On the threat to email confidentiality, Part 1: Woods Hole scientists and the BP Deepwater Horizon oil blowout litigation

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BP Deepwater Horizon oil rig ablaze (Photo: U.S. Coast Guard)

What are the implications of telling scientists they should no longer expect to communicate confidentially with each other using email?  The issue is raised again by a US federal court decision requiring Woods Hole Oceanographic Institution researchers to hand over 3,000 private emails to BP in connection with litigation on liability for the costs of the blowout disaster in theGulf of Mexico.

Christopher Reddy and Richard Camilli, scientists at Woods Hole, wrote in the Boston Globe on June 4 (excerpt, emphasis added):

Science out of context

BP’s demand for e-mail will erode the scientific deliberative process

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.

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 our private information.

The 2010 Deepwater Horizon disaster caused the death of 11 people and spilled oil at an unprecedented depth of nearly a mile under theGulf of Mexico. That deep-sea environment was aqua incognita to the oil industry and federal responders, but a familiar neighborhood for us at Woods Hole Oceanographic Institution. BP and Coast Guard officials asked for our help to assess the disaster, and we obliged.

We responded by leading on-site operations using robotic submersibles equipped with advanced technologies that we had developed for marine science. We applied them to measure the rate of fluid release from the well and to sample fluids from within the well. We then volunteered our professional time to scrutinize this data and published two peer-reviewed studies in a respected scientific journal. We determined an average flow rate of 57,000 barrels of oil per day and calculated a total release of approximately 4.9 million barrels.

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. ...

Greenwire (by subscription) reported on June 11 (“GULF SPILL: BP seeks lower settlement with DOJ – sources”):

[BP] is looking to reach a $15 billion settlement with the Justice Department to resolve its criminal and civil penalties from the 2010Gulf of Mexicodrilling rig blowout and oil spill, sources said. That figure is much less than the $25 billion that DOJ was seeking. Negotiations are accelerating, and an agreement could be reached before the Democratic National Convention in September, sources said. BP wants to resolve both civil and criminal actions in its settlement with DOJ. The agency is investigating the oil and gas company for criminal charges.

Nature (by subscription) added this (“Reply to All”) in an editorial on June 14:

The demand for the e-mails emerged from a huge lawsuit, in which BP is being sued by the USgovernment and others affected by the oil spill. As part of that suit, the company faces fines of up to US$4,300 per barrel of oil spilled, which could amount to more than $17 billion if the court sides with government estimates for the size of the spill. BP argues that these estimates — much higher than the company's own — rely heavily on research conducted by Woods Hole. And it claims that aspects of the work involve “puzzling, apparently arbitrary, suspiciously offsetting, and highly significant decisions by Woods Hole researchers”. …

Woods Hole turned over much of the data and analysis tools to BP on its original request, but it fought against surrendering confidential academic communications, arguing that those have been protected in the past by courts, which have recognized the importance of 'scholastic privilege'. Indeed, the judge who ruled over Woods Hole's arguments recognized the principle of scholastic privilege regarding confidentiality, but only up to a point. She found that BP had a compelling need for the Woods Hole e-mails and other communications for the period before the government-led group issued its report in March last year. The e-mails handed to BP could be made public if the case goes to trial.

So: do you see the possible problems here?  Do you think you should be allowed to read scientists' email conversation, when they are seeking to communicate freely, provisionally, and off the record?  Whose email should you be allowed to read?  Under what circumstances?  Can you see BP's lawyers cherry-picking and spinning Woods Hole email, seeking any means to cast doubt on the integrity of scientists as a hardball tactic to aid in getting out from under their liability?  Do you remember how climate scientists' were abused when their emails were stolen from the University of East Anglia?

Reddy and Camilli at Woods Hole wrote (emphasis added):

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. …

Our experience highlights that virtually all of scientists’ deliberative communications, including e-mails and attached documents, can be subject to legal proceedings without limitation. Incomplete thoughts and half-finished documents attached to e-mails can be taken out of context and impugned by people who have a motive for discrediting the findings. In addition to obscuring true scientific findings, this situation casts a chill over the scientific process. In future crises, scientists may censor or avoid deliberations, and more importantly, be reluctant to volunteer valuable expertise and technology that emergency responders don’t possess. …

Michael Halpern at the Union of Concerned Scientists can see a problem:

"The Woods Hole scientists saw a country in need and tried to do the right thing, and in the process got burned by a system that does not protect them. And the potential consequences are profound. Sure, scientists might be less likely to ask tough questions of each other in an environment where every sentence they write could be misrepresented," he wrote. "But they will also begin to think twice about using their knowledge to solve pressing and urgent national problems."

Some reporters and bloggers were quick to pick up on the implications. Kate Sheppard at Mother Jones (“BP Sends a Chill Through the Scientific Community”):

… This is a deeply concerning development, as this would not be the first time that private correspondence was used to undermine scientific findings. Anyone remember Climategate, in which debates between researchers was used to undermine the science behind global warming? In this case, a private company would have access to scientists' personal emails, which could then be taken out of context and used to undermine their work. It's damaging not just for their research on the BP spill, but for science on any number of other subjects.

Also see Peter Sinclair at Climate Denial Crock of the Week (“Sound Familiar? Scientists Voice Misgivings over BP’s Use of Private Emails.”). And his earlier post (“First They Came for the Climatologists”).

Farron Cousins at DeSmogBlog had a strong post placing this latest incident in a broader context (“Is BP’s Attempted Climategate Strategy to Attack Scientists Ethical?”), which included this:

But there’s a good reason for BP to want access to every piece of correspondence they can get their hands on. As Reddy and Camilli point out, many of these emails contain half-finished works, dead-end hypotheses, and other information that can easily be taken out of context.

What this could do for the company is provide “reasonable doubt,” which would have a tremendous effect on the lawsuits against the company. If they are able to manipulate the data they uncover in a way that casts even the most minimal doubt on the claims being made by scientists (those that would be relevant to the claims of plaintiffs along the Gulf Coast) that would greatly reduce the company’s liability to plaintiffs, as well as the federal government (who has imposed fines against the company for the environmental damage.)

But this is certainly not the first time that BP has tried to manipulate science. In the earliest days of the oil disaster, the company took a page out of the Exxon playbook and began offering huge cash bonuses toGulfCoast scientists willing to join their campaign to downplay the effects of the oil on coastal communities and wildlife.

Since they were unsuccessful with their attempts to buy the scientists’ loyalty, the subpoenas for emails are the company’s backup plan to undermine the work of these professionals.

While the scientists have a lot to lose from the release of their personal, academic information (as long as it is taken out of context and used against them as academic professionals), BP has everything to gain from unbridled access to the emails.

Is BP's approach an ethical one? Not by a long shot. But as was the case with the 'Climategate' attacks on scientists, ethics will never stand in the way of polluters attempting to cast doubt on firm science and further delay accountability for their destruction of the planet.

Also see Molly Peterson at Science Progress (“BP in Deep Water with Scientific Integrity Advocates”):

That concern isn’t new to post-Deepwater Horizon life, and in it, the WHOI guys aren’t alone. The liberty of information gathered in the gulf has been at risk since the Deepwater Horizon incident began. In 2010 Alabama Press-Register reporter Ben Raines obtained a copy of a contract BP offered to scientists at an Alabama college.  The contract prohibited “the scientists from publishing their research, sharing it with other scientists or speaking about the data that they collect for at least the next three years.”

Nature concludes in its editorial (“Reply to All: Scientists discussing their work through written media, including e-mail, should be aware that they could at any time be asked to reveal their conversations.”):

The decision on the Woods Hole e-mails should nonetheless serve as a warning. Researchers who choose to study topics that have multiple and conflicting implications for powerful special interests must go in with their eyes open and be aware of the risks. Not only have Woods Hole researchers had to surrender their e-mails, they have also spent hundreds of hours complying with the subpoena. And the case has drained considerable funds from the non-profit institution through lawyers' fees and lost staff time.

The decision 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.

That seems clear enough. But it doesn't dispose of this issue, which is fraught with significance, and not only for scientists.  To be continued...

 

 

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5 Responses to On the threat to email confidentiality, Part 1: Woods Hole scientists and the BP Deepwater Horizon oil blowout litigation

  1. jim says:

    Uh Oh!!! Scientists being held to the same standards of accoutability and openness that apply to business leaders and politicians? What next?

    • Rick - Climate Science Watch says:

      Which politicians' email do you think we would be allowed to read? Which business leaders', if they weren't under a criminal investigation or party to a lawsuit? And beyond that, isn't email a 21st century extension of conversation? Should we be allowed to insist on sitting at the scientists' table while they're talking over a beer? Or on listening in on their phone conversations? How is their talking via email fundamentally different? They turned over tens of thousands of documents on their work. Are they not allowed to interact with each other with any expectation of privacy? Do you think politicians and businessmen are being required to give up- the right to private communication?

      • Kip Hansen says:

        Rick,

        I believe it is true that if these two men had been employed by directly by the organizations for who they prepared reports, all of their emails would have been considered public documents, subject to review.

        Of course, if they worked for IBM, say, they same would be true for their IBM email-address mail. When I was so employed, our email was archived without our involvement (eg: automatically). Or for Smith-Barney, any bank, or for most publicly owned corporation, etc.

        For them, or anyone, to be upset that their formal communications about investigations into a public disaster performed for a government body should be part of the public record is duplicitous.

        Open and transparent processes are vital for science that affects public policy. I, as one of 'the people', don't want scientists, financiers, bankers, medical researchers and others who produce the numbers that our government depends on to make and set policy to be able to do so 'in the dark' -- let them be totally open and honest, let us review the process in the light of public discourse. If their hands are clean, it will be clear to be seen. If activism or outside influence has been brought to bear on their processes and decisions, that may be clear to see as well.

        We would never stand for these attempts at secrecy amongst medical researchers -- we'd blow the whistle and ask "what are they hiding?"

        In short, by advice to them would be "Grow Up!".

  2. Jean Demesure says:

    Methink these scientists protest too much. Respectable professionnals have nothing to hide in their "deliberative process".

  3. andres says:

    Why do a bunch of corporate lawyers working for BP want these emails? All other questions aside, this seems to be the principal one. Judging by its actions before and after this disaster, it's not because they care about the actual scientific research and evidence, as we all know. BP just wants to cover its tracks and shield itself behind any potential statements they can mine out of the email exchanges. This is the issue.

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