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Confidentiality of Social Science Research Sources and Data: The Popkin Case

Published online by Cambridge University Press:  28 November 2022

James D. Carroll
James D. Carroll*
Affiliation:
Syracuse University
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Extract

On November 21, 1972 Samuel Lewis Popkin, an assistant professor of government at Harvard University, was imprisoned in the federal section of the Norfolk County jail in Dedham, Massachusetts, under a contempt order of the United States District Court, District of Massachusetts. He was imprisoned for contempt of court for refusal to answer several questions before a federal grand jury investigating the publication of the Pentagon Papers. In the course of the grand jury proceedings Popkin asserted a right under the First Amendment to refuse to answer questions concerning the identity of confidential sources and the content of his opinions and data developed in the course of research on and in Vietnam. He refused to answer the questions on the grounds that they violated his rights to freedom of the press, freedom of speech, and freedom of assembly under the First Amendment in the absence of a showing by the government that the information sought was relevant and necessary to the government's investigation.

On November 28, 1972, the grand jury was discharged at the government's request and Popkin was released from jail.

In early January, 1973, Popkin filed a petition for a writ of certiorari asking the Supreme Court to review the case. The petition was denied by the Court in April, 1973.

The Popkin case is the first on record in American law in which the question of a scholar's right to the confidentiality of his sources and data has been raised and decided, at least in part, on the merits.

Type
Research Article
Information
PS: Political Science & Politics , Volume 6 , Issue 3 , Summer 1973 , pp. 268 - 280
Copyright
Copyright © The American Political Science Association 1973

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References

1 See Nejelski, Paul and Lerman, Lindsey Miller, “A Researcher — Subject Testimonial Privilege: What To Do Before The Subpoena Arrives”, Wisconsin Law Review, Vol. 1971. p. 1085 (1971).Google Scholar

2 This article is based upon discussions with Samuel L. Popkin, with Daniel Klubock of Featherston, Homans, Klubock and Griffin, Boston; with Al Dershowitz of Harvard Law School, and with Stan Laughlin of Ohio State University Law School, January, 1973; review of the records and briefs of the Popkin case; research on the right to confidentiality; and the deliberations of the Committee on Professional Ethics and Academic Freedom of the American Political Science Association, February, 1973.

3 Isard, Walter, ed., Vietnam — Some Issues and Alternatives (Cambridge, Schenkman Publishing Co., 1969).Google Scholar

4 Asian Survey, (August, 1970).

5 Waltz, Kenneth, ed., Conflict in World Politics (Cambridge, Winthrop Press, 1971).Google Scholar

6 Misselson, Michael, ed., The Military Use of Herbicides In South Vietnam (Washington, American Association for the Advancement of Science, forthcoming).Google Scholar

7 United States District Court for the District of Massachusetts, United States v. John Doe, Memorandum of Law of Samuel Lewis Popkin in Support of His Motion For Protective Order, October 27, 1971, p. 13.

8 Id., p. 9.

9 Id.

10 Unofficial transcript of testimony before the grand jury on March 27, 1972, published in the Harvard Crimson, Vol. LLIII, March 29, 1972.

11 In The Supreme Court of The United States, October Term, 1972, No. 72–974, Samuel L. Popkin v. United States, Petition For A Writ Of Certorari To The United States Court of Appeals For The First Circuit, October Term, 1972, pp. 9–10.

12 460 F.2d328 (1st Cir. 1972).

13 In The Supreme Court Of The United States, October Term, 1972, No. 72–974, Samuel L. Popkin v. United States, Motion For Leave To File Brief As Amicus Curiae and Brief of American Anthropological Association, American Political Science Association, and American Sociological Association, pp. 6–7.

14 Boston Globe, November 26, 1972, p. 14.

15 The complete text is set forth in 34 L.Ed. 2d, No. 5 (January 5, 1973). In early 1973 Congress voted to delay the date on which the Rules would become effective in order to give itself more time to review them.

16 For a fuller discussion of the politics of knowledge and a summary of some of the pertinent literature see James D. Carroll, The Politics and Administration of Knowledge: Administration As A Clockwork Orange (Syracuse, The Maxwell School, 1972).

17 The Gulf of Tonkin, The 1964 Incidents, Hearings before the Senate Foreign Relations Committee, 90th Congress, 2nd Session, 1968. See also Joseph C. Goulden, Truth Is The First Casualty (New York, Rand McNally, 1969).

18 U.S. Government Information Policies and Practices — The Pentagon Papers, Hearings Before the House Committee on Government Operations, 92nd Congress, 1st Session, 1971 (Parts 1, 2, and 3). See also The New York Times Company v. United States: A Documentary History (New York, Arno Press, 1971).

19 Press Freedoms Under Pressure, Report of the Twentieth Century Fund Task Force on the Government and the Press, (New York, The Twentieth Century Fund, 1972); Fred Powledge, The Nixon Administration and The Press: The Engineering of Restraint, (New York, American Civil Liberties Union, 1971); “Thirty Cases Cited In Which Police Or Courts Allegedly Threatened Free Press”, New York Times, February 18, 1973, p. 75; “Limited Newsmen's Law Aired”, Washington Post, February 9, 1973, p. A2.

20 “Broadcasters Charge FCC and Courts Erode Media Freedom”, National Journal, Vol. 3, p. 2260 (November 13, 1971); “Broadcasters Plan Intensified Lobbying In Move To Protect Licenses, Revenues”, National Journal, Vol. 4, p. 785 (May 6, 1972); “Dr. Whitehead and the First Amendment”, Washington Post, December 22, 1972, p. A22.

21 “Secrecy: Review of Policies By Executive, Congress”, Congressional Quarterly, August 21, 1971, p. 1785. See especially the insert, “Billions Involved”, p. 1786.

22 U.S. Government Information Policies and Practices — Administration And Operation Of The Freedom Of Information Act, Hearings Before the House Committee On Government Operations, 92d Congress, 2nd Session, 1972 (Parts 5 and 6).

23 Security Classification As A Problem In The Congressional Role In Foreign Policy, a study prepared for the Senate Foreign Relations Committee by the Foreign Affairs Division, the Congressional Research Service. The Library of Congress, 1971; Florence, William G., “A Madness For Secrecy”, Washington Post, December 12, 1971, p. C1 Google Scholar; Executive Classification Of Information — Security Classification Problems Involving Exemption (b)(1) Of The Freedom Of Information Act (5 U.S.C. 552), Report of the House Committee on Government Operations, 93rd Congress, 1st Session, 1973.

24 Army Surveillance Of Civilians: A Documentary Analysis, report of the Senate Committee On The Judiciary, 92nd Congress, 2d Session, 1972.Google Scholar

25 Westin, Alan and Baker, Michael, Databanks In A Free Society (New York, Quadrangle Books, 1972)Google Scholar; Records Maintained By Government Agencies: To Amend Title 5, United States Code, To Provide That Individuals Be Apprised Of Records Concerning Them Whcih Are Maintained By Government Agencies, hearings before the House Committee on Government Operations, 92nd Congress, 2nd Session, 1972.

26 Investigation Of Possible Politicization Of Federal Statistical Programs, report of the House Committee On Post Office and Civil Service, 92nd Congress, 2nd Session, 1972; “Flap Sitrs On Non-Statisticians Placed In Key U.S. Data Posts”, Washington Post, May 20, 1973, p. E1.

27 Weaver, Warren Jr., “Democrats Plan A Fight On Nixon's Proposed Defense Information Curbs”, New York Times, April 6, 1973, p. 24.Google Scholar

28 Gilson, Lawrence, Money and Secrecy, (New York, Praeger, 1972).Google Scholar

29 “Mr. Kleindienst In Wonderland”, Washington Post, April 15, 1973, p. C6; “Ervin May Dust Off 1928 Law To Test ‘Executive Privilege’“, Washington Post, April 15, 1973, p. A3.

30 U.S. Government Information Policies and Practices — Problems of Congress In Obtaining Information From The Executive Branch, Hearings before the House Committee on Government Operations, 92nd Congress, 2nd Session, 1972; ‘“Information Gap' Gives Nixon Advantage Over Congress’“, National Journal, Vol. 5, p. 379 (March 17, 1973); “‘Computer Gap’ Hits Congress”, Washington Post, April 1, 1973, p. L1.

31 Wise, Daniel, The Politics Of Lying (New York, Random House, 1973)Google Scholar; “Election Time Series Analysis Of Attitudes Of Trust In Government”, (Center for Political Studies, University of Michigan, 1971).

32 Most work on the history of the right to know is couched in terms of free speech. See, e.g., Emerson, Thomas I., The System Of Freedom Of Expression, New York, Random House, 1970)Google Scholar; Chafee, Cezhariah Jr., Free Speech In The United States, (Cambridge, Harvard University Press, 1941).CrossRefGoogle Scholar

33 “Privacy and Behavioral Research”, Columbia Law Review, Vol. 65, p. 1184 (1965). This is still the leading work on the subject.

34 Federal Statistics, report of the President's Commission On Federal Statistics, Vol. 1, p. 197 (Washington, Government Printing Office, 1971).

35 See, e.g., the materials in Orlans, Harold, ed., The Use of Social Research In Federal Domestic Programs, House Committee On Government Operations, 90th Congress, 1st Session, 1967 (4 volumes)Google Scholar; Nejelski, Paul and Lerman, Lindsey Miller, “A Researcher — Subject Testimonial Privilege: What To Do Before The Subpoena Arrives”, Wisconsin Law Revew, Vol. 1971, p. 1085, (1971)Google Scholar; American Sociological Association, “Official Reports and Proceeding Report of the Committee On Legal Protection In Social Research”, American Sociologist, Vol. 5, p. 412 (1970)Google Scholar; “Privacy and Behavioral Research: A Preliminary Report”, American Psychologist, Vol. 22, p. 345 (1967); Boruch, R., “Educational Research And The Confidentiality Of Data: A Case Study”, Sociology Of Education, Vol. 44, p. 59 (1971)CrossRefGoogle Scholar; Orlans, Harold, Contracting For Knowledge (San Francisco, Jossey-Bass, 1973).Google Scholar

36 United States Department of Health, Education, and Welfare, Protection of Human Subjects, (Washington, HEW, July 6, 1970).Google Scholar

37 See Freidson, , Baker, , and Iselin, , “Memorandum On Testimonial Privileges For Researchers And The Protection Of The Privacy Of Research Subjects”, (New York, American Civil Liberties Union, 1973).Google Scholar

38 See New York Times, Oct. 25, 1971, p. 29; Oct. 29, 1971, p. 17; Oct. 30, 1971, p. 13; November 1, 1971, p.29.

39 “Memorandum On Testimonial Privileges For Researchers And The Protection Of The Privacy Of Research Subjects”, note 37 above, p. 3.

40 The basic background works are Gellhorn, Walter, Security, Loyalty and Science (Ithaca, Cornell University Press, 1950)Google Scholar; Shils, Edward, The Torment Of Secrecy: The Background And Consequences Of American Security Policies (Glencoe, The Free Press, 1956)Google Scholar; Secrecy and Science, hearings before the Senate Committee on the Judiciary, 86 th Congress, 1st Session, 1959. For more recent commentaries see Commoner, Barry, “The Eroding Integrity of Science”, International Science and Technology, Vol. LXX, p. 51 (October, 1967)Google Scholar; Teller, Edward, “Kicking The Secrecy Habit”, New York Times May 27, 1973, p. E15.Google Scholar

41 These are reviewed by Nejelski and Lerman, “A Researcher-Subject Testimonial Privilege: What To Do Before The Subpoena Arrives”, note 1, above, pp. 1093–1104.

42 Advisory Committee ACE Study of Campus Unrest, “Statement On Confidentiality, Uses Of Results, and Independence”, Science, Vol. 165, p. 158 (1969).Google Scholar

43 See Sharmon Gollitto and Robert Veatch, Bibliography Of Society, Ethics, and The Life Sciences (Hastings-on-Hudson, The Hastings Center Institute Of Society, Ethics, and The Life Sciences, 1973). See also Katz, Jay, Capron, Alexander, and Glass, Eleanor Swift, Experimentation With Human Beings (New York, Russell Sage, 1972).CrossRefGoogle Scholar

44 Comprehensive Drug Abuse Prevention and Control Act of 1970, Sec. 3(a), 42 U.S.C. Sec. 242(a) (1970), effective May 1, 1971.

45 Reviewed in Nejelski, and Lerman, , “A Researcher — Subject Testimonial Privilege: What To Do Before The Subpoena Arrives”, note 1, above, pp. 1098–1103.Google Scholar

46 Federal Statistics, note 34 above, p. 207.

47 Carroll, James D., “Initial Report On The Popkin Case And Related Matters … To The American Political Science Association, Committee On Ethics And Academic Freedom”, January 23, 1973.Google Scholar (Copies are available from the author on request, from Office of the Director of Public Administration Programs, The Maxwell School, Syracuse University, Syracuse, N.Y. 13210)