Misplaced Pages:Confidential evidence

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The following is a proposed Misplaced Pages policy, guideline, or process. The proposal may still be in development, under discussion, or in the process of gathering consensus for adoption.

Background: This proposal grew from a discussion at WT:BLOCK where a section on confidential information in policy had gained a strong positive response. The issues related to secret evidence were too large for a subsection, and in any event, extend outside the narrow limits of blocking policy. Hence this.

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This page in a nutshell: Evidence that is not publicly available can be presented, and acted upon, in certain unusual cases, but this requires exceptional care and judgement. The burden of doing so is serious, and rests strictly on the person who claims to be relying on evidence that cannot be made public.

Misplaced Pages relies heavily upon consensus and communal peer review of decisions. While some cases involve confidential information that cannot be made public, editors should understand that this can undermine the ability of the community to review and consider the case, and undermine confidence in any decision.

At worst, poor judgement can lead to kangaroo courts and cause irreparable damage (including damage to the communal environment), where a user leaves or is condemned by one or few people's words, based upon evidence that has not been fairly presented or whose interpretation and importance has not been widely checked.

Accordingly editors should understand that non-public evidence is to be used as little as possible, and never lightly. A number of precautions are expected to be followed to ensure fair usage.

Confidential evidence

Wherever possible, evidence that may be used in questioning or condemning another user's activities on Misplaced Pages should be presented on the wiki itself, so that everyone may see it.

Evidence is considered "confidential" if users with a specific, legitimate reason for the request, and who appear to be seeking information for bona fide purposes, are refused full disclosure of the information.

Legitimate reason

In general, any involved party, any editor with direct knowledge, and any reputable user wishing to review the matter with a view to contributing, has a legitimate reason to want to see the entirety of the evidence.

Especially, all directly and peripherally involved parties have a legitimate reason, and all administrators are generally presumed to have a legitimate basis of interest in all disputes, allegations of misconduct, and proposed sanctions, since their role involves reviewing the blocking and other decisions of their peers, and deciding how best to address disputes and conduct matters.

Considerations and requirements

Evidence may need to be presented confidentially for several reasons:

It may be necessary in accordance with the Wikimedia Foundation's privacy policy.
It may be appropriate as a response to legal concerns, such as illicit reproductions of copyrighted material.
In cases where there is no requirement of confidentiality, it might still make sense to keep sensitive information private as a courtesy to editors.
If the evidence is accessible to problem users, disclosing it might give them more insight on how to circumvent identification.
The nature of the evidence might disclose its source or other information which for various reasons might be harmful, improper or inappropriate.
(other)

However, there are several issues associated with taking actions based on confidential evidence:

It denies the accused and the community the opportunity to examine matters, so it is not a good example of consensus decision-making.
It hinders communication by forcing editors to draw inferences from whatever facts are available, preventing them from understanding a decision holistically.
It often results in perfunctory notices rather than explanatory justifications, creating the appearance of reckless, capricious decision-making.
It may result in unfairness or divisiveness, or cause significant upset to the community and individuals, damaging morale or even causing some to become disillusioned and leave, creating tension and long term harm which might have easily been avoidable.
(other)

Careful handling and judgment

As a result of the above, confidential evidence must be used with care, and as little as possible. The following are principles that should be followed to a high standard, which help to ensure care and judgement is of the required standard.

Good cause. There should always be a good reason why editors, or administrators, cannot be trusted or told the evidence, which is explained so any reasonable person can understand it. Avoiding scrutiny generally does not qualify as such a cause.
Independent review. There should be independent review by persons not of the proponent's choosing - either administrators in general, or the arbitration committee, or some other representative group.
Good and full communication. Actions based on confidential evidence should be communicated fully, in light of the fact a user is accused without sight of the evidence. Disclosing the precise details of the evidence would defeat the purpose of confidentiality, but editors should communicate the nature of the dilemma to whatever extent they reasonably can without compromising privacy.
Factual evidence. The matters confidentially disclosed should be factual, based on evidence or strong likelihood, with flaws and questions disclosed as the matter progresses.
Minimize damage. Attention should be paid to messages and other communications, to ensure that damage is minimized and the editor's reputation preserved as best possible, whilst the matter is under review, lest they be judged by rumor.

There are also three specific positive duties:

No exaggeration. COnfidential information is already one-sided. It is important to counter this by taking great care never to overstate or stretch it, or imply that the evidence says more than in fact it does. Care should be taken to represent the evidence scrupulously fairly, including attention to uncertainties or other concerns related to it.
Prompt clearing of name. To promptly clear the name (or clarify the extent to which doubt exists) of a person accused by secret evidence, to whatever extent is fairly possible, when there is room for doubt
Publication as/when possible. To allow public examination of secret materialon request at any time, if the evidence tends to suggest that grounds for secrecy are not likely to apply to some matter.

For the above reasons, users with confidential information may initially wish to say nothing at all, or state simply that they have a concern, but request patience as they are seeking advice on it -- and give minimal (and non-provocative) information until they have done so, which they should then do promptly.

Remember that even the mere statement that there is a concern, will usually start much unhelpful speculation.

Consequences of error

For the accused party

Potentially jeopardizing the reputation of an innocent editor, possibly driving him or her from the project

For the community

The Boy Who Cried Wolf - erosion of community trust each time a mistake is made, making it harder for authority figures to be trusted in future cases

For the person stating they have secret evidence

Seeking advice / Burden of secrecy

An editor who becomes aware of a matter in which they may need to present or take action based upon evidence they are not prepared to make public, is recommended to seek advice in the first instance.

If there is a question how to handle a matter like this, it should be referred to the Arbitration Committee (or an uninvolved Arbcom member) for advice, as the representative body best placed to advise on confidential matters that may have disclosure concerns. For matters specifically related to oversight and checkuser issues, those two lists may be suitable instead.

Emails: arbcom-l Checkuser-l Oversight-l

Since confidential evidence is intended to be exceptional, the burden of good conduct and integrity is on the person claiming the need for non-disclosure in a case. They are expected to use -- and expected to be able to demonstrate -- independent advice was sought and reasonable good faith employed, in case of review.

Such users are strongly recommended to seek experienced independent advice before making claims based on evidence and deductions they are reluctant to disclose publicly.

Process

(none?)

Review

Disclosure of non-public evidence relevant to a decision can be requested for examination by any bona-fide arbcom member, oversight, or checkuser user. An involved individual should nontheless recuse if this would show good judgement and such evidence should not be circulated on the relevant email lists .

Misplaced Pages

:Confidential evidence - Misplaced Pages