by Richard Schiffman, Comment Is Free, The Guardian, January 9, 2014
Scientist Michael Mann is being sued under freedom of information laws by climate change denial groups, seeking access to his emails. Photograph: guardian.co.uk
When Michael Mann chose a career in science, he didn't think that he would be denounced on billboards, grilled by hostile legislators on Capitol Hill and in the British House of Commons, have his emails hacked and stolen, receive letters laced with an anthrax-like white powder, and become the target of anonymous death threats.
Mann also did not imagine that he would be spending quite so much time with lawyers and in courtrooms. Today, he is the plaintiff in a controversial case that is being argued before the Virginia Supreme Court. It pits the scientist against a climate change denialist group, which is seeking to get a hold of several years worth of his emails, as well as those of dozens of other climate investigators.
Mann, who currently directs Penn State University's Earth System Science Center, is one of the authors of the so-called "hockey stick graph," which Al Gore used in his film, An Inconvenient Truth, to illustrate the precipitous rise in global temperatures since the dawn of industrialization when humans started spewing the heat-trapping greenhouse gas CO2 into the atmosphere. For the "sin" of helping to create this "exhibit A" in the scientific case for climate change, the conservative semimonthly, the National Review, called Mann "the Jerry Sandusky of climate scientists." Blogger Rand Simberg wrote on the Review's online site:
"Except that instead of molesting children, [Mann] has molested and tortured data in the service of politicized science."
The Penn State researcher didn't take this insult lying down. He sued the National Review and the Competitive Enterprise Institute, which also published the offending blog; the case is currently pending.
Mann is also challenging the American Traditions Institute (ATI) in court – they've recently changed their name to the innocuous-sounding Energy & Environment Legal Institute. This group, funded over the years by entities controlled by the Koch brothers and an assortment of big energy corporations like Exxon Mobil, is the one that wants Mann's emails. They say that they are entitled to this information under Virginia's Freedom of Information Act (VFOIA), which gives media and citizen's groups access to the documents of public employees. (Until 2005, Mann worked at the University of Virginia.)
ATI claims that they are just defending good science. But their view of science is an odd one. The group was instrumental in preventing North Carolina from using data on sea-level rise in planning their decision making. They are also going after climate researchers in Texas and Arizona and at NASA. Why are they so interested in getting their hands on the private correspondence of these academics?
ATI's counsel, David Schnare explained in an email:
"These emails represent a period of time when the science upon which major national and international policies have been based was being done. In light of the extremely important public policy issues that these emails informed, the public has a right to know what these government employees were doing and how they were doing it."
Freedom of Information (FOIA) laws, like the one being used by Schnare's group, were enacted at the federal level and also in many states to help insure transparency and accountability in government. They have proved invaluable tools for journalists and public interest organizations seeking to uncover information that some in government would prefer to hide. But applying these so called "sunshine laws" to academics at state-run academic institutions is something new.
It's a dangerous precedent, says Peter Fontaine, an environmental lawyer who began his career at the EPA and is one of the founders of the Climate Science Legal Defense Fund. Fontaine, who is representing Mann before the Virginia Supreme Court, believes that ATI is on a fishing expedition for anything they can find to embarrass Mann and cast doubt on the validity of his work. They've hijacked laws aimed at transparency, he told me, in order to intimidate scientists who are engaged in controversial research – a move calculated to have a chilling effect on the free and open sharing amongst colleagues which is essential in the scientific process.
Fontaine cites the Climategate scandal [non-scandal] in 2009 in which a server at the University of East Anglia in the UK was hacked into and the emails of leading climate researchers from around the world (including those of Michael Mann) were released on the internet. These emails – snippets of which were published out of context by denialist groups – were used, cynically Fontaine says, to undermine public confidence in climate science and those engaged in it.
"I was just appalled by the witch hunt which ensued after that," he told me in our interview. Fontaine contacted Mann and asked him if he needed any help – an offer which the climate scientist took him up on, resulting in today's litigation.
Mann and his lawyer have some powerful allies in their current fight. The National Academy of Sciences (NAS) has filed a friend of the court brief on their behalf, as have the University of Virginia, the American Association of University Professors.
NAS President Ralph Cicerone wrote me in an email:
"This is an issue of academic freedom for researchers and their universities. Broad requests for vast amounts of data and records are draconian and expensive. They add extra burdens, especially at US public universities. Over time, they would act to chill inquiry and stifle scientific progress."
Michael Halpern of the public interest group, the Union of Concerned Scientists agrees, saying that the email demand is the 21st century equivalent to eavesdropping on conversations around the water cooler. However, a scientist's right to privacy, Halpern admits, is not absolute. The science itself – the final data and research methods – needs to be fully disclosed, he says. But the scientist's private email correspondence should remain just that: private.
"Freedom of information laws rightly exempt internal communications and deliberations in order to facilitate the free exchange of ideas," Halpern says.
Not everyone agrees with this exemption. Media outlets including the Washington Post, the Associated Press, NPR and the Reporters Committee for Freedom of the Press have filed friends of the court briefs on behalf of ATI. Strange bedfellows indeed – the mainstream media teaming up with a right wing climate change denialist organization! The media groups aren't siding with the denialists on their trashing of climate science, of course. But they argue in their briefs that the public's right to know trumps the need of scientists to conduct their business outside of the glare of the public eye.
This is a shortsighted view. Surely we don't need to pit freedom of the press against academic freedom. Reporters know how vital it is to communicate with their sources confidentially – the work of journalism would scarcely be possible without this guarantee. They should be willing to grant the same protective right to privacy to the scientists who they report on.
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