The law and protecting informant confidentiality
Sticking with oil disasters for the moment, here is an interesting blog post regarding one of the pitfalls of anthropological research when lawyers become interested in your topic, or at least in your informants. In the article anthropologist Lawrence Palinkas tells of how his research on the effects of the Exxon Valdez oil spill were subpoenaed by lawyers interested in pursuing legal action related to the spill. Much to his surprise, he found that his promises of confidentiality meant nothing when his informants were approached by lawyers bearing intimate details they had shared with the anthropologist. The article states that:
Palinkas wasn’t to blame for the confidentiality breaches in Alaska. In fact, he had no idea that his data would be subpoenable once the lawsuits started flying.
“Even raw data became subject to subpoena by courts, including names and addresses of research participants,” says Patrinkas, a social anthropologist at the University of Southern California. “Researchers cannot guarantee the confidentiality of the individual providing that data.”
Aside from the ethical issues, the article also details of some other negative methodological effects arising from the inability of researchers to guarantee confidentiality. These include the stifling of research and information flow, and the slowing of the publication process. Obviously, identical issues are going to be at issue during the current oil disaster, and researchers wanting to explore the health and other human impacts of the event will need to be aware that they are entering a legal minefield.
This issue of confidentiality is equally an issue in Australia, where there is also no anthropologist-informant privilege as there is for doctors and their patients, or lawyers and their clients. I know that this problem is especially familiar to those anthropologists working with Indigenous Australian groups. Researchers always have to bear in mind that their field notes can be subpoenaed by the courts, most commonly in native title cases. However this is not to say that there are no strategies available to maintain informant confidentiality. As far as I know, many anthropologists working in Aboriginal Australia take precautionary measures to protect the identity of their informants, for example by using pseudonyms or codes even in their notes. What is not so clear to me is whether the courts also have the right to demand the key to such encryption techniques.
Perhaps there are anthropologists out there who have had to interact with the courts and could share some of their experiences, especially how they go about dealing with the issue of informant confidentiality.
[Thanks to the AAA Blog for the link.]