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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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Version 1

This page in a nutshell: In certain unusual cases, evidence that is not publicly available can be presented, and acted upon. This requires exceptional care and judgment and a number of precautions are expected to be followed to ensure fair usage.

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 judgment 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.

Exceptions may be warranted for known problem users or editors who clearly have malicious intent. Such labels should be applied with caution, however, as imprudent decisions may be difficult to review and/or reverse when evidence is kept confidential.

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;
  • The nature of the evidence might disclose its source or other information which for various reasons might be harmful, improper or inappropriate;
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 been avoided.

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 would help to ensure care and judgment is of the required standard.

  1. Good cause. There should always be a good reason why the evidence is not presented to reputable users, which is explained so any reasonable person can understand it. Avoidance of scrutiny is not a good reason.
  2. 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.
  3. 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.
  4. Factual evidence. Any material that is not presented should be factual, based on evidence or strong likelihood rather than interpretation.
  5. 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:

  1. 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.
  2. 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
  3. Publication as/when possible. To allow public examination of secret material on 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 those wanting to use confidential evidence be trusted in future cases
For the person stating they have secret evidence
  • Loss of trust, in exactly the same way the community suffers a general loss of trust, but more individualized

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 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, please speak to any user with these access rights individually.

Contacts: Arbcom mailing list List of Arbcom members List of CheckUsers List of Oversighters

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

Blocks based upon secret or confidential information should only occur after a prior review by neutral parties. Such blocks should not be imposed by the person(s) who assembled the secret evidence. This is to avoid the appearance of one administrator being the prosecutor, judge and jury.

After the block is imposed, a notice naming the persons assembling and reviewing the evidence should be posted (to AN and/or ANI), and signed by the persons assembling and reviewing the evidence.

The person blocked retains all usual rights of appeal.

Review

Disclosure of non-public evidence relevant to a decision can be requested for examination by any arbcom member, oversight, or checkuser user. An involved individual should nonetheless recuse if this would show good judgment.

See also

Misplaced Pages
Wikimedia Foundation

Version 2

Originally taken from Wikidemo's Misplaced Pages:Confidential_evidence/alternate proposal. Added here to centralize discussion.

This page in a nutshell: Confidential evidence may be gathered regarding the behavior of editors for certain administrative purposes. For reasons of transparency, accountability, and fairness, the gathering and use of such evidence requires extra care, and a number of special rules and precautions.

Some actions, particularly regarding sockpuppets, trolls, and conflicts of interest, require that evidence be gathered and reviewed in secret, that evidence-gathering techniques be secret, and/or that investigative results be kept confidential. As in the off-Misplaced Pages world, secrecy raises justifiable concerns over fairness, abuse of power, and accurate results. Excessive secrecy can undermine faith in the rules, and trust of those in charge.

Therefore, the norm is that all actions be done publicly. Secrecy is the exception, and requires a compelling reason for each class of investigation done in secret.

Additionally, secrecy is not an all-or nothing proposition. For each category of investigation the rules for gathering, using, acting on, and restricting disclosure of confidential evidence is tailored to balance the need for effective administration of the project against the goals of fairness, accuracy, accountability, and trust.

Confidential evidence

Unless otherwise provided here, evidence that may be used in blocking or banning users, ArbCom proceedings, determining eligibility for various things, and other actions that are administrative in nature, must be:

  1. Gathered openly using only tools and techniques that are generally available, understood, or disclosed
  2. Disclosed to the extent it will be considered or used
  3. Used only if appropriately presented
  4. Acknowledged if it is used

Any exceptions require a legitimate reason, either with respect to a general class of investigation (in which case the extent and any special rules for the evidence must be part of this page), or with respect to a specific investigation (in which case the reason must be disclosed).

Legitimate reasons

Legitimate reasons identified to date include:

  1. Gathering information on likely sockpuppets, meatpuppets, hackers, or trolls, when a checkuser is inappropriate, inclonclusive, or untimely. Because some such people are experienced and persistent, disclosing investigative techniques or raw results might give them an unacceptable level of insight into how to circumvent detection.
  2. Protecting the off-Misplaced Pages identity, or legitimate alternate account identity, of an editor to comply with Wikimedia Foundation's privacy policy or Misplaced Pages-specific privacy policies. Sometimes the accusation, or results, that one account is a sockpuppet of another, or that a person has a conflict of interest, would reveal the identity of someone who wishes to keep their identity secret. This applies not only when the accusations turn out to be untrue, but also in some cases to accusations that are true.
  3. Stalking, harassing, and other malicious behavior. Some abusive behavior presents a real-world threat, or is simply too disruptive or oppressive to be tolerated. Victims, witnesses, and investigators may be justifiably concerned that too much disclosure would incite or facilitate further abusive actions by the perpetrator.
  4. Protecting the Wikimedia Foundation, or others, from legal jeopardy. Pending or threatened lawsuits, and other legal matters, may require confidentiality, among other reasons to preserve attorney/client privilege (although conversely, any material that is kept confidential by Misplaced Pages is potentially subject to disclosure in the event of a lawsuit). If appropriate, Foundation personnel and counsel should be consulted on these matters.

General considerations and requirements

When secret evidence is used in any way (gathered, used for making an administrative decision, or kept), the following apply:

  1. The use must be acknowledged, unless doing so would jeopardize the investigation or the project
  2. The target of the investigation must be notified
  3. The specific reason for the exception must be cited, and described in sufficient detail for a reasonable concerned editor to understand and evaluate the appropriateness of keeping the evidence confidential
  4. The person using the information must be available to answer reasonable questions and requests
  5. The evidence should be kept indefinitely but in a secure, confidential way, if possible
  6. Use of secret information should be limited as much as is reasonably possible
  7. To the maximum extent possible any evidence used against a party should be offered to that party, who should have an opportunity (publicly or confidentially, depending on the circumstances) to dispute it. Where the evidence must be kept secret, it may be summarized or redacted as appropriate.
  8. The results must be disclosed to the maximum extent possible publicly, and to the target of the investigation, consistent with the need for secrecy
  9. Within reason, any trusted person who pledges to keep the information confidential should be briefed on or receive a copy of the evidence. Note, however, that depending on the nature of the investigation administrators and bureaucrats may be the target of, or not trusted with respect to a particular investigation.

Policies regarding assuming good faith and avoiding personal attacks should be followed. However, investigations are often conducted to confirm (or disprove) suspicions of behavior that, if true, would not be in good faith. Further, following these rules and keeping information confidential is not seen as a generalized assumption of bad faith, but rather a reasonable way to further security, privacy, and other policy goals.

Review and oversight

  1. In all cases there should be oversight by at least one neutral administrators, acting independently. The usual way of handling this is that any person who proposes or gathers secret evidence should submit the evidence, once gathered, to a neutral uninvolved administrator who will make the initial decision on whether to approve the use or confidentiality of the information. There may be review by a second neutral administrator, who will confer with and attempt to resolve any disagreement with the first. As a final review, such decisions may be reviewed by any single uninvolved member of ArbCom (or by ArbCom as a whole should they agree).
  2. Decisions made by ArbCom relating to secret evidence may be reviewed by any single unconflicted ArbCom member who did not participate in the original ArbCom decision or, should none be available, by a single trusted administrator designated by ArbCom for the purpose. The reviewer should state his findings publicly to the extent possible, and privately to ArbComwith respect to anything that must be kept confidential. Should they contradict ArbCom's decision the fact should be noted, and the reviewer and ArbCom should attempt to resolve any disagreement.
  3. Only parties to the investigation and matters related to the investigation have standing to ask for a review.

Seeking advice

Contacts: Arbcom mailing list List of Arbcom members List of CheckUsers List of Oversighters

See also

Misplaced Pages
Wikimedia Foundation

Version 3

In general, administrative actions must not be based on confidential evidence.

In cases where information must remain confidential, it needs to be forwarded to the Arbitration Committee which is equipped to deal with such matters. Among the reasons why are: an age requirement of members, experience, access to checkuser expertise, and a composition of duly elected/appointed representatives of the community, as opposed to naturally occurring small social groups.

Exceptions:

  • When there is adequate and independent review which the community is comfortable with:
  • check user results, where a portion of evidence remains confidential
  • office actions
  • OTRS actions
  • For emergency actions where more thorough follow-up is expected.

Contacts

See also

Misplaced Pages
Wikimedia Foundation

Version 4 (per talk page)

Principles

  1. Users are (and remain) responsible for the editorial and administrative actions they undertake, and must be willing and prepared to discuss the reasons for their actions in a timely manner.
  2. A user who may wish to take action to be justified in part or whole by information they are not prepared to release publicly, must not rely upon confidential information to support their decision, until an independent reviewer has written to approve.
  3. The reviewer's identity, summary and opinion are to be fully disclosed.
  4. The community may require a second review, and the Arbitration Committee are entitled in any event to see the evidence and ask questions to all parties.
  5. This policy does not affect users carrying out official tasks as authorized by the Foundation or the Committee (including, but not limited to, CheckUser, Oversight, and OTRS activity), nor does it restrict the Arbitration Committee's decisions in the handling of such matters.

Reviewers

A user who wishes to take action or make a claim, to be justified in part or whole by information that will not be released to public scrutiny, must seek review from one or more reviewers of their choice before doing so, and disclose immediately the action is taken.

The user may involve others (usually those with knowledge) but only a suitable reviewer can approve the matter.

Valid reviewers for this policy are: Any arbcom member (or arbcom itself), any person with oversight privilege, and (for matters where oversight, office and similar privacy concerns are not an issue) any bureaucrat.

Reviewers must not have a prior involvement in the issue or a connected issue, or prior history with the user against whom action is proposed. Any reviewer who becomes aware they may face a conflict of interest must recuse.

Process

  • The user emails a reviewer of their choice with the evidence and (relevant parts of) the proposed case, and proposed action(s), and discusses the matter until the reviewer is able to give an opinion whether the information the user wishes to treat confidentially supports the points and action(s) the user wishes to draw from it. An above average certainty should be expected.
  • The reviewer sends the user a formal review of the case, as follows containing a general discussion, the disclosure requirement to be followed, and a public opinion covering at least these points:
  • Sanitized summary/description of the case and their opinion; description of nature of evidence; opinion what the evidence shows; how certain they feel (including any weakness, ambiguity or issues impacting on reliance); any action(s) mutually agreed to be endorsed; anything else they feel appropriate to disclose.
  • The user is not compelled to act, but if they do, and if they wish to justify their action in part or whole by reference to the confidential information, then they must publish the opinion in full (and the name of the reviewer), and notify the reviewer they have done so.
  • Any three administrators may request any other reviewer of their choice to review the same material and obtain explanations and information as needed from the user or first reviewer, to comment on the conduct, disclosures, decisions and actions related to the confidential information.

Miscellaneous

  • Multiple reviewers may be asked for an opinion, but this should be disclosed to reviewers and the community. Users should only ask round for their own confidence and not just to 'forum shop'.
  • Any reviewer may consult and discuss the case and its evidence with any other editor who would have been a valid reviewer, or refer the matter to Arbcom.
  • Arbcom may request at any time, a full copy of all evidence and all discussion from the user, or any reviewer.
  • Good communication and open frank discussion by user and reviewers is expected.
  • Lacking approval, the action will usually be judged on the basis of visible evidence alone.


Summary

This summary is intended to replace the four divergent proposals listed above. See the talk page for details.

Misplaced Pages:Confidential evidence was a proposal to regulate the use of confidential evidence in administrative decision making. The goal was primarily to reduce the risk of error and alleviate the drama caused by intransparency. Although the idea was met with generally positive responses, a loosely conflicting Arbitration Committee decision and some other complications impeded the proposal's progress. Still, the ideas that were developed and the surrounding discussions shed light on some general principles which seem to be agreed on by most of the community:

  • There are reasonable arguments in favor of using confidential evidence in certain circumstances. There are also legitimate concerns associated with the use of confidential evidence.
  • While different editors regard the concerns with different degrees of importance, most rate them between moderate and momentous. Consequently, confidential evidence should be used only when the reasons for doing so are significantly compelling.
  • When confidential evidence must be used, the situation should be handled carefully to minimize potential harm. Publicly communicating the details of an issue would defeat the purpose of confidentiality, but efforts should be made to communicate the nature of the dilema. Users should be careful not to misrepresent or exaggerate the strength of the evidence. Generally, the evidence should be thoroughly reviewed by one or more users who can be trusted with access to it.
  • In light of the Arbitration Committee's decision, users are generally expected to pass evidence through the ArbCom rather than acting on it themselves. As the principle states, this does not apply to evidence obtained through Oversight, Checkuser, or OTRS tools. This could change in the future, as the ArbCom has expressed willingness to allow a community-formed policy to replace the provisions of the decision.

The above points are not intended as binding principles; consensus can change. Still, for the time being, they may be useful in assessing whether particular actions are in line with communal consensus.

Notes

  1. ^ In the Durova case, the Arbitration Committee unanimously passed a principle regarding confidential evidence. Numerous questions were later asked, and clarifications were given; see FT2's summary for an overview.
  2. Within a few weeks, the proposal had branched out into four separate versions. By the time efforts to fix the problem arouse, interest and participation were running low.
  3. Overview of justifications for using confidential evidence:
    • In some cases, a degree of confidentiality may be necessary where privacy issues are involved.
    • Keeping sleuthing techniques private may keep persistent problem users from circumventing them.
    • In extreme cases of persistent abuse from the same user or group of users, timeliness may come into play.
  4. Overview of concerns surrounding the use of confidential evidence:
    • Lack of external review may increase the likelihood of error.
    • Lack of community participation may allow individuals to deviate significantly from community norms, making confidential action a bad example of consensus decision making.
    • Even when the proper outcome is realized, procedural intransparency can cause significant upset to editors, creating tension that may have been avoidable.
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