[Air-l] Response to Thomas Koenig - Part I

[Charles Ess]

With apologies - 
my original reply went over the 10KB limit for mail to AoIR, so I've broken
it into two parts.

> From: Thomas Koenig <T.Koenig at lboro.ac.uk>
> Date: Mon, 24 May 2004 03:02:02 +0100
> 
> At 22:00 23/05/2004, Charles Ess wrote:
>> If anything, the [AoIR] guidelines might have been even more insistent on
>> privacy
>> rights, etc. - have a look at the Norwegian NESH guidelines, for example,
>> which require researchers to consider not only the possible effects of their
>> decisions and actions upon a research subject, but also upon the subject's
>> close circle of relationships.
> 
> Some quotes from that document:
> 
> "Observation in public spaces, in streets and squares, can normally be
> carried out without informing those concerned. However, the registration of
> behaviour using technical aids (camera, video, tape recorders etc.) implies
> that the observed material can be stored, and thus possibly form the basis
> of a personal register."
> (http://www.etikkom.no/Etikkom/Etikkom/Engelsk/Publications/NESHguide#9)
> 
> And, I reckon the Usenet is a far *more* public space than "streets and
> squares."
> 
> "Research projects which presuppose *active participation* must as a
> general rule only be initiated with the freely obtained and informed
> consent of the participants."
> (http://www.etikkom.no/Etikkom/Etikkom/Engelsk/Publications/NESHguide#8 -
> emphasis mine)
> 
> Thus, the NESH does *not* demand "informed consent", if you analyse
> publicly observable behavior.
I think I follow your argument here, and as stated, it is certainly cogent.
But I also think it gets snarled up quickly on two important issues.
1.  For whatever reason, you omitted the final sentence of section 9:
> "For the  purposes of such registration people must, as a rule, be informed
> that recordings are  being made."
That is, informed consent _is_ required for any recording/registration of
publicly observable behavior.
2. The central question then becomes - what counts as a recording or
registration of publicly observable behavior?
Part of the difficulty here is making an analogy between offline recordings
(via cameras, video and audio tape recorders, etc.) and what is now a
publicly available archive of USENET postings.
It seems to me that there is a strong analogy. Recordings/registrations give
us an enduring and publicly accessible source of information for subsequent
analysis - and certainly the publicly accessible archive of USENET postings
does the same thing.
Given a strong analogy, then it would seem that the NESH guidelines _would_
require informed consent for researchers' use of information drawn from
USENET postings in their analyses of what now amounts to a recording of
publicly observable behavior.

FWIW:The 2003 guidelines for Internet research
<http://www.etikkom.no/Engelsk/Publications/internet03>
appear to head in this same direction:

> 6: Use of personal and sensitive materials
> Interactions in digital fora often have an ephemeral character. This
> contributes to creating expectations about information being protected. People
> can be willing to contribute personal and sensitive information to an internet
> forum, which in principle is accessible for anyone - without thereby having
> meant that their statements could be spread further.
> Persons about whom personal or sensitive information is available in an open
> forum have a right to be ensured that the information is being used and
> communicated in a appropriate way in connection to research [5]. Living
> persons also have a right to control whether sensitive information about
> themselves may be used in relation to research [6]. The possibilities of
> tracing the informant¹s identity are made easier using digital fora than by
> use of other information channels (cf. article 8). Researchers must anonymize
> any sensitive information they use.
Please note the central ethical role of people's expectations about privacy,
whether or not those expectations are justified.
And: wherever persons' sensitive information appears on the Internet - and
in part, precisely because the personal identity of the source of such
information is easier to trace online -  persons  have a right to control
that information.

In addition: while the NESH 2003 guidelines recognize that online research
often faces greater difficulties in containing informed consent - they
further make the deontological move of arguing that in some cases, at least,
protecting privacy rights is so important that they trump whatever "rights"
and interests researchers may have:
[section 7]
> There are many difficulties in connection with obtaining informed consent in
> digital fora. First of all, an enquiry about informed consent in relation to
> participatory observation can be destructive for the interaction the
> researcher wants to study. Secondly, the participation is ephemeral, which
> makes it difficult to reach the persons from whom one wishes to obtain the
> informed consent. Thirdly, people can pretend to be someone else online. This
> means the researcher cannot be sure that the obtained informed consent derives
> from the person the researcher wants the consent from.
> In the instances where it is necessary to obtain consent the above mentioned
> practical problems make demands on the planning of the research. Obtaining
> consent via the internet requires a greater effort in ensuring the quality of
> the consent. It entails more comprehensive precautions in ensuring no
> recruiting of persons who should not participate in the research, for example
> child participation in an adult investigation. It can also be a great
> challenge to make sure participants in the internet research have an adequate
> understanding of the information when it solely is communicated in words on
> the net. In some situations the problems regarding obtaining informed consent
> mean the researcher ought to refrain from investigating the forum.

In the more utilitarian worlds of Anglo-American ethics, we are more
comfortable making exceptions for informed consent - in part, on the basis
of claims that potential benefits of research outweigh at least minimal
risks to violation of privacy rights.  The more deontologically-oriented
NESH guidelines, however, insist on those rights more stringently.
 
Please recall that my original claim was
> If anything, the [AoIR] guidelines might have been even more insistent on
privacy
> rights, etc. - have a look at the Norwegian NESH guidelines, for example,
> which require researchers to consider not only the possible effects of their
> decisions and actions upon a research subject, but also upon the subject's
> close circle of relationships.
Whether we're looking at the 2001 general research ethics guidelines or the
2003 Internet guidelines - both are more insistent on protecting personal
privacy than the AoIR guidelines as the latter acknowledge the legitimacy of
Anglo-American ethical traditions in research ethics.

-- charles ess