Monthly Archives: February 2013

Last year, Congressional Research Service published a thorough guide to statute of limitations terms for federal crimes. Since SAA’s bound to be looking again at restrictions on access in light of the president’s mild-mannered post about BC’s shenanigans, it might be of some use to see how restrictions on access already protect donors from unwitting confession of certain crimes:

You could release your donor’s financial records after six years plus one day, even if he’s nervous about having committed the following crimes:

  • 18 U.S.C. 1348 (securities and commodities fraud)
  • 15 U.S.C. 78ff(a) (Securities Exchange Act violations)
  • 15 U.S.C. 77x (Securities Act violations)
  • 26 U.S.C. 6531 (tax crimes)
    If you’ve got oral histories from the Klan, you’d really better sit on those for seven years plus one day, to allow these bad boys to expire:

  • 18 U.S.C. 247 (damage to religious property)
  • 18 U.S.C. 249 (hate crime not resulting in death)
    Sure their friends are maybe in jail, but every hate crime carries dozens of unindicted co-conspirators. Some of those people have to be family history buffs.

    Keep papers closed for eight years plus one day for pipeline tampering (49 U.S.C. 60123(b)), aircraft piracy (49 U.S.C. 46502), going to work on nuclear weapons at Natanz (18 U.S.C. 832), or kidnapping congressmen (18 U.S.C. 351).

    It’s ten years and a day for all kinds of embezzlement and bank fraud, but also for:

  • 18 U.S.C. 1542 (false statement in application and use of passport) (or conspiracy to commit)
  • 18 U.S.C. 1583 (enticement into slavery)
  • 18 U.S.C. 2442 (recruiting or using child soldiers)
  • 42 U.S.C. 2274 (communication of restricted data)
  • 42 U.S.C. 2275 (receipt of restricted data)
  • 42 U.S.C. 2276 (tampering with restricted data)
    It would be immensely helpful if we could rationalize federal statutes of limitations to eliminate the 20-year period for violations of 18 U.S.C. 668 (major art theft). Make it life or ten years, please.

    Ah yes, life. For heinous crimes, other than slave trafficking or recruiting child soldiers I guess, there is no statute of limitations. So if the guys in your oral history collections ever committed:

  • 18 U.S.C. 37 (violence at international airports where death results)
  • 18 U.S.C. 242 (deprivation civil rights under color of law where death results)
  • 18 U.S.C. 247 (obstruction of the exercise of religious beliefs where death results)
  • 18 U.S.C. 249 (hate crime resulting in death)
  • 18 U.S.C. 844(d) (use of fire or explosives unlawfully where death results)
    or the strangely phrased

  • 18 U.S.C. 1091 (genocide where death results)
    don’t worry, you can always rely on archivists’ privilege.

  • President and First Lady vacation at Hammersmith Farm. Hugh D. Auchincloss, Mrs. Auchincloss, President Kennedy, Mrs. Kennedy, others. Narragansett Bay, RI, aboard the US Coast Guard Yacht "Manitou"., 09/09/1962 NARA identifier #194213

    President and First Lady vacation at Hammersmith Farm. Hugh D. Auchincloss, Mrs. Auchincloss, President Kennedy, Mrs. Kennedy, others. Narragansett Bay, RI, aboard the US Coast Guard Yacht “Manitou”., 09/09/1962 NARA identifier #194213

    Christine Anne George wants SAA’s Government Affairs Working Group to take up archival privilege. Even though they calmly explain that they refused to deal with this in the 1980s because they didn’t have a legal foot to stand on. Not good enough!

    The first time that archival privilege was invoked in the 1986 case Wilkinson v. Federal Bureau of Investigation the district judge did not explicitly state that archival privilege did not exist. The opinion stated that no one had ever attempted to invoke archival privilege before, but that, ultimately, archival privilege could not be applied in that particular instance, given the facts of the case.

    This is so stupid it drools. It’s important to remember that not just one court, but a whole host of courts, reading Burka at 521, has refused to identify an archivists’ or researchers’ privilege. Wilkinson wasn’t the last time a court refused to find archivists’ privilege somewhere in the law, it was as George notes, the first.

    Second, it follows that SAA should go looking for archival privilege because the courts haven’t said it’s not out there somewhere. Really? This is like biologists telling us they can’t find evidence of Bigfoot, and us saying, Well, goddammit, let me at that sumbitch! He’s out there sommerrz! Perhaps George can direct us to where in common law or federal statute we should go looking for our privilege.

    Sure, archivists’ privilege isn’t a right, but it’s a pretty strong extra protection for donors who already have pretty strong protections, and it’s a huge cudgel for archivists to wield in a realm in which we really have no business carrying cudgels. And why do I think this? Because in the Belfast case, Boston College issued permission to publish for the guy whose book ultimately got BC into this mess. That is, BC argued, on the one hand, researchers who receive special permission can distribute whatever material they want. But when the court wants the same material, it’s subject to archivists’ privilege.

    This is, at best, a means for archivists to create a privileged class of friendly researchers, the researchers we know are on our side and won’t do any damage, in BC’s case, researchers who share our 1980s nostalgia and still have those annoying “36+6=1” bumper stickers on their Volvo hatchbacks. At worst, archivists’ privilege is an extra hurdle for people suing governments or institutions for information. Wilkinson, recall, was suing the FBI for damages related to COINTELPRO harassment of him and his friends, and the FBI was trying to carve out some extra exemption to FOIA that had never been asserted before. A sweep-everything-under-the-redaction-pen-type privilege. We’re on the side of spooks here. Given the discriminatory nature of the privilege, and given the chilling effect on research, you pro-spook archivists had better come up with an airtight genealogy for this thing.

    The rest of the bullet points prove my position:

    The district judge in the Belfast Project made several concessions including acknowledging in his opinion that this particular instance warranted higher scrutiny, and allowing the interviews covered by the second subpoena to be reviewed in camera, or in private, so that the details of the interviewees would not be revealed.

    Sounds like the judge was following the three-part test of privilege-vs.-need in Snedigar v. Hodderson, and splitting the difference by viewing the disputed records in camera. This doesn’t mean s/he agrees with pro-spook archivism.

    Archival privilege is by no means a legal right. Privilege is a very fragile protection that is incredibly difficult to obtain and beyond easy to break. No individual or group has a right to privilege. In fact, if you want the protections of privilege, you have to actively invoke it. It is never assumed. It is also something that will take archivists decades to achieve, as evidenced by journalists who sought their own privilege.

    Well, on this we all agree. Except the reporters in Branzburg v. Hayes needed confidentiality in order to do their reporting, and they reasonably anticipated that their compliance with the grand jury would lead to the imprisonment of their subjects, and they had the First Amendment behind them, and they still lost and then it took 30 years to get the federal circuit courts to recognize that the privilege might exist, and to get DoJ rules issued and to get 40 states to promulgate shield laws. They had the First Amendment behind them and the threat of violations of the Fifth Amendment rights of the people they interviewed, and it still took them forever.

    Start telling us now what the shape of archivists’ privilege is (and I’m going to stop calling it “archival privilege,” both because other privileges name the person — lawyer-client privilege, reporter’s privilege — and because the presumed privilege and its discussion should be fugitive, non-archival, like day-glo poster paint) and what its legal precedents are, and why it’s necessary, and how the greater good is served when archivists decide who sees what and how history gets written.

    Nixon standing with Lyndon Johson outside the LBJ Library in Austin , Texas, 05/22/1971. NARA identifier #194358

    Nixon standing with Lyndon Johson outside the LBJ Library in Austin , Texas, 05/22/1971. NARA identifier #194358

    Archival privilege is an idea so totally poisonous to the core work of archivists that I have to write more, if only to ferret out anyone who’s in favor of it.

    Privileged communication, things you say to another person in confidence which a court cannot ever hear, flows from the Fifth Amendment’s protections of individual life and livelihood and its proscription of self-incrimination. Wives and husbands are one body, so you can’t be compelled to incriminate your spouse. You can’t get the unvarnished medical advice you need to preserve your body unless you talk to your doctor in confidence. You can’t get to the root of the psychological illness that’s killing you unless your therapy is confidential. You can’t secure the legal advice that will keep you out of jail if lawyers could be compelled to incriminate you. And you can’t reasonably be expected to have forthright deliberations in the Oval Office, the kinds of chats wherein geopolitical strategies designed to preserve the lives and freedoms of billions of people are hatched if you think your confabs will be leaked.

    In the case at hand, lawyers want to see if Irish partisans “confessed” to crimes in a series of oral histories. Communication here had no therapeutic purpose, it wasn’t initiated by the partisans’ seeking counsel, legal, spiritual or otherwise, and revealing the conversations won’t start World War Three. You could argue, as John Kerry did, that opening the oral histories in discovery would, in fact, cause the Irish equivalent of World War Three, but that would make you look stupid because the Good Friday accords have held for 15 years despite harsher shocks than this.

    What archival privilege amounts to in this case is archivists saying: Look, we know our confidence doesn’t ensure due process, or make people sane, or safeguard their health, or preserve national security. It’s just that we promised we wouldn’t tell anybody about all the torture and stuff. And these are our friends, and we’d really like to not disappoint them.

    And seriously, privilege is forever. Swidler says so. And if either party can assert archival privilege, archivists are suddenly faced with the prospect of maintaining physical and intellectual access to information no one will ever see.

    The fundamental misunderstanding is about history. Kerry’s and Boston College’s arguments are based on the idea that history is something that has passed on. Oh that, that’s ancient history. For the rest of us, the whole point of preserving primary-source documents is precisely to upset current events. History is a debt that can never be repaid. It is passed along, taught from generation to generation. It doesn’t stop running. It roots down the mountain, it overturns it overturns it overturns

    I’ll let the president sum up the state of play:

    I have heard some archivists argue that an “archival privilege” of confidentiality exists, or should exist, to shield an archives from a hostile court’s order. They assert that, like spouses sharing the daily intimacy of life, a priest counseling a penitent, a psychiatrist caring for a patient, or a lawyer talking to a client, an archivist’s relationship to a donor is such that a legally sustainable sphere of privacy should extend to any material donated with donor-imposed restrictions on use.

    The case raises two questions: Do U.S. courts currently recognize an absolute or almost absolute legal right to confidentiality for scholars or archivists? And if they do not recognize such a right, should they?

    The short answer to the first question is no. Two federal district judges and the First Circuit Court of Appeals have explicitly found that such a right does not exist. Although the Supreme Court may take up the case, for the time being the honest answer to a potential donor is that in most, if not all, instances, an archives would be required to surrender material subpoenaed by a court.

    That anyone in our field would coin the term “archival privilege” much less promulgate it as a thing is totally insane, for a number of reasons, not least of which is that Boston College is cribbing its strategy for archives advocacy from the waning days of the Nixon administration.

    So let’s walk back from the specifics of the case — because the donor’s best defense is actually to argue that an oral history is more like hearsay than like a deposition. We don’t take oral histories under oath. There’s no guarantee that the person speaking is telling the whole truth, etc. Which means that the donor’s lawyer needs to skunk this thing after discovery. You, the archives, are not the donor’s lawyer, and as thrilling and Pelican Brief-y as it is to think you are, you have no business skunking things before discovery — and let’s walk back from the big all-caps purpose of archival science being TO PROVIDE ACCESS TO HISTORIC MATERIALS.

    The ugliest part about archival privilege is that archivists have presumed its existence, based on no legal precedent, and based on no compelling public interest. We’ve assumed the privilege exists because we want to get close to donors. We are obsessed with the erotic frisson of the oral history — a tete-a-tete on tape. We believe batches of personal papers are key texts, shibboleths yielding passage to the fastnesses of microhistory.

    They’re not. Donor restrictions are the rule of the dead over the living. Promises of confidentiality, limits on access, limits on reproduction, on publication, requests that heirs of the deceased be contacted before a collection of dimestore paperbacks needs to be deaccessioned, all limit archivists’ judgement and researchers’ capacity to create new knowledge out of old records.

    Also, just saying, but victims tend not to contribute their artifacts to repositories. Unless for “artifacts” you read “bodies” and for repositories you read “the grave.”

    This is feeble-minded, and SAA needs to come down hard.