I wonder what’s under: Chris Bray reviews Palys & Lowman ‘Lessons From the Boston College Subpoenas’

I wonder what’s under: Chris Bray reviews Palys & Lowman ‘Lessons From the Boston College Subpoenas’
Chris Bray
21 November 2012

In a new article in the peer-reviewed Journal of Academic Ethics, longtime researchers John Lowman and Ted Palys discuss “Lessons from the Boston College Subpoenas.” Palys and Lowman, who teach in the School of Criminology at Simon Fraser University, couldn’t be more qualified to address the questions that follow the BC subpoenas. Both have a long record of sensitive research on people who are alive and can be targeted by governments, and together they have written extensively on the topic of confidentiality and human subject research.

Their new article on Boston College reflects the knowledge and care that come from long experience. Palys and Lowman identify in the BC conflict “the two approaches that have developed over the past 40 years to the threat of court-ordered disclosure of confidential research information.”

On the one hand, an an “ethics-first approach” requires that researchers protect their research subjects under all circumstances and at whatever personal cost. This approach strongly implies a willingness to defy governments and their efforts to turn academic research to state purposes; the ethics-first approach to a subpoena is to refuse disclosure and fight back, even to the point of being jailed. The sociologist Rik Scarce embodies this approach. So do Belfast Project researchers Ed Moloney and Anthony McIntyre, who have waged — and are waging — a determined legal battle against the BC subpoenas for more than a year and a half.

On the other hand, a “Law of the Land approach…holds that academic institutions and researchers must always obey the law, including a court order to violate research confidentiality.” In the matter of the BC subpoenas, Palys and Lowman write, Boston College itself has come to exemplify this approach. The university has gestured at legal resistance, but signalled its intentions with the declaration of its media spokesman that they had “fought the fight and the fight was lost.” If you go to court and the judge says to hand over confidential research material, then that’s what you do.

The posture of fake helplessness in that choice is clear enough, and Palys and Lowman show through careful discussion that BC has invented some of the ropes that bind its hands. The university first tried to keep the subpoenas a secret, then fought a polite and unmistakably limited courtroom battle, even going as far as to hand a federal judge a much broader range of materials than legally required so that he could perform an in camera review and determine for himself which were germane to the subpoenas.

Meanwhile, researchers Moloney and McIntyre fought not just a legal battle but a political battle, enlisting the assistance of Irish-American groups to lobby the State Department and members of Congress for their intervention against the subpoenas.

Those political efforts have failed, so far, to convince the grotesquely obtuse bureaucrats at the Justice Department to withdraw the subpoenas. But think what a political effort might have accomplished if Boston College had led it, calling other universities to its defense (and to the general defense of research confidentiality). The professional associations — the American Historical Association, the Association of American University Professors, and so on — have stayed firmly on the sidelines, with academia as a whole choosing to look on as passive spectators to someone else’s fight. That professional quiescence is the product of institutional quiescence: American academics are staying out because the American academics who could have rallied a political effort chose instead to preclude a political effort.

“In view of the record,” Lowman and Palys conclude, “Boston College has provided an example that will be cited for years to come of how not to protect research participants to the extent American law allows. Instead, it has allowed its Law of the Land doctrine to devolve into a form of caveat emptor.” A research university has shoveled the problem of research confidentiality onto the laps of its research subjects, effectively saying that hey, listen, you should’ve considered the possibility that we’d give you up to the police. “As is so often the case with advocates of Law of the Land limitations to research confidentiality, Boston College’s perspective reflects the attitude that law is merely constraining, something to be reacted to rather than something that is enabling, dynamic, and that academics can influence.”

Laying down, a university depicts itself as a helpless victim of outside forces. Lowman and Palys quite reasonably conclude that BC’s posture with regard to the subpoenas is an example of “moral bankruptcy.”

There’s much more to this new article than I’ve covered here, and I encourage you to read the whole careful and detailed thing. In a particularly enjoyable moment, the authors catch BC spokesman Jack Dunn in a characteristically sloppy and foolish lie about the history of the university’s institutional review protocols.

Beyond the limited and practical boundaries of an article about the dimensions of a conflict over confidentiality and its lessons for researchers, what we need next is a longer and more embarrassing discussion about the current state of institutional courage and principle in academia. We know that Boston College has capitulated to an absurd set of government demands, treating a political fishing expedition as a murder investigation that cannot responsibly be opposed. We know that American academics have, on the whole, stayed out of the conflict, declining to add their voices to a political effort against a politicized government action.

What we don’t know, or at least haven’t made public and explicit, is how we came to live inside the borders of this Vichy academy. Like Marshal Pétain, Father William P. Leahy and his subordinates have gone farther than the moment requires. They didn’t just surrender subpoenaed materials; instead, they rushed to court with every Irish Republican interview in their possession, dumping the whole pile on a government official with an invitation to read it all and decide what he thought should go to the police. Under fire, Boston College chose to stay quiet and go along, rather than to start a fight and summon a broader resistance.

And what American academics have objected, or have intervened to insist on a political fight?

The Boston College debacle does give us a clear and disturbing picture of the state of academic research confidentiality. It also gives us an ugly picture of academia as a whole.

How and why have we come to this? Where is our courage? What is it that we do, and how much are we willing to do in the defense of our professional purpose?