Several readers have gotten in touch to tell me that I ought to write about the new article by Ted Palys and John Lowman, Defending Research Confidentiality “To The Extent The Law Allows:” Lessons From the Boston College Subpoenas. The readers seem to be hoping for some kind of major-league smackdown of the article. So by popular demand, I am going to give my thoughts on the article, but I’m afraid I’m going to disappoint some readers when I say that I think the article is, well, not that bad. Palys and Lowman seem clearly to be partisans, but they are basically fair partisans.
Palys and Lowman write quite a bit about the law in ways that I think are not that useful. For example, they claim that by acknowledging, as BC claims to have done, that a promise of confidentiality is only good to the extent the law permits, BC had somehow made it less likely that it could prevail on a claim of privilege in court. Really? In my opinion, the courts would have acted exactly as they did even without the “to the extent the law permits” language. Making the promise of confidentiality super-duper unconditional does nothing to alter the underlying problem with the case, which is, as the First Circuit found, that there is no First Amendment privilege in these circumstances, full stop. Palys and Lowman also suggest that perhaps there was a legal requirement for IRB review in the Belfast Project case, but it’s not clear that they’re right about the law on that point. Last, Palys and Lowman are strangely critical of Boston College’s decision to resist Ed Moloney’s call to spirit the Project materials out of the United States after the first subpoena was served (the first subpoena, recall, covered only the Dolours Price and Brendan Hughes materials). I don’t know the details of the advice Boston College got from its lawyers, but here is what I wrote to Chris Bray at the time:
Well, look, I don’t practice criminal law and I’m not giving legal advice, and I wish Ed Moloney well. But when I read that “the destruction of documents in anticipation of a subpoena can also constitute obstruction of justice”, David Cylkowski & Ryan Thornton, Obstruction of Justice, 48 Am. Crim. L. Rev. 955, 967 n.64 (2011) and cases cited, I get worried. Talk to your lawyer, is all I’m saying!
But the main point of their article is not legal. Palys and Lowman are right, I think, to say that the law aside, something went seriously wrong in the lead-up to the Belfast Project that perhaps could have been fixed had someone—BC, according to them, BC and the researchers, according to me—been more forthcoming with the study participants about the risks of a subpoena. We can disagree about whether Moloney & McIntyre were partly to blame, or even, as I have argued before, whether the participants themselves were partly to blame, but surely researchers will take the Belfast Project as a cautionary example in the future, and that’s Palys and Lowman’s strongest point.
I find their other main non-legal point less convincing. They suggest that Moloney & McIntyre took an “ethics first” approach to the controversy while Boston College took a “law of the land” approach. This way of looking at things is problematic for me for a lot of reasons. First, it discounts, by its very language, the idea that following the law itself may be ethically positive. Second, I don’t think Palys and Lowman take seriously a point I made in a discussion with Chris Bray: it is not right to ask of an institution with multiple constituencies and responsibilities to a whole community the same kind of civil disobedience that we might think an individual scholar ought to practice. In short, more power to Moloney & McIntyre for their asserted willingness to go to jail for a cause they believe in, but the bottom line—if they wanted to be Heroes of the First Amendment, they should never have let the tapes out of their own hands.