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Nixon in a hard hat

Nixon in a hard hat, NARA ID 16916291

This is a long divagation from @meau’s request for comments on the proposed new DACS guiding principles or more specifically, only to part one:

Archival description expresses professional ethics and values.

Professional ethics and values drive archival work, including descriptive practice. Archival description is an iterative, ethical practice that requires  continual engagement with core values. Rooting standards in values helps archivists enact these values consistently and makes them explicit to our user communities.

Ethical description:
produces trust in and between users, archivists, and repositories
encourages a diverse archival record
promotes responsible and responsive descriptive practices
holds archivists accountable to users and to each other
privileges equitable access and accessibility

So I recently moved house and now walk by my kid’s preschool every day. The school has four windows in front, and the teachers have put up four posters TEACH / LOVE / TEACH / RESPECT. My first question for the new principles was, Can virtue be taught? Because the principles clearly attempt what Socrates considered impossible — you will not educate the narcissism out of Donald Trump — kind of by the back door. That is, even if we can’t pour virtue in to systems that are innately unvirtuous, we can develop standards of behavior so vanilla and taken-for-granted that subsequent generations behave virtuously without meaning to. Establishing ethical description as a norm — placing it first in the list — is to elevate description to the level of pure ideology.

Do your Žižek voice if you need to. Okay.

It’s worth noting that TS-DACS has to model this for us because no other American archivists’ entity can or will. We don’t write ethics case studies inside SAA anymore because there’s no capacity among us to take risks for the historic record (in contrast to the learned people of Timbuktu who hid their texts from AQIM  or the Hoover institution’s preservation of Ba’ath Party records, yeah that’s right, don’t @ me )

I suspect TS-DACS is aware of its situation of influence. In the current ethics-power vacuum, of course, all any group need do is grasp power outright, but the power of technical language in our discipline is particularly overwhelming. The mass of professional archivists is exhausted by listening to the exhortations of woke LIS professor after woke LIS professor, but let one technical subcommittee issue rules or one expert lecture on codecs or something and we’re all just brought to orgasm. TS-DACS is leveraging our worship of rules and more significantly our worship of rulesmaking in order to get us to do good. It’s of course mind-bending that we have to resort to this kind of totem-and-taboo to get traction on decolonizing our description, but selah.

The principles therefore subject to bounding an ethical zone of exclusion — the heroic, extralegal, fireable offenses that got us Warren Harding’s love letters, for example, are instances of archivists claiming sovereign power. Under the principles, all description, if ethical, is heroism; and since heroism now comes as standard equipment, the notion dissolves of its own, it withers away…

And so the daring move “Ethical description produces trust,” read appropriately, is an extension of this act of including-exclusion. It’s absurd to think that a technical standard for writing finding aids could inculcate something like love among “users, archivists, and repositories,” but that’s precisely what the principles aim for: a common front of mutual aid and mutual reliability. People become subject to one another.

Insha’Allah they’ll succeed but it perplexes me that in order to get the mass of archivists to really engage with how our work affects the arc of history we have to embed a polemic on archival values inside a technical standard. It’s as if “What Is To Be Done?” or “Murderers Who Have Yet To Be Clubbed To Death” could only reach their audiences via railway schedules or actuarial tables.

And the fault of course lies not in TS-DACS but in ourselves. The ethic of servant-leadership, unstated and still plain as day, contained in the new principles is not typically archivists’ modus. More typically we empanel ourselves as Savvy Knowers Who Deliver The Archival Science — which boxes to buy, mostly — to the unwashed hordes. Our only calls to the barricades occur when NARA’s budget is threatened, as occurs ritually. I hope it turns out that standing on principle portends more effective advocacy than Save Our Jobs or May Day For Conserving Stuff ever could. Certainly it couldn’t be worse….

Imagine any other lobbying organization: AMA, APA, AARP, the National Rifle Association. Any appeal they make is couched in terms of ultimate values — health, life, self-defense — and aimed at a constituency of users — not doctors, psychs, investment bankers, and gun dealers, but their users. To center the principles on service to the user, is in addition to being plainly Christian in a primitive sense — though I have questions about this too; are we ready to lay down our DACS for a friend? — good politics.

I dream of an SAA which takes everyone who drafted the new DACS principles and empanels them as the board of overseers of our new 527, designed to raise funds and distribute them with the aim of gaining political power. I am totally sanguine about receiving dark money from Hollinger and Iron Mountain. We labor under conditions not of our own devising, and the tactics of our party should be as flexible as the end goal is immutable…

S novym godom / Happy New Year. Woodburn poster collection, National Library of Scotland.

That’s it really. If you’ve been reading Archivists’ Twitter this week you’ve read #WhyIAmAnArchivist and felt good, probably, about the profession and the people in it. We’re clearly care-workers; our for-the-love vibrations are mega-strong, and that just GETS YOU RIGHT IN THE FEELS. This posture also sets us archivists up for another round of gendered self-exploitation in the economy of care-work, right alongside nurses and teachers and motherworkers, but we’ll bracket that for a sec just to roll around in the feeeels.

This is an unscientific count, but most like two-thirds? of us responded to K-Roe with something to the tune of “Because history is important.” Sometimes it was “too important to crumble away,” sometimes it was “to be preserved for the future,” sometimes it was the “stories of people speaking to us.” Very few of us actually didn’t talk about history as a substance that could be passed along, or could crumble, or could be misplaced, like a fuggin’ sock or fugggin’ car keys. Only a few of us actually said WHY HISTORY WHATEVER THAT MEANS MIGHT BE GOOD OR WHATEVER:

That’s good, I mean that, and I feel you, but I want more, Archivists’ Twitter:

There we go. Yes. Now we’re getting some hot fyah:

I’m going to distract myself, if no one else, if I start to talk about how erotic that tweet is. That is high on the list of best erotic archives-history language ever. I mean, both in a highbrow Eros and Civilization or Life Against Death kind of way, but also almost, for me anyway, in a YA novella sort of way. Baring, undermining, leverage. These words, for moles, are virtually pornographic.

Man that’s good Twitter. Now we get to the crux of the matter:

I mean, once you read the tweets excerpted here, and then read a typical “because history is important” tweet, both of these flavors of thought coming from professionals in our discipline, you get a funny feeling, right? Like some of us don’t see history as an active continuum which includes and comprehends the present. Like some of us know history is important but won’t or can’t say why. I mean I get that your boss is looking over your shoulder, okay. But we really can’t answer “Why are you an archivist?” with “Because history is important,” that’s just displacing one absolute with another. Okay, why is history important? You can get all essentialist about it and be like “patrimony” which you might just as well render “family jewels” so why are those pearls of wisdom important? I hate to be the one to break this to you, but wisdom comes and goes. A lot (fuck, most?) of the West’s “wisdom” is a cabinet of curiosities — worth preserving as a reminder that learnèd gentlemen can be amazingly wrong; worth preserving to keep us KEYBOARD WARRIORS humble.

And more to the point, why do we want to be the vestal virgins, or the keepers of the crown jewels, or the little Dutch dude with his finger in the dike? See what happens when you conceive of history as a substance, with brittle paper its metonym? History is important –> History is crumbling all around us! –> I can save History! –> MY NEW ARCHIVING TECHNIQUE IZ UNSTOPABBLE. Suddenly history and its remains and universal human access to them are not the point. The point is our powerz. And I mean, I get giddy about having teh powerz too, but I try to keep it in perspec-

-yeah, never mind. But you get what I mean. When I’ve been called upon in my job to do something like this, I’ve given punt-responses too — my favorite is about democracy; nobody argues with democracy! — the real responses are either too real — involving heads on pikes, usually — or are just too long — involving dialectical materialism, usually — but you know, the people above have thought about what they want to do with archives, and they’ve done it without patting themselves on the back, so it can be done. Second round: Why really for-real for-real are you an archivist? Go.

Christine George is wrong. For a number of reasons. I keep going over them, and it’s exhausting, so I’m going to stop. The specifics of the Belfast case — how deeply Moloney screwed the pooch with the oral histories; the flimsy case that none of his secret interviewees ever made it onto archives-bound tape; how Boston College pinky-swore confidentiality and then left Moloney out in the wind; how the “secret” tapes will ultimately be reviewed by the First Circuit in camera because SCOTUS denied cert — all make it a crummy test case for archivists’ privilege anyway, so it’s pointless to go on.

A couple things about the mode of delivery of George’s message though: First, having been dissed by the grownups at SAA, who remember the 1980s, who remember that the notion that no court can compel an archives to disgorge documents ever was first asserted by the FBI to conceal the fact that it had spied on Frank Wilkinson, an American leftist, she has turned to the Students and New Archives Professionals, who were perhaps born in the 1980s. The tactic here is to redraw the bounds of debate by addressing herself to an audience of innocents.

Second, by talking about doctors and lawyers, George addresses herself to archivists’ ancient professional insecurity — we’re a discipline dominated by women, ergo paid less than “men’s” work like doctoring and lawyering; our “science” for about a hundred years has consisted of advice about filing; our “literature” for about thirty years has consisted of complaints that there is no serious archives literature; USFW — and that’s a deep nerve to pluck. Saying that once you establish archivists’ privilege, archivists will finally get the respect they deserve is equivalent to when that one guy took that other guy to the top of an exceeding high mountain and promised him things.

Third, it’s disingenuous to claim that establishing archivists’ power over documents — finally guaranteeing that we have forever the hermeneutic power and the right — makes history more free. Actual dissidents, the world over, are or for Chrissakes should be more worried about being trampled underfoot today than about being misunderstood tomorrow. Let’s talk later about the struggle. It’s important to remember that grand juries and states’ attorneys are also part of the society whose history we’re here to preserve. Archivists don’t get to tell society that our compelling interests trump its compelling interests. Archivists’ privilege, by George’s account, is the only thing guaranteeing that we’ll get donations of records made by dissidents. I dispute that. But on this we all agree: The privilege would make archivists into rulers, turning our work from serving society to serving the archons.

Washington National Records Center stacks, via NARA, #4477179

Washington National Records Center stacks, via NARA, #4477179

Haven’t heard anything about archivists’ privilege in my feed, but I’ve heard plenty about academic freedom and research confidentiality. Which isn’t germane to the Belfast Project, since it was undertaken with the express intention of creating a body of archival material accessible to future generations of scholars, and was not meant to be the sole fiefdom of select researchers, but selah.

Let’s talk about the dissertation repository, which John Lowman among others sees as an information silo: you can put into it whatever you want because only you and your favorite people will be able to access it.

Yeah, confidentiality is not what an institutional repository does. Go ask SHERPA, which explained how to put things into IRs long ago:

If material is confidential or sensitive, then it is not put it into a repository, in the same way that it would not be published in a journal. Repository use is for material that authors want to see disseminated, cited and made public.

Go ask Victoria in Melbourne:

Material which contains confidential information, or of which the promulgation would infringe a legal commitment by the University and/or the author should not be included in the repository.

Where universities safeguard confidentiality in their IR policies, they do so with the express intention of protecting patentable research. People in the social sciences and humanities, who are making the vast majority of the records held in archives, aren’t going to be sued in the same way as people in hard sciences get sued because there isn’t any real money at stake. Dow Chemical is not going to bring the hammer down on your post-Althusserian reading of the Wife of Bath. Anyway, the presumption of research confidentiality comes from the relatively short history of capitalizing knowledge.

Which makes the Social Science Scholars’ brief in Moloney especially pitiable. Running the intellectual apparatus of knowledge management against the grain — using “bad” capitalist confidentiality in the service of “good” liberal academic freedom — doesn’t work with oral histories. Go ask Virginia Raymond.

Oral histories are not journalists’ sources. They are formal documents made for posterity. Real historians use informed consent. They take great pains to protect their narrators. They don’t pinky-swear confidentiality. They don’t screw the pooch and then invent a new kind of privileged communication to undo the screwup. They don’t let the tape recorder run when old men start talking about crimes which have no statute of limitations, or whether Gerry Adams had operational responsibility for all IRA activities. They especially don’t deposit those documents in an archives.

The telling of history from primary sources cannot be done in secret. Primary sources of historical telling cannot live in secret. History done in secret is surveillance.

The Boston College Subpoena crew is up with a reprint in full of Auriti et al.’s survey of case law surrounding researcher’s privilege, which is one of the flimsier shields claimed by Ed Moloney in this whole affair, and unfortunately for him the survey undermines his position.

Start with where researcher’s privilege might exist. In laboratories, for starters, because scientific research involves human life and human subjects. In laboratories of public universities, and in those funded by the federal government, whose records may be subject to state FOIA requests. Researchers object to disclosing information on a number of grounds, including the chilling effect on controversial research, violation of test subjects’ privacy, harm to work in pre-publication, and so on, all flowing from the First Amendment.

Courts have defended non-disclosure where, as in Dow Chemical v. Allen, a giant corporation is trying through administrative subpoena to crush researchers who proved it makes a toxic herbicide, which is basically the plot of Michael Clayton minus Tilda Swinton exploding your car. That’s about it. Everywhere else, they’re skeptical, and Moloney’s going to fail all of the balancing tests. None of his research involves the personal vital information or health data of individuals. Moloney has published results of his research, over and over and over again, in books and films and television, so there can’t be harm to his ability to speak. It’s not FOIA or an administrative subpoena he’s trying to encumber, but a murder investigation; the state usually gets what it wants where murder is involved.

When Moloney is denied cert the whole shebang falls back to the First Circuit, where oral histories or transcripts thereof will be reviewed in camera, and that’ll be the end, but for archivists, varieties of privilege are going to keep coming up. So what have we learned here?

Briefly, let’s sing a song for our maligned little brother records management! How can universities avoid a non-disclosure fracas in future, without resorting to phantom privileges? Thus:

Encourage faculty to use reasonable records management practices (e.g., consider which records are necessary or useful to retain, and for how long); establish and follow record retention/disposition schedules that provide for regular review and, where appropriate, destruction of records that are no longer needed.

That’s right! Selection and appraisal. Not sexy, but if we do our actual jobs in the first place, by, you know, explaining to donors that we can’t buck grand juries for them, that their troubles are their own, we don’t have these problems.

Also celebrity, even minor, History-Channel-B-reel celebrity, is no reason to spend years in litigation on a donor’s behalf. Celebrity is no reason to write deeds of gift which include oblique, unenforceable pinky-swears of confidentiality. None of our researchers, and none of our donors is entitled to exclusive access and use of materials. We aren’t a personal vault, or a safe, or a file cabinet, or a curio. Go buy yourself one of those instead.

Finally, we have to talk about the donor-archives relationship. Extending special protections to one high-profile donor opens the door to other future donors. Future donors may be in a position in the present to advocate for protections they hope to enjoy. One wonders why John Kerry hopped on this train, apart from the stated reasons because seriously the IMF is a greater threat to Irish stability than these tapes are, and then one figures Kerry got his juris doctor from BC, and no doubt there’s some embryonic agreement between him and the archives, with similarly ethically bankrupt promises of secrecy.

Contra basically everyone, especially Scott Cline and Brien Brothman who I saw in Chicago a couple years ago, conceptualizing archives as a sacred space of authentic encounter with the thing-ness of history, governed by the conjoining of values in covenant, perverts what archives can and can’t do. Our fealty to donors, which like the Abrahamic covenant is not exactly reciprocal, cripples our capacity to serve any but parochial interests. Given the choice between fealty to the law, which ideally is made and held in common, and fealty to a special relationship with a chosen class, I fail to see how ethically-minded archivists do anything but defend the law. Back down to earth, write your contracts, and let’s stop this desperate clutching at metaphysical straws.

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.