BP’s email subpoenas threaten to erode the scientific deliberative process

If you haven’t read the Boston Globe Op-Ed, you must. Chris Reddy and Richard Camilli (oil spill research rockstars at Wood’s Hole)  yesterday revealed information that made me feel physically ill:

Late last week, we reluctantly handed over more than 3,000 confidential e-mails to BP, as part of a subpoena from the oil company demanding access to them because of the Deepwater Horizon disaster lawsuit brought by the US government. We are accused of no crimes, nor are we party to the lawsuit. We are two scientists at an academic research institution who responded to requests for help from BP and government officials at a time of crisis.

Reddy and Camilli’s most impassioned argument noted that public perception of the scientific process, and thus the integrity of scientists themselves could be fundamentally questioned as BP tries to wiggle its way out of paying massive fines:

BP claimed that it needed to better understand our findings because billions of dollars in fines are potentially at stake. So we produced more than 50,000 pages of documents, raw data, reports, and algorithms used in our research — everything BP would need to analyze and confirm our findings. But BP still demanded access to our private communications. Our concern is not simply invasion of privacy, but the erosion of the scientific deliberative process.

Deliberation is an integral part of the scientific method that has existed for more than 2,000 years; e-mail is the 21st century medium by which these deliberations now often occur. During this process, researchers challenge each other and hone ideas. In reviewing our private documents, BP will probably find e-mail correspondence showing that during the course of our analysis, we hit dead-ends; that we remained skeptical and pushed one another to analyze data from various perspectives; that we discovered weaknesses in our methods (if only to find ways to make them stronger); or that we modified our course, especially when we received new information that provided additional insight and caused us to re-examine hypotheses and methods.

In these candid discussions among researchers, constructive criticism and devil’s advocacy are welcomed. Such interchange does not cast doubt on the strengths of our conclusions; rather, it constitutes the typically unvarnished, yet rigorous, deliberative process by which scientists test and refine their conclusions to reduce uncertainty and increase accuracy. To ensure the research’s quality, scientific peers conduct an independent and comprehensive review of the work before it is published.

Here at DSN we’re all very concerned. Personally, I would be abhorred at such an invasion of privacy–especially in a scenario where I offered help pro bono in the face of a disaster, like many scientists did during the BP spill.

But some parties seem less concerned. Wired news summed up the different arguments:

Reaction to these fears has been mixed. Marine biologists Kevin Zelnio and Miriam Goldstein of Deep Sea News both tweeted their concerns, with Goldstein worrying about the precedent and Zelnio wondering if BP will “treat oceanographers as dishonestly as climate denialists treated researchers.”

Science policy expert Roger Pielke of the University of Colorado was more sanguine, writing on his blogthat publicly supported scientists should expect to share their full deliberations. “Besides, good science, even when messy, does not need to be hidden from view,” wrote Pielke.

Attorney David Pettit of the Natural Resources Defense Council also said that concerns may be overblown, though he preferred to talk about the legal dynamics shaping BP’s request.

Whereas federal law has established special protections for attorney-client privileges, doctor-patient confidentiality and journalists shielding their sources, there are no protections for academic scientists. Requests like BP’s are considered on a case-by-case basis.

“It wouldn’t surprise me if an academic institution went to the Supreme Court and said we need another exemption for academic research,” Pettit said.

Regardless, we need more legal protection for researchers. Reddy and Camilli’s home institution, WHOI, issued a parallel statement laying out some of the legal concerns spurred by the email subpoenas:

This case raises issues that go far beyond our institution and BP. Despite earlier Supreme Court recognition of the importance of the deliberative scientific process, there remains inadequate legislation and legal precedent to shield researchers and institutions who are not parties to litigation from having to surrender pre-publication materials, including deliberative emails and notes, manuscript drafts, reviewers’ comments, and other private correspondence. This situation leaves scientists and institutions vulnerable to litigants who could disregard context and use the material inappropriately and inaccurately in an effort to discredit their work. In addition, there is no guarantee that the costs, both time and material, incurred by an institution in response to court-mandated requests will be reimbursed by the litigants.

The materials that BP demanded may include intellectual property, hard won by the researchers. While there are protections that can be placed by the court and through confidentiality orders, experts in the litigant parties receiving these materials may obtain insight into the creation of this intellectual property and be able to replicate it for their own programs even if they do not directly take it. It is unlikely that institutions such as WHOI would be able to identify or prosecute this infringement of intellectual property rights.

This can of worms has just been opened, so lets keep the dialogue open–lest it be forgotten like the oil still festering in the deep.

10 Replies to “BP’s email subpoenas threaten to erode the scientific deliberative process”

  1. Thanks for covering this….I am appalled by BP’s actions. Are any TV news outlets covering this?….because the precedent this ruling sets threatens to undermine scientists’ intellectual property rights. Since we just passed the 1 year anniversary of the beginning of the DWH disaster, this seems like an appropriate time to bring back up BP’s continued shenanigans in this area.

    How easily the public forgets….

  2. If scientists have to disclose their private emails, politicians (their wage comes from public) and industrials such as BP should do so too.

    This whole situation is just a shame.

  3. While discussing this with fellow scientists over dinner last night, I wondered if this is a deliberate strategy to scare off scientists/scientific institutions from doing this kind of research in the future. If BP costs WHOI a lot of money, and WHOI scientists a lot of time (and potentially opens them to baseless attacks as in Climategate), independent scientists may be discouraged from working on future oil spills, either personally or institutionally. I really think it could have a chilling effect on independent science response. We need legislative protection.

  4. Keep in mind, BP doesn’t have to win by arguing the science. It’s far easier to win by discrediting the scientists. The best defense is a good offense. WHOI should be looking through those emails & finding discussions that could be most embarrassing for WHOI. Ones that BP will try to say show a hostile or biased environment. Then, WHOI shouldn’t wait for BP to publish them; they should do it themselves. Lead, explain, on their own terms and their own ground what their pattern of thought was. Describe terminology. Remember, the public remembers the oil spill & BP’s handling. Even two years later BP is not the favorite. Don’t cede ground by cowering & waiting for the oil giant’s lawyers to trickle out tidbits the way they want to.

  5. It seems to me there are two solutions to this dilemma, in addition to dropping our naivete about how the world works. Solution one is to use the telephone to discuss controversial matters,followed up perhaps with a summarizing e-mail. Solution 2 is to have more than one e-mail account, one that is institutional and one that is private. Use the institutional one for the formal and not so controversial summaries of ideas, and the private one for all the nuts and bolts discussions. I suppose a third solution, which I don’t favor, is to stay out of these kinds of pro bono actions. But if you feel that you should be involved, which I do favor, be a little more world-wise when entering the fray. That is, recognize that any situation like this is going to have legal ramifications and don’t be so naive as to think someone isn’t going to come trawling through your e-mail to see what you thought and said.

  6. Hi Les,

    Solution 1 is workable, but solution 2 isn’t. A court is perfectly able to subpoena both work & private emails on the topic of interest – the location of the information makes no difference. Tangentially to the BP situation, scientists should also be aware that both work and private email accounts fall under the Freedom of Information Act (FOIA) or the state equivalent. (e.g., since Sarah Palin conducted state business on her Gmail account, it was subject to FOIA.) I don’t know the Hawaii laws, but in California anyone may request copies of a state employee’s emails that pertain to a certain topic, regardless of whether those emails are on the official account or a private account. Professors do count as state employees in this case.

  7. Regardless, it is really time for graduate schools to start training scientists in the business and politics of their chosen profession. How to avoid pitfalls with colleagues, politicians, employees and – of course – media training. Can we stop pretending we are above all that and only our brainz matter?

  8. As a media trained scientist I can tell you that the some members of the media already frequently take quotes completely out of context and often already have a specific story or angle, a specific result that they want, before they bother to talk to the experts. When the goal is to get peoples attention in order to attract advertising revenue, the importance of getting the story right is simply not often a priority.

    Lets say 95% of all scientists focused on problem X believe one thing and 5% are against it. Lets also say that half of that 5% are paid by large corporations that benefit from their views. The media response will be to invite ONE expert from each camp and have them go at it because this maximizes drama and viewers. Do we really want scientists to play this game? Or do we want some small part of our society working to discover actual facts about the planet we live on?

    So, in addition to chasing limited grant funding, teaching, serving as expert witnesses, etc we scientists now must try to outsmart corporate lawyers and play “poly ticks” on their home field? We must now consider how every sentence in every email might look if taken out of context in a society where even careful quotes by media trained scientists get twisted?

    Tell me, when are these superhuman beings you call scientists going to have any time left to do actual research? Or does that not matter in today’s world?

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