Protecting Individual Privacy in Evaluation Research (1975) / Chapter Skim
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CONCLUSION
CONCLUSION
Pages 15-139
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Special efforts must be made in two areas: (1) protecting evaluation research data from accidental release or malicious misuse by unauthorized persons; (2)
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Boruch have been supported in part by grants from the Russell Sage Foundation, by National Science Foundation Grant GSOC-7103704, and by National Institute of Education Grant NIE-C-74-0115. Portions of an earlier draft of this report have been used 'iy Boruch and Campbell as a basis for pages 261-269 of H
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At its worst, the privacy issue becomes a rationalization for evading meaningful program evaluation. The present analysis starts out by assuming the existence of administrative records and of archived statistical research data and then asks how both of these can be further used to generate non-individual statistical products without increasing the risks to individuals that are already implicit in these A-l
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4. In regard to the desirability of restricting the uses of data to those which the individual anticipated and was agreeable to when providing the data, it would probably be desirable if the forms used for data collection (e.g., income tax returns)
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The abolition recommendation was designed to preclude merging files into larger data banks. Through the "mutually insulated file linkage" described in this paper, some types of file linkage can be achieved without merging, i.e., in a manner that prevents either file from acquiring identifiable individual information from the other file.^ This procedure does require, however, that common identifiers, such as names and Social Security numbers, exist in each file.
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is insufficient unless also accompanied by restrictions in number and refinement of data on variables that are publicly available elsewhere, or unless accompanied by error inoculation on public variables, especially by additive normal error; Microaggregated release is acceptable, albeit statistically costly; Best of all is in-file capacity as a public utility to run outsiders' statistical analyses, accompanied by randomized rounding of frequency tabulations to prevent disclosure through comparisons of sets of results. The secondary category of utilization considered is interfile exchange of confidential data, where one or both files are confidential and the objective is to relate variables across files in statistical analyses.
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. Where the research population is compact and where some of the variables are conveniently recorded with names on public or semi-public lists (here designated as public variables)
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2 plus all unique variables Uj through Un, while user Beta received public variables P3 and P4 plus all unique variabTes Ul through Un, they could easily employ the shared unique variables to achieve perfect matcTfes and thus generate a complete, merged deck with Pj_, ? 2, PS> and P^ on each person.
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have developed a technique of microaggregation for the release of census data on firms, as a substitute for the release of individual data. This approach has been recommended as a general approach to the release of confidential data.
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, 1969; 1970) , this was initially proposed for sensitive unique variables, such as drug use or abortion, rather than for public variables usable in decoding individual
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In many data sets, the procedure could be used for most public variables, leaving the remainder with such large cell size (see the discussion of crude report categories for public variables, above) that they could be left without error inoculation.
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, 1969; 1970) , this was initially proposed for sensitive unique variables, such as drug use or abortion, rather than for public variables usable in decoding individual
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In many data sets, the procedure could be used for most public variables, leaving the remainder with such large cell size (see the discussion of crude report categories for public variables, above) that they could be left without error inoculation.
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In summary, error inoculation of individual data on public variables, while costly as far as statistical efficiency is concerned, is an acceptable safeguard that still permits many valuable reanalyses to be done. In-file Capacity to Run Outsiders' Statistical Analyses It is already the practice of some archives of research data to provide for reanalysis of their data, not by releasing the raw data, but instead by performing on their data the statistical analyses requested by an outsider, who is charged for the costs involved.
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From page 31... ...
Where the outside analyst has no access to individual records, but does have access to tabulated statistical data, the Hansen variant appears to be more desirable than error inoculation of individual data. Members of the Statistics Canada staff have recommended "random rounding" for the preservation of privacy in the publication of tabular material and in performing customer-specified analyses.
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Neither file need expand in the amount of confidential information it contains. Even under these restrictions, interfile exchange is an extremely valuable tool in federal agency evaluation research.
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If social experiments in community services or urban renewal could be allocated by census tract or block, microaggregated administrative data would be available for program evaluation. Such a system could not be used to link NJNITE data to census or income tax records, for example, since the treatment was not assigned by microregion.
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For the present, we judge the technique inferior to linkage procedures (such as the mutually insulated file linkage discussed below) based on indivdual identity and using individual identifiers, if these are available.
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The replication of the unique variables on both the original data and on the new composite deck will usually provide a basis for exact matching, making the reinstatement of personal identifiers on the merged deck a simple process and thus giving one file access to the confidential information of the other file. To avoid these difficulties, the link file brokerage device must be modified in one or more directions.
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The hypothetical problem in Figure 1 is to relate a local Job Corps experimental program to Social Security Administration records on earnings subject to PICA deductions. It is assumed that both files are to be kept confidential from each other.
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1. The random deletion of one individual from each list is to prevent detection of identified individual data through repeated negotiations.
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In contrast, under mutually insulated file linkage as first presented above, the published analyses of the data by the initiating file would provide summary statistics for the whole sample, pooling the information from numerous lists, so that the second file would not be able to identify values on the variables reported in the published articles for any lists they might retain.
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From page 39... ...
First, there are some interfile exchange settings where it is a loss of privacy and a breach of confidentiality for one file to even inform another file that a person exists. If the NJNITE were to send its lists to the IRS, this might make the IRS aware of non-filers who should have been filing income tax returns.
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One might decide not to use lists grouped on criminal record, or grouped on having committed a given crime, because of the danger that co-listing will convey incriminating information. For most of the wide range of federal agency evaluation research uses, such incriminating categories will not be involved.
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From page 41... ...
If, in the data released, there are items of information that are also available publicly, then additional precautions are required, such as restrictions on the number and refinement of these public variables in the data released or error inoculation of the public variables. Microaggregated release is acceptable.
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1970. A link file system for assuring confidentiality in longitudinal studies.
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1974. The New Jersey negative income tax experiment: A summary of the design, operations and results of the first large-scale social science experiment.
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S Department of Health, Education, and Welfare, Social Security Administration, Office of Research and Statistics, August 1973.
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New York: Russell Sage Foundation.
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APPENDIX B A RESEARCHER'S SHIELD STATUTE: GUARDING AGAINST THE COMPULSORY DISCLOSURE OF RESEARCH DATA Paul Nejelski Director, Institute of Judicial Administration New York University Law School.
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For example, researchers who are investigating criminal activity do not want to become an arm of law enforcement agencies. If they feel that their data will be so used, they may refrain from the research activity.
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In providing valuable research in such diverse areas as drug abuse control, the study of American sexual practices, and formulating intelligent foreign policy, the research process has implicitly depended upon the fact that information supplied would not be subject to compulsory legal process. Interest in protecting against abuses of the collection and dissemination of research data has been highlighted by several recent developments.
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B-3 known. Ultimately, society -- acting as judges, legislators, and administrators• will have to choose between these competing interests, either in the abstract or in specific cases.
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For example, the federal Comprehensive Drug Abuse Prevention Control Act of 1970 protects only those researchers "engaged in research on the use and effect of drugs." Prosecutorial guidelines and professional codes of ethics are ineffective in protecting researchers because they are not legally enforceable. While the doctrine of executive privilege or "state and official secrets" has been suggested as a source of protection for researchers, it would only apply to immunize research data collected and stored under the auspices of governmental agencies.
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The solution of licensing researchers on an ad hoc basis, used by the Comprehensive Drug Abuse Prevention and Control Act of 1970, is rejected in the Statute proposed here. Instead, the proposed Statute attempts to protect persons involved in the research process while not immunizing every citizen from his or her duty to testify in judicial and other proceedings.
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From page 56... ...
An absolute privilege theoretically protects the beneficiaries of the privilege from compelled disclosure of specific types of information under all circumstances; a qualified privilege specifies circumstances under which the beneficiaries are not protected. The absolute qualified dichotomy is too rigid a conceptual framework in which to consider the scope of a privilege against compelled disclosure of information.
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In this Statute, the privilege is not divested upon the demand of law enforcement agencies for research data. While law enforcement subpoenas have significant deterrent effects on the research process, the value of research data to law enforcement agencies is minimal.
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PROCEDURES Unlike other privilege conferring statutes, the proposed Statute's protection can be invoked by any person having knowledge of research data. That person need not be a researcher or a research subject.
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Section 2: Creation of a Privilege for Researchers No person shall be compelled pursuant to a subpoena or other legal process issued under the authority of the United States or any State during the course of any judicial, administrative, or legislative investigation or adjudicative proceeding to give testimony or to produce any information storing device, object, or thing that would -- (1) reveal any subject or impair any subject relationship by revealing the identity of the subject or the contents of information received, observed, developed, or maintained by a researcher, whether or not any explicit or implicit promise of confidentiality had been made to the subject, in the course of gathering, compiling, storing, analyzing, reviewing, editing, disseminating by any media, or publishing any research data, or (2)
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No subpoena or other legal process to compel the testimony of a researcher or the production of any information storing device, object, or thing shall be issued under the authority of the United States or any State except upon a finding that -- (1) there are reasonable grounds to believe that the researcher has information which is (A)
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(3) The term "information storing device" means any paper, recording, film, microfilm, microfiche, tape, card, print-out, or any other device by which information is stored.
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Office of Economic Opportunity (OEO) to evaluate the New Jersey negative income tax experiment.' The research involved interviewing all participants in the experiment and eliciting information as to the families' earnings, hours worked, attitudes toward work, family stability, and other indicia of social and B-12
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From page 63... ...
Samuel Popkin, an assistant professor of government at Harvard University, was subpoenaed by the federal grand jury investigating the release of the "Pentagon Papers."9 In an appearance before the grand jury, Popkin was questioned on information he obtained while doing research in the United States and Vietnam. He refused to answer questions relating to conversations with confidential sources about who participated in preparing the "Pentagon Papers." He also refused to state whether he had spoken to Daniel Ellsberg about the existence of the "Pentagon Papers" and to reveal persons he believed possessed the "Papers" before their publication in The Washington Post and The New York Times.
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From page 64... ...
The Court held that the photographs were privileged under the confidentiality provisions of the Federal Drug Abuse Prevention and Control Act of 1970, protecting information obtained in the course of drug research. These case histories, combined with the even more celebrated litigation involving reporters, have inspired increased consciousness on the part of individuals and groups of researchers to devise means by which to protect researchers from compulsory disclosure of data.
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From page 65... ...
Supreme Court. The Council of the American Sociological Association, representing 15,000 members, adopted the following broad resolution at its San Francisco meeting in December, 1972: Whereas the ASA deplores the recent imprisonment of Professor Samuel Popkin of Harvard University, who was held in civil contempt of federal grand jury for refusing to disclose the names of persons with whom he had discussed the secret war study carried out by the Pentagon ; and Whereas we conclude that the Department of Justice, both pressing the case and imposing the sanctions of imprisonment, has taken a serious and oppressive step in chilling free scholarly inquiry; therefore be it Resolved, that we, as a professional association of social scientists, urge that our colleagues and the general public be aware of and take action appropriate to prevent the recurrence of such arbitrary and oppressive use of prosecutorial and judicial power against scholars.18 Surveys of the Research Community These case histories highlight the need for a researcher's shield law.
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From page 66... ...
Supreme Court's refusal in Branzburg to "grant newsmen a first amendment testimonial privilege [before a grand jury in a criminal case] that other citizens do not enjoy."26 Referring to the records documenting the importance of a confidential journalist-source relationship presented to the Court by the various petitioners, Justice White, speaking for the majority, stated: We perceive no basis for holding that the public interest in law enforcement and insuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden of newsgathering that is said to result from insisting that reporters like other citizens respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.27 The Branzburg Court, however, did qualify to some extent what at first blush seemed to be the total rejection of a reporter's privilege.
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Though Branzburg dealt specifically with a grand jury, the court believed that the principles there enunciated could pertain equally in the criminal trial. A second qualification in the Branzburg decision is the Court's explicit recognition of the general First Amendment limitations placed on all investigative proceedings.33 While in the federal system the grand jury's investigative power has been held to be necessarily broad,34 the grand jury cannot ask questions that have no relation to the purpose of its investigation.35 Nor can grand juries require witnesses to reveal the names of organizations and their members that have no relation to the crime being investigated.36 Furthermore, with specific relevance to reporters, the Court stated that "official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news source would have no justification."37 The final qualification to the Branzburg decision is the short yet potentially potent concurrence by Justice Powell, who joined with Chief Justice
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From page 68... ...
In criminal cases, the public interest in law enforcement served by prosecutorial subpoenas and the individual's Sixth Amendment interests in confrontation and compulsory process served by defendant's subpoenas will generally be sufficient to override the researcher's First Amendment interest. In civil cases, a court is more apt to objectively consider the competing interests on both sides.
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The list is illustrative, not exhaustive, of the spread of restraints on the free flow of information. Statutes: Existing and Proposed The necessity of protecting the researcher from compulsory disclosure of information is underscored by both existing statutes designed to protect particular types of research activity and by proposed federal and existing state privilege laws for journalists that might protect certain types of researchers.
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At best, though, these federal statutes still cover only a relatively small group of researchers. Pursuant to the Comprehensive Drug Abuse Prevention and Control Act of 1970,55 the Secretary of Health, Education, and Welfare56 and the U.S.
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From page 71... ...
A more limited, yet complementary, provision"^ to the confidentiality granted by the Drug Abuse Prevention and Control Act of 1970 is the grant of confidentiality conferred by the Drug Abuse Office and Treatment Act of 1972.64 It confers a qualified privilege to "records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any drug abuse prevention function .
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And Justice White, speaking for the majority in Branzburg, pointed to the conceptual similarity between journalists and researchers when he stated that: The information function asserted by representatives of the organized press ... is also performed by lecturers, political pollsters, novelists, academic researchers and dramatists.7$ In examining the specific language of broadly drawn statutes and bills, it becomes apparent that these measures do not sufficiently cover researchers in general to obviate the need for a specific statute designed to protect the research community.76 The state shield laws currently in effect in Alaska, Arkansas, and Minnesota arguably cover researchers.
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From page 73... ...
The Arkansas shield law, thus, does not assure a sufficiently wide spectrum of researchers the protection they need. The Minnesota Free Flow of Information Act is a recently enacted "newsman" shield law.7" Of all the statutes that have actually been enacted, the Minnesota law provides for the widest coverage.
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From page 74... ...
This was pointed out in the journalist's area where, despite a strong professional ethic against disclosure of confidential information,88 the Supreme Court in Branzburg made it difficult for the judiciary throughout the country to hold in favor of a common law journalist's privilege. The applicability of professional codes in the establishment of a researcher's privilege is further limited by the fact that some researchers are not tied to the professional organization that promulgate codes of ethics.
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From page 75... ...
Coupled with the policy of the Freedom of Information Act,96 courts may be reluctant to confer a privilege against compulsory disclosure of research data based in regulations promulgated by federal agencies. Prosecutorial Guidelines A further means of protecting the confidentiality of research data is for law enforcement agencies to promulgate guidelines that specify standards for subpoenaing researchers similar to those issued by the U.S.
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From page 76... ...
Finally, prosecutorial guidelines would not provide a uniform standard of protection, as different law enforcement agencies serve each of the states and the federal jurisdiction. THE POWER TO LEGISLATE Introduction Statutes to protect researchers from compelled disclosure of information could be legislated in two ways.
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From page 77... ...
Basis for Congressional Action An issue that must be considered is whether Congress has the authority to enact a statute that would protect researchers from subpoenas or other compulsory legal process issued on the state as well as federal levels. Three constitutional sources of authority will be discussed here: the First Amendment; the Commerce Clause; and the Necessary and Proper Clause.
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From page 78... ...
Supreme Court in Katzenbach v. Morgan111 stated that section 5 is a positive grant of legislative authority, allowing Congress to determine what legislation is necessary to carry out the substance of the Fourteenth Amendment• ll2 This authority is broad11^ and includes the power to legislate for the states11^ as well as the federal government.
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From page 79... ...
If research is done under federal auspices and Congress finds that a researcher's privilege is needed to foster this activity, Congress may enact such legislation. Such a statute would protect researchers involved in "federal" research from compulsory legal process issued by both state and federal agencies.129 The term "federal" means some involvement of the national government through either the executive, legislative, or judicial branch.
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This represented a sevenfold increase in federal expenditures on social research, up from $40,000,000 in 1958.1^5 The second means by which research activity can be considered "federal" is if, in the absence of any federal funding, the research significantly carries out a specific policy enunciated by a branch of the national government. 136 The Comprehensive Drug Abuse Prevention and Control Act of 1970 is directly relevant.
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3. The definition could specify some type of relationship between the person protected and a specific type of research activity.
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No existing statute specifically granting a privilege to researchers has yet adopted this functional approach. 150 A number of existing state and proposed federal shield laws for journalists, however, employ this method.151 In many instances these statutes extend coverage to a wide class of persons, including individuals traditionally viewed to be researchers rather than journalists.
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Research is often a group effort with all those involved working closely together and having access to the same information. It would be meaningless to allow the leader of the research team or the person who actually acquires the information to be granted immunity from compelled disclosure, while subjecting others who have access to the information to compulsory process.
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From page 84... ...
Therefore, the legislature must counterbalance the limited deprivation of evidence with an important interest of the society at large. In connection with the public benefit requirement, it should be noted that the protection of the proposed researcher privilege Statute, unlike many statutes for journalists, is not limited to persons associated with specifically enumerated media, such as newspapers, magazines, radio, television, cable television, etc.
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From page 85... ...
The latter type of requirement is specifically rejected by the proposed Statute.l'^ Requirement of Confidentiality A major step in the process of behavioral research is the gathering of various types of information from and about people. The subjects of a research endeavor are those "individuals whose actions or responses are being studied."175 The proposed Statute extends protection from compelled disclosure to all information received and observed in the course of studying the actions or responses of human beings, whether or not an explicit or implicit promise of confidentiality has been made by the researcher to the subject.
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Third-party descriptions of an individual can severely infringe upon the privacy rights of the person described. To subject this information to compelled disclosure only because no promise of confidentiality was made would compound the infringement on the privacy interests of both the informant and the subject.
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From page 87... ...
As was discussed, methodologies employed by behavioral researchers often make it difficult to provide for an opportunity to extend an explicit or even implicit promise of confidentiality to the subject. The quality of research, however, is both dependent on the availability of these methodologies as research tools and on protection from compelled disclosure of information.182 Maximum protection from investigative and adjudicative subpoenas and other legal process can, thus, only be provided if a promise of confidentiality is not a condition precedent for statutory protection.
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From page 88... ...
A number of designs have been developed by researchers in response to the need to ensure that the identity of subjects remain confidential.195 These, however, are not adequate in all cases to insulate the identity of subjects from the power of investigative and adjudicative bodies to compel testimony.196 The only sure protection from compelled disclosure of the identity of research subjects in the context of the type of research under discussion is a statutory provision specifically immunizing this information.
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For example, the information may identify a particular group as being involved in criminal activity. If this is subject to compelled disclosure, the researcher's ability to find willing subjects within the community would greatly decrease despite the fact that the source's identity is protected.
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204 -j^g attorney-client privilege protects from compulsory process both the attorney's communications with the client and the attorney's work product. While no researcher privilege statute explicitly extends protection to work product, a few existing state205 and proposed federal privilege statutes for journalists206 do.
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should not serve law enforcement agencies: Certainly we do not hold .
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The court in In re WBAI-FM,217 for example, decided that despite the absolute language of the New York privilege statute for journalists,218 the protection granted to the press must yield to the overriding public policy of investigating crime, at least in cases where the information is passively received by the news media. Ironically, an absolute privilege may provide a court with a greater opportunity to carve out exceptions at its own discretion than a qualified privilege containing carefully limited exceptions.
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222 It is, thus, probable that in a criminal case the researcher's privilege would yield to both the prosecutorial interest in law enforcement and the Sixth Amendment rights of defendants. Because the researcher engaged in the study of criminal activity or behavior is particularly vulnerable to the compulsory process of investigative and adjudicative agencies,223 a statutory balancing approach probably would not protect the type of research that most needs protection.
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From page 94... ...
The journalist's privilege is divested if, for example, its operation results in a miscarriage of justice, the information relates to a threat to human life or national security, espionage, or to a probable violation of the law. The Supreme Court in Branzburg similarly recognized the law enforcement interest in requiring reporters to testify before grand juries and criminal proceedings: Fair and effective law enforcement aimed at providing security for person and property of the individual is a fundamental function of government and the grand jury
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Individuals directly involved in law enforcement activities have obviously recognized the interest that law enforcement agencies have in compelling reporters on at least some occasions to reveal information about criminal behavior within their possession. Robert G
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The proposed researcher privilege Statute rejects as an exception information relating to crimes already committed. As in the news area,2^8 ±t ±s unlikely that a researcher will possess information about crimes that law enforcement agencies view as most important to control, such as those offenses comprising the FBI's list of "index crimes": murder, rape, robbery, burglary, grand larceny, assault, and motor vehicle theft.
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From page 97... ...
Pictures of the patients at the clinic, a drug research facility, were subpoenaed by the district attorney so that the criminal could be identified. Asserting a privilege under the confidentiality provisions of the Comprehensive Drug Abuse Prevention and Control Act,255 the director of the methadone clinic refused to reveal the photographs.
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From page 98... ...
They often lack the financial resources and the time to pursue an adequate investigation so as to prepare a competent defense in their favor.261 The constitutional right to compel testimony, thus, is a most important element in the defendant's quest to adequately meet the prosecution's charges. The recent amendments to the Federal Rules of Criminal Procedure reflect the importance of the power of compulsory process to criminal defendants .2f>2 In the context of defense subpoenas, therefore, a researcher's privilege statute is potentially in direct conflict with a constitutional right and an important investigatory device inherent to criminal defendants.
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From page 99... ...
. who might wish to subject newspapers to an abusive 'flood of subpoenas.'"26° The court, referring to the Branzburg denial of a reporter's privilege in favor of the public interest in law enforcement, reasoned that "while the public has a crucial interest in the investigation of criminal activity, it must have an even deeper interest in assuring that every defendant receive a fair trial."269 There is, thus, a possibility that a researcher's privilege statute, which in no way accommodates the defendant's Sixth Amendment interests, may, in fact, be held to violate the Constitution.
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From page 100... ...
Similarly, a civil litigant rarely will have as strong an interest as the state in a criminal proceeding, striving for "fair and effective law enforcement aimed at providing security in person and property of the individual."271 Hardly ever, therefore, will the interest of a civil litigant in compelling a researcher to reveal information outweigh the First Amendment interest of informing the public served by a researcher's or journalist's privilege.272 Researcher and journalist privilege statutes, therefore, generally make no broad exceptions for civil litigants.^'•' Proposed274 and existing275 journalist privilege statutes, however, do make a specific exception in cases in which a reporter defendant in a libel suit relies on an unidentified source for a defense. This is in response to the U.S.
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A libel plaintiff suing a researcher in a non-New York Times v. Sullivan context, thus, because of statutory or common law protection granted to the communication, may be required to sustain a heavier burden than is traditionally required in a libel action.
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From page 102... ...
First, the researcher's privilege Statute is not designed to protect researchers from actions that damage the reputation of their subjects. Secondly, an exception can be drafted whereby the researcher-defendant will only have to reveal the otherwise privileged information upon plaintiff's showing that he or she has a bona fide claim of defamation.
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From page 103... ...
In fact, no researcher privilege statute provides such an exception. The interests of the research community are important and the researcher's obligation to produce the data is real.
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From page 104... ...
investigatory files compiled for law enforcement purposes except to the extent available by law to a private party. The nine exceptions, however, are not as powerful as the disclosure provision.
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It is to be emphasized at this point that a researcher privilege statute is designed for the ultimate purpose of providing better information for the public. By assuring anonymity, the statute allows the researcher to pursue controversial and interesting fields of inquiry for the benefit of society.
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It is obvious that placing the burden of proof on the party seeking the information would make it easier for the individual asserting the privilege to gain protection. This, however, is not the usual way in which privilege conferring statutes generally operate and would require cumbersome specific statutory language.
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Section 4(b) states that, in adjudicative and grand jury proceedings, a court shall determine whether the requesting party has made the proper showing in a subpoena to issue and that, in investigative proceedings, the investigating body shall make the determination.
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From page 108... ...
Inasmuch as one of the witnesses had already made a statement to the attorney general regarding his observations, the privilege was deemed waived and the witnesses could be compelled to testify despite the New York statute. Because courts may effectively read a waiver provision into privilege statutes that do not contain them,319 the proposed Statute includes an explicit waiver provision.320 gy including a narrowly drawn waiver provision, courts will be restricted from possibly flaunting the purpose of the statutory protection by implying waiver in inappropriate situations.
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From page 109... ...
The researcher's consent is needed for waiver of the privilege only when the researcher is called upon to disclose information that the Statute protects. If the subject is subpoenaed to reveal information protected by the Statute and does so, the privilege is waived without the researcher's consent.
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From page 110... ...
The door is not opened to compelled disclosure of information that has not been revealed in accordance with the waiver provision. The parties empowered to waive the privilege are, thus, in total control of the extent of the waiver.
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From page 111... ...
Procedures for Waiving the Privilege The less complicated context in which the privilege may be waived is when the subject is compelled to testify as to information that is privileged under the proposed Statute. The mere compliance with the subpoena or other legal process will constitute a waiver of the privilege, for the subject alone can waive the privilege if called to testify.
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From page 112... ...
7. Kershaw and Small, Data Confidentiality and Privacy: Lessons from the New Jersey Negative Income Tax Experiment, 20 PUB.
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Earl Caldwell, a black reporter for The New York Times, was subpoenaed to testify as to certain information he had obtained in the course of the confidential relationship he had developed with the Black Panthers. For a detailed discussion of the effect of Branzburg in the researcher area, see NEJELSKI and FINSTERBUSCH, supra note 1.
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From page 114... ...
Justices Stewart, Brennan, and Marshall agreed that the government could be compelled to reveal confidences to the grand jury if the government could: "(1) show that there is probable cause to believe that the newsman has information which is clearly relevant to a specific probable violation of law; (2)
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From page 115... ...
Newman, supra note 17, for a discussion that the 1972 Act is complementary to the 1970 Act and does not supercede the 1970 Act's wider and more complete coverage.
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From page 116... ...
89. Advisory Committee for ACE Study on Campus Unrest, supra note 8.
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From page 117... ...
95. NEJELSKI and LERMAN, supra note 1 at 1102 n.
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From page 118... ...
As in the case of the negative income tax evaluation, state and federal agencies may often be concerned with exactly the same issue such as investigating particular criminal activity.
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From page 119... ...
Note that following this reasoning, a shield law for journalists can readily be justified by the Commerce Clause. See sources cited in note 118 supra for authorities supporting and rejecting the commerce rationale for a privilege statute for journalists.
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From page 120... ...
(1971) (confidentiality provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970)
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From page 121... ...
, 147. Comprehensive Drug Abuse Prevention and Control Act of 1970, 42 U.S.C.
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From page 122... ...
supra, the need for a researcher's privilege spans a wide variety of areas of inquiry, ranging from the historian involved in investigating recent history, Popkin, to the social scientist evaluating the effect of an experimental government benefits project, the New Jersey negative income tax experiment, to the medical doctor assessing the effectiveness of methadone, Doctor Newman.
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From page 123... ...
342 (1971) for a case interpreting the California newsman shield law so as not to protect reporters, once they have terminated their affiliation with a newspaper, from compelled disclosure of information received while reporters.
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From page 124... ...
171. The confidentiality provisions of the Comprehensive Drug Abuse Prevention and Control Act, 42 U.S.C.
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From page 125... ...
181. Identified in RUEBHAUSEN and BRIM, supra note 179 at 1196.
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From page 126... ...
190. 1971 SENATE HEARINGS, supra note 188 (testimony of Richard Barnet)
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From page 127... ...
The type of information accumulated in such studies can be of obvious use to law enforcement agencies possessing the power of compulsory process.
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From page 128... ...
205. Minnesota Free Flow of Information Act § 3 prohibits compelled disclosure of "any unpublished information procured ...
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From page 129... ...
224. The power of the grand jury to compel testimony has been consistently recognized by the U.S.
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229. E.g., the Drug Abuse Prevention and Control Act of 1970 and the Comprehensive Alcohol and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 confer protection to researchers in "civil, criminal, legislative or other proceedings;" the A.C.L.U.
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242. Thirteen of the 19 state journalist statutes do not set forth any qualifications for law enforcement purposes.
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at 697. Morality may, however, dictate that the researcher reveal future crimes to law enforcement authorities.
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supra, which provide for judicial balancing. These statutes make it possible for courts on a case-by-case method to accommodate law enforcement interests by divesting the privilege when necessary.
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For a general discussion of communications so protected, see sources cited in PROSSER, supra note 281, § 115 at 786 n.
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310. But consider the procedures in obtaining a grant of confidentiality under the Drug Abuse Prevention and Treatment Act of 1970, which requires that researchers get approval from the Department of Health, Education, and Welfare that they are involved in bona fide drug research.
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. While both the California and the Pennsylvania journalist privilege statutes do not contain waiver provisions, both cases indicate that waiver will be implied when statements of the informer are publicly disclosed or published.
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Key Terms
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