Not A Story

I was going to upload a new post examining some substantive issues, but there's a new story that broke which is probably going to get a bunch of attention. E-mails related to a letter calling for criminal prosecution of people (supposedly) spreading disinformation were released under a Freedom of Information (FOA) request. This is the sort of comment we can expect regarding them:

Which is unfortunate because the e-mails released really don't show much of anything. It shows people organizing a group letter calling for the investigation and prosecution of a supposed disinformation campaign. Whatever one may feel about the goals of these people in trying to get this letter written, there is nothing remarkable about how they went about getting it written.

You can find the released e-mails via the link I provided above, but I'll provide a short summary. Someone came up with the idea of sending a group letter calling for the government to investigate a supposed disinformation campaign designed to prevent action from being taken to combat global warming. They contacted other people about the possibility of signing on to such a letter. Some people didn't feel comfortable with the idea, namely the Union of Concerned Scientists and said no. Other people said yes. Those who said yes talked to one another about what the letter should say and what they hoped to achieve with it. Then, one of them wrote:

Dear fellow letter signers.

Shukla and I respectfully request that you send us your private email address.

That caused Anthony Watts, proprietor of the popular site Watts Up With That, to write:

Here’s the worst part – they knowingly tried to circumvent future FOIA requests

As well as the tweet above. However, as the author of that e-mail Edward Maibach wrote in one of the released e-mails:

It is my position that the time I spent preparing out letter was not conducted in the course of public business. Rather, it was conducted in my capacity as a private citizen, on my own time. I was not paid by George Mason to create this document, nor does the document relate to the duties listed on my job description. Therefore, I do not believe we have an obligation to disclose my emails related to the RICO letter.

Nothing in any of the e-mails contradict this view. There's no indication Maibach or anyone else wrote this letter as a part of their job. They may have used e-mail accounts provided by their employers, but that's little different from a person e-mailing their spouse to ask if they should pick up anything from the store on their way home from work. Maybe it'd be best not to use a workplace e-mail account to send out e-mails not related to one's work, but it happens all the time.

I won't say that means Maibach is right about FOI law. That's not the issue here. The issue is FOI laws were written to allow public oversight of government operations. They were not written to give the public oversight of individuals' private activities. There is some overlap when private activities are caught up in government operations, such as when using a university mail server to send personal e-mails, and it might be interesting to discuss just what happens in those cases, but...

There was no conspiracy. As far as the released e-mails show, these people were engaging in private activism. There was no involvement by their employers. Nobody was paid to write this letter by any organization covered by FOI laws. None of this activity should have ever been subject to FOI requests in the first place.

But people use e-mail accounts provided by their workplaces for non-work activities sometimes. And yes, eventually people might eventually decide to stop using their work account for non-work communication. That's not surprising. It's not nefarious. These e-mails might be interesting to show the workings of how certain people think and operate, but other than that, there's no real story here. And as put it on Twitter:

There are real stories. There is real wrongdoing. As long as "skeptics" choose to focus on these non-issues though, few are likely to pay attention to them. Downplaying what the Climategate e-mails show as being less serious than this, a non-story, can only hurt any genuine search for the truth.


As a final note, I can't help but notice a certain oddity in this. A few hours before I came across this story, I saw a post on Twitter linking to a new article by John Cook, proprietor of Skeptical Science in which he wrote a number of questionable things, the most interesting of which is:

Q: Does that 97% all agree to what degree humans are causing global warming?

Different studies use different definitions. Some use the phrase “humans are causing global warming” which carries the implication that humans are a dominant contributor to global warming. Others are more explicit, specifying that humans are causing most global warming.

The reason this is interesting is Cook is referring to the definition he himself used in his infamous 2013 consensus paper which wrote:

Among abstracts expressing a position on AGW, 97.1% endorsed the consensus position that humans are causing global warming.

As I've pointed out before, there were two different "consensus" positions considered in Cook's 2013 paper: 1) Humans are causing warming," 2) "Humans are causing most of the warming." The initial plan was described by one of the authors:

The way I see the final paper is that we'll conclude 'There's an x% consensus supporting the AGW theory, and y% explicitly put the human contribution at >50%'.

But instead of going with this plan, the authors combined both categories into a single category and described the result as:

Okay, so we’ve ruled out a definition of AGW being “any amount of human influence” or “more than 50% human influence”. We’re basically going with Ari’s p0rno approach (I probably should stop calling it that 🙂 which is AGW = “humans are causing global warming”. Eg – no specific quantification which is the only way we can do it considering the breadth of papers we’re surveying.

So John Cook decided his group's paper would use a definition of "consensus" that was merely "humans are causing global warming" with "no specific quantification." This allowed him to take any paper which did as little as recognizing greenhouse gases exist as endorsing the "consensus." He now openly states he chose a wording to describe these results which implied humans are the dominant contributor to global warming.

I think that's pretty remarkable as it basically shows Cook knew the description he and his co-authors gave would create a misleading impression of their results (leaving aside he has actually stated that misleading impression as fact on several occasions since). I wouldn't expect people to care that much, and this one quote is not a big story by any means, but it is intriguing to me because Edward Maibach wrote this in one of the early e-mails this release contains:

Good point about starting with an affirmation of the scientific consensus (given that I have published a half dozen studies showing that it is an effective message.

I hadn't made the connection until I read this e-mail, but Edward Maibach is Ed W Maibach is the sixth listed author of the "Consensus on consensus" paper we've been examining here recently, the very paper which prompted the article John Cook just wrote.

I don't know that that means anything. It's probably just a weird coincidence. I just thought it was rather interesting as I had planned to write a post about Cook's new article. Then this "story" about the released e-mails broke, and I decided I wouldn't. Then I saw this connection and just thought it was weird.

20 comments

  1. You are correct that Watts is wrong to say it's worse than climategate.

    But I don't really agree with you about this:
    "Nothing in any of the e-mails contradict this view."
    Maibach's claim that it was as a private citizen , not related to GMU or his job, seem highly questionable.
    Look him up - "...a communication scientist who is expert in the uses of strategic communication and social marketing to address climate change ..."
    "His research currently focuses exclusively on how to mobilize populations to adopt behaviors and support public policies that reduce greenhouse gas emissions and help communities adapt to the unavoidable consequences of climate change."
    He is, by his own description, a marketing man.
    So this kind of letter fits with his academic remit.

    Also, look at the times of the emails, sent from his university account:
    Wed 3:57pm, Mon 1.32pm , Wed 3.25pm, 4.51pm, Mon 1.46pm, Tue 1.16pm, Wed 3.40pm, Thu 9.05am, Thu 4.24pm, etc...
    But he claims all this was "on my own time".

    Loads of emails sent during work hours from his university account on a topic that is related to his work.

  2. "Also, look at the times of the emails, sent from his university account:
    Wed 3:57pm, Mon 1.32pm , Wed 3.25pm, 4.51pm, Mon 1.46pm, Tue 1.16pm, Wed 3.40pm, Thu 9.05am, Thu 4.24pm, etc...
    But he claims all this was "on my own time".

    I hate to break it to you but salaried employees have no time clock.

  3. Not only do salaried people not have time cards, the effort to produce this letter was begun during the summer when professors like Edward Maibach were only part-time employees.

    He is, by his own description, a marketing man.
    So this kind of letter fits with his academic remit.

    That a person researches and teaches a subject does not mean him making use of the subject is part of his job. That he might have developed skills useful for activism due to his job doesn't mean any use of those skills are part of his job. His university doesn't pay him to engage in activism like this.

    Now, Maibach was wrong to say FOIA doesn't cover these e-mails based on them being done on his personal time. His error, however, is understandable given the instructions and information he was given by the FOIA officer. Based on what she told him, it was perfectly reasonable for him to conclude they didn't need to release these e-mails.

    The FOI officer should have done a better job explaining FOIA requirements to Maibach, and when he explained why he felt the e-mails didn't need to be released, she should have talked to him about it and figured out he was wrong. She didn't. That's on her and her university. I can't fault someone like Maibach for failing to realize his university's FOI officer was wrong in what she told him about FOIA requirements.

  4. Brandon:

    I can't fault someone like Maibach for failing to realize his university's FOI officer was wrong in what she told him about FOIA requirements.

    I'd have to see the specific instructions. Maibach may be throwing people under the bus for all we know.

    I can certainly tell you "I know better".

    Steven Mosher:

    I hate to break it to you but salaried employees have no time clock.

    Almost certainly sent using university resources though, so there's no dodge on that one.

  5. Carrick, the instructions can be found in the released e-mails as a request was filed for discussions of the FOI request due to the university saying there was no material to release. They show Maibach responded to the FOI officer with a question about what the standard for release were. I don't believe she even answered.

    Maibach gave a clear reason for why he thought the e-mails didn't need to be released. His reason was wrong, but it wasn't irrational or dishonest. Based on what the FOI officer told him, I'd say it was quite reasonable. I'd dig up the quotes to show what I'm talking about, but my head is killing me so I need to go lie down.

  6. Brandon S "because the e-mails released really don't show much of anything. It shows people organizing a group letter calling for the investigation and prosecution of a supposed disinformation campaign."

    I wouldn't be so dismissive of the effects and underlying goals of those seeking a RICO action or other legal actions against energy suppliers. To the extent that you characterize the Maibach effort as an investigation, yes it is an investigation, but a very threatening and intrusive investigation. I would characterize it is something akin to asking for an IRS Audit of a business competitor, or someone else you dislike and want to destroy, but about 10 times worse. Yes an Audit, is an investigation, but it is a very painful and intrusive one. RICO investigations/actions are even worse.

    Additionally, in reading the motivations of the participants, there is a strong element of abuse of process in Maibach's (and others) effort. They realize that they don't have much in the way of real claims (for instance, is climate change a different type economic risk compared to many others that put Exxon at risk? I don't think so, but the NY AG is using NY's law for the ulterior motive of discovery.) He and others are hoping to get lucky and find highly incriminating documents. That is a classic instance of abuse of process. For instance abuse of process is in part, the "filing [of] a lawsuit which has no basis at law, but is intended to get information" See http://legal-dictionary.thefreedictionary.com/Abuse+of+Process Notwithstanding strong evidence of abuse of process, the participants have undoubtedly created legal fig leaves to cover their tracks and it is unlikely they will be held legally accountable for their actions. On the other hand, the public at large has every right to criticize their actions for violating the evil that the prohibition against abuse of process is designed to prevent.

    The big picture is that the call of RICO investigations/prosecutions is a highly malignant and unjustified intrusion into the scientific and economic realms and should be forcefully opposed.

    JD

  7. JD Ohio, the problem is none of that is news. We knew it all before the e-mails were released. As bad as something might be, it's only news when it is new. New e-mails coming out don't make old news new news unless they contain something new and interesting. These ones don't.

  8. In reading through the emails, I did see that Maibach signed his emails as a Professor at George Mason. If they were intended to be in his private capacity, he shouldn't have signed as a Professor. Having been signed in his capacity as a Professor, any arguments that they were his own personal emails are weak.

    I agree that generally the emails aren't super important, but anything that shines a light on the malignant efforts to get RICO and other types of legal action involved in climate debates and science is useful.

    JD

  9. "Almost certainly sent using university resources though, so there's no dodge on that one."

    It depends.
    They show a university email address.
    I suppose if an addresss counts as a resource..

    Without knowing the system its uncertain whether they were actually sitting in front of a university asset ( computer) or merely using a email address given to them for business use.

    For example I have many email addresses given to me by clients and I never use their resources alsothough I do send mail using those addresses

  10. Steven Mosher---I was also going by the time of day, not just the email address.

    Brandon---thanks. I have seen staff people get thrown under the bus for the poor behavior of professors in the past. What do you know about the "FOI" officer? Is this really an employee with that title, or was somebody given the responsibility to answer FOIA questions?

  11. JD Ohio:

    In reading through the emails, I did see that Maibach signed his emails as a Professor at George Mason. If they were intended to be in his private capacity, he shouldn't have signed as a Professor. Having been signed in his capacity as a Professor, any arguments that they were his own personal emails are weak.

    Hardly. I get personal e-mails with people's workplace titles all the time. It's often nothing more than an automatic footer appended to all e-mails they write. They do nothing to inform whether the e-mails were personal in nature. Heck, I've known people who go by, "Professor X" (no, not the mutant) in their daily lives. It doesn't mean anything other than they view a central part of their identity as being a professor.

    Steven Mosher:

    I suppose if an addresss counts as a resource..

    Without knowing the system its uncertain whether they were actually sitting in front of a university asset ( computer) or merely using a email address given to them for business use.

    A university e-maill account necessarily uses the university's servers so these e-mails didn't involve the use university resources in some very minimal way. But meeting a person in your office for lunch after a half day is using a university resource too. That doesn't mean the meeting was part of your job. Employers often allow certain personal uses of the resources they provide to their employees.

    Carrick:

    Brandon---thanks. I have seen staff people get thrown under the bus for the poor behavior of professors in the past. What do you know about the "FOI" officer? Is this really an employee with that title, or was somebody given the responsibility to answer FOIA questions?

    She gave her title as "FOIA Compliance Officer" and gives her division as, "Compliance, Diversity, and Ethics."

  12. Brandon S: "Hardly. I get personal e-mails with people's workplace titles all the time. It's often nothing more than an automatic footer appended to all e-mails they write. They do nothing to inform whether the e-mails were personal in nature."

    Although people may unthinkingly use their titles, if they want to exempt themselves from FOIA, they should spend 20 seconds and construct a new signature without their title. If they are using their title in personal matters, but signing in a professional capacity, in situations where the capacity of the sender is not clear, the individual is placing his employer at risk by signing with a work-related closing. Also, almost assuredly, there is a provision in Maibach's contract stating that anything he sends from his employer's computer is the employer's property. (It is the only way the employer could protect its security and manage important employee communications.) There have to be comparatively simple rules to govern FOIA matters and if Maibach is too uninformed or too lazy to inform himself on those matters, the fault is all on him.

    I should add that I use the the same email address for my sole practitioner legal practice and my important personal and business correspondence. I am very careful to sign as an attorney only when I am acting in a legal capacity and have never used my attorney signature in non-legal matters. Maibach decided to get involved in big-boy politics and lawsuits. He has to be responsible for what he does. The fact that other people may be loose with their emails doesn't excuse him from compliance with the law. Also, your opinion may be different from mine, but as a matter of simple practicality and common sense, irrespective of what the law may be, if someone attaches their work title to a personal communication, they, in my view, are taking a risk and assume responsibility for their actions.

    JD

  13. NY AG doubling down on his dishonesty and abuse of process. "The attorney general’s office was clear that the investigation did not have anything to do with scientific inquiry.

    “Attorney General Schneiderman has opened a significant investigation into whether Exxon committed securities fraud, business fraud, and consumer fraud in New York and all across America,” said Eric Soufer, a spokesman for the attorney general’s office. “It is remarkable that a do-nothing Congress that has refused to take any action on climate change is now attempting to disrupt this important investigation into potential corporate malfeasance.” http://thinkprogress.org/climate/2016/05/20/3780305/lamar-smith-investigates-new-yorks-investigation/

    Garbage lawsuit and garbage attorney. Also, Shug Niggarath, almost surely without realizing it, documents a case for abuse of process against those filing suit. See https://nigguraths.wordpress.com/2015/11/02/rico-teering/ and the portion after the pictured pdf, which emphasized the importance of obtaining the internal documents of energy companies.

    JD

  14. JD Ohio:

    Although people may unthinkingly use their titles, if they want to exempt themselves from FOIA, they should spend 20 seconds and construct a new signature without their title.

    I can't think of a situation where one's signature would affect whether or not communication was subject to FOI requests (possibly exemptions though). I've certainly never heard of one. A better rule would be if you don't want to have your personal e-mails subject to disclosure, use personal accounts not work ones.

    There have to be comparatively simple rules to govern FOIA matters and if Maibach is too uninformed or too lazy to inform himself on those matters, the fault is all on him.

    No. He only took his position after he was given direct advice from an FOIA officer that was bad. If not for that bad advice, he probably would have never held an incorrect view on the matter. He would have just realized he probably should have done his personal activism on a personal account if he didn't want it FOI'd.

    Maibach decided to get involved in big-boy politics and lawsuits. He has to be responsible for what he does. The fact that other people may be loose with their emails doesn't excuse him from compliance with the law.

    What are you talking about? Nobody has suggested anything he wasn't willing to comply with the law completely.

    Also, your opinion may be different from mine, but as a matter of simple practicality and common sense, irrespective of what the law may be, if someone attaches their work title to a personal communication, they, in my view, are taking a risk and assume responsibility for their actions.

    That's fine, but as a warning, if you use the same account for personal and work e-mails, attaching a different signature to each won't ensure your personal e-mails are protected from anything. It might help in some cases, but it is in no way a guarantee of anything.

  15. Brandon:

    That's fine, but as a warning, if you use the same account for personal and work e-mails, attaching a different signature to each won't ensure your personal e-mails are protected from anything. It might help in some cases, but it is in no way a guarantee of anything.

    Adding your work title guarantees that you will be seen as operating within your normal work environment, especially if the email is sent from your work, and arrives during normal work hours.

    Nobody has suggested anything he wasn't willing to comply with the law completely.

    Let me suggest at least the possibility then.

    It's actually hard for me to image that anybody who sends emails from work during regular work hours, and includes his work title, wouldn't consider their activities as part of a community effort consistent with their professional activities.

    The conclusive way to find this out is to see whether any of these activities were listed in the activity reports they submitted to their departments. [The activity reports are used in assigning raises, so the employee has a vested interest in honestly reporting their activities.]

    It's possible that the FOI officer's response was used as a foil to protect them from FOI requests that they full well understood they were required to respond to. It's not clear to me that the FOI officer's response was based on ignorance, rather than a desire to shield employees from unwanted scrutiny.

    It's also not sufficient to using personal email, if the only purpose of this is to avoid FOIA scrutiny. If you realize that what you are doing normally falls under the FOIA, then you are actively conspiring at that point to circumvent federal (and probably state) law.

  16. The latest twist in the "Not a story" is that Maibach through his lawyers has put in a 'motion to stay', trying to appeal against the April ruling that further emails of his should be revealed. They continue to make the untrue claim that the RICO letter was "of a personal nature" and "does not relate to his GMU research or teaching work".

    A response from CEI takes this argument to pieces. See WUWT, where comments point out various obvious flaws in his argument, for example locating teaching materials related to political activism, and the fact that he wrote and signed the letter as a member of the university not as a private citizen, and the point made in my first comment from his own web page.

  17. You know, just because you say something is untrue doesn't mean it is. And since you couldn't be bothered to respond to any of the discussion that's been going on here, I'm just going to leave it at that.

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