Research as Evidence: how the Boston College case exposes challenges to protecting sensitive research data

Aileen O'Carroll, DRI Policy Manager

The Belfast Project/Boston College legal case, which continues to feature in court-cases and journalistic articles, highlights the pressing need for researchers’ privilege. Like journalistic privilege, this ‘privilege’ would provide legal protection for academic researchers, preventing them from being compelled to disclose confidential information or sources contacted in the course of their academic work. This protection would enable researchers to gather data on sensitive topics and to meet their ethical obligations to protect their interviewees from harm. Without such legal protections in place the work of researchers will be curtailed and the work of archives such as the Digital Repository of Ireland will be severely limited. The knowledge we have about our world will be biased towards the mainstream narrative. We will only know a partial story.

Background to the case

The Belfast Project was initiated in 2010 by three researchers, and was aimed at gathering oral histories from IRA and Loyalist participants in the Northern Ireland conflict of the late 20th century. Some of the interviewees were, at the time of the Northern Ireland conflict, members of illegal organisations (The interviewees included members of paramilitary groups: the IRA, the INLA and the UVF). The purpose of the research was:

"to collect a story of the Troubles that otherwise would be lost, distorted or rewritten, deliberately by those with a vested interest, or otherwise by the passage of time or the distortion wrought in retelling." (Moloney, E. Voices From the Grave, London, 2011, Faber & Faber, p.8.)

Palys and Lowman argue that academic institutions must chose between two approaches to confidentiality, the Law of the Land approach and the Ethics First approach. They explain:

"If academic institutions are to honor their responsibility to maintain confidentiality at least to the full extent permitted by law it is incumbent upon them to be aware of the relevant law and to be prepared to exhaust all legal avenues to defend research confidentiality.  If these lawful attempts to defend research confidentiality fail, and the researcher is ordered to disclose confidential research information, then they would either have to comply (the Law of the Land position) or defy the order in order to maintain their ethical commitment to research-participant confidentiality." (Palys, T. & Lowman, J., 2012, 'Defending Research Confidentiality “To the Extent the Law Allows:” Lessons From the Boston College Subpoenas.' J Acad Ethics, 10, p. 271-297)

In the Boston College case, prior to conducting the interviews, interviewees first signed consent forms that promised that the interviews would only be released with the express permission of the interviewee, or following the death of the interviewee. This represents a Ethics First offer of confidentiality. However, there is no legal protection in Northern Ireland, the UK or the Republic of Ireland for researchers who maintain the confidentiality of their interviewees absolutely. In the Republic, journalistic privilege is very weak - for more on this subject, read this blog post by DRI Legal Advisor Eoin O'Dell.

The decision was taken by the Belfast Project researchers to archive the interviews in the United States. Unfortunately the interviews were deposited in the US with a consent agreement which contradicted the promises made by the interviewers. Boston College agreed to guarantee confidentiality ‘to the extent [sic] American law allows and the conditions of the interview and the conditions of its deposit at the Burns Library, including terms of an embargo period’. This is an example of a Law of the Land commitment to confidentiality - the confidentiality offered is not absolute.

The conflict became quickly evident when in March 2011 the Police Service of Northern Ireland (PSNI) served a subpoena requesting access to the interviews as part of an investigation into the 1972 murder of Belfast woman Jean McConville. The subpoena was made under  the “Mutual Legal Assistance Treaty” (MLAT). Over the five years following this subpoena, there have been more than 18 court appearances as the case has been fought by the PSNI, Boston College and the researchers through the various US courts and courts of appeal, including the US Supreme Court. Finally, in 2013, the First Circuit Court of Appeals ordered Boston College to hand over a selection of interviews to the PSNI, which they did. These interviews have been cited as evidence which led to the arrest and charge of the Republican Ivor Bell in 2014, and the Loyalist Winston ‘Winkie’ Rea in 2016. These cases have still to come before the court. In June 2016, the PSNI returned to court again, this time to seek access to Anthony McIntyre’s interview (McIntyre was both an interviewer and interviewee).

The Belfast Project and the associated court cases have highlighted how difficult it is to research and archive materials on sensitive subjects. A similar project which sought to interview police, Special Branch officers, army intelligence and M15 has been cancelled. Archivists have told me (on conditions of anonymity) that they have been asked by concerned researchers to return datasets and remove them from archives. University ethics committees are more cautious about granting permission to research projects that may result in court cases. These cases have led to a reluctance to conduct research, archive research and participate in sensitive research projects. The chilling effect is a serious blow to the academic endeavour.

The Digital Repository of Ireland, like other repositories, must operate within the boundaries of the law. We recognize that as an institution we have to uphold the Law of the Land approach. This is outlined in our policy on Restricted Data, and as such so we outline to our our depositors the risks attached to depositing un-anonymised sensitive material in our database. We do not take possession of keys which would enable the identification of interviews where consents to protect confidentiality have been granted. However in doing so we also recognise that our ability to hold material which may be of benefit for future generations is enormously weakened. We therefore also support, to the best of our ability, those researchers who have undertaken an ‘ethics first’ approach. There is clearly a need for protection for such researchers, without it we are accepting that difficult stories will remain untold.

 

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