Introducing: Legal and Ethical Considerations for Born-Digital Access

This blog is part of a series comprising a set of guidelines or primers addressing ten complex legal and ethical issues involved in providing access to born-digital archival records. For more information see:

The DLF Born-Digital Access Working Group is excited to share a new published resource: Legal and Ethical Considerations for Born-Digital Access.

This document comprises a set of guidelines for thinking through the complex legal and ethical issues involved in providing access to born-digital archival records (1). The authors provide practical guidance that practitioners and institutions can use to implement legal and ethical access practices. This guidance is grounded in two foundational beliefs: 

  1. There is a potential to harm individuals, communities, and institutions if access is not thoughtfully and strategically viewed through an ethical and legal lens; and 
  2. It is not ethical to restrict access unnecessarily.

The project started from needs shared during
BDAWG’s lunch session at the 2019 Digital Library Federation Forum, where many attendees agreed that their biggest barrier to access was appraisal activities. We shared anxieties about how much to review or what to look for before providing access to large datasets. With funding hard to come by for processing born-digital collections, archivists have been burned in the past when they tried to fulfill their access mandate without the staff or resources to appraise the material before providing access. Meanwhile, the size, scale, and breadth of born-digital collections continues to increase. Faced with these challenges, putting access to born-digital in a “we’ll have to think about that later” bucket is a popular survival tactic for archivists, curators, and library staff. 

How can archivists, curators, librarians, and institutions protect themselves and the subjects in their collections from unintended sensitive data breaches without taking an item-level approach to processing?

This research project attempts to take a first step toward answering that question. Our publication brings together research about many common access restrictions and sensitivities found in archival collections, differentiates how these restrictions may show up in born-digital collections, condenses information into a few pages of material on each topic, and tries to provide concrete steps that workers and organizations can take to mitigate risk when providing access. Our goal is to promote access to born-digital materials despite all of these barriers, and that starts with talking to your donors, building infrastructure, and adopting thoughtful processing procedures.

This blog post is the first in a series that will explore each topical area addressed in the publication:

  • Attorney-Client privilege
  • Copyright
  • Culturally Sensitive Materials
  • Donor Agreement
  • Family Educational Rights and Privacy Act (FERPA) and Health Insurance Portability and Accountability Act (HIPAA)
  • General Data Protection Regulation (GDPR)
  • Institutionally Mandated Confidentiality
  • Personal Identifying Information (PII)
  • Privacy
  • Terms of Service
  • Finding Support

Within each topical section, the following aspects are addressed:

  • Overview of the topic
  • Collections the issue is most likely to impact
  • Actions for the archivist to take
  • Actions for the institution to take
  • Technical infrastructure to manage restrictions and access
  • Legal considerations 
  • Ethical considerations
  • Case studies
  • Additional resources 

The publication is the result of a collaborative research effort by the Legal Due Diligence Subteam of the Digital Library Federation Born-Digital Access Working Group. The Legal Due Diligence Subteam was established in 2020 to assess issues around privacy, copyright, and other legal and ethical challenges related to providing access to born-digital archival records, and to share this assessment in a centralized place. The Subteam consists of six members:

Jessika Drmacich
Records Manager & Digital Resources Archivist, Williams College

Kate Dundon
Supervisory Archivist, University of California Santa Cruz

Jess Farrell
Community Facilitator, Educopia Institute

Christina Velazquez Fidler
Digital Archivist, The Bancroft Library, University of California, Berkeley

Camille Tyndall Watson
Product Owner, NoveList, a division of EBSCO Information Services

Hannah Wang
Community Facilitator & Project Manager, Educopia Institute

This document has received multiple rounds of peer review. We thank the library and archives community for providing insightful feedback. Reviewers who contributed to this document are identified in the publication.  

The BDAWG Legal Due Diligence Subteam would like to extend our thanks to everyone who made this ambitiously scoped document a community effort! Keep an eye out for monthly posts on different aspects of legal and ethical due diligence for born-digital access!

(1)  Born-digital refers to information created in a computer environment, as opposed to digitized archival material.

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