One Step Forward, Two Steps Back?: Empirical Research Rising and Falling
posted by Deven Desai
Just as Crooked Timber has a post about a new book that examines the impact of social science research and how the survey culture has affected how Americans view themselves, the California Supreme Court has heard a case regarding the extent to which the subject of such research can oppose the use of her information. The case is Taus v. Loftus, S133805. It involves the tension between research that may require lying to achieve its goals and the subject’s privacy rights. The defendants, Elizabeth Loftus and Melvin Guyer, are psychologists challenging the theory of repressed memory. When they first encountered the plaintiff’s information, they did not know her name but did have a case file with her picture. The article indicates that the file was “widely distributed in psychiatric circles.” The defendants questioned the story about the plaintiff’s repressed memories and investigated. The researchers’ report did not name the plaintiff but according to the article did include statements from the step mother that the plaintiff “had been a troubled teenager who slept around and used drugs.”
Now here’s the part that may sound familiar to those who followed the HP spying case: the researchers apparently hired a private investigator to dig into the plaintiff’s past and allegedly one of the researchers posed as the supervisor of the plaintiff’s therapist, David Corwin, to obtain some of the information. From the appellate decision the researcher claimed “‘she was working with Dr. Corwin and was actually his supervisor in connection with his study of [Taus].’” And there folks is the intrusion claim before the California Supreme Court. It doesn’t help that the appellate court had evidence pointing to the gathering of information from sealed juvenile court records either: “In light of these circumstances, the unanswered questions as to whether the Solano County files were confidential and, if so, how they were accessed may have a significant impact on Taus’s intrusion claim.”
Apparently the plaintiff had agreed to the use of her case by Corwin. One question was how much further use or research could be done based on that initial agreement. According to the article the defendants’ attorney argued that once someone cedes that much all other information that may be used to refute the claim is fair game because “they have no ‘reasonable expectation’ that subsequent researchers will not expose more information.”
The issue reminds me of James Boyle’s discussion of Moore v. The Regents of the University of California and the question of when a patient gives up interest in himself. The issue of ownership does not arise in the Taus case but the idea that one somehow gives away rights when under treatment in the name of science and future research seems overbroad. Still, the need to be able to research subjects and test claims puts the problem of communal knowledge and individual rights front and center. The biggest problem may be that the researchers here seem to have gone so far out of bounds that they crossed the line regarding intrusion. Thus the practice of news gathers and researchers that may have been dubious but undetected is now in the spotlight. Certainly the appellate court acknowledged “that ‘routine reporting techniques’ are constitutionally protected and that ‘[s]uch techniques, of course, include asking persons questions, including those with confidential or restricted information.’”
The question may turn on how truthful one is about who one is when asking those questions. That at least was one justice’s view at oral argument. What do you all think?
December 12, 2006 at 2:32 am
Posted in: Privacy
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