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The law and protecting informant confidentiality

2 July, 2010

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.]

11 Comments leave one →
  1. L.L. Wynn permalink
    6 July, 2010 10:52 am

    Jovan, thanks for posting on this. It really is a reminder of how important it is for us to protect the confidentiality of our informants in our fieldnotes and not only in our publications. Researchers are often not aware that their materials could be subpoenaed, but Macquarie’s Human Research Ethics Committee (HREC) is very aware of this and whenever anyone proposes a research project that raises the slightest possibility that one of the informants might disclose information about illegal activity, the HREC usually recommends that the researcher explore their legal reporting requirements (i.e. whether they are in a role or whether the crime is such that they are legally obliged to report the illegal activity), and if there is no legal reporting requirement (say, if you interview someone who talks about their illegal drug use), then the committee recommends that the researcher use pseudonyms in all of their research notes and that they obtain oral consent and *not* ask the research participants to sign informed consent sheets.

    What your post reminds us is that this may be advisable for any politically sensitive research, not just research that uncovers illegal activity.

  2. L.L. Wynn permalink
    6 July, 2010 10:53 am

    Ah, I forgot to mention that Macquarie’s HREC also asks researchers to insert a bit in their informed consent forms saying that they will do their best to protect their informants’ confidentiality and will not disclose their identity “except where required by law” or something along those lines.

  3. 7 July, 2010 2:39 am

    Hi Lisa. It sounds like the Macquarie HREC is taking a fairly enlightened approach and helping researchers to go into the field with their eyes open about the legal issues that they and their data might face. This didn’t seem to be case for Palinkas in the article. According the article at least, Palinkas seemed to be totally unaware that his field notes could be subpoenaed. I wonder if this apparent naivety was just more common back in those days when ethics committees weren’t as all-pervasive as they are nowadays.

    I agree that it’s not just getting involved with illegal activities which could lead to such issues and researchers need to be careful whenever dealing with sensitive information. The problem is, even the most innocuous of topics could become the object of legal interest at some later date for a whole variety of reasons.

    But maybe you have some idea about the issues related to using pseudonyms in field notes. While a researcher might be compelled to hand over the notes, could she also be legally compelled to provide the ‘key’ to unlock the true identities? Could refusing to provide the true identities of your informants also be considered contempt of court? In other words, is using pseudonyms in field notes genuine protection, or is there still going to be a point where a researcher has to make an active decision between betraying trusts or breaking the law?

  4. Denice Szafran permalink
    7 July, 2010 7:16 am

    When writing protocols for my dissertation research at the University at Buffalo I was informed by my IRB that I was required to transcribe my video/audio recordings and delete them, and that all materials (consents and transcriptions) must be destroyed after three years. I don’t know what the procedure is for materials requested within that three year period. After reading this piece I am curious to find out that the University’s policy is on turning over the materials.

  5. 7 July, 2010 8:05 am

    Thanks Denice. I’d also be interesting to find out more about this policy — maybe Lisa can help there. I have to say though that as someone who is currently using material from my field notes that didn’t make it into the final version of my thesis in the publications I am currently working on, I find the University of Buffalo’s approach extraordinary. While I can understand that there might be certain materials that should be deleted or destroyed within a particular time frame, surely there’s a lot of raw data that could be potentially valuable for future research and does not need to be subjected to such a blanket policy. Does the IRB see a PhD as a completely discrete piece of activity, the “surplus” of which should be destroyed? I rather think of the PhD research as an important foundation for a research career, but I can see how this notion would run against the legalistic logic of the IRB, which obviously seeks to delimit its duty of care in relationship to research, thus limiting its risk of exposure to litigation.

    I have a bit of a problem with these kinds of attempts to delimit the boundaries of research, especially in relationship to anthropological fieldwork. The rules pertaining to the products of interviews — transcripts, tapes and so on — privilege this aspect of research over all the other much more diffuse and unstructured aspects of doing ethnography. This is understandable, I suppose, as it’s the activity that is most “legible” to the bureaucratic structures of the university and therefore the most easily subject to surveillance and control when you’re “seeing like a university” (apologies to James Scott). Field notes are also privileged in a similar way, seeing as they would seem to delimit what is part of the research and what is not. They work as a transcript of sorts, becoming the official record of fieldwork — and it’s the official nature of this record that makes them desirable to courts. But field notes aren’t the only texts that anthropologists produce and draw upon when doing their research: emails and letters from, to, and within “the field”, blog posts, correspondences with government authorities, personal journals, SMSes to/from informants, even scribblings on napkins (a la Montgomery McFate). Would the logic of the IRB be to exclude all these products of research as ungovernable, and therefore inadmissible? And of course it is orthodox in our discipline to deny (and decry) the notion that field sites are, or could be, bounded, with the obvious methodological consequence that we can’t draw sharp lines between doing research and not doing research.

    Another important question that is raised out of all this is the question of intellectual property rights in relationship to research — and not just research outputs but all by-products of the research process. To whom does the research belong, the researcher or the institution that supports her? Or more specifically, which aspects of the research belong to the researcher and which to the institution?

    I didn’t mean to turn this response into such a long rave. Denice, I’d be very interested to hear how you felt about you personally feel about your IRB’s approach to your data.

  6. Denice Szafran permalink
    7 July, 2010 8:37 am

    You bring up many points I have thought about, and some I hadn’t faced yet.
    It is particularly disheartening for me to have to delete recorded materials because it is in these that my best field notes exist. I am researching aspects of play and performance as it reshapes the expectations of behavior in and use of urban public spaces. The groups involved are digitally coalesced and physically expressed, with much of their expression extremely visual/auditory. I had hoped to prepare a visual component to my dissertation, and I may still do that.

    I understand the IRB’s concern over the confidentiality of the people with whom I work. Entangling interviewees in legal repercussions seemed the board’s primary concern. These same groups, however, record themselves and post those videos online within hours of events, the majority of which contain material that is highly identifiable. Yet I am to strip identification from all of my materials – emails, websites, video, audio, etc. In light of this I am seriously puzzled by the IRB’s requirements.

    Then there is the issue of dissertation research not representing a single effort with a distinct endpoint, but containing a kernel from which further research can grow. That will be impossible if the materials are destroyed. Strange, though, that no mention was made of the fieldnotes themselves, which, in this age of electronic aides, I have almost entirely on audio and video files. Only the interviews are subject to deletion, as far as I comprehend it.

    And not to be paranoid, but I hope none of this communication taints my working relationship with my IRB. :::sigh:::

  7. L.L. Wynn permalink
    7 July, 2010 9:00 am

    Wow, Denice, it sounds like you need to have a serious argument with your IRB. And I don’t mean a smack-down fight, but I mean a careful and considered discussion with them about how you can reasonably protect your informants but still continue to preserve your valuable research data. I don’t know the whole story but the restrictions you describe sound completely unreasonable. And yet it’s a common story I hear — in the results of the survey I did of ethnographers’ experiences of ethics surveillance (which I will post to Culture Matters very soon), I found many people described being required by their ethics review board / ethics committee to destroy data after (typically) 5 years. In contrast, here in Australia you have to justify yourself if you don’t intend to retain the data for at least 5 years (not sure what the logic is there) and the assumption is that many researchers will retain their data indefinitely.

    Jovan, you raise a great question: what good do pseudonyms do if the key to your pseudonym code can be subpoenaed, too? For myself, I never kept a code anywhere, for that very reason. I was doing my research in Egypt and I considered it possible, though fairly unlikely, that the Egyptian government might decide to confiscate and read my fieldnotes. So I memorised the pseudonyms I used for everyone and never wrote down the code. Sometimes I used first initials and sometimes I used names. But what if I had been arrested and interrogated about who N really was and who was A and who was Layla? Saying “I don’t remember” would have been implausible (not to mention perjury). I really don’t know what would have happened. I was careful to simply not write down anything really damaging — when I described informants smoking hashish, for example, I never wrote down “hashish.” I think I just wrote down that they were “smoking” and assumed I would remember exactly what they were smoking. I also deliberately avoided investigating or asking people about politically sensitive issues, so as to reduce the likelihood that any government would take any interest in my notes. But they were still full of highly sensitive personal information, including the love affairs of wealthy and powerful (and married) men with the belly dancers I was working with. I’d like to think that my use of pseudonyms and other techniques I used to obscure identifying details in my fieldnotes would have provided my informants with plausible deniability if someone read my fieldnotes, but I can’t be sure how it would have played out.

  8. 7 July, 2010 10:28 am

    I agree with Lisa that some sort of discussion with your IRB is in order. Another strategy that occurs to me off the top of my head would be to collaborate with your informants to produce material. I don’t know if this is practical in your case, but it seems to me that co-producing video and other materials would change the scope of the IRB’s control over what happens to the product. If the material was partially owned by someone who is not beholden to your university I don’t see how the IRB could insist you destroy it. Of course, collaboration raises all sorts of other problems, but it might be something worth looking into.

    It’s also disheartening to hear that you worry that even open discussion of these issues might sour the relationship with your university. If you feel at all pushed towards self censorship out of fear of the repercussions of speaking out … well, that’s very worrying in itself. I don’t know nearly as much about the functioning and politics of ethics committees/IRBs as Lisa does, but I think it’s important to consider their impact only on individual research projects but on academic “culture” in general, on the possibilities of academic discussion and debate. And what are their lasting impact on academic career paths, e.g. through their insistance on destroying foundational research data? How are such policies impacting upon the ability of young academics to establish themselves, to publish sufficiently in order to move through tenure track and so on? I think these questions would relate to things George Marcus has written about the importance of dissertation fieldwork in the establishment of anthropological careers, especially given that we rarely have the opportunity to do such extensive long-term fieldwork following the PhD.

  9. Denice Szafran permalink
    7 July, 2010 11:05 am

    I have already considered and commenced collaborative research with my informants, since I will be using their posted videos as part of my research anyway. In fact, in many cases, they include a portion at the end where they debrief themselves! I have volunteered during my preliminary studies to be one of several “official” videographers for the events. I turn over my recording, and they use it to make a mashup of their own for public presentation. In this way my material is preserved from those pre-IRB pre-proposal defense case studies. What they choose to do with the material is not my decision, but it is out there.

    As a very non-traditional grad student, I don’t worry as much as the others about things like self-censorship. In my experience there are always a myriad of ways from point A to point B. I am concerned, however, that the already lengthy and drawn out method of obtaining permission could become even more onerous were I to openly criticize the process. Would that really happen? I don’t know, but I have heard enough stories from others that I wouldn’t want to take that chance.

    I am taking steps to insure that I will be able to continue my investigations with this material long past the expiration date on the transcripts. I am hoping to write up enough material after defense that the loss of the interviews won’t affect going forward. :::sigh:::

  10. 7 July, 2010 11:11 am

    And regarding pseudonyms, Lisa. It’s really interesting to read the strategies you made use of to protect your informants’ identities. I went to similar lengths, even though I didn’t think it likely that my research on popular religion in Thailand would attract the interest of the state. But then you run into a man who admit that prior to becoming a Buddhist devotee he was a member of a secret society, and had stabbed someone in a fit of rage. Or another who describes the techniques he used as a boy to keep his hands supple in order to be a good pick-pocket. Or a former policeman who described how to beat prisoners without leaving a mark. I also didn’t know at the outset that parts of my fieldsite would become caught up in a separatist insurgency, or that a monastery where I conducted fieldwork would later be bombed. Who knows if under these circumstances conversations I’d had could have suddenly become of interest to the Thai state.

    On a very different tangent, your comment about eliding that your friends were smoking hashish is also interesting. It raises questions about the relationship between the fieldnotes, the researcher, and the researcher’s memory. When you read back over your field notes you know that they were smoking hash even though it’s not in the text. The field note is partially an attempt to create record of events and partially a mnemonic device, its absences pointing to facts which only you have access to. This also raises questions about the accuracy of your memory: were they really smoking hashish that time, or is that just how you remember it now? Maybe they were cinammon cigarettes.

    Okay, I’m being facetious, but I think the relationship between memory and field notes is interesting more generally, and not just in the case of intentional elisions. Given that a field note can’t ever capture everything about events, how much do we rely on our memory to fill the gaps? And how sure can we be that these memories are accurate? I’ve certainly had the experience of remembering things happening a certain way and then being contradicted by my field notes when I went back to check. Is the answer to be strict and only include data in our research if it appears in the field notes (or in other corroborative data such as photos)? Do we say that if something is not in the field notes it didn’t happen? But if that’s the case where does it leave your hashish? Has it just gone up in smoke? 😉

  11. L.L. Wynn permalink
    7 July, 2010 11:25 am

    Jovan, you raise really interesting questions about how anthropologists use field notes as mnemonic devices. I agree that often when I go to my field notes, I find that my memory of things is often rather different than what I’ve written down. In the case of “smoking,” I can partly tell what they were smoking from looking at my fieldnotes and seeing if I’ve described them “rolling cigarettes” (because my informants smoked pre-rolled, pre-packaged cigarettes, but always rolled their own joints). But without that detailed description of the process of rolling cigarettes, I won’t always remember if they were smoking hashish (which involved breaking apart resiny-threads of cannabis and mixing with tobacco) or “bango” (a joint using cannabis leaves). But I wonder what other things I left out of my fieldnotes because I was worried about informant confidentiality and which I have now completely forgotten?

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