Guest Post by Willis Eschenbach
A judge has ordered the University of Virginia to release Professor Michael Mann’s emails pursuant to a Freedom of Information Act (FOIA) request. Mann is the climatologist who developed of the “Hockeystick” graph, which became the icon of the IPCC climate alarmism … until it was shown to be what Dr. Richard Muller of the Berkeley Earth Surface Temperature [BEST] project called “an artifact of bad mathematics”. Mann claimed that the ring widths of a few trees in the US Southwest somehow revealed the temperature history of the planet. Seems extremely doubtful. Mann also features in the Climategate scandal as (inter alia) the scientist who (at a minimum) forwarded a request to illegally destroy emails that showed Mann and other scientists conspiring to subvert the IPCC process.
Me, I’m opposed to going the legal route to solve scientific problems. I’d like to think that scientific disputes could be settled between scientists. I have a very deep aversion to what in my childhood was known as “calling the law on a man.” I grew up in the old tradition of the American West, which held (and for me still holds) that calling the law should be the last resort, when all other methods have failed.
However, in this case, all other methods have failed. Professor Mann is famous for saying that asking him to reveal his data is “intimidation”. Even a Congressional committee hardly dented him. And the climate science community is famous for never, ever, ever saying anything negative about another climate scientist. Bad form to speak ill of someone’s work or actions, don’cha know, they might return the favor. And given those two facts, I fear that the legal route is the only one open for those who want to find out what Mann did while on the Virginia taxpayers’ dime. However, taking this route immediately raised a veritable poolpah of claims that this is invading Mann’s privacy, or that it is treading on Mann’s intellectual rights, or inimical to his scientific freedom, or other claims along those lines.
For me, the issue in this case is very simple. It is generally spelled out in the Employee’s Manual of almost any large organization, institution, or business. It says that while you are working for your employer, your time is not your own. What you write is not your own. What you produce is not your own. What you patent is not your own. What you email is not your own. What you discover is not your own. None of what you produce on company time belongs to you.
It belongs to whoever is paying you. Period. It’s that way for the majority of employees of virtually every large concern, and has been for many years.
So all of the squawking about “privacy” and “intellectual rights” and “private emails” is nonsense. If Michael Mann wants his emails to be private, he should be self-employed. If he works for a business, those emails are the property of the business. And if he works for the taxpayer, if the taxpayer is funding his work, then nothing done on “company time”, none of his work and none of his emails and none of his data or his computer code, are “private” or “personal” or “his intellectual property”. They are, as the court ordered, subject to Freedom of Information Act requests.
Mann, however, has found a curious ally in this fight, as reported in the “Old Virginia Watchdog“, which says:
ATI [the organization that brought the suit] hailed the decision as a victory for transparency, but there are concerns in the academic world that such measures could threaten the scientific community.
The faculty at UVA issued a statement the day of the ruling to that effect. Mann also has found an unlikely ally in University of California Berkeley physicist Richard A. Muller, who famously denounced the hockey stick graph as “an artifact of poor mathematics.”
“We need some degree of privacy,” Muller said Thursday in an exclusive interview with Old Dominion Watchdog. “Scientists alone should decide how and what to publish in their results, looking at private files in a public setting is an unfair standard.”
Whoa, whoa, whoa, Dr. Muller. If this was Court TV, I’d expect the lawyer to say “Assumes facts not in evidence”.
Who said anything about whether or not scientists should “decide how and what to publish”? As far as I know, no one has told Mann, or threatened to tell him, what or when to publish. Dr. Muller is falsely casting the issue as one of “prior restraint on publication”. He is wrongly claiming that someone is trying to decide what Mann can publish, which is a very serious charge with First Amendment implications.
Where is the evidence for that, for prior restraint? The FOIA request is nothing of the sort. It is a request for emails from six years ago and older. How Dr. Muller got from a request for six-year-old emails, to his claim of prior restraint or conditions on publication, is difficult to understand without drawing perhaps unwarranted conclusions.
The article continues:
Muller said he believes that public oversight could interfere with the scientific process and sees the FOIA request as an “indirect attempt to shut down Mann’s scientific work.”
If Mann ever gets around to actually doing some scientific work, as opposed to churning out endless attempts to justify his “artifact of bad mathematics”, I suppose that someone might try to shut him down. But that’s just a fantasy about an improbable future.
More to the point, again Muller is spinning this as being about the future, when it is about the past. People want and have a right to know exactly what transpired between Mann and his partners in “crimate” (the intersection of climate and crime). It’s not about trying to shut down Mann’s future work. The Climategate emails pulled back the curtain on a host of very ugly, anti-scientific, and possibly criminal actions. Mann was shown to be up to his neck in them, and the taxpayers have a right to know just what he did and didn’t do while they were paying his salary. Has nothing to do with an “indirect attempt” to do anything. We want to know what he did.
“I may disagree with his scientific analysis, but I object to him coming under public inquiry,” [Muller] said, invoking Voltaire.
Voltaire is famous for saying (but it seems never actually said)
I disapprove of what you say, but I will defend to the death your right to say it.
Voltaire didn’t mention public scrutiny, however. Nor did Voltaire mention trying to evade responsibility. Mann’s work is one of the cornerstones of the AGW movement, which aims to restructure the economy of the entire planet … and Dr. Muller doesn’t think that every aspect of Mann’s work that was paid for by the taxpayer should receive the closest scrutiny possible? Why is that?
I do not know why Muller doesn’t want people to look into Mann’s past, but he’s definitely concerned about it. Perhaps he is concerned that people might look into his own past actions, I don’t know. Maybe it’s just paranoia, the university variant of the fear of the MIB coming to spy on them. Whatever it is, it is important enough for Muller to invent a claim that the issue is prior restraint, which is very odd regarding a request for old emails. In any case, the article continues:
Muller said he is glad the emails came to light, but feels the “ends — snooping in on private conversations — do not justify the means.”
What is it with these guys and their idea of “it’s mine, mine, mine, you can’t see it!”. Those are NOT PRIVATE CONVERSATIONS, Dr. Muller. They are part of the work product of Dr. Mann’s paid employment. They are the property of the University of Virginia, they were paid for by the Virginia taxpayer, and (as the Court has ruled) they are subject to inspection by private citizens. Why is that so hard to grasp? Heck, I can paraphrase Voltaire myself, try this:
“I may disagree with Mann’s scientific analysis, but I will defend to the death the public’s right to see what he has done.”
The article goes on to say:
ATI’s request is separate from the investigation launched last year by Attorney General Ken Cuccinelli, who battled the university for similar documents in 2010 in the hopes of prosecuting Mann.
As I said above, I don’t like the legal route, particularly the Cuccinelli route. But the other so-called scientific safeguards have failed, leaving little option.
Muller stands by his rival even more stridently in that case.
“A public reprimand is unnecessary,” he said. “Their reputations in the science community have already suffered; that is the most appropriate punishment.”
That is patent nonsense. Mann is still feted and lauded, his papers are still accepted without the kind of suspicion appropriate to his past deceptions. Phil Jones is still churning along in his job. Trenberth is agitating to try to reverse the null hypothesis. The idea that the reputations of Mann and the other the Climategate conspirators have suffered is absolutely untrue.
But even if their reputations had suffered, Mann and the Climategaters are still leading the charge to impoverish the world and restructure the global economy, and Dr. Muller wants to make the claim that Mann should not face responsibility for his (perhaps criminal) actions because his reputation has supposedly suffered?
My goodness, a suffering reputation. Does it hurt a lot when that happens? Those university professors must be the real sensitive types. See, outside the ivy halls when someone does the things that Mann and the Climategate folks did, they can’t just whine “I’m an oppressed scientist and my reputation hurts already!” and expect to walk away scot free.
Beyond the ivory tower, people who deceive and subvert and collude end up hurting in more than their reputations. So I fear that Dr. Muller’s elitist claim, that the most appropriate punishment is to spank them across their academic reputations (and besides they’ve already been spanked enough), just reveals how truly distant the mainstream climate scientists are from the real world.
Mann and the other Climategate participants have never taken responsibility, much less apologized, for their actions. They have stage-managed the so-called “Investigations” so well that nothing at all was investigated. Yes, the investigation found nothing in Mann’s emails … because the investigators didn’t even look at the emails. In addition, not only did Mann never answer the important questions about the emails, he was never even asked about the emails. That’s not an investigation, that’s a joke.
And now Dr. Muller wants us to just forget about it and move on, because he thinks that the poor scientist babbies have suffered enough …
Suffered enough? They haven’t suffered at all, Dr. Muller. So far they have denied responsibility entirely. They have skated completely, to the applause of their co-conspirators and well-wishers, and go around proclaiming their innocence. And Dr. Muller, now you want to pat them on the head and say poor oppressed scientists, your reputations have suffered enough, go and sin no more?
I’m sorry, that’s not going to happen.
Given what we know, that Mann and others stand convicted by their own words for some actions spelled out in the Climategate emails, and that there is very strong circumstantial evidence of him and the others having done a variety of other unethical or perhaps illegal things, the reputations of Mann and the rest of the Climategate crowd have not suffered nearly enough. In this Climategate list I include any actual criminals, as well as the lesser malfeasants, corrupters, and data manipulators; those who looked the other way as others manipulated the IPCC results; those who aided and abetted them to do things like pack the peer review panels and intimidate editors; those who conducted sham “investigations” and covered up the egregious actions; and those who merely cheered them on in their dirty fight.
If this had happened in a business setting, where their loss in reputation would truly be commensurate with their actions, after the things that they have done few of the whole crew would be either employed or employable.
w.
Notice how defensive the defense is?
Several quick points:
a) Willis expounds masterfully on a point I’ve been making for a while – on principle I might prefer to oppose the Cuccinelli effort, but in the absence of (indeed, the strenuous avoidance of) any significant self-policing within the climate-science community it’s the only road available.
b) Dr Muller is sullying his own reputation and that of the BEST effort by attempting to prop up Mann and his apologists. Participants in the climate-science industry need to consider that a growing majority of the population no longer regards them as scientists but as politicians and lobbyists.
c) David Schnare notes “Second, I made a personal promise that if the protected documents exonerate Mann, I will say as much.” I’m sure we would all hope for no less.
Scott Brim at 7:58 am wrote: But going down the road of threatening Mann and the UVa with civil or criminal penalties for doing bad or unprofessional science — work that borders on fraudulent in my humble opinion — is a dog that won’t hunt, unless there are clear violations of Mann’s UVa employment contract with the University.
Mann forwarded without comment a request to delete emails that were protected under the FOIA. He also invented a “trick to hide the decline”, that was for a while adopted as an emblem by the IPCC (they later removed it from their web page.) Is that behavior a clear violation of Mann’s UVa employment contract? It seems to me that enough has been revealed, and the UVa and PSU investigations were so superficial, that the threshold for making a more prosecutorial investigation has been passed. If you disagree, how much more misbehavior would you require?
Willis,
This statement:
“R. Gates, since charming folks like yourself have prevented Mann and the others from facing the actual prosecutor…”
Is completely absurd. You know absolutely nothing about me, and so to make the statement that “charming folks like yourself have prevented Mann”…tells me you are truly way out of bounds on this one, which only further illustrates my point.
And then of course you just can only lodge a series of ad hominems toward me and such lowbrow comebacks as “Don’t like it? So sue me,”
Finally, the truth is, I am a rather charming fellow and could care less about the so-called “climategate” issue, or what happens to Michael Mann and his emails. This issue is really only one that hard-core skeptics keep holding on to as though it will change what thousands of research papers over decades and decades have shown. and nothing in those emails will change the facts behind the larger issue of anthropogenic climate change
But my apologies to the King for upsetting his royal rant…eh, pronouncements.
JEM says:
July 3, 2011 at 10:40 am
“Participants in the climate-science industry need to consider that a growing majority of the population no longer regards them as scientists but as politicians and lobbyists. ”
Bingo! My opinion exactly. It is my observation that the majority of the scientists in the CAGW movement/cult/industry ceased being scientists a long time ago, and instead morphed into eco-political publicity hounds and enviro-“rock stars” hungry for fame. money, and attention.
“…UVA is still going through the emails to determine which they wish to make public. Indeed, they asked us for more money to keep going on that…”
Ahh yes, UVA milks it for every dime. If they or the parties in the E-mails had any integrity there would be no need to do an in-depth analysis to see what info you can safely hide.
peat says:
July 3, 2011 at 7:00 am
“It says that while you are working for your employer, your time is not your own.”
In fairness, professors don’t typically use time cards. They often work far more than forty hours per week. As a professor, I sometimes find myself working early mornings, late at night, or on weekends. On the other hand, I sometimes do personal things in the middle of a weekday. Professional and private emails might be written at any time from the same account. I chair a committee on granting tenure and rank advancement in a physics department. We judge professors on outcomes rather than on how long or how hard they work. No one keeps track of or (for the most part) even cares how many hours someone puts in — just results matter in both research and teaching performance.
When a grant or research contract is agreed the University is required to define the number of hours that will be worked by each grade of staff and student on the project. The precise costings of these grades are detailed in terms of standard hours or course release and stipends. The staff are required to sign off that they will be available and will work those hours. The fact that in your experience the hours are not recorded nor are they checked shows that your establishments have not yet caught up with and not compliant with the quality control requirements of modern government and industry. For example a university that claims that 3 post-docs and 2 tenured professors with (declared resumes) will work on the project and then actually replaces these named staff with 2 grad students and some undergraduates, is committing fraud. A university that claims professorial capabilities and experience to get a grant or contract when that experience does not exist is similarly being fraudulent. I also know keen tenured professors whose work is their hobby and work countless hours to get things right. All this means in project management terms is those professors got their workload estimation wrong and the university will have to fund the overspend. Yes results and outcomes matter, but that does not mean that the Government can be defrauded into paying more taxpayers money than was needed, with the excess funding being used for ‘private research’, private travel or aggrandizement by the named professors.
@Dave Springer “… Speaking of company time, what exactly IS company time for salaried employees with no fixed hours?” When I was in the Army, being on salary meant your day was 24 hrs, even when your services weren’t specifically required, you were still required to behave in a professional manner. The funny thing is I was actually starting to think this AGW thing was a little more than plausable, it was the little bit of interpersonal banter and trash-talk that drop the “closed-ranks” feeling that everybody is doing a more than merely toeing the company line. Then climate-gate broke and DAMN, they went way past a little banter between otherwise professional and reputable people.
If I may paraphrase and create a fictional statement to make a point:
Everyone wants to be exempted from doing the right thing – especially if doing the right thing is not what they’ve been doing.
The whole idea of science itself is that you come up with theories and then test them. That means that all of your experiments and results have to be open to inspection by peers and the public. Trying to make yourself look good by publishing only those experiments that give the results you wanted, while making the rest disappear down the memory hole, is not science but fraud.
Therefore, any science journal worthy of the name would have a policy that it will publish the results of a study or experiment *only* if the existence and parameters of that study were made known to the journal *before* the study began — so that if some so-called scientist is in the habit of making his adverse results disappear, we’ll all know about it.
This is a bigger issue than whether the boss “owns” your communications at work. In effect, a scientist works for everybody.
Regarding those who think Professor Michael Mann’s may have deleted some emails.
For those who are unaware of how business and institution keep watch on all you internet activities I suggest you get informed regarding content management software of all flavors.
The business I work for uses Enterprise Content Management (ECM) systems. One property of this software is that every e-mail you send and every website you access, every attachment you send or open is recorded including https (secure sites) . Even if I were to send a google e-mail from inside the corporate network it would be recorded. All my intranet activities and intellectual property work on company time or similar business activities outside business hours are considered corporately owned.
Here is a link to one provider of ECM software.
http://www.opentext.com/2/global/products.htm
Remember we are living in a post 1984 world only its Big Business and Big Brother Gov. who are watching.
BTW you can’t delete an e-mail once it’s sent although you are given the illusion that you deleted it since your local computer has this property; your internet provider also uses ECM software.
R. Gates says:
July 3, 2011 at 11:15 am
R. Gates, it is not true that we “know nothing about you”. You have posted in defense of the actions of Mann and others here on WUWT. You claim that you “could care less about the so-called climategate issue” (despite posting your opinions about it).
And it is indeed folks like you, folks who think Mann did nothing wrong, folks who “could care less” about scientific malfeasance, who have prevented Mann and others from facing the music.
You come in here and the first thing you do is to accuse me of being an absolute despot with bad intentions. Then you get upset when I point and laugh at your foolishness? Get real. Karma is like hitting a golf ball in a tiled bathroom … no use getting mad at the bystanders when your shot just bounces back and hits you.
So the issues of scientific malfeasance, and the subverting of the IPCC, and the stacking of the peer-review panels, and the “trick” to hide data that stubbornly refuses to knuckle under, and the collusion of leading AGW scientists to deny others a voice in the journals, those issues mean nothing to you … why am I not surprised? Since those issues are quite important to ethical, honest, responsible folks, both scientists and otherwise, I can only draw one conclusion from your statement.
Well, at least you are consistent, your “apology” is just as honest, heartfelt, and accurate as the rest of your statements …
w.
Re …paulID says:
July 3, 2011 at 9:20 am
PaullD, can you clarify what you are saying above in the post dated July 3, 2011 at 9:20 am?
Are you saying that Dr. Mann had received funding and contracts from state and federal sources that were, from a legalistic perspective, completely independent of his employment relationship with the University of Virginia; and that therefore anything he agreed to as part of his employment relationship with the UVa — and also nothing contained in his employment contract with the UVa — has any bearing whatsoever on whether he did or did not violate written stipulations and requirements of other independent contracts he might have had with state and federal agencies?
If this is indeed so, then what responsibility does UVa have for any work Dr. Mann performed while he was pursuing these independent state and federal contracts, but while also in their employment? (Assuming these kinds of contracts existed.)
It seems to me that it would be a very strange arrangement indeed if Dr. Mann was allowed to use UVa’s facilities in pursuit of independently funded state and federally sponsored research without some kind of agreement being in place between himself and the University, with the most likely repository for such an agreement being his employment contract with UVa, plus any amendments or attachments that might have been made to it subsequent to his initial employment there.
In any case, regardless of where the written stipulations governing his professional behavior and the quality of his research products might reside, one cannot formally accuse Dr. Mann in a court of law of unprofessional behavior, and of producing fraudulent research materials in violation of written standards, without first citing the documented requirements which describe specifically what it was that was expected of him, and without demonstrating specifically how Dr. Mann failed to comply with any written requirements and stipulations which applied to him.
I knew R Gates was pushing his luck.
Nice retort Willis.
I saw it coming.
@ShrNfr
@Pamela Gray
@Willis Eschenbach
@Septic Matthew
Thanks for your comments in response to mine. I don’t disagree with anything said. (And I suppose I will start using a different email account for anything non work.) I merely wanted to point out that in academics “employer time” and “personal time” are sometimes hard to delineate. On the other hand, I certainly agree that processes used to produce research output (an expected outcome of work) needs to be transparent and made available when requested, which is something Mann apparently failed to do.
Sun Spot says:
July 3, 2011 at 12:43 pm
One property of this software is that every e-mail you send and every website you access, every attachment you send or open is recorded including https (secure sites) .
It might be recorded, but good luck actually reading anything sent over https.
We all have a right to privacy until there is reason to suspect that a fraud or crime has been committed. And, then, they come in and go through your life.
As Mann’s hockeystick graph(s) is patently bad science and constitute fraud, it is totally reasonable to explore whether this fraud was perpetrated while being paid with taxpayer money, in which case there are other crimes being perpetrated. The only way to investigate this is to gather and examine everything related to the period of work in question. There is nothing untoward in requesting EVERYTHING.
If you have ever been in a legal action, the opposition places demands for virtually everything except you dreams.
Ken Harvey says:
July 3, 2011 at 3:36 am
What many of us have is the suspicion that it is ingenuous to believe that what we have here is simply a matter of scientific dispute.
What we have here is failure to communicate.
Willis, excellent post as always. Thank you, i have said it to people before but you put it on paper so well that i could not do it justice. Way to “MANN” up!!!
Your response to R. Gates is entirely appropriate. Those who continue to support the outrageous and pervasive deceit and deception that have unfortunately become the hallmarks of climate science need to be called out on their arrogance, wrong headed thinking and complete lack of professional principles regarding how low climate fear proponents have sunk. Well done Willis!!
Derek Sorenson – it depends on the nature of the system.
Most institutions like UVA will run their own mail infrastructure, and will maintain their own archives and backups. In many industries (and perhaps in academia) it’s regarded as a business necessity to retain all communications sent or received for a period of years for legal reasons.
If someone is using e.g. gmail for corporate/university business without appropriate approval and/or logging then you’ve got an administrative issue.
Willis,
The only time I’ve ever mentioned Mann and “hide the decline” was to clarify gross misrepresentations of this issue by some of the posters on this blog– specifically about the tree-ring data, but this hardly makes me his defender. I will speak up when I see inaccuracies presented, regardless of who might benefit or get hurt by the truth.
Your certainty that Mann has done “unethical or perhaps illegal things” and that the “reputations of Mann and the rest of the Climategate crowd have not suffered nearly enough.” makes you hardly impartial or fair minded in this instance, and your willingness to see their reputations suffer without so much as a real trial (as if the world outside of skeptic-ville really cares) is what I find most worrisome about your post.
The FOIA requests for University of Virginia regarding Dr. Michael Mann’s correspondence, data, and other records are not nearly as simple as it may seem. Below is, verbatim, a section of Virginia’s state law known as “Virginia Freedom of Information Act”. This section describes the numerous exclusions to application of this law – meaning that every single record must be compared to each exclusion, and if it matches that exclusion it will not be disclosed.
source: Chapter 37, Code of Virginia, Title 2.2, beginning at Section 3705 and following, found at
http://lis.virginia.gov/cgi-bin/legp604.exe?000+cod+TOC02020000037000000000000
§ 2.2-3705.1. Exclusions to application of chapter; exclusions of general application to public bodies. … [Scads of legalese snipped. If people want to read it, you have the link. Please don’t post tons of text, folks. It weakens whatever argument you might be making. For example, in this case I have no idea what Roger’s point is, he lost me with the miles of text … – w.]
higley7 says:
July 3, 2011 at 2:05 pm
No, no, and no. While the rest of your post is correct, you’ve missed the point on that one. Mann has NO RIGHT TO PRIVACY when he is emailing from his employers computers on his employers business, nor does anyone else.
w.
“It is generally spelled out in the Employee’s Manual of almost any large organization, institution, or business. It says that while you are working for your employer, your time is not your own. What you write is not your own. What you produce is not your own. What you patent is not your own. What you email is not your own. What you discover is not your own. None of what you produce on company time belongs to you.”
If you actually read some university employee handbooks or contracts you would see that many of your assumptions are false. Often written work is the property of the faculty member and some measure of privacy of phone and email is assured. Grants are more complicated and some mixed ownership may be negotiated.