The New York Times reports that earlier this month, a US District Court granted a petition by Chevron to subpoena 600 hours of footage from Crude: The Real Price of Oil.  The film, by director Joe Berlinger, documents a landmark lawsuit filed by 30,000 Ecuadorean Amazon residents against the oil company for allegedly contaminating the jungle and creating a “death zone” the size of Rhode Island.  The ruling on Chevron’s petition has generated quite a bit of online press and criticism from both journalist and documentary communities. Berlinger and his attorneys are appealing the decision, arguing that the footage is protected by journalist’s privilege.

Most of the commentary has been rightfully framed in journalistic terms and values. As an archivist, however, I couldn’t help but consider the questions and implications this case raises for archives with sensitive raw footage collections (like ours).  If Berlinger’s footage was held by an archive rather than being a private collection, what would have been an appropriate ethical response to the subpoena from the archive?

The archivist would be faced with a predicament of competing obligations and responsibilities. Most significantly, the archivist would need to balance her responsibility to ensure fair and equal access to the historical record against her obligation to protect the privacy and confidentiality of the people depicted in the footage.

What do we mean by fair and equal access? Assuming that the safety and security of the people depicted are not at issue, most would probably agree an archivist should provide access to all users without discrimination or preferential treatment. At the same time, it is standard accepted practice to vet archive users based on institutional mandate and policies. What should the archivist do in cases where the principle of open access conflicts with the archive institution’s interests? Is the archivist’s greater responsibility to the user (present and future) or the owner of the records?

As for protecting people represented in archival materials, how does the archivist determine the level of respect for privacy and confidentiality that is required? In the Chevron/Berlinger case, the judge argued that Berlinger had obtained signed release forms from his sources and thereby could not show that the footage was subject to confidentiality. Clearly, however, many of the sources may not have consented to being recorded if they knew that their testimony could be used against them in this way.  A signed release, while legally binding, may not always signify truly informed consent. In archives, these blurry situations are common. Materials often arrive without the necessary rights information; and even when the archive receives consents and permissions, they do not always anticipate all possible future uses.  Also, what about the privacy rights of other people who may be implicated but not depicted in the footage, such as family members?

There are many potential implications to decisions such as the Berlinger/Chevron ruling. Some commentators have discussed the “chilling effect” that the court’s decision might have on sources for journalism and documentary filmmaking.  Could there similarly be a “chilling effect” on archives? In other words, might sources and/or donors be less likely to allow sensitive stories to be documented, archived and preserved, if archives cannot guarantee that privacy and confidentiality will be maintained? Is it appropriate to protect the wishes of the donor over the historical or legal record?

The Society of American Archivists’ Code of Ethics for Archivists provides some guidelines for archivists; many sections of the code are relevant to this case, but they of course do not provide a simple solution.

I was curious to hear what other archivists thought, so I also posed some of these questions to the online community of the Association of Moving Image Archivists. You can view the entire thread, with attributions, here.  A number of interesting and varied viewpoints were expressed, many based on real-life experiences in the field.  Again, we arrived at no definite answer.  As the venerable Ray Edmondson sums up:

“This has been a useful and thought provoking thread which I think has demonstrated that AV archivists have to constantly make practical and ethical judgments about preservation and access and to take responsibility for the consequences of their decisions. That is the professional burden we carry as both guardians of, and gateways to, the audiovisual heritage. Perhaps most decisions are simple follow-the-rules ones; but many are in the grey area beyond mechanistic choices.

At the very beginning of the process – the point of selection and acquisition – we make crucial judgments about, in effect, what will live and what will die – for we cannot keep everything. All the other judgments we make flow from those choices. We may feel that archivists are not very powerful. In some senses that is true: but in the long view we have considerable power to shape the world’s memory.”

Blog readers, what do you think? We’d love to hear your comments!

PS. Check out our interview with Berlinger about Crude from last year.

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