Guest Opinion by Kip Hansen
Foreword:
It pains me to write this opinion piece. As long-term readers here know, I have often defended Andy Revkin, ex-NY Times Environmental Journalist turned NY Times Opinion Section Environmental Columnist, here at WUWT, opening myself to attacks ranging from childish to vicious, and occasionally childishly vicious. Of course, when I comment at Revkin’s NY Times’ Opinion section blog, Dot Earth, whether supporting him or criticizing him, I am similarly attacked by soldiers on one side or the other of the Climate Wars.
Revkin recently committed what I consider a public journalistic offense, on his Dot Earth blog, which I had hoped to help him see in a different, more complete and fairer light, through private emails and by an advanced copy of this opinion essay sent to him yesterday (13 June). That effort failed and, in replies to my emails (in which he neither granted nor denied permission to publish, though explicitly asked), he has informed me of his reasoning and justifications (see the Postscript if that’s all you care to read). Truthfully, what Revkin says only makes his offense worse, in my opinion.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
NB: This opinion piece is about journalism, lack of, not climate science or the other issues involved in the Watts/Peterson affair.
Andy Revkin, NY Times opinion section columnist, the author and host of the NY Times environment opinion blog Dot Earth, covered the Watts/McKibben meet recently in this in his piece:
A Climate Campaigner (Bill McKibben) and Climate Change Critic (Anthony Watts) Meet in a Bar….
to which I left the following comment:
“….Kudos to Andy for this — and for today’s title identifying McKibben as a “Climate Campaigner” and Anthony Watts as a “Climate Change Critic”.
….
The most interesting thing is that these two men are thought of as exemplars of the furthest reaches of opposing views on the climate change — yet in reality are clear thinking, reasonable men who simply disagree about a subject fraught with scientific uncertainty.
My thanks to Andy for highlighting this little get together, which should, in a rational world, be an everyday occurrence as colleagues in a shared scientific field meet and chat about their personal views.”
I still hold that opinion.
Revkin then disappoints, adding the following update at the top of the column:
“Update, June, 9, 8:51 p.m. | Having been on the run overseas since the weekend, I’m only now catching up with Anthony Watts’s attack on Tom Peterson, one of the authors of a recent National Oceanic and Atmospheric Administration climate paper. The exchange, in which Watts accuses Peterson of prostituting himself and hints at fraud, occurred just before* he’d posted on his friendly meeting with climate campaigner Bill McKibben, described below.
Here’s my reaction:
Any notion that Watts is interested in fostering an atmosphere of civility and constructive discourse evaporates pretty quickly in considering how he handled his questions about that paper. Alternating between happy talk about rooftop solar and slanderous accusations is not constructive or civil.”
Challenged by readers, including myself, in comments, the only reply Revkin gives, to another commenter, is:
Andrew Revkin
Dot Earth blogger 12 hours ago
”I felt it was important to convey the “full Anthony Watts.””
In my opinion, Revkin has utterly failed in his duty as a journalist – the duty to find the facts and the context and report them without injecting personal or political bias.
He failed to discover the obvious fact that Watts had not attacked Peterson – Watts had sent a personal email to Peterson at his official government email address, stating a change in his [Watts’] personal opinion about Peterson’s scientific ethics. It was a harsh personal opinion, but it was personal, man-to-man, between men who should be colleagues and who have been communicating with one another on a one-to-one basis for years.
It is Peterson, a government employee, a government official, listed at climate.gov as “Principal Scientist at NOAA’s National Climatic Data Center.”, who turns this exchange of official government email into a public matter. How? By sending a copy of his government email to a tabloid-like slander-slinging climate-wars website in Australia – a site with known and repeated antagonism to Watts and bending-over-backwards loving-kindness for all things and persons in agreement with the IPCC Climate Consensus. [This is my personal opinion of the website in question, based on repeated reading of content there. WUWT is not responsible for my opinion in this matter.]
What Watts did not do: He did not publish his personal opinion publicly – despite being the editor and owner of the world’s most viewed website on climate (by orders of magnitude). He did not write a joe-romm-ish 1,500 word screed and send it to the tabloid press. That action would have been a public attack. He did not do that. There was no public attack.
The Questions that would have been asked by a True Journalist:
What? Answer: A personal communication between a citizen and a government official at NOAA, in which the citizen expresses a harsh personal opinion about his loss of trust in the public official’s work product and/or personal professional ethics, that has morphed in the blogosphere into an “attack on Peterson by Watts”.
Who? Answer: Anthony Watts, proprietor of the world’s most viewed website in climate matters and Thomas Peterson, as “Principal Scientist at NOAA’s National Climatic Data Center.”.
When? Answer: The original email exchange took place approx. 5 June. Thomas Peterson copied the email exchange with Watts from his official NOAA NCDC email account to a tabloid-like climate website in Australia on June 6, 2015 at 6:04 PM.
Why? Answer: Peterson’s real purpose in doing so is known only to him. But in his comment accompanying the copied email exchange he states “Dear Sou et al., I thought you might find an email exchange I had yesterday with Anthony Watts interesting.”
Does it bleed? Answer: [This flip question is ‘sorta’ what journalists ask themselves to see if there will be relevant public interest in the event.] Yes. US Government Official copies work-related email exchange to foreign web-based tabloid press, suspected of doing so for personal/political advantage in the Climate Wars.
Do we see these answers in Revkin’s journalistic effort? No, nothing in his published work product on this affair reflects that he even considered the context or the facts – other than the one-sided spin in the web-tabloid. Nothing in his response to criticism on his blog (where he gives only the one reply above) indicates that he even noticed that it was Peterson himself that turned a private communication into a “public attack” (although he knows Peterson made the email public) or that Peterson’s copying work-related government email to the foreign web-based tabloid press might be a violation of NOAA regulations or an government employee ethics offense. Or that it is extremely unprofessional at the very least.
In fact, it appears that Revkin’s only involvement with the issue has been to band-wagon on the politically-motivated Climate Wars blogosphere outcry – without reviewing the facts at all.
As of 11;25 AM today, I have had no response from Revkin to my comments on Dot Earth or to personal email to him requesting that he take another look at the affair.
I know that Revkin is over-committed time wise – holding what for most people would be at least two full-time jobs. Maybe he has been too busy to look more closely at the issue. If so, he should not have said anything until he took the time to review the affair properly in its entirety.
I invite him to do this review now and respond here at WUWT. (Or, if he wishes, he knows my email address and can comment fully to me off-the-record, with portions marked “OK for publication”, which he knows I will honor.)
I look forward to seeing a revision of his Dot Earth comments here or at Dot Earth.
# # # # #
Postscript:
I have received two replies from Mr. Revkin, which I do not have explicit permission to publish. Thus, rather than simply inserting them here, I will pull three fair-use quotes from them, which contain the essence of his reasoning and justification.
The first two quotes are from Mr. Revkin’s emailed response to an advance-of-publication copy of the above essay. In that response, the quotes are presented already as quotes, probably from his response to Anthony:
“What was notable was the contrast between your [Watts’] approach to Bill and to Peterson. I couldn’t justify the tone in what I wrote about your Chico meeting without an addendum reflecting what transpired here.”
“Suggestions of scientific fraud or prostitution, even in a personal email, are different (particularly given your policy about considering such missives ‘fair game for publishing,’ one presumes you figured this might end up public).”
My response to the above, though a great deal longer, can be summarized in this one extracted sentence: “Your reasoning is specious at best, even for a private citizen — as a journalist, they cut no ice at all. There is no journalism in that.”
The second is more damning, and came as a reply from Revkin to my response just above:
“Don’t take this wrong, but I really do have more important things to do than dig in further on this.”
What happened to the World Class Journalist Andrew Revkin? Has he hung up journalist spurs? placed his shiny Journalist Star in a shadow box and hung it on the wall? permanently shelved his pocket-copy of the Journalists’ Code of Ethics? Can it really be that he is simply too busy to do a proper journalist’s job?
Or has he traded all that in for the more-or-less anything goes rules of the Opinion Columnist?
Or has become just another echo-chamber partisan gunslinger on the Climate Team’s side of the Climate Wars, taking quick-draw cheap shots at those who others point out to him as opponents? unconcerned if he shoots down the wrong guy in any given shoot-out, too busy to check his aim.
Maybe this is what has become of the majority of science journalists …. They are all simply too busy to do their real jobs. What a sad sad day.
# # # # #
Note from Anthony:
Kip Hansen wrote this essay unsolicited. While I admit I used harsh words, probably the harshest I’ve ever used, I too was surprised that Dr. Tom Peterson chose to immediately send the email to the slimiest of outlets Sou aka “hotwhopper”, run by a person dedicated to denigration, who has not the integrity to use her own name: Miriam Obrien. While I regret that I didn’t choose my words better, I have no change in my opinion [after the NYT incident] on NCDC after what they did with Karl et al. 2015. And apparently, according to insiders, there was an internal fight at NCDC over the publication of Karl et al. 2015. I offered this backstory to Revkin, but he was uninterested.
Sadly, it speaks to the integrity of both Dr. Peterson and Andy Revkin that they consider this form of “journalism” acceptable.
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Anthony Watts says:
But his e-mail to Tom Peterson clearly said:
If Watts’s opinion hasn’t changed, why did he say he used to hold one opinion but now “no longer hold[s] that opinion”? That’s pretty much the definition of a change in opinion.
Reply to Brandon ==> You are confusing two different instances of “opinions” held by Watts.
One opinion, from the Watts email to Peterson, is “…you folks aren’t doing anything fraudulent, but you are doing what you feel is correct science in what you believe is a correct way”. Watts reports in the same email “I no longer hold that opinion.” Referring to the opinion in the previous paragraph of the same email.
In Anthony’s “Note from Anthony:” (at the end of my essay above), which he writes a week after the original email, and after the subsequent brouhaha, “While I regret that I didn’t choose my words better, I have no change in my opinion on NCDC after what they did with Karl et al. 2015.” This unchanged opinion is that Watts “no longer holds” the opinion that “…you folks aren’t doing anything fraudulent, but you are doing what you feel is correct science in what you believe is a correct way”.
I guess it can be confusing, I hope this clears it up for you.
I guess that makes sense. I took “after what they did” as referring to no change from before and after what they did. My interpretation was probably colored by Anthony Watts saying on Twitter that his e-mail did not accuse anyone of fraud because it said, “I believe you folks aren’t doing anything fraudulent…” even though the context:
Makes it clear that phrasing was used to explicitly state he no longer believed “you folks aren’t doing anything fraudulent.” Given he used a quote from his e-mail in a way exactly opposite it was used in that e-mail, I’m kind of lost on just what opinion Watts holds that hasn’t changed. If as you say:
Then why did he tell me he didn’t accuse anyone of fraud? Or as he put it, that he didn’t use the word fraud in an “accusatory framing.”
Reply to Brandon ==> It is a good thing that in the United States, the observers at a trial don’t get to stand up and give their legal opinions.
Anyone who wishes can read the original email exchange, it is in the public domain now, placed there by Peterson himself. The email exchange says what it says, there is no sense wresting it here.
No one is trying to hide Anthony’s opinion on Karl et al (2015) or that fact that he obviously feels that the authors fiddled and adjusted the numbers until they came out they way they wanted them. Or that he feels that that is not right, or that he no longer trusts them to do “correct science in what you believe is a correct way”.
What he doesn’t and didn’t do is accuse them jointly, or Peterson individually, of commuting the crime called “fraud”.
Obviously Watts doesn’t think they are doing proper, bias-free, political-influence-free science, at least not in Karl et al. (2015). he certainly wasn’t shy about coming right out and saying it.
Make a timeline.
============
Kip beat me to it. Brandon, read it again carefully.
=======
Brandon,
Please reread your two quotes:
“After what they did with Karl, et. al. 2015”
“After seeing the desperate tricks pulled in Karl 2015”
It seems abundantly clear that our host changed his opinion regarding NCDC’s intellectual honesty coincident with that publication, and holds to that revised opinion today.
Also, Revkin writes an opinion column, and can say pretty much anything he chooses without constituting slander. Anthony could have made a statement of opinion on this site, then laid waste to Peterson and Revkin.
Anthony chose the high road, and privately addressed the issue with an e-mail. Revkin’s sanctimonious pontificating borders on the silly.
Kim & Kip,
I have to remember to update the thread before sending a comment.
EdA the New Yorker:
I’ve had a comment in moderation for about two hours now which I think shows things aren’t as simple as you guys have suggested. Hopefully it’ll be released soon. In the meantime, I do understand your guy’s explanation. I just can’t see how it squares with what Anthony Watts told me directly when I said his position is what you guys say it is (on Twitter).
Once my comment clears moderation, you’ll be able to see what I mean.
Huh? I don’t remember anyone suggesting Revkin slandered anyone. Did I miss that somewhere? I honestly don’t know why you’re talking about him.
Regardless, opinion columns don’t do that much to protect one against charges of libel. The Supreme Court has made it abundantly clear things stated as fact in opinion columns still count as statements of fact for purposes of slander.
I don’t see how this follows. It is better Anthony Watts accused a group of people of committing fraud in private rather than in public, but it’s still a very serious thing to say. And as Revkin points out, it belies the notion of civility Watts claims to promote.
You can’t be taken seriously in calling for civility if you go around sending e-mails like Watts sent. You’ll just be perceived as a hypocrite. That’s all Revkin said, and he was right to say it.
Sorry to be the nitpicker, but slander is done in speech. Libel is done in print. Revkin wasn’t slandering anyone, or libeling anyone. He could write ‘dead pigs are LGBT wannabees’ and while he might be ridiculed for jumping off the diving board before they put the water in the pool, he’s a columnist, and ‘opinionator’ as Bush would say.
Oh wag-wag-wag, Revkin. As if Watts has one reaction to all stimuli.
I find that I have used the term “bully pulpit” repeatedly — a term that might not be in every reader’s lexicon. The Wiki gives this definition:
“A bully pulpit is a sufficiently conspicuous position that provides an opportunity to speak out and be listened to.
This term was coined by President Theodore Roosevelt, who referred to the White House as a “bully pulpit”, by which he meant a terrific platform from which to advocate an agenda. “
The biggest problem in the effort to sway public opinion on the climate (toward the obvious fact that Earth’s climate in the past 150 years has been perfectly normal): Leftists character attack, instead of debating their positions, while objective people like us too often try to debate our positions, and refuse to character attack.
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I would think that people who really care about the science of climate change would be used to receiving character attacks by now, and, in return, would treat the smarmy “warmists” with the lack of respect they deserve.
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No objective person or scientist ever has to apologize for calling a leftist “scientist” a liar (hockey stick chart), or a stooge of environmental activists, or a fraud for “adjusting” data to show more warming or eliminate the “pause”– that’s what they do to get government grants to play computer games for a living.
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A lot of men, and I suppose a few women too, would love to get government grants to play computer games for a living in an air conditioned office … especially if the alternative was collecting data / samples outdoors, or doing scientific experiments in a hot, smelly laboratory !
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No objective person or scientist ever has to apologize for calling a politician a parrot for repeating bogus climate statistics (“97% of scientists agree”), or a fool for treating computer games as if they are real science with real data, or a power hungry fascist for trying to make new laws through new EPA regulations, bypassing Congressional approval.
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The hacks who write for the New York Times are only allowed to publish leftist-biased views their editors approve — their left-wing bias in what they choose to publish, and what they choose not to publish, has been obvious for many decades.
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It would be foolish to expect a non-biased article in the New York Times (they recently attacked Republican Marco Rubio for getting four traffic tickets in 17 years, and buying a fishing boat with 10% of the money he made from writing a book, as if that was as bad as the Clinton’s billion dollar slush fund !).
My climate blog (for non-scientists):
http://www.elOnionBloggle.blogspot.com
” I don’t go to bed with no whore and I don’t wake up with no whore, that’s how I live with myself. I don’t know how you do it.” (Bud Fox’ dad in the movie Wall Street)
Whenever you are tempted to climb into bed (metaphorically speaking, of course) with a McKibben or any other known whore, just remember that quote and remember who these people are. They sell themselves (or at least their mind and their integrity) for pleasure and profit. Not much else need be known about a person than that.
If you think one of these guys has a ‘heart of gold’ (McKibben, in this case), just remember this; if they did have a heart of gold, chances are pretty good they wouldn’t have become a whore in the first place. There is no morally redeeming quality in selling your integrity or your mind. There is no ‘kind of dishonest’ or ‘sort of corrupt’ on the side that demonizes any who dare to disagree with the Great and Powerful Oz. Once you are on the medicine show wagon, you are a bought soul. If they were honest, they’d have left that camp behind years ago, when they first began to see the game for what it truly is.
Once you sell your soul, there’s no point in playing fair anymore.
This was my first response to your announcement that you were going to visit with McKibben. I didn’t hit the post button. Instead, I deleted it and posted not a word. I always pause and stop what I am saying when I find myself denigrating someone on an ‘a priori’ basis. This is usually exactly what happens. But now done is done and they’ve again proven that their team has zero scruples and no moral compass of any kind. I feel no compunction to pull punches or be delicate with what I call them. Any who would take the time to discover the facts would see this. So few will that it doesn’t matter. That is how they win. They lie, they cheat, they catch an honest broker in a trap and present the appearance that the person who made the effort to close the divide is in fact the bad actor. Did you think something else would happen than this?
In conclusion; stop laying down with whores and you won’t get burned by them any more. Or keep looking for that ‘broken angel’ and keep waking up with whores. Your choice.
Just my judgmental $0.02 on a dreary Iowa morning.
Because of this thread, I found out about dotearth. I like to be well informed so there is no reason to waste time visiting there again.
I’m a little confused. As Mr. Revkin has failed to permit Mr. Hansen permission to reproduce his copyright e-mails, and Mr. Hansen has obliged, why is Mr. Revkin not up in arms at the copyright infringement by Dr. Tom Peterson of Mr. Watts e-mails.
Copyright has been automatic everywhere since the Berne Convention (signed by the U.S. in 1989) permission to use copyright material, except small extracts for the purpose of literary criticism and other fair use. By publishing in Australia, Dr. Tom Peterson has breached copyright and has opened him-self up to the risk of civil suit. It also gives an indication of his attitude to the rights and opinions of others, perhaps that others rights and opinions are not important whereas the thoughts, rights and opinions of Dr. Tom Peterson are all important.
The US only adopted aspects of the Berne Convention. Not the whole thing. For example, in your country (I believe) and certainly throughout Europe, a screenwriter owns the copyright to any script he or she writes. Not so in the US. That’s because the Nickelodeon owners fought it tooth and nail at the beginning of the 20th C. and it stuck. A playwright’s right to absolute copyright protection was cast in stone long before the 20th C in the US; no one can change a playwright’s words. The assistant accountant to the make-up artist on a film can whisper word changes to an actor and probably get away with it.
Reply to Richard ==> Mr. Revkin did not refuse “ok to publish”, he simply did not do it. There is nothing in this story about copyright — it is not a copyright issue. Journalists do not publish personal communications Bi without permission, it is bad manners and poor journalism. I won’t do it, and you can’t get lower on the journalism totem-pole than me. Revkin would never do it either. But, once the personal communications is in the public domain — all’s fair apparently. What Revkin failed to do was point out that gthe fault in the affair was with Peterson, instead blaming Watts — schoolyard rules along the lines of “he said something mean about my friend” as an excuse and (paraphrasing) “I’m way too busy and important to actually check something out before I comment on it.”
Peterson has in all probability (almost certainly) violated US Government and NOAA (a US Federal Agency) regulations regarding handling of official communications (including email traffic).
Brandon, I believe that your assertion that Antony’s email is not a “record” is incorrect. Over the past few years, there have been numerous cases in which U.S. federal agencies recognize emails as “records”. Indeed, agencies e.g. EPA have regularly expurgated identifying information even on the identity of their own employees. For you to support your assertion, you need to provide a case decision, and I am hugely dubious that such a decision has ever been rendered.
Since Anthony’s email was sent to two people (Karl and Peterson), my earlier comment about “slanderous” is not quite as clearcut, though, since they were both coauthors of Karl et al, it seems unlikely to me that an email sent to them jointly could be considered “slanderous”, though it was uncivil.
Steve McIntyre:
Hrm? I pointed out the law’s definition does nothing to support your claim. You’re free to not agree with that, but just telling me I’m wrong does nothing to further the conversation. You would be every bit as obligated as I am to “provide a case decision” to support your claim. Actually, you’d be more obligated since your claim isn’t supported by the text of the law. My position could be summarized as nothing more than, “The law doesn’t say what you claim it says.”
Regardless of who has what burden of proof though, the Privacy Act of 1974 requires all systems of records be listed in the Federal Register. That means there is no need for us to cite a case decision. We can simply look at the Federal Register’s list of system of records.
Actually, we don’t even have to go to the Federal Register. Government agencies publish a system of records notice (SORN) for each system of records they maintain. The NOAA is no different. It has a web page for the 19 system of records it maintains. You can see it here. It even lists 22 general SORNs for the Department of Commerce since it is part of the Department of Commerce.
In any event, that is a list of the 19 systems of records the NOAA maintains, a list whose existence is mandated by the Privacy Act of 1974. If the NOAA keeps any records, as defined by the Privacy Act of 1974, which are not covered by those SORNs, it is breaking the law. So for your claim to be true, one of those 19 SORNs must cover e-mails like those Anthony Watts sent, or the NOAA must be breaking the law in an obvious way.
I challenge you to find an SORN which covers e-mails like Watts’s in that list, a case decision which supports your claim, or an explanation as to how the NOAA is maintaining a system of records which would cover Watts’s e-mail despite not having filed an SORN for it as required by law. I don’t think you’ll be able to. Because e-mails sent to individuals within an agency are not usually put into an system of records, and thus, aren’t usually covered by the section you cited.
Reply to Brandon ==> While your opinions on what constitutes a “record” under federal Privacy Act regulations would be of interest in a legal blog or a FIA discussion, it probably does not apply to Peterson. Peterson more likely violated NOAA rules about sharing internal work-related communications, like email with the public, without approval. Providing copies of emails to and from his official NOAA/NCDC email account with a web-based tabloid is pretty serious — in the corporate world, he would have been fired last week.
Kip Hansen:
If that law does not apply to Tom Peterson, that’s only because the people claiming he broke that law were wrong, which is surely a relevant point. The only reason I talked about that law is people claimed he broke it. That those people were wrong doesn’t make it uninteresting for me to point out they were wrong. That’s especially true given you yourself expressed an interest in the issue:
You said we’d have to see what people at NOAA or the AG’s office would have to say about my opinion on this law. If you’re planning on taking this issue to them, then a discussion of the issue is certainly of interest.
Maybe. There are plenty of rules and regulations within various agencies, and it is possible Peterson broke one or more of them. I wouldn’t know. If he did violate any rules though, nobody here has pointed them out.
Reply to Brandon ==> I am perfectly happy to leave the issue of whether or not Peterson broke federal or agency rules to those whose duty it is to enforce those rules.
I can only give my opinion that there are such rules, backed by some of the input here, and that he probably broke them — but it is not my job to prosecute — Peterson has his own superiors and agency ethics enforcement personnel to take care of that.
My essay here is about a Journalism Failure on the part of Andrew Revkin — Peterson’s ethical lapse, possible legal lapse, and certain lapse in professionalism are side issues for me. However, if Revkin had done his journalist’s job before commenting on the affair, he could have and would have found out what, if any, federal rules or agency rules Peterson did or did not break.
The comment section here is probably not the right venue to try to figure this out — that’s what we pay those bureaucrats and lawyers for, to do that for us.
Brandon,
you are simply wrong when you say “E-mails sent by people are not records under that law.” You have to be careful in trying to interpret laws. I can assure you that I’ve seen a number of federal FOIA requests for documents and that emails are consistently regarded by the U.S. federal government as records under FOIA, though they regularly refuse production or expurgate under various exemptions.
For example, EPA says http://www.epa.gov/records/faqs/email.htm#q4
I’ve never heard of any agency making an FOI refusal on the grounds that emails are not government “records” or because they are not a “system of records”, though governments have resisted on other grounds.
Looking through this section, I also noticed a provision that seems relevant to a prominent current U.S. political controversy which doesn’t seem to have been discussed in that context:
Steve McIntyre, it would help if rather than make comments like this:
You would address the things I’ve said to support my position. It is easy to say things like:
But that does nothing to advance any discussion. If anything, it shows why your response is so poor. This shows the very lack of carefulness in interpreting laws you caution me against. You claim under other circumstances, e-mails are counted as “records” therefore I am wrong. However, this ignores the fact words can be used in different ways in different laws. Even if what you say is absolutely true in the cases you describe, that does not prove e-mails are considered “records” under the Privacy Act of 1974.
That said, I’m not convinced what you say is true. Whether or not e-mails are considered “records” for a law has little bearing on whether or not they could be requested under an FOI. FOIs can request things which are not “records.” In fact, FOIs will often not be able to request (or at least, not obtain) things stored in “systems of records” because of the very privacy rights this law is meant to help establish.
That would probably be because you’ve created a false dichotomy whereby you pretend FOIs can only request “records” as defined by this law, one which agencies like the NOAA had never considered before.
If you’re referring to what I think you’re referring to, that’s because the provision you cite isn’t remotely relevant because e-mail servers are not systems of record as defined for the law you’re citing.
Brandon you are pointing out that the law is vague however the case law and administrative interpretation is not. E-mails pertaining to official business are considered records.
Revkin and McKibbens both enjoy up to 7 figure salaries, compensation which would be lost if they admited any skepticism whatsoever. To think otherwise is naive.
Also in additional response to Brandon above, NOAA has previously responded to FOIA request for documents, including correspondence, as including emails and produced some, refused others under various exemptions, but never argued that these documents were not “records”.
As I said in response to your other comment, that’s because whether or not something is a “record” stored in a “system of records” as these words are defined in the Privacy Act of 1974 has little, if anything, to do with whether or not it can be requested and obtained via an FOI request.
Again, as I pointed out above, the Privacy Act of 1974 requires all systems of record be listed in the Federal Register which anyone can view. It is trivially easy to find lists of the systems of record for dozens of agencies, none of which will include e-mail servers. That’s because e-mail servers are not considered systems of record for this law, and the e-mails sent to individuals like Tom Peterson are not considered records for this law.
Well that, or every federal agency is flagrantly breaking the law by not filing notice of systems of record for their e-mail servers. That’s what your position would require to be true. I think it sounds pretty crazy, but…
Brandon,
You have an unfortunate tendency to overstate your case. You may be right, but this issue is certainly not trivial. For purposes of the Privacy Act, there is a circuit split as certain courts have interpreted the definition of “record” broadly to include emails (e.g. Carlson v. GSA. Emails, while not directly mentioned, would clearly qualify under Tobey v. NLRB). Others have held that email is not a system of records (e.g. Abernethy v. IRS).
Having said that, the Privacy Act should not apply here as the email is not “about” an individual (see Tobey).
If it’s not about an individual, even less is it slander.
============
cyne:
I couldn’t find a Carlson v. GSA case, so I can only go off the other two you mention. Tobey v. NLRB clearly supports what I’ve said here. Abernethy v. IRS doesn’t say one way or the other specifically in regard to e-mails, but it does offer this important quote:
This clearly shows for there to be a violation, the information must be “retrieved from a system of records.” A person’s inbox is not a system of records. That means what Tom Peterson did could not possibly be a violation of this law like people are claiming.
As I said, I couldn’t find the Carlson v. GSA case you refer to, so I don’t know why you think it would show there is any lack of clarity on this issue. If you can provide a link, I’ll check it out. In the meantime though, the other two cases you reference make it clear the law does not apply here. I’m struggling to see why you think this isn’t a trivial matter.
So far, nobody has offered a single thing that does anything to suggest Peterson actually broke this law.
Brandon,
My access to Carlson v. GSA is through Westlaw. You can find it there or on any other legal database. If you have access to Bloomberg, you can find it on BLAW. It may not be freely available on the internet so you may need to do some research or pay a fee.
I cannot fathom how you read Tobey v. NLRB and claim that it clearly supports what you’ve said here. It does not. An appropriate email would qualify under the test used for “record” as enumerated by the court. Appellant’s claim failed because the record in question was not “about” an individual. As I plainly stated in my original response, this should apply to the current case. Perhaps you missed the part where I said the privacy Act does not apply to this situation because of Tobey. However, it has nothing to do with your assertion that email is not a system of records.
As regards Abernathy, the test used there would clearly exclude emails. I said that plainly. See also Counce v. Nicholson which is even more on point. However, this fully consistent with what I said in my original comment – there is a circuit split with the second and third circuits broadly interpreting “record” while the ninth and eleventh circuits have taken more narrow views.
Seeing you appeared to misunderstand me the first time, I’ll summarize my points. The Privacy Act does not apply here. It does not apply because Anthony’s email was not “about” an individual. Whether or not an email is a “system of records” is a separate issue and is unsettled law. This is not trivial and your repeating your claim doesn’t make it any stronger.
cyne:
Or you could, you know, quote the relevant portions. Or summarize the case. Or anything other than just resorting to the time-honored argument of, “Look it up.”
While you may not be able to “fathom” how I came to my conclusion, I’d suggest that may be because this approach to discussion where people just say things are true without doing anything to support them is a bad one. Since you’ve decided to reference the test in Tobey v. NLRB without actually explaining what it is, I’ll quote the decision:
E-mails are not information “about” an individual, therefore they are not considered records per the Privacy Act of 1974. Similarly:
Again, e-mails sent by a person are not information “about” that person. You may not be able to “fathom” how I conclude this case supports my position, but given you’ve done nothing to explain why it wouldn’t, I “cannot fathom” how you conclude otherwise either. I’ve at least consistently explained my position.
I understood you just fine. I just think nothing you’ve said has supported your contention there is any dispute over whether or not e-mails are considered “records” for the Privacy Act of 1974.
And again, I’ll remind everybody the Privacy Act of 1974 explicitly requires all systems of record for the federal government be registered in the Federal Register. Not a single e-mail server is listed there. If Anthony Watts’s e-mail was considered a “record” under the Privacy Act of 1974, that would mean the NOAA’s e-mail server was a “system of record.” And that would mean the NOAA had violated the law by not registering that server. That would also be true for every other federal agency since none of them have registered their e-mail servers as systems of record.
E-mails may be considered “records” under other laws, but for the Privacy Act of 1974, they are not.
Or if they are, every federal agency is breaking the law.
Brandon,
I feel that I am wasting my time with you. You like to argue and you don’t like to admit when you are wrong. You are not prepared to spend any time to get access to cases I cite and then resort to sarcasm because I don’t summarize them for you. Ok, I’ll summarize Carlson if it makes your life easier: an email about an employee’s wrongful termination claim was regarded as a communication of a protected record under the Privacy Act. If you don’t believe me, look it up yourself. I can’t help you anymore.
As regards, your interpretation of Tobey, it is laughable. Have you ever taken a single class in statutory interpretation? If so, you should ask for your money back. You state: “E-mails are not information “about” an individual, therefore they are not considered records per the Privacy Act of 1974.”. This is completely at odds to the decision of the court. Read the judgment again. There is only a two pronged test: “…First, in order to qualify as a record, information must be “about” an individual. Second, in addition to being “about” an individual, the information must contain the individual’s name or other identifying particular….” Take the situation in which an email contained an employee’s performance review. Under the Tobey test, this would constitute a record and communicating this record would be be a Privacy Act violation. Under Abernathy, it would not be a violation as there is a far more rigorous test as to what constitutes a system of records. The appellant failed in Tobey because of the content of the “record” not the form. If you can’t get this and understand there is a clear circuit split (that any lawyer who works in this area knows) then, again, I can’t help you.
You repeated point about email servers not being recognized is not helpful to your argument. They are not recognized as such because the agencies do not plan to use them as systems of records “about” individuals. This does not mean (at least under Tobey) that they cannot be used as a system of records about individuals.
I apologize for my intemperate language, but it can be very frustrating dealing with someone who refuses to admit errors when clearly wrong.
cyne, is this a joke?
I found two of the three cases you referenced, read them and quoted one of them. The only case I didn’t find is the one you yourself said I may need to “pay a fee” to read.”
Wasting your time? You apparently feel it is okay to require people pay money to look up references you are too lazy to even quote.
That’s not how discussions work. If you can’t even be bothered to quote a reference or provide a verifiable source for it, people have no reason to believe it says what you claim it says. You could easily help me more. All it’d take is for you to provide something that actually supports what you claim.
You complained about my use of sarcasm, but you behave like this? That’s silly.
No it would not. Even if an e-mail contained a record as defined by the Privacy Act of 1974, if that record was not obtained from a system of records, the law doesn’t cover its disclosure. More on point, that an e-mail can contain a record as defined by the law does not mean e-mails are, in and of themselves, records like you’ve claimed courts have ruled. In fact, it proves the opposite.
But you can constantly make derisive remarks while refusing to actually do basic things that are expected in discussions, like providing support for what you claim.
That isn’t remotely close to true or supported by anything in the case you cite. And even if it were, it would do nothing to contradict what I said. The Privacy Act of 1974 explicitly requires all federal systems of record be registered. Claiming there are things which count as systems of record for the law but don’t have to be registered would completely undermine the purpose of the law.
Sure. And apparently people are “clearly wrong” the moment they disagree with you, before you’ve said a word to show they’ve gotten anything wrong. And then when you finally do try to say why they’re wrong, you spend 90% of your time mocking them instead of actually contributing.
You are certainly wasting your time with me, but that’s not because of anything I’ve done. It’s because you’re refusing to meet even the simplest of standards for having a reasonable discussion.
So I’m not going to pay money to look up information someone else chooses not to provide, but I did find a bit of information on the Carlson v. GSA case referred to above. It turns out cyne was right to say:
But wrong to fail to point out the significance of this remark. This discussions began when people suggested Tom Peterson violated the Privacy Act of 1974 by sharing the e-mail Anthony Watts sent him. That act prohibits disclosing individuals’ records (with exceptions, of course). The argument has been that Watts’s e-mail would qualify as a record.
cyne says an e-mail about a person’s wrongful termination claim “was regarded as a communication of a protected record under the Privacy Act” of 1974. That is true. It is also very misleading. The reason it was considered communication of a protected record is the person who sent the e-mail included what was considered to be a “protected record” in his (her?) e-mail.
That does nothing to address the issue at hand. I said “e-mails sent by a person are not information ‘about’ that person.” That you can include information about a person in an e-mail you send does nothing to rebut that simple point. You could disclose a “protected record” in a face-to-face conversation. That doesn’t make your face-to-face conversation a “record” under this law any more than it makes an e-mail a “record.”
This case is nothing but a red herring. Even worse, it is one cyne insisted I look up rather than provide himself, an insistence strong enough he felt it was fine to require I spend money on it. That is like a climate scientist derisively telling a skeptic they don’t know what they’re talking about and pointing to a paywalled paper which doesn’t actually say what the skeptic argued.
So yeah, Tom Peterson definitely did not violate the Privacy Act of 1974. And despite how many comments people have posted to suggest he has, there isn’t the slightest shred of evidence or logical argument to say he has.
Brandon,
This is hopeless. I have read some of of your technical analysis and you are an intelligent person so I can only assume you are deliberately misunderstanding what I wrote and deliberately misinterpreting Tobey. However, i will give you the benefit of the doubt and assume you are debating in good faith.You again repeat your assertion that ““e-mails sent by a person are not information ‘about’ that person.” Again, this is unsettled law. Under Tobey, an email can be information about a person. Again I can’t fathom how you can read Tobey and reach your conclusion. The question in Tobey was whether a Case Handling System was covered as a “record” under the Privacy Act. In order to reach its conclusion that it wasn’t, the court looked at the specific information contained in the CHIPS system. They ruled that such information was about cases, not about individuals. Any references to individuals were incidental to the case information. Therefore the appellant failed. If the system had been about individuals, the ruling would have been different. To repeat myself, I can’t fathom how you can read this and not reach the conclusion that the Court used an expansive definition of “system of records”. I also cannot fathom how you claim this reasoning would not apply to an email. Tobey used two factors only to consider whether something is a system of records: (1) Is it “about” an individual (2) does it contain the individual’s name or other identifying particular. If the policy of an agency is that performance reviews are maintained on email, then that email is covered under Tobey as it meets the two simple tests. No rational person could claim otherwise and you have made no cogent argument to the contrary. As I said, Tobey is not universally accepted and other courts have dissented.
You seem to have now done a fair degree of research on the topic. I assume your research has revealed that there is a circuit split on how broadly to define system of records Do you agree?
As regards your other comments, with all due respect they are either red herrings or misinterpretations. I’m not going to even bother rebut them if you can’t accept the basic analysis I wrote above. Why should I waste any more time. This posting is long enough and I don’t want to give you any more free lessons which you refuse to understand.
And I said from my very first posting that Tom Peterson did not violate the Privacy Act. So your last comment is a red herring. Anthony’s email was not about an individual. But you are wrong when you claim that email can never be a system of records. Under Tobey, it can.
I apologized earlier for intemperate language. But it is incredibly frustrating dealing with someone who clearly has no background in an issue, but boldly makes definitive statements that are laughable to people who are actually educated in the area and is not prepared to accept correction. Just as a matter of curiosity, in the multitude of posting you have made on various blogs – have you ever admitted you were wrong? (Cheap shot – I know.).
cyne:
Remarkable. When you like what I have to say, it gives you good impressions of me. When you don’t like what I say, you can only assume I’m a liar.
It might help you understand things if you’d bother to actually do anything to support your claims other than make derisive remarks. Despite repeatedly insisting cases say things, you’ve yet to provide a single quotation or piece of evidence for a thing you’ve said. And when I quoted your own sources, you didn’t say a word about the quotation.
It’s fascinating how you claim no “rational person could claim otherwise,” implicitly implying I’m irrational, say I haven’t made a “cogent argument to the contrary,” yet fail to address anything I’ve actually written. Not only do you adamantly refuse to quote your sources to explain how they support your claims, you refuse to quote me to support how what I say is wrong.
And you apparently think it is okay to do this because, if I were interested, I could pay money to get copies of the sources you refuse to quote.
You keep talking about this being a waste of time, yet you keep coming back to not quote or address anything in a direct manner. You do nothing to support anything you say, and the grand sum of your arguments might as well just be, “I’m right; you’re dumb and dishonest.” If this is the waste of time you claim, that is only because you refuse to behave in anything resembling a reasonable manner.
I hope you realize how silly this sounds. If you actually have the level of knowledge your portray yourself as having, you should find it easy to respond to me in a far more substantive manner than you have. I could easily say all this about you, and it’d have just as much merit. In fact, it’d probably have more merit since I at least knew how to quote the sources I use.
Hey, look at that! If you admit you’re making a personal attack, that means it is okay! Oh wait. No, it doesn’t. Admitting you know what you’re doing is wrong just makes the fact you’re still doing it even worse.
But because I get this stupid attack on a regular basis, I’ll answer the question. Yes, I’ve admitted being wrong on numerous occasions on multiple blogs. This is easy to demonstrate, and people pretending I refuse to admit mistakes are just foolish.
Brandon,
I believe I fully rebutted your strained interpretation of Tobey, but you seem to disagree though without substantively addressing any of my analysis. Ok, let’s try take this step by step. Before I respond to your latest, please will you answer the question I posed earlier: “You seem to have now done a fair degree of research on the topic. I assume your research has revealed that there is a circuit split on how broadly to define system of records Do you agree?”
Let’s try to start with a point of agreement and maybe we can progress.
Brandon, I respect the work you have done in exposing Cook, Mann and the other climate alarmist frauds. Off late, you are digressing unwantedly into areas where you patently are wrong and arguing for the sake of argument, with no basis. Please quit being pig headed, especially when it’s [obvious] that you are wrong.
Venter, I find it remarkable how often I’m told I’m “arguing for the sake of argument” and it’s obvious I’m wrong by people who disagree with me. I’ve gotten the same response when I discussed the Cook et al paper. I’ve gotten the same response when I discussed Michael Mann. I’ve gotten the same response when I discussed Stephan Lewandowsky. I’ve gotten the same response when I criticized BEST.
It pretty much always comes from people who either cannot or will not offer an actual argument against what I have to say. I’ve gotten to the point where I just tune it out. It’s reached the point where no matter how right I may be or how much one side of a dispute may agree with what I say, I expect people on the other side of the dispute to say things like you just said.
Here’s your government and press at play.
Don’t you think there’s a better way?
===============
Well, as intimated above, there was schism in the inner circle over whether or not to release Karl et al. There must be some there who recognize what poor science this was.
So, in the process of ever improving science, which branch of the schism is more likely to thrive?
It’s naive to expect this soon, but it’s even more naive to think it won’t happen.
=======================
U.S Fish and Wildlife service bulletin on treating email as federal records:
http://www.fws.gov/policy/m0089.html
Reply to Anthony ==> Thank you, Anthony, for filling in that bit. It is almost certain that there is an equivalent interpretation at NOAA.
(I was getting tired of the legal wrangling here on a piece about journalism, though I respect the right of readers to discuss whatever winds their clocks.)
Again, the word “record” can be used in different ways depending on the situation. The link Anthony Watts provides an explicit reference to the definition of “record” it is using (44 U.S.C. 3301). That reference uses a different definition than the Privacy Act of 1974 does. It says:
But the Privacy Act of 1974 says:
The two are very different because they are intended for different purposes. There is no reason to conflate them.
As for whether or not this matters, people have portrayed Tom Peterson as having committed a crime based upon the flimsiest of excuses. And they keep defending that position. As long as people keep suggesting Peterson is a criminal, I think it’s necessary to keep pointing out he didn’t break the law people are citing.
It seems to me that Anthony has been libeled as a slanderer. I’d like to be wrong, but what is untrue in that email?
Actually, I’ve mixed feelings about liking to be wrong. What a test case, but what an ordeal!
========
On the one hand:
I agree that Peterson should not have published the email. (Regardless of where)
On the other:
Nobody who engaged in the complaints about scientists based on Climategate email has standing (in the casual sense of the term) to complain. Even if it were the case that all email on a government server were public (which it isn’t), or that all email written by a civil servant were public (which it also isn’t), there’s the fact that many of the mails were written by people from outside — as Anthony is outside of NOAA. The only difference of kind is that this time, the recipient of the email made it public rather than a hacker.
Vis. the legal arguing:
Wow. My wife is a lawyer, which leads to discussions about standards of evidence and what is or is not a legal argument (in the sense of being the way that lawyers make arguments). Most of the comments on this have been bad enough that even I can see why my wife rolls her eyes sometimes.
It’s certainly _possible_ that an email could be a ‘record’. But the fact that it _could_ be so does not make it one. Else nobody could ever delete a message from their inbox — not even the trillion reminders about meeting times, or ads, etc.. As a legal argument, the ’email is records’ is nonsense.
There are requirements for something to be a ‘record’. To be serious about it, you need a lawyer who has specialized in this area. But one really elementary guideline is that it’s something used for decision making. On its face, it’s exceptionally hard to envision that Watts’ hostile email would be used for decision making in NOAA. Now, if Peterson were fired on the contents of that email (or promoted), then there’s a decision and the email would then be a ‘record’ (maybe; at least it becomes a not so trivial question). Anybody truly think that Peterson will be fired or promoted based on that letter, which says merely the same things which have been said very publicly here for years about NOAA (+ US government scientists, or, indeed, anybody in climatology who reaches conclusions which are disliked here)?
Robert Grumbine says: “It’s certainly _possible_ that an email could be a ‘record’. But the fact that it _could_ be so does not make it one. Else nobody could ever delete a message from their inbox — not even the trillion reminders about meeting times, or ads, etc.. As a legal argument, the ’email is records’ is nonsense.”
If you have paid any attention to various recent e-mail scandals government employees are not allowed to delete their e-mails. Government agencies are expected to archive e-mails. One can only delete the e-mail form their client.
Found this powerpoint from homeland security
http://www.archives.gov/records-mgmt/toolkit/pdf/ID317.pdf
slide 5
E-mail meets the statutory definition of a record.
Game set match you lose McIntyre wins.
Robert Grumbine says: “even I can see why my wife rolls her eyes sometimes.” If your wife has to read your legal analyses, I can understand this as well.
Emails are regularly produced by agencies in response to FOIA requests, including emails that were not used for decision-making. Sometimes emails about setting up meetings are relevant. Whether “all emails” are records is not at issue, only Peterson’s unilateral dissemination of Watts’ email.
If a FOIA request had been made on June 7, 2015 for NOAA documents evidencing correspondence between Peterson and Anthony Watts during 2015, it seems to me that NOAA would almost certainly considered the email in question as such a document, though they may or may not have produced it or expurgated it. It would be retrievable by a search of Watts’ name. I cannot imagine NOAA seriously arguing that the email was not subject to FOIA because it was not a “record” that was valuable for subsequent decision making. Your attempt to connect the issue to whether the document was relevant for subsequent decision-making is precisely the sort of poor legal reasoning that makes your wife roll her eyes.
In regard to your point about deletion of emails, it is entirely possible that NOAA’s document policies would not have required the retention of the email and that it would subsequently be deleted from NOAA archives under those policies. After such deletion, it would no longer be a NOAA record. The fact that NOAA might subsequently be entitled to delete the email from their records does not mean that Peterson was entitled to distribute the email. Your wife’s eyes ought to be rolling at you once again.
As to hypocrisy, I agree that there is plenty of it to go around in connection with Climategate. Many of your, shall we say, fellow travelers called for police investigations and the severest possible punishments for “Mr FOIA”. So you can hardly, without hypocrisy, claim that Peterson should be entitled to violate rules with impunity, as you appear to be arguing. I do not recall Climategate critics arguing that hacking could be carried out with impunity and most critics understood that Mr FOIA was at considerable legal risk. If Peterson believed that bringing Anthony’s email to public attention was sufficiently important to break government rules (if he did), then he should obviously be prepared to accept the consequences – though, being a civil servant, these are undoubtedly mild.
Peterson also has received some mild discipline in the past for inappropriate conduct in respect to opponents. You may recall that the NOAA Inspector General found that some of Peterson’s Climategate conduct was “inappropriate” as it raised issues about his objectivity. This led to their suggesting that NOAA take actions in respect to Peterson’s conduct, which took the mild form of Peterson being “counseled” by his supervisor. Obviously, Peterson didn’t take the “counseling” very seriously.
If you were to read the first thing I said, you’d notice that I did not approve of Peterson publishing the email. The hypocrisy is yours, not mine. Or perhaps you can point me to the article(s) of yours where you condemned the hacking, rather than the scientists whose mail was hacked. I certainly find the latter easily.
So you’re yet another denizen who doesn’t understand the difference between ‘can be’ and ‘is’.
‘fellow travellers’, ah, the ‘good old days’ of Commie Hunting, Joe McCarthy, and name-calling as a way of costing people their careers. Thanks for the reminder of what you stand for.
Most interesting is the fantastic psychic powers you claim to have — knowing what my wife thinks of me better than I do, or than she does. You’ve never met me, and you’ve never even had electronic contact with her. Most impressive.
as to your own name-calling, your McCarthy-baiting is very distasteful and false. My grandfather was chairman of a commission into civil rights in Canada that was a landmark in Canadian administrative law.
I supported human rights long before I ever heard of climate. I immediately sharply criticized Cuccinnelli’s investigation into Mann on human rights grounds – a point acknowledged even by opponents, even, as I recall, by Mann. I went to a Heartland conference in 2010, in part to voice such views to an audience that was mostly unsympathetic to such opinions.
You agree that Peterson “should not have published” the letter, but your reasons seem unclear. Based on the rest of your comment, you seem to argue that Peterson did not breach any obligations of his office in publishing the email, thus reducing the issue to one of etiquette. Based on my understanding of the relevant law – and it is tentative – it strikes me that it is more than merely a breach of etiquette. I would defer to informed legal analysis on the point, but not to yours, which is unconvincing. If your wife does not roll her eyes at your particular legal analysis when it is unconvincing, I presume that she is showing restraint out of affection, rather than deference to your insight.
Steve, you are the one who introduced the McCarthy language to the discussion. If you find McCarthy language distasteful, don’t use it. If you use it, don’t whine about someone noticing whom you’re modelling your language after.
You still haven’t pointed to a response of yours opposing the hacking in climategate, which is the example at hand.
As far as my opinions re. Patterson publishing the email: I consider it immoral to post other people’s email without their consent, irrespective of whether it is illegal. It’s also illegal wrt the Berne Convention on copyright, though what damages could be collected is likely minimal since nothing is in the letter that Watts hasn’t said publicly. Probably isn’t fattening.
Where things got eye-rollingly bad was invoking the Privacy Act, Official Records laws, and the like. Few things that Patterson would ever touch could fall under either. If most did fall under either, then essentially everything ever done anywhere in the government in paper/program/email/…, would have to be maintained forever. Which is a practical impossibility. Could be is not ‘is’. As I said, though, if you (any of you all) want to get serious about these laws, you’ll have to get hold of a lawyer specializing in these matters. I’m sure they’ll be happy to discuss it with you, for a fee.
Anyhow it’s amusing that you stay with your claims to tremendous psychic powers, not only knowing what my wife’s eye-rolls are at, but knowing why she doesn’t at other times.
It’s particularly amusing given that I know what happens when my wife thinks I’m even potentially wrong, and how fast I find out.
Robert Grumbine Says: “If most did fall under either, then essentially everything ever done anywhere in the government in paper/program/email/…, would have to be maintained forever. ”
Uh yes. Agencies are supposed to archive e-mails. Why do you think we have had so much controversy over deleted e-mails?
Nothing you are saying is at all logical or even correct.
Robert, I suggest that we mutually dial back the rhetoric, as both of us gone somewhat outside our usual range.
My point in raising the question of Peterson’s legal liability was that I thought that there was a mildly interesting legal issue. Many such speculations about legal issues have taken place over the past few years, including discussions at the time of Climategate, about which laws, if any, may have broken by Mr FOIA (or, for that matter, by Phil Jones and others. )
One can engage in such discussions without “condemning” someone, either implicitly or explicitly, but merely out of idle interest, which, it seems to me, is the relative level of interest that both you and I have in this particular matter. In that vein, it was silly of me to snipe at you. I disagree with your legal analysis but there was no need for me to attach needless editorializing and I apologize for that.
Having said that, viewed simply as idle legal speculation, I think that your analysis of the legal issue is incorrect. Even if Peterson breached a regulation, I doubt that NOAA would do anything about it. Nor on a scale of all the issues in the world am I particularly concerned about or offended by Peterson’s conduct. But it does seem plausible to me that he breached the regulation referred to above.
Robert,
as a Canadian, the term “fellow traveler” does not immediately invoke a U.S. political phenomenon of the 1950s. The term had usage in other parts of the world, including Canada and England, prior to McCarthy and separate from McCarthy. It’s xenophobic on your part to assume that I, as a non-American, am “modeling” my language on an American politician. Having said that, you have pointed out that it does have such associations for you as an American, something that I had not anticipated, but which I understand.
To a very considerable extent, Canadians tried to avoid the excesses of McCarthyism and it is not an important issue in Canadian political heritage. My grandfather had personal experience with the Un-American Committee, though in an unusual role. In the early 1950s (and here I’m recalling from his biography), the Un-American Committee wanted to interview Igor Gouzenko, whose defection had revealed the notorious spy rings. Arranging for such an interview within Canadian law while avoiding the circus of U.S. politics presented a conundrum for Canadian authorities. My grandfather, then a chief justice in Ontario, was chosen to preside over the session and took great pride in ensuring that the hearing was formal and disciplined.
You say:
Be that as it may, NOAA regards emails as records that they are obliged to search under FOIA. Here is a quote from a NOAA decision:
So your argument that the emails are not “records”, as I stated above, is not one that NOAA itself holds – so allow me to roll my eyes a little.
A logical question to ask oneself is whether the Watts email would have been produced in response to an FOI request. U.S. agencies have frequently refused emails for various reasons, including privacy interests. It seems that there would be a principled legal argument for protecting some privacy interests, but not others, though the Privacy Act may well not be correct perspective for looking at the question.
I really cannot believe that with all the e-mail scandals that have happened in recent years there are those who still trying and argue that e-mails are not records. The law might be slightly ambigious but the case law is not. This is an issue that is already settled and need to be debated on a blog. The official case law is that any e-mail relating to official business is a record.
Anthony e-mailed about official NOAA business . That makes it a record. Its pretty clear that the release of this record violated the Privacy Act.
Steven:
xenophobic, I’m not, nor is it derivable from my ‘error’. Parochial, perhaps. (Though that’s also untrue.) My Canadian son will be particularly amused at me being called xenophobic. My coworkers, most of whom are from outside the US, will also have a chuckle.
Ironically, it’s the fact that I _do_ know Canadians that lead to that ‘error’. Namely, as they themselves point out routinely, Canadians have a pretty good idea about US history. Regarding things like McCarthy, they average better knowledge than US people (in my experience). In parts of the US, textbooks are being rewritten, curricula modified (or, at least in both cases, it’s being argued in favor of at high levels) to portray McCarthy as a hero. Not likely in Canada, afaik.
Then, as you elaborate after my initial response to your ‘fellow traveller’, you have even more reason than most to know McCarthyism for the evil it is. Yet you used McCarthyist language anyhow. I’ll take your word you had no such thoughts.
But McCarthy aside, guilt by association is not the argument of someone who has the facts on his side or is interested in serious discussion.
I agree with you that there’s a point of potential spectator’s interest regarding whether Peterson broke any particular US laws. Raising the notion was not the eye-rolling aspect. The extreme certainty some have expressed that Peterson heinously violated Watts’ rights under Privacy Act law is the eye-roll. Leave aside whether I think it was or not. Nobody in law thinks there’s certainty. Adage is, even with the best possible case, you’ll only win 80% of them. And even with the worst possible case, you’ll still win 20%. The figures are perhaps a bit pessimistic. But, given their experiences, it’s a sentiment common among the lawyers I know.
Y’all:
There’s a real simple, and profitable y’all, way to prove me wrong. Watts files suit against Peterson for violating his rights under the Privacy Act. You legal experts chip in your dollars to get the ball rolling, and split the proceeds with Anthony when he easily wins.
‘official business’
In the mean time TomT et alia: What ‘official business’ was being conducted in Watts’ letter? Window dressing (Eisenhower, Yamamoto, …) aside, it boils down to:
Watts thinks Peterson and other committed fraud.
Watts thinks Peterson and others prostituted themselves, perhaps at the direction of higher ups.
What action is it that Peterson is supposed to take? Official business, whether corporate or governmental, involves somebody having to do something. The prostitution assertion, as it’s figurative rather than literal (or at least that’d be a usual reading, perhaps Anthony does mean literal), doesn’t involve action either.
But, make your accusation of fraud on the part of Karl, Peterson, et al., to the NOAA or DOC inspector general (whatever the job title is), and then there’s an action to be taken. Fraud is a serious matter, and it’s the job of such people to investigate fraud.
It’ll probably get farther if you put more behind the accusation than ‘Anthony Watts thinks so’, which was all that is in the letter that did get sent.
Robert Grumbine
Odd. McCarthy was correct in his summary of the problem, of the symptoms of the problem, and of the cause (Communists and their agents inside the US government and US press and academic institutions.) His “list” has been cursed as a lie, and he himself has been used by the communists and progressives and liberals here as a scapegoat and terror.
But … McCarthy was correct. As the Soviet Union messages and records show. You, on the other hand, are wrong.
Okay since you don’t seem to get it.
Let’s say you are in Georgia 1961. A white woman doesn’t look both ways before crossing the street. A young black man reaches out and pulls her back by the arm before she gets hit by a speeding car. watch a young black man innocently grab the arm of a white woman.
Seeing a black man touching a white woman two nearby officers proceed to beat the young black man within an inch of his life.
Upon witnessing this you take action you write a letter to the officer and his boss telling them what you saw. You tell them that once you believed that the police were dedicated to serve and protect but after what you witnessed you cannot say that you hold that opinion anymore.
Now rather than responding to your complaint the police choose to send your letter to the KKK. With a nice ‘guess who is a ###### lover’.
You might think I’m using a bad example. That I’m going over the top. But look at the date of the Privacy Act. It’s 1974. The act itself is an offshoot of the civil rights movement.
Do you think that 100% of the white south were just racist bigots? Well I’m sure you do because you are a bit of a bigot yourself. But no there were many many white southerners who were opposed to Jim Crow. But they could do nothing. Yes we are supposed to have a constitutional right to petition the government for a redress of grievences. But when the government will pass your petition onto people who will do you harm that petition you have no right at all.
That is how Jim Crow lasted so long. Anyone opposed white or black was terrorized into submission by forces outside of but working with the government. Anyone who dared object to the government had their objection passed onto the KKK. That’s how the system worked.
This is one of the main things the privacy act was meant to stop. It’s also exactly what Peterson did. He passed on Anthony ‘ s petition to those who he knew would bring retribution since he cannot directly do UT himself. He not only violated the law in my opinion he did so with guilty mind and malice as evidenced by the party he chose to give the e-mails to.
you are correct that it would have been accurate to say that it was “parochial” on your part, rather than “xenophobic”. I accept the correction. Please note that I was merely trying to point out American self-centeredness in your association of language with American politics in this incident and did not extrapolate from a single incident to say that that characterized your conduct as a whole. No need to invoke your children as character witnesses.
What official buisnuiss?
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”
Anthony was pettition the Government for a redress of grievances.
If you don’t want anyone complaining about your work then don’t work for the government. If you work for the government then they have a constitutional right to send you a complaining e-mail. Its part of your job.
This running argument put forward by government scientists that there is somehow an equivalency between them and those in the private sector is a false argument. Working for the government comes with its own strings. If you didn’t want those strings you should have found employment elsewhere.
Steve:
It’s extra amusing that you call me xenophobic in the very next comment you make after saying let’s dial back the rhetoric.
As I commented, it isn’t my ‘American self-centeredness’ (again you go for guilt by association) that lead to my thinking you’d know the origin of your ‘fellow traveler’ phrase. Interesting, though, that I accepted that you did not mean what I thought you did, once you explained. But you ignore my explanation. Again, not the route to dialing back the rhetoric.
My kids are adults. This one in particular has encouraged me to enter, as he put it, “The food-fight that is internet debate about climate’. Plus, of course, I had a great mental image of his reaction to hearing your accusation.
Re McCarthy, do note that someone promptly wrote in approving of McCarthy. It’s a real and present issue down here. That, I wouldn’t expect you to know about. The original, I did, and was correct to expect you to know about.
TomT:
Considering that Anthony says nothing in that letter that he hasn’t said in public, your KKK example, which requires secrecy, is just wrong. More importantly:
Unless Anthony is in imminent danger for his life, yes, your example is horribly overwrought.
People complain about government employees all the time. My friends in the Weather Service are constantly told that they are always wrong. I’m sure they do save some of those messages, as some get pretty hysterical, and hysterically funny. But I doubt they are required by law to retain those messages eternally. If they, and all government employees, are required to do so, there’s a spectacularly simple DDOS attack which could be waged, and it would be illegal (per your reasoning) for the government to defend against — bunches of people continually send large messages to government email addresses. Since, per your argument, they could never be deleted, nor (obviously) could they spam block senders, the government mail system(s) would have to be allowed to crash, and then the government sued successfully by the DDOS attackers for failure to store the ‘official business’ they were sending. Though the suit would have to be carried out in snail mail of course. Or maybe the law doesn’t require idiocy.
Then again, I also doubt that the organizations, NOAA included, allow meeting government requirements to be decided solely by peons like Peterson. No doubt the mailers have their own archival process well before the peons are allowed to see their mail.
Steven: I’ll digress before signing off this thread.
Something to consider. Not that I was ever a regular reader of your blog, but I did used to look in on a semi-regular basis. The last time I looked in in that vein, you’d written an entire post complaining that a data set had been compacted in .Z rather than .gz format. With the vast conspiracy, rampant fraud, dishonesty, flagrant disregard for the law that the WUWT crowd (and, somewhat, but only somewhat, less so, your commenters last I looked) complains of, and that you are careful to never you the exact wording of, .gz vs. .Z was what you wrote about? ! With that, I concluded you’d run out of any substance. Could be I was wrong, of course. But, yeesh. .gz vs. .Z? What’s next, steel cage match between Fortran, C, C++, Java, Javascript, R, Matlab, Perl, Octave, Forth, Lisp, Python, Algol, Ada, Smalltalk, Ruby, IDL, assembler, machine code, …? Bah.
Y’all:
There’s a real simple way to show me I’m wrong. Report Peterson to the IG. If you don’t get satisfaction there, file suit in court. Since you’re positive you’ll win, it’s just a matter of time before you get your rewards.
bye
Robert Grumbine Says: “Considering that Anthony says nothing in that letter that he hasn’t said in public, your KKK example, which requires secrecy, is just wrong. More importantly:
Unless Anthony is in imminent danger for his life, yes, your example is horribly overwrought.”
He doesn’t have to be in danger for his life. The information has already been used in an attempt to libel him and do damage to his reputation.
The law does not say that you cannot pass such complaints onto the KKK. It says you cannot pass such complaints to any third party. The law doesn’t care who the third party is. Peterson passed this onto those who he felt would use it in a reprisal against Watts. And it was used. He did so with malice and intent.
Robert Grumbine Says: “But I doubt they are required by law to retain those messages eternally.”
Your knowledge of how e-mail works is staggeringly ignorant. My company has a record of every e-mail ever sent to me and I’m not even in government.
Anthony I know you are not the kind to push but Peterson needs to go down for this.
The 1974 Privacy Act is born out of the civil rights movement. In the Jim Crow south not every white person was a racist bigiot. But anyone who exercised their constitutional right to ‘petition the government’ would have their petition passed onto the KKK.
This collusion between the state and 3rd parties to scare people out of using their first amendment rights was what the act was meant to stop.
Peterson passed this into a party he knew would do you harm with it. He did so with malice. It cannot be allowed to stand. Government officials cannot ba allowed to think that this is okay no matter the circumstance.
This is your government and press at play.
How much longer gonna be that way?
Troubles and troubles, been blown away,
Nobodies, nobody’s, seen what I say.
==========================
Robert Grumbine writes:
You sure can figure out stupid stuff to whine about. In this case, it also appears that you’ve imagined things.
Sometimes in the past, I wrote posts on how to do things in R. Handling different forms of compression in R hasn’t always been straightforward. I’ve promoted R as a way of making analysis exchangeable, so techniques for handling compression in R is useful.
I did a search of CA posts for the term .Z together with .gz.
I located two CA posts which discuss how to decompress .Z files in R: http://climateaudit.org/2008/06/09/an-r-package-by-a-ca-reader-solves-the-z-problem/ and http://climateaudit.org/2010/08/30/tar-and-z/ . Both these posts diarized techniques for dealing with compressed files in R, including .Z files. They were entirely practical and free of complaint. In one case, a CA reader had contributed a decompression package to R, which Douglas Bates, a prominent statistician and leading R proponent, praised as a “good idea”. Perhaps you aren’t interested in ways of making analysis exchangeable and accessible, but many CA readers are. A blogpost on decompression methods in R was hardly regular programming anyway,
The only other post that I located was a discussion of NOAA’s OCtober 2008 results, http://climateaudit.org/2008/11/19/noaa-in-finland/ where I made a single snarky comment about .Z compression, but otherwise the post was on an entirely different topic. The comment was:
The blockquote above should read:
None of these posts remotely constituted “an entire post complaining that a data set had been compacted in .Z rather than .gz format”.
Based on my search of CA, I do not believe that there is any such post. Nor does it seem to me to be the sort of post that I’d write (though, as noted above, I did write technical posts on decompression of .Z files in R.) If you cannot support your accusation, I’d appreciate it if you withdrew it.
Revkin is a boring hack.