Susan C. Lawrence. Privacy and the Past: Research, Law, Archives, Ethics

Susan C. Lawrence. Privacy and the Past: Research, Law, Archives, Ethics In his masterful 1956 story, “The Dead Past,” Isaac Asimov imagined a “chronoscope” that could look back in time. Officially described as a tool for historical research, the device in fact functions better as a tool to let the living spy on each other. As one character notes, “Isn’t it obvious that the past begins an instant ago? The dead past is just another name for the living present.” Yet, even though we can’t draw a hard line between past and present, we still feel instinctually that different rules should apply to older records. The historian, who with clear conscience spends the morning reading someone else’s century-old love letters, would be appalled to have his own email hacked in the afternoon. Historians therefore must distinguish between private records that should remain private, and those once-private documents that have aged into records of the dead past, whose disclosure can enrich collective knowledge without harming anyone. Making such distinctions is a challenge, and historian Susan Lawrence does not pretend to offer simple formulae. But she does pose useful questions, and Privacy and the Past should be read by historians, archivists, and policy makers who seek to balance the demands of knowledge and privacy. Lawrence begins with the story of her graduate student’s efforts to study rural poor-relief in the nineteenth century. The student was fortunate to find records dating back to 1871, but was stopped by a county official who feared that the research could violate the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Although written with recent medical records in mind, HIPAA was originally worded in a way that covered all records held by hospitals and similar institutions, no matter how old the records or how dead the people they described. Eventually, county officials allowed Lawrence’s student to complete her work, but she had to omit the real names of the people whose stories she told. Concerns about the living present, it seems, impede our exploration of the dead past. Privacy and the Past is rich in such stories that illustrate the dilemma. Lawrence describes studies of industrial pollution, unethical medical experiments, wartime rape, and daily farm life, all of which have enriched our understanding of history, none of which would have been possible had authorities imposed simplistic rules about privacy and anonymity. To allow such research to proceed, policy makers, archivists, and historians must work together to allow for nuance and discretion. Lawrence forcefully argues for “unqualified resistance to privacy protections for the dead” (116). Under Anglo-American common law, a writer cannot be held liable for defaming the dead, and Lawrence hopes to extend this principle to invasions of privacy. But she does recognize ways that historical research affects the living. For instance, a prominent legal case on the matter, Haynes v. Alfred A. Knopf, Inc. (1993), involved author Nicholas Lemann, who combines techniques of history and journalism. Lemann prevailed against charges that he had defamed a living man, but others fear that even old records about the dead could harm the living. They fret that records about ancestors could embarrass living descendants, or that the knowledge that a record will be disclosed in the future could deter frank conversation in the present. (Would you speak freely to your therapist if you knew her notes would be published 100 years from now?) Lawrence notes that it is hard to find any evidence for such harms, and she is particularly skeptical that family members should have perpetual veto power over research about their ancestors. A law forever barring the release of mental health records might sound like a mercy to the descendants of someone who struggled with psychosis, but it also hampers veterans’ understanding of how earlier generations understood and coped with the condition now known as posttraumatic stress disorder. We all gain from knowledge of our shared past. Lawrence acknowledges the haphazard nature of current privacy protections, which tend to rely on a cascade of people. A donor may deposit hundreds of boxes of files with the hope that an archivist will screen them, but few archives have the staff to thoroughly review everything before they offer it to a researcher. When accidentally handed a sensitive document, a historian could, in theory, avert her gaze and return it unread to the archivist, but no historian has that much restraint. Instead, we read the diary or the medical records, and then decide what to withhold from publication. At best, this system gives multiple people the chance to stop the dissemination of damaging material. At worst, it risks the opposite, if each person in the chain decides that privacy is someone else’s concern. Yet for the most part, it seems to work, while efforts to impose uniform practices by legislation or regulation can produce silences that benefit no one. Lawrence suggests allowing “current ad-hoc, minimal-risk practices to continue until there is evidence that historians cause real harms to living people” (87). And if policy makers must make policy, Lawrence hopes that no records will be sealed forever, and that only the most sensitive ones will be sealed for more than a century. Lawrence wisely refrains from trying to offer definitive legal advice. U.S. regulations alone are the subject of constant debate and occasional amendment, and Privacy and the Past was published while federal human subjects research regulations were in the process of revision. Moreover, what the federal government allows, state law may forbid. American case law is scant, so we don’t know how most of these issues would play out if they went to court. And Lawrence only skims the debate beyond the United States, such as the European concept of a “right to be forgotten” (70). Instead of writing a legal manual that would risk becoming quickly outdated, Lawrence has produced a thoughtful introduction to an important and complex subject. Her fellow historians can thank her by name. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of the History of Medicine and Allied Sciences Oxford University Press

Susan C. Lawrence. Privacy and the Past: Research, Law, Archives, Ethics

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Publisher
Oxford University Press
Copyright
© The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
ISSN
0022-5045
eISSN
1468-4373
D.O.I.
10.1093/jhmas/jrx031
Publisher site
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Abstract

In his masterful 1956 story, “The Dead Past,” Isaac Asimov imagined a “chronoscope” that could look back in time. Officially described as a tool for historical research, the device in fact functions better as a tool to let the living spy on each other. As one character notes, “Isn’t it obvious that the past begins an instant ago? The dead past is just another name for the living present.” Yet, even though we can’t draw a hard line between past and present, we still feel instinctually that different rules should apply to older records. The historian, who with clear conscience spends the morning reading someone else’s century-old love letters, would be appalled to have his own email hacked in the afternoon. Historians therefore must distinguish between private records that should remain private, and those once-private documents that have aged into records of the dead past, whose disclosure can enrich collective knowledge without harming anyone. Making such distinctions is a challenge, and historian Susan Lawrence does not pretend to offer simple formulae. But she does pose useful questions, and Privacy and the Past should be read by historians, archivists, and policy makers who seek to balance the demands of knowledge and privacy. Lawrence begins with the story of her graduate student’s efforts to study rural poor-relief in the nineteenth century. The student was fortunate to find records dating back to 1871, but was stopped by a county official who feared that the research could violate the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Although written with recent medical records in mind, HIPAA was originally worded in a way that covered all records held by hospitals and similar institutions, no matter how old the records or how dead the people they described. Eventually, county officials allowed Lawrence’s student to complete her work, but she had to omit the real names of the people whose stories she told. Concerns about the living present, it seems, impede our exploration of the dead past. Privacy and the Past is rich in such stories that illustrate the dilemma. Lawrence describes studies of industrial pollution, unethical medical experiments, wartime rape, and daily farm life, all of which have enriched our understanding of history, none of which would have been possible had authorities imposed simplistic rules about privacy and anonymity. To allow such research to proceed, policy makers, archivists, and historians must work together to allow for nuance and discretion. Lawrence forcefully argues for “unqualified resistance to privacy protections for the dead” (116). Under Anglo-American common law, a writer cannot be held liable for defaming the dead, and Lawrence hopes to extend this principle to invasions of privacy. But she does recognize ways that historical research affects the living. For instance, a prominent legal case on the matter, Haynes v. Alfred A. Knopf, Inc. (1993), involved author Nicholas Lemann, who combines techniques of history and journalism. Lemann prevailed against charges that he had defamed a living man, but others fear that even old records about the dead could harm the living. They fret that records about ancestors could embarrass living descendants, or that the knowledge that a record will be disclosed in the future could deter frank conversation in the present. (Would you speak freely to your therapist if you knew her notes would be published 100 years from now?) Lawrence notes that it is hard to find any evidence for such harms, and she is particularly skeptical that family members should have perpetual veto power over research about their ancestors. A law forever barring the release of mental health records might sound like a mercy to the descendants of someone who struggled with psychosis, but it also hampers veterans’ understanding of how earlier generations understood and coped with the condition now known as posttraumatic stress disorder. We all gain from knowledge of our shared past. Lawrence acknowledges the haphazard nature of current privacy protections, which tend to rely on a cascade of people. A donor may deposit hundreds of boxes of files with the hope that an archivist will screen them, but few archives have the staff to thoroughly review everything before they offer it to a researcher. When accidentally handed a sensitive document, a historian could, in theory, avert her gaze and return it unread to the archivist, but no historian has that much restraint. Instead, we read the diary or the medical records, and then decide what to withhold from publication. At best, this system gives multiple people the chance to stop the dissemination of damaging material. At worst, it risks the opposite, if each person in the chain decides that privacy is someone else’s concern. Yet for the most part, it seems to work, while efforts to impose uniform practices by legislation or regulation can produce silences that benefit no one. Lawrence suggests allowing “current ad-hoc, minimal-risk practices to continue until there is evidence that historians cause real harms to living people” (87). And if policy makers must make policy, Lawrence hopes that no records will be sealed forever, and that only the most sensitive ones will be sealed for more than a century. Lawrence wisely refrains from trying to offer definitive legal advice. U.S. regulations alone are the subject of constant debate and occasional amendment, and Privacy and the Past was published while federal human subjects research regulations were in the process of revision. Moreover, what the federal government allows, state law may forbid. American case law is scant, so we don’t know how most of these issues would play out if they went to court. And Lawrence only skims the debate beyond the United States, such as the European concept of a “right to be forgotten” (70). Instead of writing a legal manual that would risk becoming quickly outdated, Lawrence has produced a thoughtful introduction to an important and complex subject. Her fellow historians can thank her by name. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

Journal

Journal of the History of Medicine and Allied SciencesOxford University Press

Published: Jan 1, 2018

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