Informant Confidentiality in the Corporate University
By Robert Dingwall
Social Science Space
Published: January 30, 2012
UK newspapers have belatedly picked up on a troubling precedent that is crystallizing in the US courts. Boston College has been ordered to disclose recordings from an archive of interviews with former IRA members to the Police Service of Northern Ireland. The PSNI believe these recordings may contain information relevant to their investigation into a 1972 murder. The researchers who compiled them apparently promised their informants life-long confidentiality, while Boston College claims that they were only authorized to promise confidentiality so far as US law permits. When the project began in 2001, however, US law was assumed to set a high threshold for disclosure, following precedents in relation to journalists, under the provisions of the First Amendment and its protection of speech. The matter has not been helped by the Federal District judge’s handling of the case, where he refused to allow the researchers to be joined as parties. Boston College appears to have offered only a pro forma defence and declined to appeal the judge’s order. However, the researchers were successful in getting the Federal Appeal court to allow them to intervene and to receive further argument. The hearing is scheduled for March but the judge has set a timetable for disclosure that effectively pre-empts the opportunity for Supreme Court review, if the researchers lose the appeal. These actions have been widely criticised in the US press, which sees the low threshold set by the judge as a threat to their own constitutional protections.
The case, however, raises wider issues about the problems of social research in corporate universities. Writing in the Times Higher Education, the outgoing President of the British Sociological Association castigates the Boston researchers for not recognizing that confidentiality cannot be guaranteed – ‘informed consent forms always explain that confidentiality will be maintained only to the full extent provided under the law.’ In doing so, he fails to acknowledge the impact of the change from professional to organizational responsibility that has occurred during the last 35 years. The scholars who trained me were men and women of great integrity and insisted on the personal responsibility of the researcher. You did what was required to protect your informants. In the US, graduate students like Mario Brajuha and Rik Scarce accepted imprisonment for contempt of court rather than disclose their field notes. Laud Humphreys moved the data from Tearoom Trade out of state and eventually destroyed it when law enforcement agencies became interested in gaining access to support the criminal prosecution of the homosexual men he had observed.
The corporate university’s regulation of research transfers legal accountability to the institution. Once the research is licenced by the university’s internal review procedures, the university is necessarily associated with it. I gather, for example, that it is now not uncommon for UK institutions to demand that copies of all original data should be deposited with them in case of litigation. The original researcher has no effective veto on access, regardless of the risks to themselves or to their informants. Universities may still make principled decisions. Stirling’s resistance to the Freedom of Information case brought by Philip Morris is a good example. However, the stakes for them are fundamentally different. Corporate actors have reputations to manage and deep pockets to drain in fines and legal costs. Their responses to litigation are necessarily more pragmatic, as the behaviour of Boston College shows. It is enough simply to go through the ritual of establishing that compliance with a disclosure request is not voluntary but made under a court order, without considering the wider implications of that order for the safety of investigators and the long-term societal benefit of free inquiry.
The key points are well made by Harvey Silvergate writing on the Boston case in Forbes magazine, not usually considered a mouthpiece for irresponsible subversion:
…in the interests of protecting freedom of scholarly inquiry, the extraordinary step of subpoenaing confidential academic research must be avoided if at all possible, a step to be taken only in the most exigent of situations and as a last resort. Academics play an important role in society for the enlightenment of current and future generations; they are not mere detectives bedecked in tweed and working for governments…
Academics are not used to standing up to courts… But reporters take the drastic step of almost welcoming jail sentences for a reason; if they do not make it tremendously inconvenient, and embarrassing, for the government to seek information from them, then investigative journalism would not exist, for confidentiality would be impossible.
We could leave social investigation to journalists but would we not be poorer as a society, if we were unable to place ‘deviant behaviour’ in a wider theoretical framework than that permitted by the constraints of everyday media production? Social researchers can properly inconvenience and embarrass governments. Do corporate universities have the same interests?