Breaching confidentiality in research

In July 2011, Chinese student Jun Lin arrived in Montreal to pursue a degree in engineering. Almost a year later, on 29 May 2012, his dismembered torso was discovered in a low-rent apartment, and parts of his body were found in postal packages addressed to Canadian political parties. A graphic video, showing a young man being killed and dismembered, was taken down from the internet by police, and is believed to show Jun Lin’s murder. A few days later, Luka Rocco Magnotta, a sex worker and porn actor, was arrested in Berlin, and subsequently charged (in Canada) with the first-degree murder of Jun Lin, as well as interfering with a human body, publication of obscene material, mailing obscene matter and criminal harassment of the PM and MPs. At the time of writing these lines, Magnotta is awaiting trial.

The reason why all this is relevant to an academic blog is because the Magnotta affair has proved something of a case study in research ethics. Luca Magnotta, it appears, had participated in a 2007 interview study, which was carried out by sociologists Chris Bruckert and Colette Parent (University of Ottawa), and which sought to understand intimacy patterns between sex workers and their clients. As is routine, Magnotta was promised confidentiality as a condition for his participation in the study. However, the research assistant who conducted the actual interview (then an undergraduate), recognised Magnotta from the news coverage, and felt morally compelled to bring it to the attention of the authorities, who duly obtained a warrant to seize the recording and the transcript of Magnotta’s interview. The seized items were kept under seal, pending a decision on whether they would be admissible as evidence.

Gavel
(c) Joe Graz [CC-BY-NC], Source: http://www.flickr.com/photos/joegratz/117048243/

Earlier this week, Justice Sophie Bourque of the Quebec Superior Court ruled that prosecutors may not have access to the confidential material, and affirmed that -just like investigative journalists- researchers should be, in the first instance, able to protect their sources. The judge took into account the fact that Magnotta requested that the materials, “if such exist, remain private and confidential”, and that disclosure of information would expose him to legal and personal harm. She also acknowledged that research into “aspects of the human condition which are normally kept silent” would be significantly hindered, unless researchers were able to guarantee confidentiality to potential informants; and that such research is instrumental in improving the social conditions of vulnerable and marginalized individuals.

Future researchers may still be ordered to cooperate with police in ways that breach the confidentiality privilege, but what this precedent seems to mean is that investigative authorities will need to convince a court that such an exceptional measure is necessitated by circumstances that override the research participants’ right to anonymity and the public interest in producing research about hard-to-reach communities. Judge Bourque noted in her ruling that “general disclosure of confidential communications for the benefit of prosecutors would likely have a negative effect on research involving topics on potentially criminal or illegal activities”, and pointed out that the Supreme Court of Canada had been “very cautious in intervening with university affairs, recognising the importance of academic freedom”.

While the Bourque ruling seems to settle this case from the perspective of the law, at least in Canada, the academic community is now faced with a number of unanswered ethical questions pertaining to the duty of confidentiality. To name just a few:

  • Under what circumstances might a researcher come forward with confidential information that might facilitate the investigation of serious crimes?
  • What, if any, role should Research Ethics Committees play in this process?
  • How should universities deal with people that, like the former research assistant who tipped off the Montreal police, take it onto themselves to breach confidentiality?
  • What, if any, safeguards can be put in place to prevent unethical disclosure from student research assistants, who will eventually leave the university; and how does this impact our ability to engage students in research that  may involve sensitive information?

The debate on these issues is likely to be protracted, but at least it will be carried out where it should be, i.e., within the Academe.

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