The Belfast Project That Students Forgot

The Belfast Project That Students Forgot
Delphina Gerber-Williams
The Heights
22 September 2014

In the past year, we have witnessed our country plummet in its Global Press Freedom Ranking, the U.S. Supreme Court refuse to step in on behalf of a Pulitzer Prize-winner facing jail time for protecting a source, and concern over Internet freedom growing. We’ve discussed freedom of the press, feared the NSA, and worried about all of our Facebook conversations going public. But where were we, the Boston College community, when confidentiality, protection of sources, and the integrity of academic freedom were being fought over by the U.S. Department of Justice, three senators, six congressmen, and three nations, right here on our campus?

Last May, BC announced that it would return recorded interviews from the controversial Belfast Project to its participants. This not only marked the end of a string of legal disputes involving BC, the UK, and the U.S. Department of Justice, but also the death of a groundbreaking research project.

Starting in 2001, the Belfast Project was aimed at documenting the three-decade ethno-nationalist conflict that wracked Northern Ireland from the 1960s to 1998, known as the Troubles. Organized by Executive Director of the Center for Irish Programs Thomas Hachey, then-Burns Librarian Robert O’Neill, Irish journalist Ed Moloney, and former Irish Republican Army (IRA) member and historian Anthony McIntyre, the project consisted of interviewing 46 former paramilitary fighters from both sides of the conflict. The project directors intended each interview to remain sealed until the death of the respective interviewee.

In 2010, the first interviews were published in the book Voices from the Grave, by Ed Moloney. These interviews, with former IRA leader Brendan Hughes and former Ulster Volunteer Force member David Ervine, were only made public because of their deaths in 2008 and 2007, respectively.

Shortly after, the British government contacted the U.S. Department of Justice, seeking two interviews from the project that might shed light on a murder committed during The Troubles. After deliberation, the University agreed to hand over Hughes’ interviews, but kept the interviews of Dolours Price on the grounds that she was, at that point, still alive.

Eight months after the initial subpoena, the British government issued a second subpoena, now requesting all of the interviews in the BC archive that contained information about the abduction and death of Jean McConville.

The subpoenaing of the tapes threatened the project. One of the first academic endeavors to reveal new details on the Troubles through interviews with former IRA and unionist members, and the only of its scope, the Belfast tapes had the potential to shed light on the sensitive and complex problem of sectarian violence.

The possible ramifications of the subpoenas, however, ran far deeper than the tapes. Traditionally, academic research is granted higher protections from the law so that knowledge and truth can be pursued for the advancement of society. These subpoenas threatened this notion and challenged the idea that academic freedom is essential to the vitality of our society.

The subpoenaing of the tapes also threatens further research. As University Spokesman Jack Dunn told WBUR radio, reported by NPR in May, “Clearly, this could have a chilling effect on oral history projects.” Without protection, researchers will face uncertainty from those who gather information from confidential sources and the sources themselves.

In defense of his own work and academic freedom, McIntyre even claimed that a researcher is actually obliged to destroy his or her material before giving it to a person who could bring it harm, according to an article by Beth McMurtrie published in The Chronicle of Hgher Education in January. He also offered to take the archive into his possession in order to keep it from law enforcements, risking jail for the sake of research.

Initially on the same page as McIntyre, BC attempted to protect the files, appealing the subpoenas several times. As proceedings continued, the administration decided to distance itself “from the reckless rhetoric of Ed Moloney and Anthony McIntyre,” as Dunn put it in an interview with McMurtrie for the aforementioned article.

While BC was distancing itself from McIntyre and Moloney after the second subpoena, Senators Chuck Schumer, Scott Brown, and John Kerry, along with six other congressmen, wrote to then-Secretary of State Hillary Clinton calling for a withdrawal of the subpoena.

And the students of BC remained silent, uninformed. When I questioned my peers about the project, I got the resounding response, “What’s that?”

As academics across the nation followed the fate of these tapes this spring, where were the BC students?

It is our full-time job as students to learn, to immerse ourselves in the pursuit of knowledge. We are the next generation of researchers. And yet, there were no big conversations on campus about the project that might redefine future research. Why weren’t we concerned with the questions circling our campus, the future of our own academic freedom?

Furthermore, why has BC refused to be open with its students about the project? The University never participated in a dialogue with students over the legal disputes.

The Belfast tapes case raises many questions. What degree of freedom should academic research have? How responsible are researchers and their universities in protecting interviewees who reveal sensitive information? At what point does the pursuit of justice supersede the pursuit of truth and knowledge?

I am not suggesting that the student body of BC had the ability to decide the fate of these tapes, but we should have at least known and taken part in the discussion.

Despite McIntyre’s efforts, the relevant tapes were turned over. “There has been a shadow cast over this type of research,” Richard English, a professor of politics at the University of St. Andrews in Scotland, told The Chronicle for the aforementioned article. Many scholars, English said, have expressed apprehension about pursuing projects like this, for fear of it coming to naught. The Belfast Project is dead now—there will be “no more books, no more revelations,” as McMurtrie put it in her article. And for McIntyre, “It is the single most devastating thing that ever happened to me,” he told The Chronicle. “It can never be used now. It’s all done for nothing.”

Say Anything: The DOJ Comes Clean on Retribution

“The public release of such allegations could have ramifications in a foreign country which are not fully appreciated here.”

Say Anything: The DOJ Comes Clean on Retribution
Chris Bray
Tuesday, September 16, 2014

For government lawyers, truth can be a contingent, situational, and highly malleable idea. And today we have new evidence of that fact.

Three years ago, when Boston College filed a motion in a federal court to quash subpoenas of Belfast Project interviews, Assistant U.S. Attorney John T. McNeil flatly rejected the idea that the release of those interviews from a protected academic archive might endanger people involved in the project. You can read McNeil’s July 1, 2011 brief here. But here’s the relevant passage, from pg. 2:

While the Respondents make other equitable and factual claims, including the claims that the researchers will face retribution and that the disclosure of the materials will threaten the political stability in Northern Ireland, those claims falter in the face of close scrutiny. The researchers themselves, and the subject of the interviews, widely publicized their involvement in this oral history project long before the subpoenas in this case were issued. Moreover, the Respondents’ decision to publicize the issuance of the subpoenas – which had been kept under seal by the United States – belies any claim of such risk. If there were a substantial risk of retribution, the Respondents’ efforts to publicize the subpoenas would compound the purported problem, rather than mitigate it.

So the release of Belfast Project interviews would be no big deal: no risk to the political stability of Northern Ireland, no risk of retribution for people involved in the project. No good reason not to pry open the archive, your honor. No danger at all. They made this claim often and loudly; see also this example.

This week, Assistant U.S. Attorney John T. McNeil filed two documents with the same court — a brief, and a supporting declaration — to argue against a federal judge’s proposal to publicly release documents filed under seal in the matter of the Belfast Project subpoenas. Why? Because, ladies and gentlemen, the release of material related to the Belfast Project endangers witnesses and might subject people to retribution.

Same prosecutor, same case. The material should be released, because warnings about retribution are silly; the material must not be released, because it’s dangerous and people will get hurt.

Here’s a link to the brief; the relevant language is on pg. 2, where McNeil writes that British officials “continue to seek that the materials remain impounded to ensure that evidence (both testimonial and documentary) is not destroyed or altered, and to ensure that witnesses and investigators are not subject to harassment, reprisals or tampering.”

And here’s a link to the supporting declaration, where McNeil writes that “the release of such information could unfairly impugn the reputation of those witnesses and suspects, or subject them to retribution.”

Suddenly, three years later, the Department of Justice says the release of documentary material related to the Belfast Project threatens to subject people to retribution.

So what does that say about the decision to pry the interviews out of the archive in the first place?

See: Threats to Researcher and Research Participants

Old Wounds & Oral History: The Aftermath of the Belfast Project

Old Wounds & Oral History: The Aftermath of the Belfast Project
The Kojo Nnnamdi Show
WAMU.org
Wednesday, Jul 9, 2014

Boston College’s “Belfast Project” aimed to compile first hand accounts of the Troubles in Northern Ireland, collecting the oral histories of 46 former combatants with the promise of confidentiality. But after British prosecutors compelled the college to hand over contents from the archive, and detained a prominent political leader for crimes allegedly committed in the 1970s, many observers are worried the tapes could destabilize the country’s peace agreement. We explore the debate in Belfast and within American academic institutions.

Guests
Zachary Schrag
Associate Professor, Department of History and Art History, George Mason University; Author, “Ethical Imperialism: Institutional Review Boards and the Social Sciences, 1965-2009” (Johns Hopkins)

Kevin Cullen
Metro Columnist, The Boston Globe; co-author, “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice


MR. KOJO NNAMDI
From WAMU 88.5 at American University in Washington, welcome to “The Kojo Nnamdi Show,” connecting your neighborhood with the world. Later in the broadcast, we talk with journalist Louisa Lim about her new book, “The People’s Republic of Amnesia: Tiananmen Square Revisited.” But first, three decades of violent conflict in Northern Ireland, known as the Troubles that pitted the Nationalist Catholic Irish Republican Army or IRA against Protestant loyalists under the banner of the Ulster Volunteer Force or UVF, came to a tenuous end in 1998.

MR. KOJO NNAMDI
But the tensions and traumas of the time have remained close to the surface in Belfast, a fact driven home earlier this year when Gerry Adams, a long-time leader of Sinn Fein, the nationalist political party, closely linked the IRA, was arrested by police and questioned about the 1972 murder of a mother of 10. A move fueled by police in Northern Ireland, getting hold of information from an oral history project out of Boston College. An idea with altruistic goals but plagued with problems.

MR. KOJO NNAMDI
Here to bring us up to speed on the fallout and to help us understand the implications is Zachary Schrag. He’s a professor in the Department of History and Art History at George Mason College. His books include, “Ethical Imperialism: Institutional Review Boards and the Social Sciences,” and “The Great Society Subway: A History of the Washington Metro.” Zachary Schrag, thank you for joining us.

MR. ZACHARY SCHRAG
Delighted to be here.

NNAMDI
Joining us by phone, from Boston, Mass., is Kevin Cullen. He’s a Pulitzer Prize winning journalist and a Metro Columnist for The Boston Globe. He’s also co-author of “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice.” Kevin Cullen, thank you for joining us.

MR. KEVIN CULLEN
Thanks Kojo.

NNAMDI
Kevin, Boston, which as you note, has long been seen as a moderate, so-to-speak, base of Irish-America. It may seem a natural home for a project, chronicling the troubles. What were the aims of this Boston College Project and who was behind it?

CULLEN
Well, first of all, it — the genesis of it was, sort of, in the heady days, right after the Good Friday Agreement of 1998, ended the troubles as we knew them. And the idea was to create an oral archive to go and talk to the combatants, the people that fought and were willing to kill and were willing to die for what they believed in, at the time.

CULLEN
And so it was conceived that they would, you know, hire people on the ground, in Northern Ireland, who could get to these former combatants, interview them, record what they say and place it in an archive here at the Burns Library at Boston College, which is the biggest repository in the United States for Irish related issues. And the idea would be, it eventually, historians, journalists, people interested in this would read it after all — everybody that was involved in it had long since past. And that we might learn about the motivations, conflict and how conflict is resolved.

CULLEN
Unfortunately, there was a book published by the project director, Ed Moloney in 2010, which kind of signaled the fact that they had these interviews, they’re very specifically, the book was based on the interviews given by David Irvine, who was a leading loyalist, paramilitary, before he became a politician and Brendan Hughes who was known as the Dark. And he was a senior IRA man, very close to Gerry Adams at one time but then had a falling out with him over the direction of the peace process.

CULLEN
And in that book, Brendan Hughes implicated Gerry Adams in the murder and the abduction-murder and secret burial of Jean McConville. Eventually, the police and the — I think, the timing of all this is very questionable. The police decided they wanted that evidence, they thought that that could help them solving the murder of Jean McConville, 40 years after it happened. And that — thus began the, sort of, tug-of-war, pitting the issues of academic freedom, criminal investigation and, frankly, the political prosecution of cases of the past.

CULLEN
A lot of what this comes down to is, the Boston College Project, I think, was well intentioned. It hoped that it could somehow contribute to the understanding of conflict and hopefully, you know, promote resolution of conflict and maybe even the prevention of conflict. Instead it has become a political football and you have the case, I think, very disturbing case, of an American academic institution being used as a proxy investigative arm of a foreign government.

NNAMDI
But one technicality here, if you will, and that is, Gerry Adams, it is my understanding, was in favor of the project but he was not in favor of the individuals to whom it was entrusted because he felt that they would bring a bias view to their presentation.

CULLEN
That’s true, he believes, as do many people in the Republican leadership, that Ed Moloney, the journalist, who was the project director and Anthony McIntyre, a former IRA prisoner, who did the research, who did the actual interviews of these people, they believed that they are bias, that they are opposed, that they have been on the record as being hostile to Adams and the rest of the leadership of the Republican movement. As Adams sees it, there’s no way that these guys would not ask leading questions. They would not — they would shape the research to get to a — get to a point where they want it to be.

CULLEN
The one thing I found interesting, when I was in Belfast, last week, in talking to some of the people that gave their interviews, yeah, they openly acknowledge that they don’t agree with Adams and the direction he took the Republican movement. But they said, that’s irrelevant to their history. The way they view it, if BC did not record their history, they would never — know one would know what they think because they fall outside the mainstream of Republican thought, these days.

CULLEN
So they are, sort of — they’re not dissidents in the sense they endorse the dissident groups that are carrying on violence now, but they’re certainly dissidents in the sense that they don’t agree with what the Republican leadership settled for. And they feel as though it’s very important that their side of the conflict is recorded for history.

NNAMDI
Well, it was recorded for history but as Zachary Schrag, in most coverage, we’ve heard this collection at BT — BC, referred to as an oral history project. But that description may be it glosses over a very important fact, and that is, that the people conducting these interviews that were mentioned earlier, were not oral historians. Why is that important?

SCHRAG
Right. So this was a project designed to document history but it was not a project run, for example, by the Boston College History Department. And, in fact, the history department at Boston College has been rather public in its dismay that it was not brought in. The interviewers at Moloney is journalist, the other interviewers, I believe, both have doctorates in political science, clearly these are related fields. But it does not necessarily flow that they were aware of the training in methods of oral history that go back several decades, since the historians started picking up tape recorders.

SCHRAG
And this is not to say that historians have a lot of experience with subpoenas. We do have presidents where political scientists and sociologists have their interviewed subpoenaed and had people been more aware of this, then maybe they would’ve taken more precautions. But I do think it would’ve been possibly helpful to have more historians involved in the process, talking it over. As it is, neither the interviewers nor the Boston College librarians were able, between them, to work out all the implications of their plans.

NNAMDI
Among oral historians, you just implied by saying what the Boston College History Departments responses, but among oral historians, this case has been closely watched. And you say, that some people are trying to distance themselves from the BC project, why?

SCHRAG
Well, in an interview with the chronicle of higher education, Mary Marshall Clark of Columbia University, who’s certainly one of the leading oral history experts, repeatedly said this was not an oral history project. And, I think, what she meant by that was that there are, again, methods developed over the decades to try to avoid this kind of situation where promises are made and not kept. For a long time, oral historians have tried to offer narrators the option of sealing parts of their interviews, so that if there’s something that they think should be part of the historical record but are not quite ready to go public with, right then, it can be sealed for a matter of decades.

SCHRAG
Now, again, we’ve not had a lot of experience in the profession with actually subpoenas coming in and so even if a bunch of expert archivists and historians had gotten together on this, it’s not entirely clear to me that they would’ve been able to come up with workable safeguards to allow this project to go forward.

NNAMDI
If you have questions or comments for it, you can call us at 800-433-8850. What do you make of this BC project and the unintended consequences that it has had, 800-433-8850? You can send email to kojo@wamu.org or send us a tweet @kojoshow. Kevin Cullen, in the last decade, Belfast has changed dramatically in some ways and stayed much the same in others. What did you find in both respects on your recent visit?

CULLEN
Well, I mean, I’ve been going there for almost 30 years. So I kind of knew it in the bad old days and certainly from a cosmetic point of view, Belfast is shiny and new. I was so struck by the Fitzwilliam Hotel, which is just shear plate-glass window. And that would’ve been sheer folly to have that thing up in the ’70s and ’80s.

NNAMDI
When bombs are going off everywhere.

CULLEN
Yeah. It just was — I mean, I actually — some of the richest people I met in Ireland, over the years in the North of Ireland, were glaziers because they’re very busy during that stuff. But it — the, sort of, underlying problems in that society, particularly, one of segregation, has not changed much in the year since the Good Friday Agreement. In fact, the, sort of, ironically named Peace Lines, they put walls up to separate working class republican nationalist areas from working class loyalist areas.

CULLEN
They’ve actually increased in numbers since the Peace Agreement. They’re many — I think, there are probably three or four dozen of them that have gone up in the intervening years. You know, it — when the Peace Agreement was signed in 1998, about five percent of kids in Northern Ireland went to integrated schools. That number has not changed one iota in the intervening years. So there’s sort of a — here in America, you know, in the Brown vs. Board of Education case, our Supreme Court made it very clear that separate but equal was not acceptable in the United States, under our Constitution.

CULLEN
But in fact, that is exactly how the society functions in Northern Ireland now. It is separate but equal. You know, there’s equal funding given to Catholic schools and state schools, which for all intensive purposes are Protestant schools. And the other thing that I really picked up on the ground, in there, is you know, when people talk about, you know, the North of Ireland, is this sort of, textbook case of how attractable conflicts can be resolved. That’s true as far as getting to say yes, in 1998.

CULLEN
But they really struggled since then to figure out how to deal with the legacy issues, to deal with the past. And I think the BC dilemma or conundrum, whatever you want to call it, debacle, fits into — with this micro — it’s a microcosm of the society not being able to confront, unlike, say, in South Africa where they had a very formalized truth and reconciliation process. They don’t have one in Northern Ireland and it shows. So you’ve had Peace Mail investigation, say, it’s a bloody Sunday and to different individual killings and controversy’s.

CULLEN
And then you have the BC thing with, sort of, this attempt at, well let’s put it out there and maybe historians will make sense of it down the road. And obviously that went to pot. But I think, it also, the reason it happened is that the Irish have not been able to figure out who gets to decide what their legacy is and who tells that story. And really, the stuff that I picked up on the ground, this was — this was really, even though it is a problem in the loyalist community, it’s much — a much bigger problem in the Republican community because there are Republicans fighting over who gets to tell the story.

CULLEN
And it’s obviously Sinn Fein is the mainstream, the political power. And then you have these people that have fallen away from that group and who actually resent that group. And so, that’s why the arms struggle of Irish Republicanism has been replaced by a legacy struggle.

NNAMDI
Gotta take a short break. When we come back, we’ll continue this conversation on Boston Colleges oral history project and the Troubles in Northern Ireland. But you can still call us at 800-433-8850. What kind of rigor and standards do you think should be applied to oral history projects, 800-433-8850? You can send email to kojo@wamu.org, I’m Kojo Nnamdi.

NNAMDI
Welcome back to our conversation on the Boston College oral history project and the troubles in Northern Ireland. We’re talking with Kevin Cullen. He’s a Pulitzer Prize-winning journalist and a metro columnist for the Boston Globe. He’s co-author of “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice.” He joins us by phone. Joining us in studio is Zachary Schrag. He’s a professor in the department of history and art history at George Mason University whose books include “Ethical Imperialism: Institutional Review Boards and the Social Sciences,” and “The Great Society Subway: A History of the Washington Metro.”

NNAMDI
Kevin, Gerry Adams’ address in May may have made international headlines but with conflicts raging around the world, it has since faded for many but not all. What kind of ripple effect is it having in Belfast?

CULLEN
Well, I think people are curious to see if in fact this is just, you know, a political show to drag him in before the elections. Frankly if it was an attempt by police to embarrass him, it had the opposite effect. Sinn Fein’s vote was surprisingly much better than expected, both in local and European elections, both north and south. So there is always that sort of tendency when the British authorities — or in this case, you know, the Police Service of Northern Ireland — when they are seen to do something that is seen as unfair, that will help Sinn Fein, not hurt it.

CULLEN
That said, I think people are sitting back and saying, are they going to charge him? And if in fact they do charge him, I think there could be a serious effect on the peace process if only it will allow the people that are trying to kind of radicalize a new generation to take up arms. They would — their hand would be strengthened. They would be able to go to young people in Northern Ireland and say, hey look at this the Sinners did everything the Brits asked them to do and look what the Brits are still doing to them. And they’re not — there’s a real level of hypocrisy that I’ve heard people talk about.

CULLEN
You know, the police agency that is demanding access to the entire oral history archive at Boston College refuse to submit their own records to the police ombudsman’s office which is trying to conduct an independent review of at least 60 cases in which police offices and British military officials were accused of extrajudicial killings during the troubles.

CULLEN
So, you know, you talk to people on the ground there, both in Republican and Loyalist camps, they say, oh yeah, the cops want to come after us but they won’t go after themselves. And so there’s a lot of frustration at that level.

NNAMDI
Do have to mention the presence of the British, which is what Brendan in Vienna, Va. would like to remind us of. Brendan, your turn.

BRENDAN
Kojo, thank you. You have a fascinating program today. I’m a George Mason University history graduate and Irish American, so a great show today. Yes, wanted to comment on the fact that in the introduction you mentioned a conflict between the Loyalist paramilitaries and the IRA. Just want to add that a man combatant would be the British Army in Northern Ireland who the IRA would certainly argue that they were in conflict with as part of a national liberation struggle to unite Ireland.

BRENDAN
And also wanted to comment on the — since you mentioned the Loyalist paramilitaries on the collusion between the British government, the British Army and the Loyalist paramilitary. And I’ll take my comments off the air.

NNAMDI
Thank you very much for your call. Kevin, the violence may have subsided but you note that language remains loaded in Northern Ireland. And sharing even an intensely personal story from the time can be dangerous. Explain to us what a tout is and what can happen to someone labeled as one.

CULLEN
A tout is the local slang for an informer. And it is probably the most provocative loaded term anywhere in the North of Ireland. And throughout the troubles, you know, touts would turn up with hoods over their heads, their hands tied behind their back and at least one bullet in their head. And it was obviously the most ignominious end for anybody in those circumstances.

CULLEN
And Irish history is replete with, you know, the whole — the specter of the informer hangs over so much of Irish rebellion down through the centuries. And so after Gerry Adams was arrested in May, graffiti appears all over parts of Belfast. And it said, Boston College touts, the implication being anybody who took part in the Boston College project was touting because they were talking about IRA operations.

CULLEN
Now I spoke specifically with two people who had been identified publically as having given interviews to BC. One is Ricky O’Rawe who was actually the spokesman for the hunger strikers in 1981. He was one of the blanket men who refused to wear prison uniforms when he was doing his time for IRA activity. Other fellow I talked to is Tommy Gorman, another IRA veteran I think spent about 13 years in prison for IRA activity, Escaped from prison twice.

CULLEN
They saw that as a direct threat on their lives. They believe that there are people, the erstwhile comrades who would consider themselves justified in killing them because the touted. That’s the way it’s being seen. And again, in the story I told — and this is — I didn’t even know about the story and, I mean, I had — I’m in Northern Ireland pretty regularly, but I somehow missed this one.

CULLEN
A few years ago a guy named Gerry Bradley who was a member of the IRA in North Belfast, he wrote his own book and he did not vet it. He did not send the manuscript for vetting with the Republican leadership. And after his book came out — and Jerry — in an interview he gave he said, you know, I didn’t name anybody. This was my story and I didn’t submit it for — I’m not going to have my story censored. And very shortly after the book came out, it appeared on the walls in the (word?) which is the neighborhood where Jerry lived. And he was accused of being a tout. And he eventually left his neighborhood and was despairing and he killed himself.

CULLEN
So there are real implications for this word and it’s thrown around kind of willy-nilly in circumstances like this. There are people pointing fingers at each other and publically accusing each other of being touts. And again, that is a word that carries enormous consequence in the North of Ireland.

NNAMDI
Zachary Schrag, these tapes contain narrators implicating other in acts of violence, which raises all kinds of murky questions about slander, about liable. What recourse, if any, do those who took part in the project likely have?

SCHRAG
Well, unfortunately there’s not good law right now. So Boston College has sent back the interviews to those it can. And Mr. Cullen’s article describes one set of interviews being burned by the person who gave it. In the long term we do have federal protections for some kinds of research, if you’re doing health research, for example, with sex workers or drug users who you know they commit crimes but you’re trying to do public health research, you can get protections from subpoena for that.

SCHRAG
If you want to research criminals and are willing to burn the tapes afterwards, you can get shield law protections from the Department of Justice for that. But what we don’t have in U.S. federal law are broader protections where people doing this kind of research could really guarantee that the materials would not be released under subpoena. And until we have that we can’t get the kind of reconciliation that Mr. Cullen talked about.

NNAMDI
As a journalist on a live broadcast, I ask a guest a question, you answer it. That answer’s out there for everyone to hear, maybe read at a later date, whether it’s tomorrow, five, ten years from now. But oral history works on a very different set of assumptions and procedures with a very different end in mind. The saying goes that journalists write the first draft of history, so what needs to happen to create a final or more definitive draft?

SCHRAG
Well, ideally in an oral history project you go to a narrator, go back and forth multiple times, you do a recorded interview, you transcribe it, the narrator reads it, maybe adds some things, takes out some things. And what you’re trying to do is to get a polished finished narrative that the narrator thinks really represents his or her experiences in position. And that will last as an archive. It’s almost like writing a memoir only without limiting it to the relatively few people who have the time and money and resources to actually publish a memoir.

SCHRAG
The problem, again, is that if there are going to be people coming into that process, either through subpoena, Freedom of Information Act requests, which is a problem for those of us who work at public universities, then that bond between interviewer and narrator is broken. And the narrator can’t be as candid as he or she would like. And you have to limit things to what’s on the record.

SCHRAG
Fortunately for most oral history projects that’s fine. Most oral history projects are not about unsolved murders but it’s still unfortunate that we have this kind of project hanging over us and perhaps deterring future research.

NNAMDI
Kevin Cullen, the nature of truth and memory issues of ownership of a story, who gets to write the history, all central to this current conflict. As a journalist who’s covered both international conflicts and written about the havoc wreaked by Whitey Bulger in Boston, what do you make of the chilling effect that remains in this case and so many decades after the fact?

CULLEN
Well, all I can tell you is the people that I interviewed who gave interviews said they would never in a million years have agreed to do it if they thought their stuff could come up before they died. They really — now, you know, we can go back and forth of whether BC was clear enough on this, whether the project director and the interviewers were clear enough on it to the people. But there’s no doubt in my mind talking to these people that they thought it was not going to come out until they were dead.

CULLEN
And so will it have a chilling effect? I would think it would have to. I would think any time you approach somebody and asked them to detail what is essentially the violation of laws or committing crimes, even if they would justify it as, you know, an act of war, an act of, you know, natural self determination, they would be — I would think they would be very cautious. They would point to this case. UI think it’s, you know, unmistakably true that this is a test case, that this has set a precedent. And I would say it set a very, very bad precedent. I think it’s bad for oral history. I think it’s bad for conflict resolution.

CULLEN
Because I remember, you know, there are guys on the Loyalist side I talked to, they really thought they were doing a public service. They thought they were helping people down the road. If people could see why they did what they did and also explain why they stopped when they stopped that lessons — valuable lessons about conflict and conflict resolution would be imparted. And now they feel that was all for naught. And as Plum Smith, one of the leading Loyalists puts it, he says, I don’t think anybody would ever sit down and give a candid account in a case like this again.

NNAMDI
Well, Kevin, Northern Ireland’s peace process did not end with a Good Friday agreement or the 2006 amendment to it. Gerry Adams as part of a Sinn Fein delegation sat down with Prime Minister David Cameron last week. Where, in your — looking in your crystal ball, do you see the continued process going next?

CULLEN
Well, first of all, I don’t think it’s likely that we would go back to armed conflict. I mean, there are dissident groups on the ground, at least on the Republican side, who believe that they have the right to engage in armed struggle. That said, I think those days are really gone.

CULLEN
The other part of this is obviously that you can always reignite issues in Ireland with — if people are seen to be treated unfairly. And that’s why potential prosecutions that arise from this, I think, could have a dramatically detrimental effect on the peace process. But I think the other thing is, this issue of the past and dealing with it, I think it’s something that this society hasn’t really taken formal steps to handle with. The piecemeal nature of truth recollection or truth recovery I think has actually had a negative effect.

CULLEN
And unfortunately, you know, there is no Mandela in Northern Ireland. There is no archbishop Tutu. There is no person that you could point to as sort of being the arbiter of how we’re going to handle this. I mean, Richard Haass from the United States government is actually over there, and Megan O’Sullivan from Harvard. And they’ve been trying to help the Irish deal with their legacy issues. How do they deal with the past? How do Unionists celebrate their traditions without offending Nationalists and vice versa?

CULLEN
So I think this is something that’s going to go on. We’re in a post-conflict situation in Northern Ireland. And I think it’s that old truism. Sometimes it’s harder to keep the peace than to make the peace. And there are a lot of, a lot of struggles that this society has in front of it. And hopefully they will get through it.

NNAMDI
And I’m afraid we’re just about out of time. Kevin Cullen is a Pulitzer Prize-winning journalist and a metro columnist for the Boston Globe, co-author of “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice.” Kevin, thank you for joining us.

CULLEN
Thank you, Kojo.

NNAMDI
Zachary Schrag is a professor in the department of history and art history at George Mason University. His books include “Ethical Imperialism: Institutional Review Boards and the Social Sciences,” and “The Great Society Subway: A History of the Washington Metro.” Zachary Schrag, thank you for joining us.

SCHRAG
Thank you.

No Grounds for Citing SAA

No Grounds for Citing SAA
Anthony McIntyre
The Pensive Quill
2 July 2014

A letter submitted to the Times Higher Education but not published as Ed Moloney, former project director of the Belfast Project, had written earlier and his letter was published.

In his article Oral history: where next after the Belfast Project? (THE 5 June 14) Jon Marcus claimed:

An investigation by the Society of American Archivists has found that the researchers made promises of confidentiality that went further than university lawyers had advised.

The investigation cited was nothing short of appalling deficiency in that it churned out a “litany of incontestable mistakes”. It is regrettable that Jon Marcus did not make clear that the SAA investigation he cited has since March 2013 been “under review” because of complaints about it.

He therefore had no grounds to cite it.

The SAA ‘investigation’ wrongly claimed that project staff (I was the interviewer):

made additional written promises to participants in the oral history project that went beyond those offered by Boston College but … 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.

I responded at the time stating that this was so:

demonstrably false and misleading that only with extreme reluctance could it be accepted as something issued in good faith. Not a scintilla of evidence for such a bald  has been forthcoming. Where is the evidence that the researchers ever gave ‘additional assurances’ to the participants? 

Don’t hold your breath waiting on the SAA to come up with an answer. It won’t.

GUARDIAN: Call for investigation of alleged Boston College-IRA archive spying

Call for investigation of alleged Boston College-IRA archive spying
Governments urged to look into whether private communications to the US embassy in Dublin were illegally intercepted
Henry McDonald, Ireland correspondent
The Guardian
18 June 2014

The American and Irish governments have been challenged to investigate an alleged spying operation directed at a family at the centre of the Boston College-IRA archive controversy that led to Gerry Adams’ arrest in April.

Ireland’s prime minister Enda Kenny and the US secretary of state John Kerry have received letters from the Belfast Project’s director urging them to back a thorough criminal inquiry into claims that private communications from an American citizen and the US embassy in Dublin were illegally intercepted.

American-born Carrie Twomey’s husband, an ex-IRA prisoner, recorded the taped testimonies of Irish republicans for the Belfast Project. She has made a formal complaint to the Garda Síochána about how her private messages to US diplomats ended up in an Irish Sunday tabloid last month.

Ed Moloney, the Belfast Project’s director, has also written letters to the leader of the Irish Republic’s main opposition party Fianna Fáil and a powerful US senator calling on them to back an investigation on both sides of the Atlantic into how Carrie Twomey’s communications were made public.

In his letter to Kerry, Moloney states that “while we do not know for certain sources that I trust strongly suggest the involvement of a proscribed organisation rather than an agency of the Irish state”.

Moloney points out to Barack Obama’s peace envoy to the Middle East that he has also called on the Irish premier to support a trans-Atlantic criminal investigation into the spying claims.

“I believe that this is part of a mounting campaign of threat, menace and intimidation of the McIntyres. I fear for their safety and wellbeing and I expressed the hope that the prime minister would leave no stone unturned in the search for those responsible.”

And in his letter to the Taoiseach, Moloney says: “I am writing to ask you to leave no stone unturned in the search for those responsible and in the effort to make them amenable under the law. Tapping the phones of Irish citizens in any circumstances is unpleasant and offensive even when it is carried out within the law by legitimate agencies. But when it is done by illegal organisations and involves intercepting communications by an important ally it is, I am sure you will agree, a direct challenge to the authority of the state.”

The award-winning journalist and world authority on the IRA has also written to senator Robert Menendez, the chairman of the US Senate’s foreign relations committee, and Fianna Fáil leader Micheal Martin about the alleged spying operation on Irish soil.

The Sunday World newspaper last month reported that Twomey had written to the embassy and the US consulate in Belfast seeking political asylum for herself, her children and her husband. She has denied reports that her family are seeking asylum and that she ever worked on the Boston College project.

Twomey told the Guardian she had made no contacts with the paper and would be prepared to bring forward a large number of friends and acquaintances who would sign legal documents stating they had no knowledge of her communications with the US embassy in Dublin, let alone spoke to any newspaper about them.

There is no suggestion whatsoever that the Sunday World itself carried out any illegal hacking or act of interception regarding Carrie Twomey’s communications with US diplomatic staff in Ireland.

Her husband Anthony recorded and collated the testimonies of dozens of former IRA activists, some of whom have claimed on tape that Adams ordered the death and secret disappearance of Jean McConville in 1972. The Sinn Féin president has always denied any involvement in the kidnapping, killing and covert burial of the widow, whom the IRA accused of being an informer for the British army. Among those who accused Adams of playing a central role in the McConville murder scandal was the late Brendan Hughes, the former Belfast IRA commander whose taped testimony has been made public.

Since Adams’s arrest in connection with the McConville murder, McIntyre and Moloney have faced sustained verbal attacks. Sinn Féin councillors and their supporters have labelled them “Boston College touts” – a euphemism for informers.

When Research Meets Politics: Lessons from Boston College’s Belfast Oral History Project

When Research Meets Politics: Lessons from Boston College’s Belfast Oral History Project
By Dr Birgit Schippers
Senior Lecturer in Politics
St Mary’s University College Belfast
Compromise After Conflict blog
18/6/2014

Much of the recent attention given to Boston College’s Belfast Oral History project has focussed on the question of confidentiality and its legal implications. The researchers on the project, the academic Dr Anthony McIntyre and the journalist Ed Moloney, claim to have put their faith in Boston College’s assurances of confidentiality agreements given to the research participants, specifically that recordings would not be released until after the death of the participants. The subpoena actions initiated by the PSNI and subsequent decisions by US courts have put to rest once and for all the naive belief that confidentiality assurances are iron-clad.

Less attention has been given to another aspect of this long and still ongoing saga: this is the relationship between research and politics. Hardly anyone hankers after the idea, always contested, that ideas move in a value-free vacuum produced by detached scholars who, sitting in their ivory-towers, are immune from the political values and ideas that influence them as knowledge-producers. Does the acknowledgement that academics carry political baggage allow them, though, to undertake their work with little or no consideration to their research participants, to the political contexts in which they work, or to implications their work has on other scholars?

Moloney refers to McIntyre as a ‘lead IRA researcher’, and his blog defends his and McIntyre’s professionalism, integrity and detachment. Yet, looking at the Boston College debacle, it appears that what the project lacks is the very professionalism, integrity and detachment that Moloney claims. What would shed light on Moloney’s claims is openness and honesty about the ethical integrity of the project. What is missing in the public debate around this issue is information on the ethical scrutiny and oversight applied by Boston College. Like any academic institution, surely Boston College must have a procedure for the ethical scrutiny of research, and an ethics committee that scrutinizes the ethical practice underpinning research. Did an ethics review happen in the case of the Boston College project? And what was its outcome?

The project is now treated by academics as a textbook case of ethical malpractice. In addition to the project’s well-rehearsed problems with confidentiality, it also raises concerns regarding the safety of the research participants. I wish to highlight a different issue: is it permissible to engage in research to make a political point? And is it acceptable to undermine good ethical practice in the name of a political cause? Both researchers on this project are well-known critics of Gerry Adams and the Sinn Fein strategy pursued under his leadership. This is a legitimate political view to take; it is also legitimate and necessary to submit the actions, ideas and practices of political actors to robust and critical scholarly scrutiny. However, when the political views of researchers permeate the aim and methodology of their research, we enter a grey zone where the lines between scholarly research and propaganda become blurred. From what we know so far, all of the republican research participants seem to espouse the same political stance as McIntyre and Moloney. Such an apparent disavowal of a balanced approach in its choice of research participants, together with Dr McIntyre’s recent insinuation that he used leading questions, challenges the aim, remit and indeed the name of the project. Put differently, was the project designed to produce an oral history archive of the protagonists of the conflict, or is its purpose to advance a one-sided view on the conflict? If the latter is the case, then this project disguises political propaganda as scholarly research.

The conduct of McIntyre and Moloney has shaken the trust of conflict protagonists to participate in oral history research, and it is fair to conclude that this project has had a negative impact on the use of research as an aid to understanding conflict. It has also damaged the prospects of other scholars, especially those interested in oral history and narrative research, to conduct similar projects. One would hope that future projects restore some of the lost confidence in the integrity of research and produce work that is more thoughtful and reflective.

When the police call, researchers require steadfast backup

When the police call, researchers require backup
Ted Palys and John Lowman
Times Higher Education
12 JUNE 2014

Shield laws could help protect confidential sources, but most vital is university support, say Ted Palys and John Lowman

Two recent cases have thrown a spotlight on the gulf that can occasionally separate ethics and the law. The release of seven Belfast Project interviews with Republican paramilitaries to the Police Service of Northern Ireland and the seizure of Bradley Garrett’s “place-hacker” research material (“Access denied”, Features, 5 June) highlight an acute problem. If the state can turn researchers into informers, why would anyone disclose to researchers information that could land them in jail, lose them their job or cause them some other serious harm?

What can the academy do to bridge that gulf?

In the UK, one solution would be a research shield law, protecting researchers from being forced to disclose confidential information or sources in court. This would emulate such laws in the US, the most expansive of which is the US Secretary of Health and Human Services “confidentiality certificate” system, which protects participants in health research.

Research shield laws evolved in the US as a result of dozens of instances of courts, congressional committees, litigants and grand juries issuing subpoenas seeking confidential research information. In the UK, however, as far as we know, no legal authority has ever issued a subpoena for that purpose, so legislators may have little appetite to create a shield law. This leaves researchers having to assert “research-participant privilege” using common law.

In Anglo-American common law, the principle that courts are entitled to everyone’s evidence is not absolute. Occasionally, courts weigh their need for evidence against another public interest, such as the sanctity of confidential relationships. A confidential communication protected against compelled disclosure is “privileged”. Courts have deemed lawyer-client confidentiality to be so important that it enjoys a “class privilege”, where the onus is on the party seeking access to a communication to show why the privilege should be set aside. Courts consider the value of other confidential relationships – such as priest-penitent, journalist-source, psychiatrist-patient – case by case. Here, the onus is on the party claiming the privilege to show why the court should recognise it.

Just such a case occurred in Canada this year. Police used a search warrant to seize the audio recording and transcript of an interview after learning that a person accused of murder had been interviewed by two University of Ottawa researchers years earlier for a project on sex work. The interview remained sealed until a court heard the researchers’ objections. The court recognised researcher-participant privilege and returned the interview without granting the prosecution access.

When not eligible for shield law protection, US researchers have turned to common law with great success. We have found only four cases where a legal authority ordered disclosure. Two involved grand juries. In both cases, the researchers chose to go to jail rather than to violate confidentiality. In the third case, the court used the researchers’ “limited confidentiality” warning to justify disclosure. The fourth case involved the Belfast Project interviews.

There are two main approaches to the legal limits on research confidentiality, which could be described as “law-first” and “ethics-first”.

All researchers seek to be both ethical and legal, but situations may arise where the two aims conflict. A law-first approach makes law the absolute limit of confidentiality: under such a principle, a researcher tells participants that they will comply with an order to disclose confidential research information. An ethics-first approach holds that it would be unethical for researchers to collect data knowing that they would become informants for legal authorities. Further, because it would so severely compromise reliability and validity, limiting confidentiality makes research involving sensitive and controversial social issues hardly worth doing.

Yet the importance of confidentiality is not lost on law-first researchers. While their conscience would have them comply with a disclosure order, they would use every legal means possible to avoid disclosure, taking their case to the highest court in the land if necessary. Ethics-first researchers would do the same – except in the last instant, when their conscience would lead them to defy a disclosure order. The only way that most researchers can defend confidentiality so wholeheartedly is with their university’s support. And therein lies the rub.

Take Garrett’s experience. When he was prosecuted, where was Royal Holloway, University of London, which approved his research? It ran for cover. What about the Belfast Project subpoenas? Initially, Boston College made a limp effort to challenge them, but then, incredibly, without the court compelling it, it handed over all the Republican interviews to the judge so that the content could be assessed. Where was the University of Ottawa when police seized the sex worker interview? It refused to fund the fight. If the Canadian Association of University Teachers had not provided funding to defend the researchers, what turned out to be a precedent-setting case might have been stillborn.

This is the most regrettable lesson of these experiences: the failure of university administrators to stand up for research confidentiality is an attack on academic freedom.

AUTHORS:
Ted Palys and John Lowman are professors of criminology at Simon Fraser University, Canada, and authors of Protecting Research Confidentiality: What Happens When Ethics and Law Collide (forthcoming, 2014).

Confidential info threatened, but technology can help

Confidential info threatened, but technology can help
Jonathan Zittrain
Boston Globe
June 08, 2014

More than a decade ago, researchers at Boston College interviewed people from both sides of the Troubles in Northern Ireland, promising each contributor to the Belfast Project that his or her interview recording wouldn’t be released until the contributor died. In the meantime, the tapes would be deposited at the college’s rare books library under lock and key. On the basis of those promises, some people spoke for the first time about painful actions that remain murky in the public eye, including unsolved murders that they’d helped commit or cover up.

When the British government learned of the Belfast Project about 10 years later, it invoked a mutual legal assistance treaty to demand immediate access to some of the tapes. After months of legal wrangling, some of the tapes were turned over, resulting in the arrest in April of Sinn Féin leader Gerry Adams in connection with one of the killings discussed in the interviews. Adams was released, but Northern Ireland officials are now seeking the entire set of interviews — perhaps to balance an inquiry into the Irish Republican Army with investigation of possible crimes by members of the Ulster Volunteer Force as well.

Libraries like Boston College’s are familiar with making promises about the “dark archiving” of materials like these, whether for the papers of a Supreme Court justice, an interview with a soldier ready to give a sustained look at the conduct of war, or the records of the university’s own faculty and students. But just as it has become easier to quietly maintain such records, the reach of the subpoena has also increased. These records are more accessible and searchable than ever, whether for intelligence or law enforcement purposes, or to benefit a party to a divorce or other private lawsuit.

The increasing legal pressure against archives has created anxieties among researchers, librarians, and journalists. They cite the need to protect sources who wish to make a record for posterity; procuring documents and interviews from those sources will be difficult if the fruits are only one subpoena away from disclosure. On the other side include those who simply want to solve awful crimes and make the perpetrators answer for them on the law’s timetable rather than their own.

Are we stuck with either having to destroy our secrets or leave them exposed to near-instant disclosure? It might be possible to split the difference: to develop an ecosystem of contingent cryptography for libraries, companies, governments, and citizens. Instead of using new technologies to preserve for ready discovery material that might in the past never have been stored, or deleting everything as soon as possible, we can develop systems that place sensitive information beyond reach until a specified amount of time has passed, or other conditions are met.

There has been fitful research done on “time capsule cryptography,” by which something can be encoded so that not even its creator can access it until after a certain amount of time. Such cryptography might depend on the kinds of “proof of work” puzzles — which require vast computing power over an extended period — that undergird the operation of bitcoin and other cryptocurrencies. Cryptocurrencies, whose operations are distributed across a number of computers, use the puzzles to prevent any one entity from taking control of the system.

What works to prevent any one party from subverting a currency could also place some of the data increasingly comprising our lives beyond the reach of a simple subpoena, by forcing the curious to wait a designated period of time before they can see what they want — even if they have legal paperwork that purports to entitle them to it sooner.

Even without relying on such complicated technologies, sensitive material can be encrypted using a key that is split into fragments, the way that it can take two simultaneous keys to launch a missile. Imagine key fragments distributed around the world to, say, 10 parties, requiring the cooperation of at least six of them to reassemble the key needed to get the documents. The parties would be instructed only to announce the keys when the original owner’s specified conditions are met. Early disclosure wouldn’t be impossible, but it would require a sustained effort that would only be worth undertaking if the access were a genuine priority, and one justifiable to the authorities of several countries who could each in turn pressure their respective keyholders. That kind of encryption is easy to do.

The original conception of a trust company was as a firm that would solemnly represent the interests of its beneficiaries — which is why a bank worthy enough to be entrusted with one’s savings might also be worth entrusting with decisions about a child’s college fund if the parents became incapacitated. Banks may not be among the most trusted institutions today, but libraries are. And they can together embrace a new generation of encryption technologies to safeguard materials that otherwise will never be created or saved for fear of early discovery.

The Belfast Project is simply a high-profile example of a phenomenon that reaches into the lives of nearly every institution integrated into the digital world — and reaches us, since we are the users of those institutions. Corporations increasingly recognize that whatever they store is discoverable through judicial process — or all too leakable by a disgruntled employee. That’s why any business beyond a mom-and-pop is likely to have a formal document-retention policy for its internal secrets — which is in reality a document-destruction policy, intended to eliminate potential embarrassments and liabilities that lurk in mountains of accrued bits.

It’s more complicated when those businesses are merely custodians of their customers’ data. Google, Facebook, and Microsoft are routinely caught in the middle when, for example, Brazilian authorities demand information about a subscriber and don’t want to use the cumbersome mutual legal assistance treaty process to get it. The Brazilians threaten penalties for holding back information that American law may insist not be disclosed. Or vice versa: The public has been inundated with descriptions of the US government’s mining of digital databases for foreign intelligence, in large part thanks to a leak of the government’s own materials.

Imagine, though, if the records of private firms, government agencies, and individuals from earlier eras came free in a scheduled way, as trustees combined their keys to release them as time passed or other conditions were met. (In the case of Boston College’s promises, it might be that a keyholder would commit to publish its part of a key only upon the announcement of the death of a Belfast Project interviewee.) Subjecting secrets about government intelligence gathering to time capsule accountability by those governments could serve as a trust-restoring measure. Some actions today might reasonably remain secret — but with a guarantee that they will be revealed at a later date certain, even if the government in question feels later regret over entering into the bargain.

The last refuge of privacy cannot be placed solely in law or technology. It must repose in both, and a thoughtful combination of the two can help us thread a path between having all our secrets trivially discoverable and preserving nothing for our later selves for fear of that discovery.

Jonathan Zittrain is a professor of law at Harvard Law School and the Harvard Kennedy School, and professor of computer science at the Harvard School of Engineering and Applied Sciences. He co-founded the university’s Berkman Center for Internet & Society, and directs the Harvard Law School Library.

Who’s Quashing Who?: The Battle Between Scholars and Subpoenas

Who’s Quashing Who?: The Battle Between Scholars and Subpoenas
Julie RosingFN1
Kentucky Law Journal
University of Kentucky College of Law
June 2014

Download PDF Version

Introduction

Last year the First Circuit’s decision in United States v. Moloney, requiring two scholars from Boston College to forcibly disclose their confidential research, shocked the academic world.FN2 This high-profile subpoena case brought the idea of a “scholar’s privilege” to the forefront of the legal arena once again. The outcome of the case—the forcible disclosure and the denial of the scholar’s motion to quash – was not, by itself, all that surprising.FN3 But the vague, general lack of analysis on which the First Circuit denied the assertion of a “scholar’s privilege” was indeed both shocking and inappropriate.

There are two questions that must be answered to clear up ambiguities in this hybrid problem of evidentiary and constitutional law. The first is whether a scholar’s privilege does or should exist. The second is if the scholar’s privilege does exist, how can the courts uniformly apply the privilege?

This note advocates that the scholar’s privilege should exist as a qualified privilege. This note further advocates that the circuits should reject their current arbitrary use of the privilege and instead apply a balancing test that accounts for the interests of both the academics attempts to protect their research and the party seeking disclosure. Although the Supreme Court of the United States denied certiorari to United States v. Moloney, the issue of the scholar’s privilege will not fall by the wayside. The time has come for a definitive, specific ruling on the issue. We must find a better way for scholars and subpoenas to co-exist.FN4

I. The Existence and Evolution of the Scholar’s Privilege

The scholar’s privilege stems from the long-standing and hotly debated concept of a “reporter’s privilege.” The Supreme Court struck down this privilege in Branzburg v. Hayes.FN5[5] In 1972, Branzburg held that there is no absolute reporter’s privilege available under the First Amendment for reporters to refuse to answer questions or be subpoenaed in a grand jury proceeding. Circuit courts have split for years over the correct interpretation of Branzburg.FN6

Some circuits, such as the Sixth circuit, apply Branzburg’s holding rigidly, allowing absolutely no reporter’s privilege in any circumstance. In other circuits, like the Third Circuit, Branzburg does not control. The First Circuit has restricted the Supreme Court’s decision to its facts, implying that “[i]t seems a moot point now to argue that there is no reporter’s privilege in the federal courts.”FN7 But, the First Circuit has also developed a vague balancing test to determine applicability of the privilege. Several other circuits have adopted their own variations of balancing tests—but no uniform standard has been propounded beyond Branzburg.

The circuit split is not surprising when considering that Branzburg’s holding did not command a majority. Even more notable is Justice Powell’s concurrence and the dissenting opinion, stating “express support for recognizing a qualified newsman’s privilege,” which further bolstered the privilege’s strength.FN8

From the uncertainty of the application of a reporter’s privilege sprang further uncertainty when scholars began challenging subpoenas in the research context. The scholar’s privilege has not been as frequently litigated as the reporter’s privilege until recently.FN9 These cases vary factually, and scholars have only succeeded in quashing subpoenas in a few, narrowly construed factual anomalies.

The dilemma of the scholar’s privilege spans two legal subjects: evidentiary law and constitutional law. Critics of recognizing reporters’ and scholars’ privileges take the evidentiary angle. These critics argue that because the privileges are not included in the Federal Rules of Evidence, the Supreme Court has rejected their existence and therefore, their application.FN10 Proponents fight for “the constitutional guarantees of free expression, privacy, and defendant’s rights,” which they believe justifies recognition of a testimonial privilege to protect the researcher-subject relationship.FN11

Further, although many parallels can be drawn between the reporter’s privilege that was denied in Branzburg and the idea of a scholar’s privilege, there is also at least one notable difference—reporters may have an additional route for protection via reporter shield laws.FN12 Markedly, no states have legislated to protect the researcher in a similar manner as reporter shield laws. Therefore the scholar’s privilege is essentially the only protection that scholars may have.

The First Circuit has been confronted with the scholar’s privilege on a number of occasions, most notably is the In re Cusumano v. Microsoft Corporation case. Cusumano held that interview information collected by two scholars for a book was privileged from discovery.FN13 Although a scholar’s privilege is admittedly created in this case, the holding remains narrow: “[i]t would be extravagant to read the case as establishing any broad ‘scholar’s privilege.’”FN14 Through this ruling, research is clearly proven to be a special endeavor, deserving protection by at least a qualified privilege.FN15 However, the First Amendment balancing test applied in this case leaves much ambiguity, leading critics to the conclusion that Cusumano may have been a fluke decision.

The traditional balancing test that the First Circuit has adopted requires a court to “place those factors that relate to the movant’s needs for the information on one pan of the scales and those that reflect the objector’s interest in confidentiality and the potential injury to free flow of information that disclosure portends on the opposite pan.”FN16 Essentially the need for disclosure of the information is balanced with confidentiality and First Amendment guarantees. The factors to be used on both sides of the balancing test are not explicitly identified, creating room for varying interpretations and inconsistent decisions.

II. The Moloney Decision

Most recently, the First Circuit was again confronted with the issue of the scholar’s privilege and the incomplete balancing test in United States v. Moloney, when two researchers from Boston College were subpoenaed and required to disclose confidential interviews regarding their work on the Belfast Project.FN17 The Project consisted of taping oral interviews from recollections of members of the Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations involved in the “Troubles” in Northern Ireland from 1969 on.

British authorities sought the interviews of Brendan Hughes and Dolours Price (former Irish Republican Army members) who were implicated in the 1971 abduction and execution of Jean McConville, a suspected British informant.FN18 The crux of the case lies in the fact that the Belfast Project scholars made explicit promises of confidentiality that the interview contents would be protected until the deaths of the interviewees. Since Hughes was dead at the time disclosure was requested, there were no problems with introducing his interview testimonial in court. The only issue was whether Price’s confidential testimonial could be disclosed because their confidentiality agreement had not ended at the time of the First Circuit decision. However, an interesting and surprising twist occurred while the case was wading in the uncertain cert-pool: Dolours Price was found dead in her home from an apparent drug overdose in January 2013. It is unclear as to whether this living vs. dead distinction affected the Supreme Court’s decision to deny certiorari in April.

The application of the balancing test in Moloney is radically different than the application and outcome in Cusumano. First, the precedent from Cusumano deals with claims of non-disclosure privilege in civil cases involving private parties. Moloney is more similar to the Branzburg case, in that the matters in both cases concern disclosure in criminal proceedings.FN19 The US Government was seeking the interviews in Moloney pursuant to the Mutual Legal Assistance Treaty (MLAT) with England. Governmental and public interest seem to automatically have a higher stake in criminal proceedings, and especially where foreign treaty obligations are at issue.FN20

What is striking, regardless of the Supreme Court’s denial, is that the majority opinion of Moloney almost completely disregards the interests of the researchers. The majority does not include an analysis of the researcher’s interests other than to mention that “the fear…that disclosure might threaten their job security or personal safety or that it will simply result in dishonor or embarrassment” is insufficient to create enough of a scholar’s interest to tip the balancing scales in their favor. A balancing test is not a balancing test if one side is ignored.

Justice Torruella appeared to be concerned with the majority opinion’s lack of consideration of the researcher’s First Amendment claims:

It is one thing to say that the high court has considered competing interests and determined that the information gatherers (here, academic researchers) may not refuse to turn over material they acquired upon a premise of confidentiality when these are requested via government subpoena in criminal proceedings. It is entirely another to eagerly fail to recognize that the First Amendment affords the Appellants “a measure of protection…in order not to undermine their ability to gather and disseminate information.”FN21

Torruella concurred in the judgment of the opinion only, on alternate reasoning.

Justice Torruella’s astute observations in the Moloney concurrence call for a uniform application of the balancing test in order to fully protect the First Amendment rights of scholars, researchers, and academics. His opinion requires that the balancing test must actually perform balancing for a legitimate verdict to be reached.

III. Proposal for an Adequate Balancing Test

The balancing test that I propose is undoubtedly complex because it aims at protecting the interests of a variety of parties including: the subject, the researcher, the sponsor, the facilitator, the prosecutor, the state, and society.FN22 The test advocated here combines elements from the First Circuit balancing test from the Torruella concurrence in Moloney, and from various other circuits and lower courts, to propound a uniform standard that ultimately aims at recognizing and evaluating the interests of the scholars. I believe that this test fills gaps where the First Circuit majority in Moloney failed.

A. The First Amendment Interest: Potential Harm to Free Flow of Information

1. Qualified Individuals

The first factor to consider is whether the individuals that are trying to prevent disclosure fall under the traditional protections of the First Amendment.FN23 Reporters and academic researchers alike fall into these protections because they perform a range of conduct relating to the gathering and dissemination of information.FN24 The fact that scholarly research “provides the public with historical and analytical perspective on issues of public concern in government” demonstrates its traditional information dissemination purpose.FN25 No traditional First Amendment protection equals no potential protection under the scholar’s privilege.

Determining that scholars and researchers should receive qualified protection under the balancing test is fairly straightforward analysis from the First Amendment. Determining who qualifies as a “researcher” or a “scholar” is a more difficult inquiry. Beyond researchers and scholars, archivists should also fall into the traditional First Amendment protections. “Archivists have a professional duty to curate many types of materials, some of which contain confidential information.”FN26 However, researchers, scholars, and archivists should all be classified by their functions rather than their titles.FN27

2. Confidentiality

The next factor to consider is whether or not the information, subject to disclosure, is classified as confidential. Information available to the general public or which can be accessed through other means of discovery may not be classified as confidential. Researchers should always be careful to get express, signed confidentiality agreements from their participants with explicit statements of protection. Even if a researcher has not made an express guarantee of confidentiality to their informants, a court may be able to deny a request for discovery of raw data if it finds very strong privacy interests are present.FN28

One disturbing aspect of the balancing test as it stands currently is that even express indications of confidentiality, like confidentiality agreements between researchers and participants, may not be indicative of privilege.FN29 For instance, even though the need for confidentiality was a central and prominent aspect of the Belfast Project in Moloney, including written agreements requiring that access to the interview records be restricted until their death or upon written approval,FN30 the court still rejected the application of privilege because the researchers knew that Boston College could make no guarantees of the ability to refuse disclosure on a court order. The court cited to a failure of Moloney’s donation agreements, but referenced Branzburg to reassert that even promises of confidentiality made in express confidence do not create a privilege.FN31 Therefore, confidential information is necessary for the privilege, but cannot alone establish the privilege under the current test.

This decision invalidating express confidentiality agreements is contrary to public policy. Because the court in Moloney already had possession of the tapes from reviewing them in camera, they were “making a sham of the scholar’s absolute assurances to their interview subjects that they would keep the tapes absolutely confidential until the death of each interviewee.”FN32 The notion that researchers can make promises of protection to their participants that can be struck down as unenforceable in court is disconcerting. “[I]f the government may subpoena confidential information subject to virtually no judicial scrutiny, the likely result will not be that the criminal justice system benefits, but that fewer people involved in potentially illegal conduct opt to speak to the press in the first place.”FN33

Under this balancing test, explicit confidentiality agreements must weigh in favor of applying the scholar’s privilege in all but the most extreme factual circumstances. In Moloney the confidential interviews were sought through the MLAT treaty to solve longstanding murder investigations, which might very well reach the extremity requirement.

Other factors relating to the confidentiality of the material must be taken into account as well.FN34 For instance, researchers may fear that they will “[run] the well dry” if their information is forcefully disclosed through subpoenas.FN35 Voluntary revelations and bargained-for communications between a researcher and study participants are vital to a researcher’s work. Consequently, “[w]ithout these sources . . ., many researchers, . . . would lose valuable sources of information.”FN36

Study participants revealing personal or embarrassing information will be appropriately shielded here under the balancing test. The study participants in the Proctor & Gamble case were kept confidential because the information was highly personal in nature including medical history and sexual activity. The nature of this personal information could inhibit future studies if revealed due to a fear by participants of inevitable disclosure.FN37

Furthermore, First Amendment interests should not be discounted because a third party holds the confidential materials.FN38 Third parties typically destroy confidential researcher-client communications in testimonial privileges and sever the effect of confidentiality agreements. In Moloney, Boston College was in possession of the confidential interviews. Boston College did not bother to challenge the first subpoena issued, and even when challenging the second subpoena, the lawyers began the challenge by submitting the materials to the judge to be examined in camera.FN39 Ultimately, researchers must take responsibility in forming explicit agreements with their participants and keeping their agreements and communications as their property. But, since difficulties may arise for researchers in keeping their research out of the hands of third parties (especially in the institutional context), the court should weigh the researcher’s efforts to retain sole possession over the information instead of the actual result. Efforts sufficiently signify that the researchers valued the confidentiality interests of their participants enough to make a stand for them, which should weigh in their favor.

In sum, confidentiality must be weighed by (1) whether a confidentiality agreement was reached between researchers and participants (2) whether personal privacy interests are present for participants (3) whether future research will be inhibited if there is disclosure and (4) efforts by the researchers to keep their research out of a third party’s hands.

3. The Extent of Protection Appropriate: Dangerous or Scandalous Information

If the information pending disclosure is found to be confidential—the next step is to determine the extent of protection that is appropriate for the confidential information. Determining the extent of protection likely must be satisfied through a case-by-case basis, through context evaluation of the confidentiality aspect. The highest demonstrations of confidentiality should be afforded the most protection and inadequate showings will not earn protection. Torruella’s view in Moloney found the interviews that the Belfast Project researchers conducted were confidential—due to the great lengths that the researchers went to prevent their unsanctioned disclosure.FN40 The Moloney case is a perfect example of information found to be confidential that was still not afforded the protection that the researchers wanted. There are a number of ways for the party seeking disclosure to deal with information that falls somewhere between highly confidential and inadequate including: limiting the subpoenas to only relevant claims, being willing to accept data with redacted confidential information, and helping to underwrite the costs of redaction and photocopying.FN41

Beyond confidentiality, the personal safety and potential dangers that disclosure will cause for the researchers must be weighed as well. Media in response to the disclosures in Moloney reported death threats against the Lead Researcher for the Belfast Project, Anthony McIntyre.FN42 Mr. McIntyre also stated in an affidavit that the home next door to his was smeared with excrement after the interviews were released. As mentioned earlier, the topics of many research projects are sensitive, highly personal, or controversial, and the safety of researchers and participants absolutely must be weighed with care. The issuance of the subpoenas in Moloney also “prompted broad news coverage and a minor international scandal.”FN43 Not only did the ACLU attempt to intervene, but Senator John Kerry and Secretary of State Hillary Clinton urged British authorities to revoke the subpoenas to encourage the peace process in Ireland. John Kerry has further argued alongside Moloney and McIntyre that “peace process stability considerations must take precedence over the tightly-written treaty obligations of the MLAT.”FN44 Subject matter that is more likely to create public condemnation should be afforded the most protection under the balancing test, while benign research on uncontroversial subjects will typically garner less protection.

On a similar note, public curiosity or newsworthiness in the content of confidential research should not be valued in the balancing test. The Dolours Price interview garners large public interest, but most of the interest is not based on the confidentiality issues or the police misusing academic researchers for law and order purposes. Instead, the public really wants to know the “gory details of what they imagine are in these interviews,” which is driving and influencing much of the reporting.FN45 Once again, an inflamed public, or heightened social interest should have no bearing on the balancing test in these cases. The focus must be turned from the sensational, provoking subject matter, to the true issue of the case—which is solely the rights of the academic researchers.

In sum, there are a myriad of factors that fall into the First Amendment interests including whether the individuals fall into traditional First Amendment protection, whether the information is confidential, and the extent of protection that the confidentiality requires. The key to evaluating each of these factors is thoroughness and reasonableness.

B. The Opposing Interest: The Need for the Information

1. The Nature of the Proceedings

The nature of the proceedings, evinced by case law, primarily rests on whether the action is a criminal matter or civil matter. Branzburg flatly rejected the use of a reporter’s privilege in grand jury proceedings.FN46 Other than that, Branzburg did little to specify whether this type of privilege could be used elsewhere. This is where the circuit-split rears its ugly head. Some circuits have held that Branzburg forecloses First Amendment protection in all criminal cases.FN47 However other circuits have claimed there is no reason to distinguish between civil and criminal cases in application of the privilege.FN48 The majority in Moloney disavows the precedent of the First Circuit that permitted success and application of a scholar’s privilege simply on the basis that these were civil cases where the government and public’s strong interest in investigation of crime was not an issue.FN49

Case law evidences that the government’s presence as a party in criminal litigation makes a radical difference in the balancing test, as opposed to results obtained in private litigation.FN50 It seems that the government can more easily prove their need for the information by emphasizing interests of national security and public safety when criminal overtones are present.FN51 Essentially, when the Government is a party to the litigation, if they follow their own guidelines and use careful practice, there should be fewer problems with getting their subpoenas granted. In the Moloney case, the government was the party seeking disclosure of the information. The Government’s interest was clear through the UK-MLAT treaty in which the federal government of the United States assumed an obligation to assist the United Kingdom in its prosecution of domestic criminal matters.FN52

The current balancing test requires that for the party pursuing disclosure in civil litigation to defeat the scholar’s privilege, the research must be more than remotely related to the lawsuit. The relationship between the information sought and the academic research must be more than tenuous.FN53 For example, in one Second Circuit case, a student was working in a restaurant to gather information for his dissertation when a suspicious fire and explosion occurred in the restaurant.FN54 His journal and notes were subpoenaed. Although his journal entries were clearly “scholarly work product,” the relationship between the fire and the student’s academic research were remote and could not be classified as expertise.

However, the question remains as to whether or not this binary distinction between civil and criminal cases is appropriate. The implication should be that civil cases will more likely be granted the privilege, but the type of case should not be a decisive factor. Criminal matters cannot be conceded to the government the way that they have been previously. Branzburg once again offers little guidance since the holding effectively only prevents a privilege in regard to grand jury proceedings. Therefore, the civil/criminal distinction should be considered when balancing the need for information, but should not preclude the government from being defeated if they are unable to prove that their need is legitimate.

2. Exhaustion of Alternative Sources

The second factor that must be addressed is whether the opposing party has exhausted alternative sources for accessing the information. Although this inquiry is not essential to defeating the privilege, it is still relevant in determining whether subpoenas seeking the confidential information are necessary.FN55 In Moloney, the information the government was seeking were interviews from one source who had passed away and one source that was still living. The government had no way of eliciting the information from the dead source, which makes their case even more compelling. However, the government could have contacted the living source, Dolours Price, to obtain the interview information. If Price were to refuse to surrender the information from her own memories and experiences, that would be her prerogative. This conundrum is similar to Cusumano, where the court permitted the scholar’s privilege, in which “Microsoft could have obtained that information directly from the sources revealed by the manuscript.”FN56

The one exception to living sources are cases where the alternative means of acquiring the information will create an undue delay or burden to the opposing party. In this case the factor should weigh in favor of the party seeking disclosure. At the time that the First Circuit opinion was issued, Dolours Price was an emotionally unstable woman. McIntyre speaks of Price as a sensitive woman who suffered mentally from the betrayal by those who shared culpability and by others who abdicated their responsibility.FN57 She would likely not have consented to an interview with the government in the way that she previously had with the Belfast Project researchers. In contrast, Price had built a relationship of trust with McIntyre; she attended his wedding and was the godmother of his son. These conditions on Price’s willingness to be interviewed may serve as an example of an undue burden to the opposing party seeking disclosure. But, once again, an unwillingness to perform other interviews should not constitute an undue burden unless all other alternatives to the information are inaccessible.

The civil/criminal distinction may also come to bear on whether the information is accessible by other means. Case outcomes indicate that information sought in criminal cases will be more difficult to access from alternative sources.

Conclusion

There is no doubt that the scholar’s privilege argument will rear its head again soon, likely without the complications of an international treaty and a murder investigation allowing the courts to cruise past confidential researcher interests. At some point, the Supreme Court must clarify for lower courts to what extent parties asserting their First Amendment interests in challenging government subpoenas of confidential information should – consistent with Branzburg – have a Constitutionally guaranteed right to present evidence before the court for review. If not, scholars and researchers will continue to have their motions to dismiss disclosure quashed, which in turn will cause scholars and researchers to have their work, their passion, and their interest in sustaining oral and written history quashed. The time has come to stop quashing and start protecting.

 


FN1. University of Kentucky College of Law, J.D. candidate for May 2014.

FN2. Nicholas J. Wagner, Split Over Reporter’s Privilege Highlights Tension Between National Security and the First Amendment, Circuit Splits (July, 12, 2012, 5:27 AM) http://www.circuitsplits.com/2012/07/in-2010-before-an-audience-of-college-students-justice-sotomayor-remarked-that-the-supreme-court-is-likely-to-have-to-rule.html.

FN3. See United States v. Moloney, 685 F.3d 1, 16-20 (1st Cir. 2012); Will Havemann, Privilege and the Belfast Project, 65 Stan. L. Rev. Online 79, 79 (2012) http://www.stanfordlawreview.org/sites/default/files/online/articles/Havemann_65_SLRO_79.pdf.

FN4. See Robert M. O’Neil, A Researcher’s Privilege: Does Any Hope Remain? 59 Law & Contemp. Probs. 35, 36-37 (1996).

FN5. See Branzburg v. Hayes 408 U.S. 665, 690, 702-703 (1972).

FN6. See Wagner, supra note 2.

FN7. Kristina Spinneweber, Branzburg, Who? The Existence of a Reporter’s Privilege in Federal Courts, 44 Duq. L. Rev. 317, 334 (2006).

FN8. David A. Kaplan & Brian M. Cogan, The Case Against Recognition of a General Academic Privilege, 60 U. Det. J. Urb. L. 205, 221 (1982-1983).

FN9. See Howard Gray Curtis, Academic Researchers and the First Amendment: Constitutional Protection for their Confidential Sources, 14 San Diego L. Rev. 876, 877 (1976-1977) (explaining that the traditional disagreements have centered on journalists rather than academic researchers).

FN10. See Kaplan & Cogan supra note 8, at 215.

FN11. Paul Nejelski & Lindsey Miller Lerman, A Researcher-Subject Testimonial Privilege: What to do Before the Subpoena Arrives, 1971 Wis. L. Rev. 1085, 1134.

FN12. See Branzburg, 408 U.S. 665 at 689.

FN13. Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998).

FN14. Judith G. Shelling, A Scholar’s Privilege: In Re Cusumano, 40 Jurimetrics J. 517, 524 (2000).

FN15. See Rebecca Emily Rapp, In Re Cusumano and the Undue Burden of Using the Journalist Privilege as a Model for Protecting Researchers from Discovery, 29 J.L. Educ. 265, 268 (2000).

FN16. See Shelling, supra note 14, at 517.

FN17. United States v. Moloney, 685 F.3d 1, 16-20 (1st Cir. 2012).

FN18. Havemann, supra note 3 at 82.

FN19. Branzburg v. Hayes, 408 U.S. 665, 667-671 (1972); Moloney, 685 F.3d at 6.

FN20. Moloney, 685 F.3d at 18.

FN21. United States v. Moloney, 685 F.3d 1, 20 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (quoting Cusumano v. Microsoft Corp., 162 F.3d at 714 (1st Cir. 1998)).

FN22. Nejkelski & Lerman, supra note 11, at 1093.

FN23. U.S. Const. amend. I.

FN24. United States v. Moloney, 685 F.3d 1, 20 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (citing Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)).

FN25. See Curtis, supra note 9, at 897.

FN26. Hannah Miller, Should a Legal Right to “Archival Privilege” be Established?, Due Process: Georgetown Law Library Blog, (February 26, 2013), http://www.law.georgetown.edu/library/blog/post.cfm/should-a-legal-right-to-archival-privilege-be-established.

FN27. Nejkelski & Lerman, supra note 11, at 1141.

FN28. See Eric M. Kraus & Arthur Palmieri, Investigating the Investigators: Balancing the Needs of Independent Researchers with Litigation Imperatives, Privacy & Data Security L. J. 659, 668 (2006).

FN29. United States v. Moloney, 685 F.3d 1, 4-6, 18-19 (1st Cir. 2012).

FN30. Petition for Writ of Certiorari, Moloney v. Holder, 2012 WL 5838450 at *7 (U.S.).

FN31. See Branzburg v. Hayes, 408 U.S. 665, 682 n. 21 (1972).

FN32. Harvey Silvergate, BC and the Belfast Project: A Scholar’s Privilege to Disobey, Forbes, (July 23, 2012, 11:48 AM), http://www.forbes.com/sites/harveysilverglate/2012/07/23/bc-and-the-belfast-project-a-scholars-privilege-to-disobey/.

FN33. Havemann, supra note 3.

FN34. O’Neil, supra note 4 at 36 (referring to the four concerns for protecting scholarly research).

FN35. Kraus & Palmieri, supra note 28 at 760.

FN36. Id. at 671.

FN37. See Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1546 (11th Cir. 1985)(preventing disclosure of questions regarding medical histories, sexual practices, contraceptive methods, pregnancy histories, menstrual activity, tampon usage, etc).

FN38. Brief for the Reporter’s Committee for Freedom of the Press as Amicus Curiae Supporting Petitioners at 3-5, Moloney v. Holder, No. 12-627, 2012 WL 6703006 (U.S.), at *4-*9.

FN39. See Silvergate, supra note 32.

FN40. United States v. Moloney, 685 F.3d 1, 20-21 (1st Cir. 2012) (Torruella, J., concurring in the judgment only).

FN41. See Kraus & Palmieri, supra note 28 at 674.

FN42. Katie Zezima, College Fights Subpoena of Interviews Tied to I.R.A., N.Y. Times, June 10, 2011, at A12.

FN43. Havemann, supra note 3 at 83.

FN44. Jim Dee, Death of Dolours could be a major game-changer, BelfastTelegraph.co.uk, Jan. 29, 2013, http://www.belfasttelegraph.co.uk/opinion/news-analysis/death-of-dolours-could-be-a-major-gamechanger-29041219.html.

FN45. Radio Free Eireann Interview with Anthony McInture and Ed Moloney: The Death of Dolours Price, Boston College Subpoena News (January 26, 2013), http://bostoncollegesubpoena.wordpress.com/2013/01/27/radio-free-eireann-interview-with-anthony-mcintyre-and-ed-moloney-the-death-of-dolours-price/.

FN46. Branzburg v. Hayes, 408 U.S. 665 at 707-08 (1972).

FN47. Petition for Writ of Certiorari, Moloney v. Holder, 2012 WL 5838450 (U.S.).

FN48. See Spinneweber, supra note 7 at 10-15.

FN49. United States v. Moloney, 685 F.3d 1, 18 (1st Cir. 2012) (distinguishing Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998)); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595-99 (1st Cir. 1980).

FN50. United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983).

FN51. Reporter’s Privilege Legislation: An Additional Investigation of Issues and Implications: Hearing Before the Committee on the Judiciary United States Senate; 109th Cong. 6 (2005) (statement of Hon. Chuck Rosenberg, U.S. Attorney for the S. D. of Tex.) (stating that the Governmental interest includes enforcing federal criminal law, protecting national security, protecting vital secrets, and protecting public safety).

FN52. United States v. Moloney, 685 F.3d 1, 21 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (citing UK-MLAT Technical Analysis, S. Exec. Rep. No. 104-23, at 11).

FN53. Bert Black, Research and Its Revelation: When Should Courts Compel Disclosure?, 59 Law & Contemp. Probs 169 at 179 (1996).

FN54. Id. (referencing In re Grand Jury Subpoena Dated January 4, 1984, 750 F.2d 223 (2d Cir. 1984)).

FN55. Curtis, supra note 9, at 888-889.

FN56. Cusumano v. Microsoft Corp., 162 F. 3d 708 at 712 (1st Cir. 1998).

FN57. See Radio Free Eireann Interview with Anthony McInture and Ed Moloney: The Death of Dolours Price, Boston College Subpoena News (January 26, 2013), http://bostoncollegesubpoena.wordpress.com/2013/01/27/radio-free-eireann-interview-with-anthony-mcintyre-and-ed-moloney-the-death-of-dolours-price/

 

Promises and their limitations

Promises and their limitations
John Gill
Comment Leader
Times Higher Education
5 June 2014

Trust in research confidentiality is vital, yet recent disclosures suggest the need for a review of safeguards for all concerned

There’s no such thing as bad publicity, eh? Try telling that to Boston College. It’s hard to see the now infamous Belfast Project as anything other than an unmitigated disaster for the US institution.

The ramifications are numerous: the arrest of Sinn Fein leader Gerry Adams stemmed directly from research materials obtained by the Police Service of Northern Ireland, while the reputation of Boston College has been damaged and it now faces being sued by some of the project participants.

There are wider implications for academia, too, and in one half of a double bill on legally “edgy” research this week, we consider the impact on the future of oral history.

Some fear that the episode could have a chilling effect on researchers working on subjects that lie beyond the boundaries in which most of us operate, and that it even risks turning them into “informants”.

But others feel that oral history may, in fact, emerge stronger, with greater clarity about the risks and clearer legal and ethical frameworks.

Boston and its researchers are not alone in having found themselves in the mire; this week, we also hear from Bradley Garrett, who was prosecuted for “crimes” committed during his PhD on urban exploration.

Some will ask why an academic should get special dispensation to break rules, and Garrett’s research may not be an obvious subject for a cause célèbre. But he argues that what happened to him strikes at the heart of academic freedom, with the police trampling over the trust between researcher and subject.

This is particularly important because those who give researchers access to sensitive information, or information about illegal behaviour, almost always do so in the public interest or for the benefit of the body of research rather than for any personal gain.

“I feel an enormous amount of guilt over the knowledge that I exacerbated the legal problems of my project participants by unintentionally supplying the police with a (very well organised) ready-made package of evidence,” Garrett writes.

For Danny Dorling, professor of geography at the University of Oxford, the case suggests that “there is part of the state system that doesn’t understand what academics do, just as [it] doesn’t understand the value of a free press”.

Parallels between research and journalism were raised in the Belfast Project case, too, and in that instance Boston College claimed some small victory when it persuaded a judge that oral histories should be treated with the same privilege accorded to the notes of journalists.

Academics, like journalists, have a crucial role in exploring the fringes of society, and at times this means bending rules (the importance of this freedom is not diminished by the examples of abuse, such as the phone hacking scandal).

It also means protecting sources, and for journalists and researchers, it is vital to know that their employers will stand behind them if that is challenged.

If the certainty around research confidentiality fades, it is up to universities to re-examine their legal and ethical frameworks to ensure that all involved in sensitive research are appropriately protected, and that when boundaries are breached, it’s done for the right reasons and in a way that can be defended to the hilt.