Practical Ethics: How U.S. Law and the “War on Terror” Affect Research in the Middle East

June 24, 2014

By Sarah Elizabeth Parkinson, University of Minnesota

* This memo was prepared as part of the “Ethics and Research in the Middle East” symposium

Scholars of the Middle East are likely familiar with ethical debates surrounding topics such as Minerva funding and the U.S. military’s Human Terrain System program.[1] Put briefly, these conversations deliberate the extent to which individual scholars and academia as a whole should align with U.S. government interests, specifically regarding security and defense policy.[2] Yet discussions regarding these two programs mask a deeper dialogue that scholars of the Middle East should have regarding the ways that U.S. law and politics interact with their research designs, data practices, and interactions with subjects. How should the “War on Terror” and related legal structures affect researcher positionality and reflexivity, both in the field and “back home”? More broadly, how should U.S. law and politics affect researcher ethics?

This essay focuses on two recent legal cases that should give Middle East scholars pause. The first, involving Boston College’s Belfast Project, demonstrates both the ethical risks associated with collecting data on “sensitive” topics and specifically the ways that scholarly projects can be treated as potential evidence from a government perspective. The second, linked to the search and detainment of McGill University graduate student Pascal Abidor at the U.S.-Canadian border and encompassing the Abidor v. Napolitano filing, reveals how the border search exemption can be used to justify the examination and seizure of academic data, particularly when related to the Middle East and Islam.[3] Each of these cases challenges scholars’ current understandings of vulnerability, confidentiality, and third-party access to academics’ unpublished data. Together, they paint a picture of an academic field that is largely unaware of how to situate itself within U.S. (and other countries’) laws and of the ethical considerations that should evolve as a result.

Scholars working with the Boston College Belfast Project collected oral histories from former Republican and Loyalist paramilitaries in Northern Ireland.[4] After the researchers’ publication of a book following the (natural) death of one of the participants, the British government requested the recordings as part of a criminal investigation into the murder of Jean McConville, a woman who the Irish Republican Army (IRA) wrongly accused of being an informant. A mutual legal assistance treaty (MLAT) between the United States and Britain allowed the U.S. Department of Justice (DOJ) to issue a subpoena for the recordings on Britain’s behalf; Boston College, against the researchers’ wishes, released the deceased participant’s tapes to the DOJ. A U.S. judge later forced the university to surrender others. The tapes were used, in part, to arrest and question Sinn Fein President Gerry Adams for his alleged role in McConville’s murder.

The Boston College case is not simply about a single project’s seemingly weak confidentiality protections. It is about a foreign government’s ability to call forth treaty obligations in order to access confidential researcher data. Several ethical implications arise as a result of this case. The clearest is that research on political violence, mobilization, and opposition writ large may unwittingly generate, in the view of U.S. and other governments, evidence for criminal cases (however politicized). The United States and other countries may consequently use their legal apparatuses, including MLATs, to subpoena researchers’ data if it is deemed to be relevant. In the Middle East and North Africa, the United States currently has MLATs with Egypt, Israel, Morocco, and Turkey. Additionally, the United States and Algeria have a mutual legal assistance agreement.[5] This is not to say that a criminal case against a Gezi Park protester in Turkey or a Salafi imam in Algeria will necessarily bring forth a DOJ subpoena on behalf of a foreign government for a scholar’s data (in all likelihood, it will not). It is to say that MLATs, and other federal laws, constitute vulnerabilities that affect some researchers and projects – those of contentious politics or radical religious groups, for example – more than others. This says nothing of what foreign laws affect governments’ access to researcher data in the field.

The Abidor case is different in its treatment of academic data and involved scholars. A dual U.S.-French citizen and doctoral student in Islamic Studies at McGill University, Pascal Abidor was stopped, searched, handcuffed, and detained at the U.S.-Canadian border under what is commonly termed the border search exemption.[6] This exception to Fourth Amendment requirements allows for suspicion-less, warrantless searches of person and property, including electronics, at U.S. borders or border equivalents. In Abidor’s case, the search found pictures of Hamas and Hezbollah rallies that he had taken as part of his research into religious movements. The U.S. government argued that his possession of these materials constituted “reasonable suspicion.”[7] Unlike the Boston College case, officials invoking the border search exemption did not need to suspect the academic’s possession of evidence in a specific criminal case; Abidor’s academic data were the cause of suspicion and detention.

Functionally, this contention, which has since been upheld in court, means that someone carrying a laptop with unencrypted field notes, photographs of research sites, or interview recordings could be detained and have his or her electronics searched, confiscated, and/or copied by the U.S. government. The border search exemption is thus noteworthy for two reasons: one because of the way that it can be used to detain academics with “suspicious” materials (a vague category, to be sure); and two, because it allows government officials access to a much broader array of materials than MLATs or criminal subpoenas. Put succinctly, it provides a legal avenue for U.S. government agencies to use academic materials to add to what is sometimes called “the mosaic” – the assembly of background knowledge that aids government understanding of foreign organizations, places, and people.

So, how should researchers studying, working, and traveling in the United States balance their obligation to follow U.S. law and their ethical responsibilities to the spaces, cultures, ideologies, organizations, and, most importantly, the people that they study? Moreover, given that U.S. government agencies may consider data related to the Middle East and Islam, in and of itself, potential intelligence or evidence to claim “reasonable suspicion,” what can scholars do to protect themselves and their data?[8] Below, I suggest three immediate courses of action centering on education, research design, and data practices.

First, before conducting fieldwork, scholars have an ethical obligation to familiarize themselves with legal institutions and procedures relevant to their research. These may include MLATs, federal and state Freedom of Information Act (FOIA) and “sunshine” laws, and the Patriot Act, among others.[9] This process may involve, for many researchers, conversations with university counsel. At the very least, scholars must know what to do if they are stopped at the border.[10]

Second, researchers simply cannot promise confidentiality given contemporary U.S. law and are ethically obligated to take this fact into account. Moreover, while it may seem inherently disruptive – or even “unscientific” – to contemplate how to generate data without generating evidence, it may be the only ethical path for scholars of sensitive topics to take. Thus, advisors and those who teach field methods should instill the value of not asking, not recording, and not photographing as ethical decisions with legal implications, not simply as trust-building techniques. Indeed, deliberately considering why and how to collect data on specific violent or illicit acts, whether and when to employ anonymity versus confidentiality, and how to mask identities in field notes and interviews may generate innovation in both research design and practices.

Third, researchers must take data protection seriously. Especially since the popular encryption program TrueCrypt was reportedly compromised, this issue has become even more fraught. Scholars can benefit, here, from discussions with university technology services, institutional review boards, and, again, with university counsel. For instance, many scholars may have the option to upload encrypted backups of their data to university servers via secure VPNs before traveling. The use of whole disk encryption technologies should be more widely adopted. Where one stores data – on a work computer, on university servers, encrypted on external hard drives – is an intensely personal issue and choice; knowing one’s options can only help.

While these policies affect all scholars, it is a simple fact that due to contemporary U.S. politics and security concerns, they stand to disproportionately affect those who study the Middle East and North Africa. Furthermore, beyond their immediate implications, these cases bring forth several deeper questions that I am unable to address here. Future conversations should continue to focus on practical ethics while taking on difficult issues such as when and whether one should destroy data, to what extent consent procedures should consider U.S. laws, and how to contend with requests tied to data transparency and replicability.

Sarah Elizabeth Parkinson is an assistant professor in global policy at the University of Minnesota’s Humphrey School of Public Affairs.

 


[1] On Minerva funding and the associated debate, see: http://www.ssrc.org/programs/minerva-controversy/. Regarding the Human Terrain System, see: Forte, Maximilian C. 2011. “The Human Terrain System and Anthropology: A Review of Ongoing Public Debates.” American Anthropologist 113 (1): 149–153.

[2] This piece, for reasons of brevity, personal experience, and expertise, focuses on U.S. law and politics. It is based on my conversations with university counsel at two universities, one private and one public, as well as discussions with personal acquaintances who are attorneys and scholars of U.S. law. This discussion is not meant to serve as legal advice, but is intended to contribute to ethical conversations related to scholarship on the Middle East and North Africa.

[3] A third case, which I do not have space to discuss here, centered on a state-level Freedom of Information Act (FOIA) request made by a non-profit organization regarding Professor Michael Mann’s climate change research at the University of Virginia. Mann’s work was also the subject of a civil subpoena by Attorney General Ken Cuccinelli; a Virginia judge dismissed the subpoena in 2010. This case revealed vulnerabilities faced by researchers at public universities and/or by those who receive federal and state funding, particularly when conducting research on politically-charged topics. It merits longer review and consideration than this essay will allow.

[4] For the most comprehensive overview of the Belfast Project and the related court case, see McMurtrie, Beth. “Secrets From Belfast.” The Chronicle of Higher Education, January 26, 2014. Online: http://chronicle.com/article/Secrets-from-Belfast/144059/. Accessed June 15, 2014. The project did not go through IRB or legal review, though the researchers discussed issues of confidentiality extensively and provided for it in their consent documents.

[5] Department Of State. The Office of Website Management, Bureau of Public Affairs. Treaties and Agreements. Report. Department Of State. The Office of Website Management, Bureau of Public Affairs, March 7, 2012. http://www.state.gov/j/inl/rls/nrcrpt/2012/vol2/184110.htm.

[6] See, for example: http://fas.org/sgp/crs/homesec/RL31826.pdf

[7] Sledge, Matt. “Judge Dismisses ACLU Lawsuit Over Suspicionless Laptop Searches At Border.” Huffington Post, December 31, 2013. http://www.huffingtonpost.com/2013/12/31/pascal-abidor-lawsuit_n_4525364.html. Accessed June 15, 2014.

[8] There are U.S. laws in place that protect researchers from being approached by agencies such as the Central Intelligence Agency while they are in the field.

[9] For example, there are nine exemptions to FOIA, which could theoretically be used to request a researcher’s raw data if he or she were at a state university or accepted public grant money. Initially, the sixth, which restricts invasions of personal privacy, may seem the most relevant for researchers working with human subjects. However, the fourth (which protects business trade secrets) may actually lend researchers more leverage in protecting their data and analysis.

[10] For example, one is not legally obligated to provide a password to an electronic device such as a computer or smartphone.

{ 2 comments… read them below or add one }

1 J.L. June 24, 2014 at 2:01 PM
2 Yoshiko Ikeda June 24, 2014 at 6:43 PM

Thank you for making a complicated situation a lot clearer. One small  clarification:
 
> After the researchers’ publication of a book following the (natural) death of one of the participants, …

It was two of the participants whose natural death made it possible for the authours to publish the interviews: Brendan Hughes (IRA) and David Irvine (UVF/PUP). The book, Voices from the Grave, was published in March 2010.
http://en.wikipedia.org/wiki/Ed_Moloney

During the legal process in the US, in January 2013, a third participant Dolours Price (IRA) died. Her interview with the BC Belfast Project hasn’t been published because of the fiasco, but the PSNI has the transcripts after all.
http://en.wikipedia.org/wiki/Dolours_Price#Controversy
http://www.belfasttelegraph.co.uk/news/local-national/northern-ireland/boston-college-tapes-psni-detectives-get-secret-dolours-price-transcripts-29401595.html

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