Is it Fraud?

Thus far, I have purposely avoided entering into the recent discussions on Climategate, but there has been a lot of ink spilled on the question of whether or not the individuals in question (primarily Michael Mann, Phil Jones, et al.) engaged in “fraud,” as evidenced in the now-famous email about the desire to “hide the decline.”  As a result, I thought I would offer a few quick thoughts.

Several prominent individuals have, perhaps wisely, carefully avoided referring to the academics’ activities as “fraud.”  Indeed, Roger Pielke affirmatively says “The ‘trick’ does not show scientific fraud.”  http://rogerpielkejr.blogspot.com/2009/12/trick-in-context.html#comments

I do not know what Roger has in mind in terms of “scientific fraud,” but I think it is helpful to step back a moment and consider what we mean by fraud.

As has been pointed out by others, there are several potential uses of the word “fraud.” If we are going from the strict legal definition, although details differ from jurisdiction to jurisdiction, one typically has to show five elements in order successfully prevail in a fraud claim, namely:

1. misrepresentation

2. scienter

3. intent to defraud

4. justifiable reliance

5. damages

In the context of the present “hide the decline” discussion, it seems there was indeed misrepresentation of the evidence. Further, it seems there was scienter, meaning that those making the misrepresentation knew of the misrepresentation at the time they made it. Third, based on my reading of Steve McIntyre’s analysis of the emails, there appears to be an actual intent to mislead the reader.  This third point is open to some question, and I want to be clear this is my position, not Steve’s, but there appears to be a very good case of actual intent to mislead.  The final two elements for fraud are less clear in this academic setting, however, than they would be in a typical civil/contract situation.

Specifically, regarding the fourth element, who was relying on the misrepresentation? One could say the IPCC or the general public, but the IPCC doesn’t appear to qualify, as the emails demonstrate they were aware of the decline and had requested that the “problem” be dealt with. That might make them complicit in the questionable behavior, but they would not be the party defrauded.  It is not clear the public generally has relied on the misrepresentation, and the general public would not be able to bring a claim in any event.

The final element that needs to be shown to win a civil action is damages. While one could argue that governments or the public generally have suffered damages as a result of the misrepresentation in the form of taxpayer money spent on AGW research, etc., this would probably be a very difficult argument to win. This is due to both the lack of proximity to the misrepresentation (no privity of contract, for example), and the difficulty of proving that it was this particular misrepresentation (as opposed to a whole host of other events/evidences/claims from other parties) that caused the damages.  One could perhaps argue that it was instead the funding institutions who were defrauded, but again, this would be a stretch, and it would have to be those institutions who brought the claim, not the general public.

As the present situation shows, it is extremely rare, if ever, that an academic would be liable for actual fraud as a result of misrepresenting research or data.  Actual fraud is indeed a high bar, and many, like Roger, are understandably reluctant to label something as fraudulent. Further, there is a fair amount of stigma about using the “fraud” word too loosely, as it can imply that the speaker is name-calling, hot-headed, or just stirring up controversy rather than engaging with the issues.

However, and this is the real point, the word fraud can certainly be used more broadly than in the strict legal sense outlined above for civil actions. Think about it.  If we only had the strict legal sense of the word, then it would not even be possible to speak of “scientific fraud” or “academic fraud.” I am not aware of any single definition of academic fraud, and each institution applies its own standards in this regard, but academic fraud certainly would not include the need for damages, and possibly not even reliance by a third party.  It may not even matter if one’s career is enhanced by the misrepresentation (although in the present situation, the individuals in question certainly did receive much personal prestige from their association with the IPCC and their prominent place in its work).  In many situations, it may well be sufficient to show that the academician knew he was misrepresenting the evidence and intentionally did so. Certainly that is what most people would typically think of as being “fraudulent” in the academic sense.

From that standpoint (although, yes, there is still additional context missing and, yes, it would be helpful to cross examine the various participants in question), based on the emails that have been made public, I believe there is an excellent case for academic fraud, certainly in the colloquial sense, and I don’t think we should be too timid in labeling it as such.

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