Researcher-Participant Privilege, Confidentiality, and the Jailhouse Blues

Research participants can be expected to share legally sensitive information only when they are confident that those with whom they are sharing it can be trusted to maintain its security and confidentiality. However, researchers can never be certain that their participants’ data will not become the target of a judicial order for disclosure in the form of a subpoena or search warrant. Judicially compelled disclosure places the researcher in a conflict of duties between honouring the ethical responsibility to protect participant confidentiality on the one hand, and the legal duty to comply with the law on the other. Criminologists Ted Palys and John Lowman argue that, where such a conflict arises, the researcher retains the right to resist disclosure as a matter of principle; on the grounds that ethical principle transcends law, researchers may adopt an “ethics-first” approach in which a disposition to noncompliance with compelled disclosure would guide research practice from the earliest stages of research design. The alternative to an ethics-first approach would be the “law-of-the-land” approach in which participants would be informed that confidentiality would be maintained only to the extent permitted by law. Under a law-of-the-land approach, the researcher would comply with a judicial order for disclosure once all legal means of resisting it have been exhausted. There are three arguments in Palys and Lowman’s case for ethics-first: (1) that the best way to protect confidentiality is to “Wigmorize” it in anticipation of a judicial test of privilege; (2) that to offer a qualified promise of confidentiality would be to undermine any claim to privilege according to Wigmore criteria; and (3) that to warn participants about the possibility of court-ordered disclosure is unnecessary, because such an eventuality does not qualify as a reasonably foreseeable risk. All three arguments are subject to criticism on legal grounds, while the suggestion that civil disobedience can be an appropriate way of responding to compelled disclosure is criticized on philosophical grounds.

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