Who Owns My Fieldnotes? Protecting Informants and “Intellectual Property”

Posted confidentially on the author’s behalf by the ethics blog editors

In order to minimize risks to informants, students setting out to conduct dissertation research submit human subjects protocols to be reviewed by their Institutional Review Board. But what happens when you find yourself working or consulting in non-academic settings, where there is no IRB to answer to, and the standards for work products and “intellectual property” are different from the standards surrounding research in academic settings? This is something most anthropologists don’t learn while they have their sights set on finding a job as a professor at a university. As anthropologists increasingly explore non-academic roles, we need to know how to protect ourselves, protect our informants, and avoid misunderstandings—and even lawsuits—in a business world that operates according to a different set of norms and cultural rules. I learned this lesson the hard way.

While working as an Executive Director for a non-profit organization, my training as an anthropologist specializing in gender, health, and the Middle East put me in a position not only to design and implement programs, but also to evaluate their successes and challenges. Our organization had several projects underway across the Middle East. I proposed to undertake an evaluation of a center we had helped fund in the Occupied Palestinian Territories. The goal was to assess how well the services our center offered were meeting community needs.

With the customary assurances of confidentiality, I began to conduct audiorecorded interviews with people who used the center. At first I asked simple questions like: How far do you have to travel to reach the center? How could the center better meet your needs? But when women began telling me stories of their experiences of living under occupation—the impact of the wall on their lives and villages, the settlers who threatened their children and livestock at gunpoint, the soldiers’ harassment of their sons and daughters, their sickness due to Israeli settlement waste trickling down the hills into Palestinian fields causing outbreaks of E. Coli and other sewage-related diseases, the destruction of Palestinian orchards and homes, and the constant, unrelenting harassment on every level of life—I could not stick to simply asking how many times a week they used the center and which programs they found most useful. Clearly, there was no way to understand the center’s functioning apart from the entire context of life under occupation. As an anthropologist and as a human being who could see these people’s suffering, I couldn’t keep focused on the center alone when people had stories of trauma they were eager to share.

But much of the information I recorded could potentially put people in danger if their identities, or even locations, were ever revealed. I obtained informed consent but documented it only orally, as many informants were illiterate and, more importantly, I knew that having their names on paper could put them at risk if the information was seized by officials at the checkpoints or the airport. In fact, I didn’t even carry the tapes out of the country, but sent them by DHL instead, for the same reasons. I emailed my field notes to myself at a different email address and then deleted them from both my computer and my primary email address. In writing up my observations, I used only initials rather than the full names of anyone I spoke to. In short, I made an exerted effort to minimize risk to my informants. But I didn’t think about who actually owned the original materials. I just assumed I was being paid to provide a report, and the recordings and notes were mine.

While in the field, I understood my materials to be two separate sets of information: one set of interview data directly related to the center, from which I would redact people’s identities and use to write up the report for my employer. The other information, unrelated to the center and my employment, explored the experiences of Palestinians living under occupation. I planned to use this latter information to write separate articles, as every Palestinian I spoke to pleaded with me to share their stories with the outside world.

My employer was fine with this way of thinking at the time. But some months after my return, my position was phased out, and the organization ordered me to turn over all of the tapes and notes from the work I had conducted in Palestine. I refused, on the grounds that (1) I had collected the data, (2) it contained sensitive information, (3) people had placed their trust in me when they consented to be interviewed, and (4) I was the only one whose responsibility it was to protect the interviewees. I concluded that I could not in good conscience hand over any of it.

I then received a letter from an attorney informing me that the organization had initiated a lawsuit against me, maintaining that I had stolen trade secrets and that the material belonged to them since they had paid my salary and funded the research. My employer’s stance was that this was intellectual property belonging to the company. My stance was that this data was protected by an obligation to “do no harm” to human subjects, and that social scientists have an obligation to protect their consultants’ identities—particularly in this high-conflict, militarized zone where lives could be at risk if certain information got out. I also felt that my own basic rights were being threatened: some of these field notes were like private journal entries; they contained my personal observations and emotions.

I started researching laws surrounding protections of human subjects, privacy laws, and cases involving other social scientists who had faced similar unfortunate circumstances and how they handled their situations. I found I was not alone in this predicament.

Sheldon Zink spent 18 months conducting ethnographic fieldwork at University of Pennsylvania on patients who had received artificial hearts. When one of these patients died, the family sued the hospital, and the hospital’s legal defense team subpoenaed Zink’s field notes (2003)[1]. Although she was prepared to spend time in jail to protect her informant’s confidentiality, at the 11th hour she managed to strike a deal to redact the notes and turn over an analysis, rather than the raw data. Sociologist Rik Scarce conducted his field research on eco-terrorism.[2] In 1993, he spent 5 months in prison for contempt of court, and for refusing to divulge his sources, one of whom was under investigation for a 1972 murder. Zink and Scarce were employed in academic settings, yet they too did not have adequate protection for themselves or their informants. While it might seem logical that the protection of anthropological consultants be consistent with the privacy laws that protect the patients of medical professionals—or at least journalists’ informants—legally, this is not the case. But these cases were not exactly equivalent to the situation I was facing: who owns the data in a corporate/non-profit setting?

In most university settings, researchers are legally the ‘stewards’ of their data: while the researcher is the one responsible for ensuring that the research is conducted ethically, it is the university that technically owns the data. For anthropologists who do consulting work, or conduct anthropological research as employees of non-profit organizations or businesses, there isn’t usually an IRB to report to, and the employee or consultant is paid for the work they do on a particular project.

Anthropologists are increasingly bringing their skillset to other work terrains in corporate America and non-profit work. Whether we step into the Intels, Googles, Facebooks, or Relief Internationals and other foundations, we have to come to terms with the fact that the standards regarding research materials may be very different from how we’ve been trained to think about our data. We need to become adept at negotiating contracts that explicitly spell out who owns the data and what information is being paid for before we engage in fieldwork.  Every social scientist who conducts qualitative, ethnographic work with human subjects should legally establish (1) who owns the recordings, notes, and other data they produce, (2) to what degree they can or cannot use this data in their own publications, (3) that they are being paid to provide analyses and reports of their findings with all identifiers redacted, not the raw data, as part of our ethical guidelines to protect human subjects. We must consider proactively how far we would go to protect our informants: Destroy tapes? Spend time in jail?

If this case had gone to court, and I had won, it would have set a precedent for social scientists’ right to protect their data. If not, however, the outlook for the protection of our work, and human subjects, would not have been as rosy. Luckily for me, after a year of attorneys’ meetings, and significant financial and emotional costs, my former employer dropped the case, we reconciled our differences, and I was able to stand by what I believe in. But I also learned the hard way that naiveté is a luxury we cannot afford when it comes to anthropological “data security”. While we are very fortunate that companies and organizations now recognize the great value of qualitative anthropological work—and ethnography is becoming the new buzzword in much of corporate America—we also have to adapt to an entirely different set of cultural circumstances. Other people’s lives could very well be on the line if we venture into these arenas blindly.

[1] http://www.thedp.com/article/2003/03/anthro_notes_at_center_of_lawsuit

[2] http://bostoncollegesubpoena.wordpress.com/2012/02/21/5-minutes-with-a-sociologist-jailed-for-refusing-to-divulge-subjects-about-the-controversy-at-boston-college/

8 Responses to “Who Owns My Fieldnotes? Protecting Informants and “Intellectual Property””

  1. As Boynton’s reference to Sheldon Zink and Rik Scarce makes clear, the existence of IRBs doesn’t necessarily provide academics with a safeguard against threats to data security. There are plenty of instances of universities failing to support academics trying to challenge legal subpoenas of their data, regardless of any promises of data confidentiality made on their ethics applications.

    A good discussion of issues relating to research confidentiality and legal challenges to it can be found in Ted Palys and John Lowman’s book “Protecting research confidentiality: What happens when law and ethics collide” (2014, Lorimer Press). In the core case they analyse: that of Russel Ogden, a Masters student in criminology at Simon Fraser University in Canada, the university gave him no backing to challenge a legal subpoena, although on his ethics application he had promised participants (his study was on euthanasia) complete confidentiality. In fact, as a result of the case, the university tried to introduce limited confidentiality clauses on ethics forms (although this was successfully fought).

    However, as Palys and Lowman show, there is actually legal precedent for social scientists’ rights to protect their data – in Canada the most recent example is the Brucker-Parent case (2014), where two University of Ottawa sociologists successfully fought an attempt to subpoena data by invoking researcher-participant privilege and the Wigmore criteria.

  2. That’s very interesting, Kirsten. Do you know of any such precedents in the US?

  3. The discussion posted by Boynton is focussed on researchers in non-university settings. Although a distinction is made between universities versus other employers, the researcher’s advice is equally relevant to university-based researchers. The recent and continuing Boston College cases — where the researchers were willing to do everything possible to protect oral history interviews with former paramilitaries involved in “The Troubles” of Northern Ireland, while the college, which controlled the archive, were all too willing to hand them over — should give all researchers pause. At my university (Simon Fraser University in Vancouver, Canada), I may “own” my data, but the university effectively “owns” my email and the filing cabinets in my office. And while Canadian universities are now subject to a federal policy that universities must provide legal assistance to university researchers to protect their participants’ confidentiality, if the case was ever lost I have no doubt the university would hand over the information if it was in its possession. Accordingly, I never use university email for sensitive exchanges (and, since the Snowden/NSA revelations, never any email), and never retain data on university-owned computers/servers or filing cabinets. The record of universities coming to researchers’ aid is far too inconsistent to place one’s trust in one’s university administration. But that’s another story.

    As for whether there are other precedents than the Canadian ones Kirsten Bell notes (and I thank her for her reference to my recent book with co-author John Lowman), indeed there have been dozens of cases in the US since the late 1960s/early 1970s. Although many US researchers seem to believe there is no such thing as “academic privilege,” Lowman and I think this is something of a misnomer and, after reading every US case we could find, believe it is meaningful to distinguish between the courts treatment of researchers and of research participants. US courts’ treatment of researchers has been highly varied – sometimes they are ordered to give evidence, sometimes not – but for the most part courts expect researchers to share information as long as it is not simply being sought to harass them, or involves a request so onerous the researcher would spend the rest of their lives compiling the information. But the information is something we normally want to share anyway. We don’t hide the information after we gather it; we gather it to write articles and books and give speeches at conferences about what people have told us. It’s the identification of participants and the association of names with information that creates the trouble most of the time, and it’s that prospective harm to identified participants that we are ethically bound to avoid. On that point, our view is that US courts have shown themselves to be highly respectful of research participant privacy by ensuring researchers redact names from any data even if they order it shared, and in many cases have simply quashed subpoenas when they are obvious fishing expeditions or involve a search for information that clearly would not exist were it not for the researchers’ promise of confidentiality. Perhaps one of the most inspiring of these was the 1998 case of Cusumano (of MIT) and Yoffie (of Harvard) vs Microsoft, where Microsoft sought interviews that C&Y had done with employees of Netscape in order to defend itself in an anti-trust case with billions of dollars at stake, and where the courts quashed the subpoena, noting .that, “compelling the disclosure of such research materials would infrigidate the free flow of information to the public, thus denigrating a fundamental First Amendment value.” But this is by no means the only case where US courts have protected research confidences. The number of losses has been very small, and the “flaw” in each of those cases in their design easy to identify. The case of Rik Scarce that the initial posting notes is a case in point. While we should all be thankful for Scarce’s willingness to go to jail for what ended up being 159 days in order to protect his participant, there are clear lessons to be learned in his case about what not to do in the design of one’s project. The Boston College case is another; I have no doubt the researchers would do things very differently knowing what they know now.

    A review of all these cases is beyond the scope of this growingly large comment, but if the issue is something of interest to you I do hope you will check out our book, where many of these cases are reviewed, and the role of researchers, university administrations and ethics review committees in the protection of research confidentiality is considered. The title is Protecting Research Confidentiality, and it is the newest book in the Canadian Assoc’n of University Teachers’ Academic Freedom series (see http://www.caut.ca/resources/book-series/lists/books/protecting-research-confidentiality). For a quicker fix, see Lowman & Palys (2001), “The ethics and law of confidentiality in criminal justice research: A comparison of Canada and the United States,” in International Criminal Justice Review, 11(1), 1-33, and/or Palys & Lowman (2002), “Anticipating law: Research methods, ethics and the common law of privilege,” in Sociological Methodology, 32, 1-17. The articles don’t discuss some of the newer cases that are included in the book, but do outline some of the main issues and talk about strategies that researchers can implement to best shield their participants from confidentiality challenges. I hope you find them useful.

  4. Very informative, Jessica. (Ted’s response, too.) Can you take it a step further to suggest what the problem would have been if your resolution had been to destroy your tapes? Would things have been different if you had put the agreement with your original boss in writing? Would that have protected you/your data?

  5. I should clarify – the author of this post has been kept confidential. I (Jessica) am the student intern in charge of literally posting the content that we get.

  6. 1. Jessica, I was assuming that either you were passing comments to the confidential author or s/he was following the blog, since a blog is a sort of discussion. Perhaps s/he has some additional comments to make, perhaps through you, as a result of the points raised in the several posts here?
    2. All: On the NAPA discussion board on LinkedIn, there’s been a long-term “chat” on the ethics involved in the Belfast Interviews/Boston College situation in which the ownership of field notes and protections seemed established, but …? — that seems to me related to the issues raised here as well. Here’s a link to an article recently posted there that summarizes what has transpired and might add to this discussion: http://lj.libraryjournal.com/2015/03/litigation/boston-college-oral-history-project-faces-ongoing-legal-issues/#_

  7. Sorry for my misunderstanding, Karen!

  8. If the tapes had been destroyed before receiving a letter from their attorney, there wouldn’t have been much anyone could do. After the letter, however, would have been a different story. I think it’s best to make sure to have a contract ahead of time laying out the terms of who owns the data and other concerns surrounding the work.

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