swartz until he was looking at as many as 50 years in federal prison.

MIT’s role is puzzling given its long history as one of the nation’s chief progenitors of hacker culture. It allowed Richard Stallman, the programmer who essentially founded the free software movement, to use an office on campus as his operating base (and at times, reportedly, as his home). As the Swartz case demonstrates, universities that were once deemed preserves of cultural dissent and nonconformity, these days reflexively knuckle under to the powerful enforcing—and funding arms of the federal government.

“This seems to be another piece of evidence that we in major universities look toward Washington before we make a decision about, say, some young oddball who’s hooked his computer to our wiring,” says Harry Lewis, a Harvard computer science professor who was also Harvard’s undergraduate dean from 1995 to 2003. “We have so many entanglements: Pell grants, research funding, undocumented students we have on our campuses,” says Lewis. “So we’re always looking over our shoulder.”

To see how deep-seated this trend is, one need only look across town, to Boston College, where from 2001 to 2006 Irish historian Ed Moloney directed an oral history project, collecting interviews with former members of the Irish Republican Army about the group’s past terrorism campaigns. Guarantees of confidentiality were central to the project, for obvious reasons. But in 2011, Northern Ireland prosecutors issued subpoenas for Moloney’s interviews—subpoenas that the Department of Justice summarily dropped on BC.

BC did hire lawyers to fight the subpoenas (after Moloney leaked the story to the New York Times), but rather than defend academic freedom, the college pursued a narrower stay on the release of some of the interviews. This left Moloney and his collaborators to file their own broader appeal to the Supreme Court, which will hear arguments later this year.

Says Moloney: “When we sought amici briefs for our SCOTUS case we had no difficulties attracting journalistic and media organizations … but U.S. academe ran screaming for the shadows.” And in late January, the BC case took its own eerie Swartz-like turn: Dolours Price, the former IRA member in Moloney’s project whose participation originally roused the interest of Irish authorities, had died of an apparent drug overdose.

Laid side by side, these two Boston-area cases point to eerily similar trends: Inquisitorial federal prosecutors, operating under loose interpretations of the mandate to combat terrorism, are prepared to run roughshod over protocols that protect the traditions of academic autonomy and free inquiry—while university administrators, eager to kowtow to their federal paymasters, become surrogate enforcers rather than principled defenders of academic freedom.

Aaron Swartz’s legacy might well produce important gains in the struggle to expand the free play of information into a significantly enlarged public sphere. But in institutional terms, the cases of MIT and Boston College suggest the struggle has already been fought—and lost.


ABOUT THIS AUTHOR
Chris Lehmann, a contributing editor of In These Times, is an editor of Book Forum and the Baffler and the author of Rich People Things (Haymarket, 2011). He is now working on a book about American religion and the money culture.

Reply of Boston College to Government’s Response to Motion to Dismiss Appeal as Moot

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
___________________________________________________________________________
No. 12-1236

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 KINGDOMON MUTUAL ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF DOLOURS PRICE, UNITED STATES,

Petitioner – Appellee
v.
TRUSTEES OF BOSTON COLLEGE, ET AL.,
Movants – Appellants
_________________________________________________________________
REPLY OF BOSTON COLLEGE TO GOVERNMENT’S RESPONSE TO MOTION TO DISMISS APPEAL AS MOOT
__________________________________________________________________

 

On January 28, 2013, Appellants Trustees of Boston College and two of its representatives, Robert K. O’Neill, the Librarian of the John J. Burns Library at Boston College, and Boston College University Professor Thomas E. Hachey (collectively, “Boston College”), notified the Court pursuant to Fed. R. App.P. 43(a)(1) of the death of the Dolours Price. Because the subject of these proceedings, as identified in the caption of this case by the Commissioner who issued subpoenas to Boston College, is Dolours Price, Boston College moved that this Court dismiss this appeal as moot and vacate the District Court’s January 20,2012, Findings and Order that is the subject of this appeal. The Government’s Response asserts two grounds for denial of Boston College’s motion:

  • that the caption of these proceedings does not limit the information sought to evidence to prosecute Dolours Price, and
  • that a specific limitation in the treaty at issue in this appeal (the US-UK MLAT) is not applicable to the subpoenas that are the subject of this appeal. Upon further consideration, Boston College does not contest the Government’s position on the second ground, but does dispute the Government’s position on the first ground, for the following reasons.

ARGUMENT

The August 2011 subpoenas to Boston College that are the subject of this appeal (“the subpoenas”) were issued in proceedings that the Commissioner captioned “in criminal matters in the matter of Dolours Price.” That caption is the only information Boston College has regarding the subject of the pending proceedings: criminal matters that relate to Dolours Price. Based on that information, when Boston College learned of the death of Dolours Price, it filed a suggestion of death pursuant to Fed. R. App. P. 43(a)(1). Because the only person whom the Commissioner identified as the subject of these proceedings was Dolours Price, and there could be no prosecution of her after her death, Boston College moved to vacate the District Court’s order at issue in this appeal and to
dismiss the appeal as moot.

The Government’s Response (at 6-8) incorrectly asserts that Boston College previously took an inconsistent position in this litigation because it did not object based on the fact that the subpoenas asked for “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.”

The Government’s argument on this point fails to acknowledge the difference between the subject of the proceedings (from the caption, Dolours Price) and the scope of materials sought by the subpoenas issued in these proceedings (information about the McConville abduction and death). Boston College does not argue that the death of Dolours Price affects the scope of the materials the
subpoenas seek. Instead, it contends that the death of Dolours Price moots the need for the information sought by the subpoenas.

The Government’s Response also asserts (at 8) that Boston College is mistaken in concluding, based on the caption the Commissioner himself gave these proceedings, that the criminal matters under investigation are limited to Dolours Price. The Government asserts that its ex parte filings identified subjects of the investigation other than Dolours Price. Boston College has no way to verify the accuracy of the Government’s assertion, because it has been barred from access to the materials on which that assertion is based.

Boston College therefore relies on this Court to determine, from the Court’s own examination of the ex parte materials, whether those materials identify one or more other living individuals against whom criminal prosecution would still be possible, so that these proceedings are not in fact mooted by the death of Dolours Price.

Conclusion

Unless this Court can confirm from examination of ex parte filings by the Government that the subject of these proceedings is not just Dolours Price, but also individuals who are still alive and subject to possible criminal prosecution, this Court should vacate the District Court’s January 20, 2012, Findings and Order and dismiss this appeal as moot.

By their attorney,
/s/ Jeffrey Swope
Jeffrey Swope (BBO# 490760)
Nicholas A. Soivilien (BBO #675757)
EDWARDSWILDMAN PALMER LLP
111 Huntington Avenue
Boston, Massachusetts 02199-7613
(617) 239-0100
jswope@edwardswildman.com
Dated: February 20, 2013

Leaders renew assault against BC subpoenas

Leaders renew assault against BC subpoenas
IN NEWS & VIEWS
By Irish Echo Staff
Irish Echo
FEBRUARY 13, 2013

The leaders of three main Irish American organizations have renewed their offensive against the U.S. Justice Department subpoenas aimed at the Boston College Troubles archive.

The two year battle has involved a challenge by the Belfast Project researchers Ed Moloney and Anthony McIntyre against what they and the organizations say is the misuse of the U.S-UK Mutual Legal Assistance Treaty.

The Ancient Order of Hibernians, Irish American Unity Conference and Brehon Law Society further point to twenty members of Congress “who not only share their concern, but question Britain’s commitment to the Irish peace process.”

Said the groups in a statement: The confirmation of Senator John Kerry as Secretary of State and the elevation of Senator Robert Menendez to chairman of the Senate Foreign Relations Committee, two who have opposed the subpoenas, has given new strength to the cause.

“These leaders, Kerry & Menendez,” stated National President of the AOH, Brendan Moore, “have shown a willingness to listen to our arguments and to test our sincerity

and credibility. When presented with documentation regarding threats to the Irish peace process and to the corruption of American laws, they have recognized our good faith.”

The Brehon Law Society’s Robert Dunne said: “The Cameron government efforts to violate American treaties, policies and rights will not end with the death of Dolours Price or the Moloney and McIntyre litigation decision, but with a Senate hearing on the MLAT and the British corruption of its purpose. To that end we have written to Senator Menendez and to Senate Majority Leader Harry Reid for the opportunity to be heard.”

Attorney Thomas J. Burke Jr., National President of the Unity Conference added: “We invite Americans to join us in expressing to Attorney General (Eric) Holder and to

Secretary of State Kerry strong opposition, not only for this political misuse of the MLAT, but to British efforts to undermine U.S. policy in support of the Irish peace pact.”

The subpoenas have been issued by the Justice Department in response to requests originally filed by the Police Service of Northern Ireland.