In my experience, privacy law produces a remarkable number of foolish outcomes. The reason, I suspect, is that our notions of “privacy” evolve too quickly to be reduced to law. It’s like writing a law codifying good manners. Over time, as our definition of good manners or privacy changes, the old code starts producing irrational results — or being enforced selectively to punish those who offend the powerful. That observation led me to propose annual awards for Dubious Achievement in Privacy Law — the Privies for short. The nominees from last year can be found here.
It’s a new year, but privacy law is already living down to my expectations, throwing off stupid or venal results at a rapid clip. It’s time to open nominations for the 2015 Privies. Here is the first:
Worst Use of Privacy Law to Serve Power and Privilege: University of North Carolina
There’s nobody more powerful at UNC than the big athletic programs. So when Mary Willingham, a UNC researcher, disclosed that 60% of the Tar Heel student-athletes she studied were reading at a level between the fourth grade and the eighth grade, she was asking for trouble.
She got it. An angry UNC- Chapel Hill chancellor put four counter-researchers to work attacking Willingham’s work and then denounced it as “a travesty.”
But this is modern academia, where it’s not enough to debate people with opposing views. They have to be crushed.
And what handier weapon to use against inconvenient speech than federal privacy law? Before she knew it, Willingham’s approval to conduct her research was suspended. Why? Because she was using individual students’ names to correlate their test scores with their grades. The UNC Institutional Review Board,which regulates human subject research to protect student privacy, declared that it hadn’t approved her collection of student names, so the research had to be shut down, now. it didn’t matter that “Willingham … thought she was following IRB rules because as the primary investigator she never released names to anyone” at least until a hostile UNC administrator demanded them. Just keeping the names in a file drawer was a violation, according to IRB administrators at UNC.
Of course the administrators also denied that Willingham had been singled out for punishment or that the controversy over UNC’s academic standards had triggered their action. She was free, they insisted, to apply for approval to continue embarrassing the Tar Heels.
Fat chance. Willingham’s only hope of fighting this abuse of power is to find some equally powerful ally.
Maybe she should seek approval for her research from Duke’s Institutional Review Board.
Got your own ideas for Privy nominees? Send suggestions to firstname.lastname@example.org. There’s plenty of time. Nominees will be announced in December, and winners will be chosen at the end of the year.