Comment: When scientists come under legal attack

by Lauren Kurtz
Thursday, April 16, 2015

Credit: ©Shutterstock/Tischenko Irina.

A fundamental tenet of science is that the search for knowledge is objective. Unfortunately, this principle has been turned on its head in recent years by politically motivated groups when scientific findings endanger their ideologies or business interests. To distract from and discredit such findings, these groups have launched legal challenges and other attacks against a small but growing number of scientists, who must then legally defend their work, correspondence and public statements.

The Climate Science Legal Defense Fund (CSLDF) was established in 2011 by Scott Mandia and Joshua Wolfe to provide legal support to scientists, particularly climate scientists, facing such attacks. CSLDF was founded on the principle that scientists must be free to conduct research, and that harassment by politically motivated groups stifles progress and innovation.

Freedom of Information Act Requests

One common legal attack on scientists has been by way of state or federal Freedom of Information Act (FOIA) requests under the guise of ferreting out scientific misconduct. FOIA promotes government transparency by allowing citizens to request copies of administrative records, with exemptions for national security, trade secrets and similar issues. But lately, FOIA has also been used as a tool to harass scientists: FOIA requests for large swaths of documents, including personal emails, have been made of scientists employed by the government or public universities, or who otherwise receive public funding. These scientists must then review and produce potentially thousands of documents — sometimes in a matter of days, depending on the applicable FOIA requirements — or mount a legal response explaining why the requests are invalid. Scientists have been subjected to enormous time and financial drains as a result of broad FOIA requests made by partisan groups. These FOIA requests are often frivolous and while they may claim to unmask bad science (which is why there is a scientific peer-review process), they instead seek to slow the scientific endeavor and dissuade scientists from publicly communicating their research for fear of being “FOIAed.”

Protracted Litigation and Investigations

Legal threats have hit climate scientists especially hard, partly from the increased politicization of climate change research. One prominent example is Michael Mann, a climate scientist currently at Penn State and one of the pioneers in reconstructing “istorical temperature data. Mann received a FOIA request seeking reams of documents — including years of emails — that he had written or received during his previous employment at the University of Virginia. The university and Mann released some documents, and engaged in protracted litigation to withhold others protected under Virginia’s FOIA exemptions. The Virginia Supreme Court ultimately agreed that Virginia’s FOIA protections included protecting research and academic “free thought and expression.” Broad FOIA requests have also been made on many other publicly funded scientists, sometimes leading to similarly extensive litigation.”"

Mann’s experiences illustrate the extent to which scientists can become embroiled in legal conflicts arising from their research. In addition to his FOIA battles, Mann was one of many climate scientists whose emails were hacked in 2009 in the so-called “Climategate” episode. Snippets from scientists' emails were taken out of context to suggest misconduct by Mann and others; multiple review boards ultimately exonerated Mann and other scientists. However, that did not prevent the then-attorney general of Virginia, who has vocally criticized mainstream climate science, from using the hacked emails as a springboard to launch a civil investigation into Mann’s use of taxpayer funds while at the University of Virginia. In another lengthy legal battle, the university argued that the attorney general had no authority for such an investigation, an argument endorsed by the Virginia Supreme Court. Mann and other scientists' research into historical temperature records also led to a rambling investigation in the U.S. House of Representatives led by Rep. Joe Barton (R-Tex.), who has referred to climate science as “pretty weak stuff.” This congressional investigation was criticized by many, including Rep. Henry Waxman (D-Calif.), who stated that it could be interpreted as “a transparent effort to bully and harass climate change experts who have reached conclusions with which [the investigators] disagree.”

Chilling Publication

In addition to legal challenges made directly against scientists, attackers have also sought to censure publication of research they do not support. For example, Science Magazine was threatened with a lawsuit after publishing a study by earth science historian Naomi Oreskes in 2004 on the scientific consensus regarding climate change. That lawsuit never materialized, but in 2014, threats of a defamation suit prompted the journal Frontiers in Psychology to retract a peer-reviewed paper analyzing people who reject the scientific consensus on climate change. In retracting it, the journal stated that it did not have “any issues with the academic and ethical aspects of the study,” and noted that the study’s authors “stand by their article and regret the limitations on academic freedom which can be caused by legal factors.”

Despite the efforts of CSLDF and other groups, including the Union of Concerned Scientists and Public Employees for Environmental Responsibility, ideologically based legal attacks continue to be made on the scientific community. While the risk for any individual scientist may be small, scientists are best served by being prepared.

What Scientists Can Do To Protect Themselves

Keep email and other correspondence professional, and only write content that could comfortably be published in The New York Times — a standard admonishment in the digital age, sometimes called “The New York Times Rule.” This limitation may seem severe, but it is important to recognize that scientists' emails may be FOIAed, otherwise released or even hacked.

Avoid using professional email accounts for personal correspondence and vice versa. FOIA only applies to government records; separating personal and professional emails reduces the likelihood that personal correspondence will be affected by a FOIA request or other investigation.

Learn and comply with the applicable document- and data-retention requirements, which vary by state but mainly depend on the scientist’s employer, funding sources and whether litigation is likely. Employees and consultants of public institutions should retain all public records. Public funding may also require certain record-keeping: for example, National Science Foundation grants stipulate that research data, including databases, must be shared. Even if there are no strict retention requirements, it is advisable to keep documents for at least a few years.

What Scientists Should Do If They Find Themselves Under Attack

Contact their institutional counsel and/or groups such as CSLDF. In addition to providing legal support, CSLDF also provides emotional support by connecting scientists under attack to others who have successfully navigated such situations.

Make a good-faith effort to preserve all documents relevant to the dispute, which can include even Facebook or Twitter messages, or documents stored on a personal computer. Generally, an organization’s attorney will issue a “document hold notice” when necessary, which provides details on what to preserve and how to do it.

Work with counsel to ensure that only necessary information is released. Personal information is very likely protected and, depending on the applicable state and federal laws, it may be possible to also protect aspects of scientists' academic work and other intellectual property.

While the politicization of science — and the resulting use of the legal system to attack scientists for ideological reasons — is a deplorable turn of events, there are things scientists can do to lessen the risk. Even in the worst-case scenario, remember there is support available from those in both the legal and scientific communities who are working hard to ensure that scientists can stay focused on their research.

[Author’s Note: This article discusses only U.S. laws and does not constitute legal advice.]

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