Concerning certain demands for information, should the law grant scientists immunity comparable to doctor–patient privilege? At Woods Hole Oceanographic Institution, Richard Camilli of the Applied Ocean Physics and Engineering Department has joined with colleagues in advocating what a Nature editorial called "scholastic privilege."
The story has begun drawing media attention, including a brief Los Angeles Times blurb headlined "Scientists say BP used courts to attack oil spill research" and a nearly seven-minute interview with Camilli on National Public Radio. The opening paragraphs of a 28 September Boston Globe news report summarized:
Woods Hole Oceanographic Institution scientists, forced by a court earlier this year to turn over confidential e-mails to BP about the Deepwater Horizon oil spill, are calling for more legal protections for researchers' private communications.
BP won access to the e-mails as part of a federal government lawsuit against the company for damages resulting from the 2010 Gulf of Mexico disaster.
The Woods Hole researchers were involved early on as volunteers to help BP and the government estimate how much oil was flowing from the leaking well. The company argued that the Woods Hole scientists made errors in their calculations and that it needed to see all correspondence to determine why.
Writing Thursday in the journal Science, Woods Hole researcher Richard Camilli and colleagues said the type of e-mails that BP won from the institution in June can be filled with lively debate, dead-ends, skepticism, and challenges.
He said in an interview that the institution [had been] willing to comply with BP's request for 50,000 pages of documents, computer code, reports, and raw data so the company could analyze and confirm the findings—but not the private 3,500 e-mails the company received that dealt with the "scientific deliberative process."
Back on 3 June, Camilli and his colleague Christopher Reddy published a Boston Globe op-ed arguing that because "there are insufficient laws and legal precedent to shield independent scientific researchers, BP was able to use the federal courts to gain access" to their private information, even though the court acknowledged the legitimacy of the confidentiality concern for scientific deliberations. "It is the lack of legal protection that has us concerned," the scientists wrote.
Two paragraphs in particular detailed this concern:
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.
In the 28 September Science article mentioned in the Boston Globe news report, Camilli and colleagues opened by asserting that the "modern historical record and an ongoing dispute between BP and academic researchers reveal that the U.S. legal system can be exploited to attack scientific research and academic thought when it challenges entrenched interests or beliefs." The scientists described past cases, then drew parallels:
Like the Dow Chemical case, BP sought prepublication materials from academic researchers who were not party to a court case in order to assert that the researchers' findings were contradictory or inconclusive. Like the Bayer product liability case, BP sought access to peer-review deliberations with the goal of limiting its financial liability. Similar to the tobacco company cases, BP is alleged to have suppressed its own findings while attempting to publicly discredit similar findings in peer-reviewed literature.
The scientists noted that "BP has made generalized assertions of misconduct." They called for "federal legislation that protects researchers from legal harassment by interests seeking to silence scientific inquiry or retribution for publishing independent research findings."
Concerning attempts to discredit scientists by making their deliberations public, the Globe consulted Rachel Levinson-Waldman of the Brennan Center for Justice at New York University, who formerly served as senior counsel for the American Association of University Professors:
She said she has noticed an increase in Freedom of Information requests for scientists' private correspondence, such as those aimed at US climate scientists by interest groups hoping to discredit their work. The demand to look at e-mail communication, she said, "seems designed to embarrass and chill ... and driven by an agenda."
The Nature editorial that brought in the concept of "scholastic privilege" expressed a measure of alarm about the court decision that went against the Woods Hole scientists. But it also asserted that "the situation is perhaps not as dire as some have warned." The editors wrote:
Woods Hole contends that surrendering the e-mails will have a chilling effect on science, by forcing researchers to avoid topics that could become subjects of litigation. Is the institute right? It is hard to judge the scale of the potential damage the decision could cause. Even well before the subpoena, some researchers declined to study the spill, in part because of the legal risk, so the decision may not make much difference on that front. Researchers who work in other contentious fields, such as animal experimentation, are not generally scared off their work, even by threats of physical harm.
The Union of Concerned Scientists, on the other hand, offers this general warning:
QUOTE
Scientists today are under more scrutiny than ever. When their research ends up at the center of a contentious public policy debate, scientists receive many legitimate requests for more information, but they are also sometimes attacked by individuals who do not like the research results. These attacks can take multiple forms—emails, newspaper op-eds, blogs, open-records requests, even subpoenas—but the goals are the same: to discredit the research by discrediting the researcher.
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The Nature editorial's last paragraph earns the last word here as well:
The [court] decision [against Woods Hole] provides yet another reminder that scientists should not regard e-mails as being private. Whether by theft or by court order, such communications can be taken away. Think before you press Send.
Steven T. Corneliussen, a media analyst for the American Institute of Physics, monitors three national newspapers, the weeklies Nature and Science, and occasionally other publications. He has published op-eds in the Washington Post and other newspapers, has written for NASA's history program, and is a science writer at a particle-accelerator laboratory.
