Institutional Review Board Review and the Independent Scholar

(This started as a discussion board post for Professor Mon's Virtual Reference Environments class, and metastasized into a blog post.)

First of all, let me state that this post is not meant to disagree or take exception whatsoever to Professor Mon's post about IRB review.

(Let me also apologize in advance that this post reads like it was written by a lawyer. That's because it was. Nonetheless, nothing in this article is legal advice, nor does it establish an attorney-client relationship between you and me.)

That said, there is the issue of how one would deal with the requirement of IRB review were one an independent or quasi-independent scholar, say, a situation that those of us who work in non-academic libraries but who wish to publish research involving human subjects may find ourselves in.

First, I found a post on the Georgetown Law Faculty blog by Professor Rebecca Tushnet that deals with the free-speech implications of mandatory IRB review. In Virginia, Va. Code §32.1-162.19, "Human research review committees," requires that any person doing human research must affiliate themselves with an institution with an IRB, and must obtain IRB approval for their research. (The post is at:

http://tinyurl.com/2tzzht

(full URL:
http://gulcfac.typepad.com/georgetown_university_law/2006/10/institutional_r.html
)

The comments to the blog post are also thoughtful and well-written, if you are interested in the subject of the First Amendment and institutional review. One poster references a Harvard Law Review article on the borders of First Amendment protection, Frederick Schauer's The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765 (2004). As the commenter writes, "There, Schauer discusses the range of regulated behaviors involving speech that simply do not (yet) command FA [First Amendment] attention."

Second, a cursory review of the Florida Statutes (my home state, the state in which I am am member of the Bar, and the state in which FSU is located) does not show a similar statute. (There are statutes that require IRB review, but only for research performed with state Department of Health funding, see Fla. Stat. §§381.85-381.86.) This is not to deny, of course, that as FSU students, we are subject to the jurisdiction of FSU's IRB.

As well, as Professor Mon points out, we are contractually bound to follow Linden Labs' Terms of Service with respect to obtaining permission to use SL conversations or wholesale posting of logs. As those of us who read Judge Easterbrook's decision in ProCD v. Zeidenberg, 86 F.3d 1447 (1996) in Intro to Info Policy will recall, just because all you did to assent to the SL TOS is click on a dialog box, you did legally assent to those terms.

But this in turn points to a way around the independent scholar problem, if one somewhat difficult in practice to apply. As a poster to the Chronicle of Higher Education's discussion boards points out, while s/he is not affiliated and cannot therefore clear hir(1) research with an IRB, s/he was able to protect hirself via contractual arrangments with hir research subjects. See:

http://tinyurl.com/3b4phl

(full URL:
http://chronicle.com/forums/index.php/topic,42370.msg695167.html#msg695167
)

As long as one keeps in mind "the ethical principles fort [sic] the protection of human subjects in research as set forth in the Belmont Report of the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research (1979) (http://www.hhs.gov/ohrp/humansubjects/guidance/belmont.htm)" (http://www.research.fsu.edu/humansubjects/), principally respect for persons, beneficence, and justice, and one has one's release drafted by a lawyer in your jurisdiction well-acquainted with human research issues (and, for that matter, has one's plan of research also reviewed by that same lawyer), one should (in theory) be able to address the necessary protections.

Unless you're in Virginia, in which case you should probably find a co-author who's a) affiliated with an institution with an IRB, and b) knowledgeable about filling out IRB applications.

1. "Hir" is a gender-free third-person singular pronoun; read "his or her."