Abstract
Climate scientists report harassment that ranges from the mild to the truly frightening. Radio talk-show hosts in the US subject them to ridicule. Members of Congress looking to score political points hold show trials disguised as hearings and use their platform to cast doubt on scientists’ research. Angry partisans send threatening emails and leave vitriolic voicemail messages. One scientist even answered his doorbell to find a dead rat outside the door.
But despite this intense public scrutiny, most scientists had always assumed that their personal conversations and correspondence were sacrosanct. In the privacy of their labs, they felt free to come up with new theories, many of which wouldn’t pan out, but a few of which would advance human understanding of the world around us. They felt free to openly challenge their colleagues’ ideas to help refine them. They felt free to use scientific terminology with each other without fear that it would be misinterpreted in public at a later date. In short, they felt confident that they had the right to pursue science in a free and unfettered way.
Scientists are not as sure of this right today. As critics of their research try multiple methods to access their correspondence, scientists must rethink what they put in writing, and their institutions must devise ways to protect their ability to have frank discussions with each other. At stake is the ability of researchers to take the risks necessary for scientific progress.
In the US, the climate scientist Michael Mann, whose email correspondence with the University of East Anglia was hacked into two years ago, is still facing serial requests for his data and correspondence. Mann’s scientific data and methods have long been publicly available on his personal website. Multiple lines of subsequent research have also confirmed Mann’s findings. But that has not stopped those who disagree with the science from going after him in other ways.
On 23 April 2010, Attorney General Ken Cuccinelli, the lead attorney for the Commonwealth of Virginia, served the University of Virginia with a civil investigative demand – in essence a subpoena – for all documents in the university’s possession produced by Mann when he was a professor there between 1999 and 2005. The subpoena sought not only data and research methods (which were already publicly available) but also all emails and even handwritten notes in the university’s possession.
Together with the American Association of University Professors (AAUP), the Union of Concerned Scientists (UCS) organised a letter signed by more than 800 Virginia scientists and academics urging the university to resist Cuccinelli’s demands. Even climate sceptics such as Thomas Fuller objected to the investigation. He wrote an open letter to Cuccinelli:
No matter what has prompted your investigation, there is no doubt that it will be interpreted as a witch hunt. If you are in fact investigating a credentialed scientist for results that do not suit your political opinion, that interpretation is correct. Unless you can reveal to the public prima facie evidence that shows cause for this investigation, I beg you to reconsider. There are ample avenues of professional and academic recourse for people like me who think he has done something wrong. But being wrong is not a crime, and intimidating scientists not a path that this country, including I presume Virginians, should ever pursue. You may consult with colleagues in Salem to determine how long it takes to live this type of thing down.
The university, which initially seemed poised to comply with the subpoena, did an about face and took the attorney general to court. UCS joined three other organisations in an amicus brief supporting its move, and in August 2010, a circuit court judge sided with the university, telling the attorney general that he was welcome to submit subpoenas, but for them to be enforced he had to demonstrate reason to believe that fraud may have been committed.
The attorney general has continued to beat the deadest of dead horses, submitting similar subpoenas to the university and appealing the judge’s decision to the Virginia Supreme Court. Thus far, the cost of the investigation to the university has run into hundreds of thousands of dollars. The court is expected to consider the case in winter 2011; updates will be posted at www.ucsusa.org/cuccinelli.
Next on the scene was the American Tradition Institute (ATI), which seems to want to make it a tradition to attack scientists through open records laws. One of the group’s lead spokespeople is Chris Horner, who wrote a book in 2008 called Red Hot Lies: How Global Warming Alarmists Use Threats, Fraud, and Deception to Keep You Misinformed.
In January 2011, ATI submitted a request under the Virginia Freedom of Information Act (FOIA) seeking the same broad range of records as the attorney general’s subpoena: emails, handwritten notes and any other communication associated with Mann’s tenure at the university. ATI was informed that it would be charged $8,500 for the request due to the labour involved in compliance; no payment was submitted. At first glance, it seemed to be a publicity stunt.
In April, along with a dozen other organisations, UCS wrote a letter to the university’s president urging the university to ‘[balance] the interests in public disclosure against the public interest in academic freedom’ when complying with the FOIA request. Seven days later, the university pledged to use ‘all available exemptions’ in its response.
Then the university changed course, entering into a court agreement that seemed counter to the spirit of its pledge. The court agreement gave ATI the right to review all documents – both those that will be eventually released and those that will be withheld – in court under a gag order. In other words, ATI would get to see every single document it requested, even if the material is exempt from ATI’s FOIA request.
Now if I were to submit a FOIA request for, say, all of Attorney General Cuccinelli’s emails, most or all of my request would likely be denied. I wouldn’t expect to be able to go into a judge’s chambers and review every email the attorney general had sent. So why would ATI get special treatment?
On 10 August, UCS and other organisations wrote again to the university president to urge it to alter the agreement. After a spate of press-highlighted problems with the agreement, a group of climate scientists started a legal defence fund on behalf of Mann. And a couple of weeks before the university was scheduled to hand over the additional documents, Mann’s attorney filed a motion to intervene in the agreement between the university and ATI. The university again changed course and asked a judge to alter the agreement. On 1 November, the judge granted Mann standing in the case and voided the ATI/UVA agreement, instructing them to agree on a neutral third party who will determine what should be disclosed and what shall be considered exempt. The decision keeps thousands of pieces of exempt personal correspondence out of ATI’s hands.
There are, of course, advantages to the harassers in pursuing these sorts of FOIA requests. Those who deny the scientific consensus on climate change continue to have a platform to cast doubt on the robustness of the science. When universities resist releasing all of a researcher’s private correspondence, it can be alleged that the university must be hiding something scandalous. Meanwhile, legal costs for both the university and the scientists mount.
Open records laws are essential to a functioning democracy. People must be able to have access to information that allows them to keep their government accountable and honest. At the same time, these laws should not be used to chill speech. A well-designed law will create the space for scientists to have frank, private conversations while maintaining the right of the people to understand how their tax dollars are spent.
There are several steps that can be taken to strike this balance. First, academics should be more thoughtful about how their communications can be misrepresented. When academics started using email in the 90s, there was an assumption that sending an email to a colleague was like sending them a letter. Nobody expected the government to go snooping in his or her mailbox. As a result, many scientists expressed frustration with their adversaries that were never intended for public consumption.
Second, open records laws should be scrutinised. In the United States, these laws were first created in the 60s and have been periodically updated. In the wake of the attacks on academic speech, state legislators and FOIA advisory committees should examine whether laws are adequately protective of academics’ free speech rights and update them as needed.
Third, all universities should be better prepared to respond to subpoenas and FOIA requests.
With safeguards in place, scientists will feel safe asking tough questions of their peers, especially when their research touches upon contentious issues. Those who have the courage to present ideas that challenge the status quo will be supported. And those who feel threatened by scientific progress will not be able to use these tools to slow it down.□