When Mary Marshall Clark set out to collect oral histories of the 11 September terrorist attacks, her first stop was the legal office at Columbia University, where she is director of the Center for Oral History Research.
She asked: “What are the risks? Help me lower the risks” of chronicling this traumatic and emotional episode in an audio archive.
Such a cautious approach is likely to become more widespread in the wake of the controversy surrounding the interviews of former Irish nationalists and unionists collected by Boston College, which were subsequently handed over to the Police Service of Northern Ireland after a long, complicated and contentious international legal battle. The tapes led to the arrest in May of Sinn Féin leader Gerry Adams, who was later released without charge.
Some of those interviewed as part of the Belfast Project have said that they plan to sue Boston College. And the college has taken the unusual step of offering to return the audiotapes of the conversations to the participants.
While perhaps the most high-profile example, it is not the only such case.
In the 11 September oral histories recorded by the New York fire department (an undertaking separate from Clark’s project), some firefighters likened the World Trade Center attacks to an explosive demolition, giving fuel to conspiracy theorists who claim that the incident was not caused solely by hijacked aeroplanes hitting the building.
When families of several victims and The New York Times filed suit to get those interviews, which were considered public records, some of the firefighters unsuccessfully asked that their comments be withdrawn, unhappy that they might be taken out of context by “attack deniers”.
Historians say that the attention given to the Belfast Project is likely to have a long-lasting impact on the field of oral history – but not necessarily in the way some have feared. Rather than pulling the rug out from under such an approach, some academics argue that the episode could ultimately make oral histories stronger, more broadly understood and better managed.
“There have been a lot of things written with headlines like, ‘This is the end for oral history’,” says Cliff Kuhn, associate professor of history at Georgia State University and executive director of the Oral History Association. “I do think the Boston College case afforded something of a wake-up call. I’m sure there are a number of repositories that have re-examined their protocols to make sure things are tighter. And that’s a good thing.”
Rather than facing its demise, the field of oral history is expanding internationally. There has been an increase in the number of undergraduate and postgraduate oral history courses, and many universities have established concentrations or (at Columbia) postgraduate degrees in oral history. Oxford University Press, Palgrave, Routledge and AltaMira have all come out with books about oral histories, and new oral history projects are cropping up worldwide. Oral histories are easier to collect than ever, with high-quality recording devices now built into the smartphones that most people carry in their pockets. They are easier to circulate, thanks to the internet, and there is certainly no shortage of interesting places to conduct them, from Afghanistan to Guantanamo to Tahrir Square. The Oral History Association has even set up a fund to support projects covering “emerging crises”.
However, such topics are also more sensitive than the “tell-us-about-your-day” nature of the early oral histories of the 1940s, when the idea first got going. This calls for far more attention to the issues of informed consent for subjects and legal protections for researchers. Oral historians say that Boston College did not do a very good job of either.
The Belfast Project was run not by historians but by Irish journalist and author Ed Moloney. Its 50 interviews were conducted between 2001 and 2006 by a former Irish Republican Army member and a former loyalist. Boston College, which has extensive holdings of Irish literature, original manuscripts and other documents, agreed to house it. But the institution now says that it made a mistake in hiring the men.
Participants were told that the tapes would not be released until after their deaths, although affidavits submitted in the legal case show that the university warned Moloney that it would not be able to guarantee this if there was ever a court order directing it to release the materials.
An investigation by the Society of American Archivists has found that the researchers made promises of confidentiality that went further than university lawyers had advised.
However, Moloney disputes this and says that the fault lay with the institution because it was Boston College that prepared the donor contracts for interviewees to sign.
The point is that there were cracks in the wall, which proved easy for prosecutors to exploit when the PSNI came for the interviews, invoking an international legal assistance treaty, to help investigate the abduction and killing of Jean McConville, from Belfast, more than four decades ago. Although the university fought for seven months to quash the subpoenas, and the researchers pursued their own appeal, some of the documents were ultimately handed over, leading to the questioning for four days of Adams.
One of the interviews in question was that of Brendan Hughes, a former IRA commanding officer who had died by the time of the court battle, and who purportedly implicated Adams as being in control of a unit responsible for making McConville disappear.
Prosecutors also sought recordings of former IRA bomber Dolours Price, who told the Irish News in 2010 that she had been involved in McConville’s murder and that Adams had ordered it, an allegation he denies.
“It’s of limited utility to dump on Boston College. They’ve been through the wringer. The fact that they’re returning the tapes is unprecedented,” Kuhn says. “But most people doing projects that involve criminal acts take precautions to make sure that promises are not made that can’t be kept.”
Even in defeat, Boston College administrators argue that they have won a victory for academic freedom by at least persuading the judge that oral histories collected by scholars should be treated with the same special privilege accorded to the notes and photographs of journalists, which do not have to be handed over unless a court can be convinced that the information is “directly relevant” to a criminal investigation and not readily available from less sensitive sources.
Legal experts say that not even this kind of privilege supersedes the demands of a legitimate criminal investigation, however, and in the end, although the judge agreed that it extended to the Belfast tapes, he said they were, in fact, directly relevant to the PSNI investigation, and not available elsewhere. The result was that Boston College had to turn them over.
The longer-term impact of the case is that the college now faces the prospect of being sued by its own oral history participants.
John Neuenschwander, a lawyer, professor of history at Carthage College, and author of A Guide to Oral History and the Law, describes this as “the last shoe to drop”.
The result, he says, is that those involved in sensitive research such as this will in future have to consider not only its scholarly value but the legal dimensions of their work.
This means researchers making sure that interviewees give fully informed consent, he says, and also understanding such things as the difference between a criminal and civil subpoena because judges are more willing to protect confidentiality in criminal cases than in civil ones.
Some oral history contracts offer to restrict all or parts of some interviews if requested by participants at various times in the process, but others do not. And all oral history programmes need to make clear that, while project leaders or universities may fight a subpoena, they cannot guarantee that oral histories will be protected from use in legal proceedings, Neuenschwander says.
He hopes that in a conference to be held this autumn by the Oral History Association, oral historians from around the world “will have discussions where we talk about, ‘What sort of steps do we go through now?’” In that respect, he says, what happened around the Belfast Project “is going to have a positive impact. I don’t think any programmes have thought too much until now about how you mount a legal defence. It’s opened a conversation, and that’s the important thing.”
Because oral histories are often housed at universities, whose lawyers may not be familiar with the complex case law, the costly and time-consuming litigation of the Boston College saga – and the New York firefighters’ affair – threaten to prompt an excess of caution, Neuenschwander says.
But Kuhn says the Boston College case does not need to have a chilling effect. It will result in more conversations with participants about confidentiality, he says, and ultimately could strengthen a relationship in which the most important element, after all, is trust.
“Under which circumstance do you foster trust more? Promising confidentiality and not being able to deliver, or to have in advance a frank conversation with potential interviewees about a range of things, including possible usage, with the idea that they might become more invested in the process if you take the time to really talk about it?” Kuhn asks.
“Even though it sounds counter-intuitive, I think really genuinely getting into the notion of informed consent at the beginning might actually foster trust.”
Back at Columbia, Clark says that what happened at Boston College has become an opportunity to educate oral historians about all these things. “We don’t want to just stop documenting history,” she says, adding that she sees potential for such projects to have an impact well beyond academe, for example helping with “nation-building efforts” in countries such as Afghanistan.
“We’re not going to shy away from it,” adds Clark. “We’re not going to stop doing it. In fact, we’ll probably do more of it.”
Belfast Project aftermath: the legal implications
Smita Jamdar considers the legal questions for universities arising from the Boston College case
There are three issues here. First, consent: are universities sufficiently aware of the risks to research subjects in participating in the project, and in particular the legal rights (the privilege against self-incrimination or the right to privacy, for example) that they might be de facto waiving as a result of taking part in the project? And do they communicate these clearly to the research subjects?
Second, do universities understand and communicate the limits to the duty of confidentiality the research subjects will be owed if the university finds itself under a court order to disclose, for example, or if there is otherwise a public interest in disclosure?
Finally, in research projects where there is a high risk of legally sensitive material being generated, do universities have clear guidance as to when specific legal advice should be obtained? Universities’ codes of research ethics may touch on these issues, but often not in enough detail to ensure “high risk” projects are picked up at the outset.
We are occasionally asked to advise on what to do after the event – in other words, once a project has gathered information that is potentially damaging to participants – but rarely at the project planning stage.
It would be a real pity if fear of legal consequences were to prevent research into what almost by definition will be some of our most potentially significant oral histories, particularly when these are legal risks that can be mitigated if properly managed.
But institutions are now so concerned about their wider reputations that one has to fear that there might indeed be a chilling effect.
Smita Jamdar is partner and head of education at law firm SGH Martineau.
