Ted,

Dred Scott and Homer Plessy went to the courts for relief, is why I don’t regard that route as the only legitimate one to take.

The long struggle against white supremacy and racist brutality was mostly a struggle against the police, not the struggle of Southern authority against the federal government that came into the picture in the very late years of the story. Bull Connor was a cop.

Don’t be too sure! He’s been calling me names for a long time now. The basic problem with Moloney & McIntyre’s position, in my view—aside from the law—is that they have been quick to recognize fault in everyone except themselves for the Belfast Project fiasco.

I won’t argue the American Revolution with a Canadian! Ditto for the War of 1812 and the birthplace of basketball.

Ted, I think Mr. Moloney may have meant to refer to me, as my position is probably easier to caricature as craven servility towards the State. If that is the case, I feel no great urge to respond in any detail, as I don’t expect it will be particularly helpful.

That having been said, Mr. Moloney’s assertion about the American Revolution seems quite fair, at least with respect to me: recall that in Canada, we tend to view that part of our shared history rather differently than Americans do.

Ed, the two examples you chose undermine your argument. Take school desegregation. Who went to the courts for relief? The civil rights activists. Who refused to obey the law after the courts had ruled? Segregationists like Gov. Wallace. No lawyer that I know would say that the law never changes or that it’s wrong to try to change the law through the courts or the legislature. I don’t think, for example, that it was wrong for you and Anthony McIntyre to press your claims in the courts, though I think it was easy to predict the outcome.

Or take the example of the American Revolution. All revolutions are, by their nature, extra-legal in some sense. But the American Revolution was, in the revolutionaries’ eyes, justified by the British government’s denial of their legal rights as British subjects—the Declaration of Independence has a long list of essentially legal complaints against the king. This is why so many of the leading revolutionaries were lawyers.

I’m frankly surprised you’ve taken the view you have, since one of my main points in this discussion has been to defend Professor Zittrain’s proposal against the view that it’s illegal to keep one’s personal papers in a form that makes them difficult to obtain by subpoena. Surely you agree? Also, your comment seems to suggest that you think I believe that it’s never okay to disobey the law. But I’ve been very explicit about this in my response to Chris Bray: sometimes there may be a moral obligation to disobey the law. I do say that there can never be a legal obligation to disobey the law, but that’s just a tautology.

“But is rewinding the tape to avoid disclosure to the police any more or less destruction of evidence in anticipation of a subpoena than burning the tape a year later? And if you can’t do any of that—if you can’t destroy the tape anyhow, any way once a research subject tells you about his or her involvement in an illegal activity—then you can’t do oral history about sensitive topics without becoming a police detective.”

Chris, I think your premise is untrue here. You can destroy the tape unless you’re subject to a subpoena, or, I suppose, unless you think you are about to be. It’s not exactly clear when the duty to preserve evidence kicks in, but to take the Belfast Project as an example, it seems clear to me that if McIntyre had erased the tapes years ago, at the time of the interviews, he would have been entirely within his rights insofar as any later subpoena is concerned.

You might be interested in the crime of misprison of felony: “Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.” You might say, “aha! That’s exactly what I’m talking about!” The good news is that the statute doesn’t mean what it says. Mere knowledge of the crime isn’t enough. The defendant actually has to take active steps to conceal it before he can be guilty of misprison of felony. Would destruction of the tapes long before any subpoena was in prospect count as concealment under the statute? I think not, but I’m not sure.

I appreciate this response, and the detail of your discussion. I don’t mean to describe your thinking as that of a lawyer because I intend an ad hominem attack; rather, I think we’re continuing a discussion I’ve been having with Ted Folkman in which I say, as a historian, that I’m looking at history rather than the law, and Ted says (I’m putting words in his mouth) that he’s looking at the law rather than the history of resistance to the state, or something to that effect. We’re arriving from different precincts.

But once you arrive at the conclusion that researchers can’t reasonably protect sensitive information from the courts, it’s hard to see any structural way to prevent research from becoming police activity. I’ve been thinking about a recent essay from an oral history researcher in which she said this about the lessons of the Boston College subpoenas:

“If an interviewee says something incriminating during a testimony, the interviewer has a duty to stop the tape and erase that part from the record. This can put limits on what oral historians can achieve.”

But is rewinding the tape to avoid disclosure to the police any more or less destruction of evidence in anticipation of a subpoena than burning the tape a year later? And if you can’t do any of that — if you can’t destroy the tape anyhow, any way once a research subject tells you about his or her involvement in an illegal activity — then you can’t do oral history about sensitive topics without becoming a police detective. “Hello, officer? A research subject confessed to me today. I have the tape for you here at the university.”

There has to be some reasonable way to protect research subjects, or else there can’t be any further research of this kind. Petitioning government for protection from government seems like asking the shark to not eat you, and the point about a “functioning democracy” seems to me to not describe our current situation. When did Americans vote for the NSA to conduct widespread domestic surveillance of electronic communication?

I can’t accept the premise that we can’t protect research subjects until the moment when government permits us to do so. Researchers have a duty to protect the subjects of their research – to guard the door against all intruders. I don’t see government agreeing to limit its own power.

Thanks Alex. I do think that one of the main reasons, if not the main reason, for having a document retention policy is to avoid making documents available to litigation opponents, which is why I noted it, but it’s true that that’s not the sole purpose of such a policy.

I do not in any way mean to equate the proposal to having a document destruction policy. What I object to is advocating a mechanism whose sole purpose and effect is to circumvent any potential future legal compulsion to provide information. That was how I understood Prof. Zittrain’s article, anyway. If Prof. Zittrain meant “time capsule cryptography” to be analogous to a document destruction policy, then my criticism would be quite different. It may well be that there are reasons why one might develop and implement a time capsule cryptography scheme that have little or nothing to do with putting information beyond the law’s reach; I profess no particular knowledge about that, and would be happy to have others educate me. But the way it was contextualized in his article indicated to me that his proposal’s focus was on how to ensure that information is immune from any law or court. That doesn’t sound like a generalized document destruction policy to me.

Nor do I deny the existence of the dilemma that Prof. Zittrain identifies, and I am sorry that I led Mr. Bray to believe that I think otherwise. (As an aside, it does make me smile when non-lawyers throw out the phrase “only a lawyer could …” as if it were an ad hominem attack. Please forgive me if I take the accusation that I think like a lawyer as a rather flattering compliment.) Yes, there is obviously a tension between individual privacy and any number of state or other private interests. However, the question is only partly where the line should be drawn; it’s also about who should draw that line. I may have left the impression that I was talking about the former, when my concern is in fact with the latter. For what it’s worth, my own policy preferences are likely far closer to Mr. Bray’s than he might think. But my preferred solution is to effect those preferences by changing the law, not by prospectively defying it. I agree wholeheartedly with Ted that the law may often be an ass, but it is still the law.

I have tried—a bit artificially, I admit—to set aside the question of civil disobedience, so Mr. Bray’s criticism of my view on this point is well-taken. It’s a complex question. I guess all I can say is that I don’t believe that the United States in 2014 can be usefully compared, for purposes of this discussion, to the antidemocratic state abuses of 50 or 60 years ago. Others may well disagree, or think me terribly naive, or simply uninformed (I haven’t lived in the U.S. since 1992, so that last one probably has a lot of truth to it). Nonetheless, that’s why I have assumed away that part of the problem by taking as a given the existence of the rule of law. As I understand it, at least from a Canadian perspective, part of the rule of law is that we accept the legitimacy of laws and institutions because they are democratic—they are our creation, not something imposed on us from the outside – and apply equally to all. If I am concerned about increased governmental power to gather what used to be considered private information (and if it matters, I am), I would certainly try to use the democratic process to pass laws imposing controls on that power, and the courts to argue that the use of that power is not justified in a particular circumstance. But adding a cryptographic fortress to that mix, and presenting it as a defence against the potential application of laws we dislike or future court orders we disagree with—that’s where I have to draw the line.

Alex