Retraction Watch

Tracking retractions as a window into the scientific process

Judge tells PubPeer to hand over information about anonymous commenter; site weighing “options”

with 37 comments

pubpeerA Michigan judge has ruled against a motion by PubPeer to protect the identity of an anonymous commenter, and asked the post-publication peer review site to give her any information they have about the commenter.

According to one of the lawyers present, the site said in court the only identifying information it has is an I.P. address. The judge will decide March 24 (Tuesday) whether or not to share the I.P. address with the lawyer representing a cancer researcher who has demanded PubPeer release information about those who have written anonymously about his work.

On March 5, PubPeer had a better day in court, when the judge agreed to allow the site to protect the identities of its other anonymous commenters. For the remaining commenter, the judge asked to hold another hearing yesterday.

During that meeting, the judge ordered PubPeer to produce “identifying information for that commenter,” said Alexander Abdo of the American Civil Liberties Union, who helped represent PubPeer in this case:

The court scheduled another hearing for Tuesday to determine the terms of a protective order that would govern disclosure of that information.

Obviously, this is not the outcome PubPeer wanted. Abdo told us:

We are disappointed with the ruling and are weighing our options for how to continue to fight for the right to anonymity of PubPeer’s commenters.

The case began when Fazlul Sarkar of Wayne State University sued the people who commented anonymously about him on PubPeer, and demanded that PubPeer release their names. Sarkar, who has not been found to have committed research misconduct, claims he lost a lucrative job offer at the University of Mississippi, likely as a result of the posts.

Here is the comment in question:

Unregistered Submission:
(June 18th, 2014 4:51pm UTC)
Has anybody reported this to the institute?

Unregistered Submission:
(June 18th, 2014 5:43pm UTC)
Yes, in September and October 2013 the president of Wayne State University was informed several times.

The Secretary to the Board of Governors, who is also Senior Executive Assistant to the President Wayne State University, wrote back on the 11th of November 2013:  “Thank you for your e-mail, which I have forwarded to the appropriate individual within Wayne State University. As you are aware, scientific misconduct investigations are by their nature confidential, and Wayne would not be able to comment on whether an inquiry into your allegations is under way, or if so, what its status might be.
“Thank you for bringing this matter to our attention”

The latest ruling doesn’t entirely unmask the commenter, Sarkar’s lawyer Nicholas Roumel told us — even if the judge gives him the person’s I.P. address, he may not be able to trace it to an identity. Still, the verdict was “more favorable to our side than to PubPeer’s.” If he is able to identify the commenter, he said the goal is to simply ask that person questions to determine how Sarkar’s potential employer, the University of Mississippi, received information that cost him the job opportunity:

I made it clear in court that we have no intention of publicly exposing this person’s name at this time, we just want to find out who it is…We are willing to enter into a protective order and protect the identity of the commenter, and not expose it.

Part of the reason this particular comment is noteworthy, explained Roumel, is that the person appears to be at the heart of the issue and may know more about how Sarkar lost his job opportunity.

The ACLU has published a website about this case, including the legal documents associated with the motions. They write:

The subpoena to PubPeer jeopardizes the anonymity essential to PubPeer’s mission and, importantly, protected by the First Amendment. The constitutional right to anonymity is not absolute, but it protects anonymous speakers from being unmasked unless those suing them can make out a preliminary showing of merit to their legal claims. That protection is essential to ensuring that the right to anonymity continues to serve – as the Supreme Court has long observed – as “a shield from the tyranny of the majority.”

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Written by Alison McCook

March 20th, 2015 at 9:30 am

Comments
  • Richard Smith March 20, 2015 at 12:17 pm

    This is all very interesting. I have two questions, and I’d welcome any answers, no matter how tentative.

    1. Does this judgement have any implications for “traditional peer review,” where the reviewer usually remains anonymous?

    2. Is PubPeer right to allow anonymity? I feel uncomfortable about anonymity. I should be able to stand by everything I say and write. We increasingly, whether we like it or not, live in a world where what is not transparent is assumed to be biased, corrupt, or incompetent until proved otherwise.

    • D Cameron March 20, 2015 at 1:13 pm

      1. Highly unlikely, as the authors of a submitted manuscript explicitly agree to follow the journal’s publication policies, which include the conditions of manuscript review. If authors are uncomfortable about anonymous peer review, they are free to submit their work elsewhere.

      2. Yes. Whether or not you “feel uncomfortable about anonymity” is entirely your concern, being a matter of personal preference. That particular discomfort, even if shared by 99.99% of the citizenry, would not and does not override protections provided by the First Amendment. You are of course under no obligation whatsoever to read PubPeer, Retraction Watch, or any other similar website, just as you are free to not read any journal that utilizes peer review conditions that make you “uncomfortable.”

      • Richard Smith March 20, 2015 at 1:59 pm

        Thank you.

        I didn’t ever think that me not liking anonymity would override he First Amendment, but does the moral weakness of anonymity undermine the value of PubPeer–or anything that is anonymous? I think it does, rather in the way that an anonymous accusation is less likely to be taken as seriously as a signed one–and doesn’t deserve to be.

        • D Cameron March 20, 2015 at 3:06 pm

          My pleasure.

          This will be my final note on this topic. Your declaration that anonymity is a “moral weakness” is of course only your opinion, but raises an interesting question, which is perhaps best considered rhetorically: Why do you – how can you – lower your moral standards to post on Retraction Watch, a website that, by embracing the anonymity of its posters, is by your definition “morally weak?”

    • billybobthornton October 7, 2016 at 5:04 pm

      Anonymity is irrelevant to judging a particular comment about a paper on pubpeer. I always go to the data to determine if a claim (about data integrity) is correct or not. The source makes no difference to me, although they are often helpful in the interpretation. The potential professional consequences of pointing out misconduct are real however, and make it absolutely vital to maintain anonymity for pubpeer to succeed.

  • Lee Rudolph March 20, 2015 at 12:29 pm

    Why isn’t a more appropriate means for Sarkar’s attorney to achieve “the goal” of “determin[ing] how Sarkar’s potential employer, the University of Mississippi, received information that cost him the job opportunity” simply to sub poena the Secretary to the Board of Governors of Wayne State?

    • Narad March 21, 2015 at 2:56 am

      Why isn’t a more appropriate means for Sarkar’s attorney to … simply to sub poena the Secretary to the Board of Governors of Wayne State?

      He’s not suing Wayne State.

    • herr doktor bimler March 21, 2015 at 6:58 am

      I can only suppose that the universities seemed more refractory to the process of discovery. In other words, Sarkur’s lawyers are taking the approach of searching for the dropped key out under the streetlight because there is more light there rather than in the dark alley where the key was actually dropped.

      • scotus March 21, 2015 at 9:37 am

        Its also not simple to go after state universities because of the “sovereign immunity” issue. These is a case to be made that not hiring Sarkar (or not letting him have his tenure back) was in the best interests of the states of MS and MI. End of story. This is certainly what seems to be the case when people go after the state university where I work. Can anyone with a legal background comment on this?

        My guess is that Sarkar wants to show that Wayne State disclosed confidential information relating to a misconduct investigation (either deliberately or by not maintaining confidentiality) to Mississippi State and this is what cost him the job. Interestingly, this concept of disclosure of a misconduct investigation is a common theme in the Sarkar, Anversa and Kumar lawsuits with the presumption that a “rush to judgment” harmed the claimants.

        The great triumph of PPR and RW is that they make scientific concerns about published data widely known. Anyone can look at the information make their mind up. In fact, if I was VPR at any serious research institution I would have someone in my office monitoring these forums and make a search of PPR a mandatory part of any hiring process.

        • herr doktor bimler March 21, 2015 at 6:14 pm

          My guess is that Sarkar wants to show that Wayne State disclosed confidential information relating to a misconduct investigation (either deliberately or by not maintaining confidentiality) to Mississippi State and this is what cost him the job

          The targeted PubPeer commenter claims to know that WSU had been informed of the PubPeer criticism:
          Yes, in September and October 2013 the president of Wayne State University was informed several times.
          The Secretary to the Board of Governors, who is also Senior Executive Assistant to the President Wayne State University, wrote back on the 11th of November 2013:

          — and that WSU would not say whether they would act on that criticism. So if there *had* been a misconduct enquiry at WSU, and if someone there *had* leaked that fact to Mississippi State, the anonymous commenter could not help trace the leak.

          Remember that Mississippi State knew about the PubPeer criticism directly; they invited Sarkar to refute the critiques, and only retracted the job offer when he turned down that opportunity. So the idea that MS were also motivated by their knowledge of a hypothetical MSU investigation strikes me as unnecessary.

          • Narad March 22, 2015 at 1:15 am

            and that WSU would not say whether they would act on that criticism. So if there *had* been a misconduct enquiry at WSU, and if someone there *had* leaked that fact to Mississippi State, the anonymous commenter could not help trace the leak.

            To return to the complaint itself (PDF),* start out at para. 40(c):

            “Then an unregistered user (likely the same one, given the context) reveals that s/he is either a person at Wayne State University who made a formal complaint against Dr. Sarkar, or is otherwise privy to the a person who did so[.]”

            This is promoted to the level of a fact at paras. 58–59: “[A]nother area of concern is that a poster disclosed making a complaint to Wayne State University about Dr. Sarkar [see paragraph 40 (c)]…. As such, there is no privilege.”

            Then, at paras. 65–68, headed “Defendants Sent the False, Defamatory, and Unprivileged Postings from PubPeer to The University of Mississippi…,” this is all supposed to come together, by virtue, as far I can tell, of one “rhetorical device”:

            “Dr. Walker’s June 19, 2014 letter cited PubPeer as the reason, stating in relevant part that he had ‘received a series of emails forwarded anonymously from (sic?)PubPeer.com, containing several posts regarding papers from your lab.'”

            Boldface but not italics added. OK, so let’s recall that there’s now only one Doe left, who reappears at para. 75:

            “It is highly probable, if not certain, that the same person(s) who did this despicable act [the Grassley fakes] is/are the same person(s) who posted on PubPeer and alleged making a complaint about Dr. Sarkar to Wayne State, and then learned of his employment with the University of Mississippi.”

            There’s a deranged interlude in which Sarkar claims that PubPeer violated its own terms of service by mentioning that he was suing them, or something, and then the putative, actual reasons that the preceding 20 or so pages have been unleashed upon an unsuspecting court.
            Count I: Something something defamation something the lot of ’em something.
            Count II: The Does sent everything to the University of Mississippi. The remaining Doe, however, has only been singled out for his or her campaign of terror at WSU, so scratch this.
            Count III: All of the Does also sent stuff to WSU or conspired to make it seem that there were more PubPeer comments than there really were. This is now, “The remaining Doe tortiously interfered with a business relationship. Which I had resigned, but whatever.”
            Counts IV, V: Invasion of privacy and BIFD.

            “Still, the verdict was ‘more favorable to our side than to PubPeer’s.'” Aside from most of the complaint’s collapsing, of course.

            “I made it clear in court that we have no intention of publicly exposing this person’s name at this time, we just want to find out who it is…We are willing to enter into a protective order and protect the identity of the commenter, and not expose it.”

            This quote and the surrounding text regrettably only hint at the important parts of what Roumel actually said, but it’s made out to be “we only want to talk,” which makes no sense whatever. Either you’re prosecuting your complaint against the last man standing, or you’re not. Simply continuing to try to get someone to tell who you should have sued and how to go about that in order to make it all go away seems to be frivolous on its face.

            * Which, with fresh eyes, seems like an atrocious attempt to “narrativize” a “fact complaint” – and I’m pretty darn sure that the requirement of paragraph numbers doesn’t prohibit separately numbering the sections. It might even have helped avoid the inconsistent-tense problem.

          • herr doktor bimler March 24, 2015 at 6:09 pm

            s/he is either a person at Wayne State University who made a formal complaint against Dr. Sarkar, or is otherwise privy to the a person who did so[.]”

            This person being the PubPeer commenter with the non-US IP address, right?
            Sarkar seems to be shovelling a lot of money to his lawyers in the hope of, at best, securing a precedent that other litigants will find useful in the future.

  • Twitching March 20, 2015 at 1:49 pm

    This is a highly uncomfortable position for those who are criticizing the scientific literature based on their interpretations and experience, but who wish to do so anonymously. And if, indeed, PubPeer is forced to hand over even the IP address of the commentator, then this is disastrous news that cancels the victories apparently gained on March 5. As one who prefers to comment anonymously, simply because using a recognized name tends to lead to conflicts and marginalization, under normal circumstances, I would shy away from ever commenting again. Why? Why would scientists risk being exposed for commenting about a paper post-publication? In my case, it is precisely because the situation is so BAD in my field of science, with excessive editorial and publisher protectionism of errors in the literature, that drives me to continue to report problems or errors, actual or perceived. As Cameron indicates above, a scientist is not obliged to respond publicly to criticisms of his/her work, simply because he/she is not under contract, as in anonymous traditional peer review. But that does not mean, in my interpretation, that anonymous criticism of erroneous, dubious, or incorrect science should be pointed out publicly, on forums such as PubPeer. I have three questions:
    1) How widely does this first constitution protection apply to non-US citizens? Many other countries have even more draconian laws against anonymity.
    2) Honestly, what will Prof. Sarkar achieve, if not a mere personal legal victory? The fact that he has failed to respond to what appear to be umpteen valid concerns about quite a few papers, and the fact that he has decided to go after the identity of one single commentator rather than target the employee who never became his new employee seems to say quite alot about him.
    3) Until the moment that PubPeer disallows anonymity, how much responsibility does PubPeer have for anonymous comments that it approves/d and publishes/d?

    • Twitching March 20, 2015 at 6:06 pm

      Erratum: “incorrect science should be pointed out publicly” should read as:
      incorrect science should NOT be pointed out publicly

    • Narad March 21, 2015 at 3:41 am

      3. Until the moment that PubPeer disallows anonymity, how much responsibility does PubPeer have for anonymous comments that it approves/d and publishes/d?

      Given Section 230 of the Communications Decency Act, I’m going with “none.” The Ninth Circuit has found that “so long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process.” Carafano v. Metrosplash.com, 339 F.3d 1119, 1124 (9th Cir. 2013).

      • Twitching March 22, 2015 at 2:07 pm

        Narad, that’s a fascinating law. Does that mean if any site posts comments which it does not screen carefully, that it bears zero responsibility for the content that is provided by a third party?

        • Narad March 24, 2015 at 2:48 am

          Does that mean if any site posts comments which it does not screen carefully, that it bears zero responsibility for the content that is provided by a third party?

          Basically, yes (the DMCA comes into play if a site is self-hosted). The more important point is that site moderation doesn’t break Section 230, either.

  • Foobar March 20, 2015 at 2:53 pm

    Richard Smith
    Thank you. the moral weakness of anonymity

    First off, there is no ‘moral weakness’ in anonymously reporting the misdeeds of the powerful. Whistleblower protection laws notwithstanding, whistleblowers suffer from retaliation on a regular basis.

    Second, the only thing that matters about Pubpeer comments is their truth value. Anonymity or lack of it is entirely irrelevant to that.

    • Anonymous March 20, 2015 at 6:17 pm

      Foobar: That is your opinion entirely.
      Anonymity carries a risk of abuse. Some anonymous commentators use their shielded status to sabotage their competitors.
      Using an anonymous online platform tool to disparage and discredit someone should be viewed seriously.

      • Foobar March 20, 2015 at 7:19 pm

        “Some” commentators might try to discredit a solid paper, but can you provide a single example when these hypothetical villains had success? Many of the papers discussed negatively on pubpeer display obvious, blatant manipulations.

  • Foobar March 20, 2015 at 3:02 pm

    Richard Smith
    I feel uncomfortable about anonymity. I should be able to stand by everything I say and write.

    I dont understand your point. What you state as a scientist on scientific matters is entirely impersonal. It is correctly argued or not. There is no need to “stand by” it. What does that even mean in science?

    • Richard Smith March 21, 2015 at 6:42 am

      I think that you are wrong in thinking that “What you state as a scientist on scientific matters is entirely impersonal. It is correctly argued or not.” I once thought that science was wholly objective and impersonal, but I long ago abandoned that view. Science is shot through with judgement, bias, conflict of interest, and, sadly, malfeasance. Indeed, I fear that sticking to the fallacious idea that science is objective and impersonal is at the root of what I fear is a global crisis in science governance.

      • Leonid Schneider March 21, 2015 at 7:50 am

        Richard Smith
        Indeed, I fear that sticking to the fallacious idea that science is objective and impersonal is at the root of what I fear is a global crisis in science governance.

        Richard, if one where to accept that science cannot be objective and impersonal, the society would have to stop subsidising it. The private enterprise can then take care of their biased and interest-oriented science. Indeed, the only reason the public does fund people like Sarkar and their research in the first place, is because they claim to work impartially and exclusively for the common good.

        • Lee Rudolph March 21, 2015 at 10:25 am

          It seems perfectly clear and obvious that science, being a human activity, is necessarily neither (entirely) “objective” nor (entirely) “impersonal”. That does NOT mean that it cannot converge towards (without necessarily ever reaching) an effectively “objective” and “impersonal” state: and indeed much of science, and of mathematics, and (I keep hoping) of various other human activities, is devoted to increasing the rate of that convergence, by the steady application of (human) reason (understood as a communications protocol with considerably more built-in error correction than—say—mysticism).

          • Lee Rudolph March 21, 2015 at 1:39 pm

            If I’d just waited until after the week-end roundup had referred me to our colleague Neuroskeptic’s post in his Discover Magazine blog, I could have saved myself the trouble of writing this reply to Leonid Schneider.

          • Leonid Schneider March 21, 2015 at 6:28 pm

            Lee, I cannot agree more with you or Neuroskeptic on how broken science is 😉 This is exactly why I believe if it continues in this vein is it will implode just like the banks did.

  • scotus March 20, 2015 at 3:17 pm

    The whole process is confusing to me. Surely Sarkar’s primary beef should be with the University of Mississippi because they reneged on his job offer and presumably would have a lot more resources to compensate him than the anonymous pubpeer commentator. Or do you think Sarkar wants to establish that Wayne State sabotaged his job prospects by disclosing the concerns about his research to Mississippi so he can sue them? Whats the point of all this?

  • Leonid Schneider March 20, 2015 at 4:13 pm

    Roumel says they want to go after the person who alerted WSU to public accusations against Sarkar. Even if the court does not give Roumel the IP-Address, can we really fully exclude a leak by some court official? And silly old me thought PubPeer should remove the “Unregistered Submission”option and stick to registered comments only.

  • Non-US IP March 20, 2015 at 4:47 pm

    It would be curious what Sarkar and his lawyer would do if the commentator’s IP address were not in the US.

  • ip March 20, 2015 at 5:11 pm

    According to the piece at Science, which quotes a PubPeer attorney, the IP address is indeed “outside the United States”.

    http://news.sciencemag.org/people-events/2015/03/michigan-judge-asks-pubpeer-turn-over-anonymous-user-information.

  • Paul Brookes March 20, 2015 at 9:45 pm

    IMHO this is a storm in a teacup. The good news is it buys more publicity for PubPeer and the ACLU. However, simply knowing an IP address is not going to allow Sarky to sue anyone in particular. Here’s why…

    Given that most IP addresses resolve to ISPs or academic institutions as a whole, it will narrow down the field to 1000 people or more, but that’s not very useful, especially if the local network uses floating point IP addresses.

    For example, right now the owner of RW could do a reverse IP search on this comment, and it would show I’m located in Victor, NY – actually no, that’s just the town 20 miles away where my ISP (Frontier) is based. To identify the precise customer, they’d have to subpoena the ISP records, and that’s the kind of information that only law enforcement or the NSA can get. Good luck obtaining a subpoena on an ISP when you haven’t even proven that a crime has been committed yet.

    And of course, we have to consider the likelihood that the commenter may have been using TOR, in which case the IP information is as good as useless.

    Finally, even if the IP could be resolved to a single machine, good luck proving who was sitting at that machine on a specific date. It’s like the red light cameras that catch your car’s plate – they can prove it was your car and send you a ticket in the mail, but they can’t prove it was you driving it, so they can’t use it as a basis to add points to your driver’s license. Then there’s always the defense that the computer was used by someone else who broke into the office, or maybe someone sitting in a car outside the house hacked into the wifi network to gain Internet access (which is why everyone should make their home wifi invisible and password protected!). Maybe the commenter even used a public wifi service such as a coffee shop? Quite simply, I just don’t think it would be possible to prove on the basis of IP alone, that a particular person wrote a comment. If there’s other information too (such as other comments left from the same IP, and perhaps some of those were registered comments and thus had an email address associated), then there might be some danger, but an IP alone is nothing to go by.

    • Foreign IP March 21, 2015 at 3:02 am

      Regarding the specific issue of the IP being located abroad. Does Sarkar have any legal avenue to subpoena the ISP? I’m guessing that’s pretty difficult, as Paul suggests.

    • Narad March 21, 2015 at 4:54 am

      To identify the precise customer, they’d have to subpoena the ISP records, and that’s the kind of information that only law enforcement or the NSA can get.

      No, it’s not. Somebody has to seek to quash the subpoena, either the ISP or the Doe.

      The field is complicated, with much relating to copyright trolls, not that it seems as though these details will matter, given the foreign IP address.

  • Edward John Ciaccio March 21, 2015 at 9:06 am

    Anonymous commenters should always be protected, as in any scientific peer review process.

  • RR March 23, 2015 at 4:15 am

    While reviewing a paper for some Indian authors now this month i came across several papers published in same year using data which looked very similar. Here are the published papers are there any expert who can help me on this. Here are the ref.

    1. Studies on distribution and fractionation of heavy metals in Gomti river sediments—a tributary of the Ganges, India
    KP Singh, D Mohan, VK Singh, A Malik – Journal of hydrology, 2005 – Elsevier

    2. Estimation of source of heavy metal contamination in sediments of Gomti River (India) using principal component analysis
    KP Singh, A Malik, S Sinha, VK Singh… – Water, Air, and Soil …, 2005 – Springer

    3. Water quality assessment and apportionment of pollution sources of Gomti river (India) using multivariate statistical techniques—a case studyKP Singh, A Malik, S Sinha – Analytica Chimica Acta, 2005 – Elsevier

    4.Status of heavy metals in water and bed sediments of river Gomti–A tributary of the Ganga river, India
    VK Singh, KP Singh, D Mohan – Environmental monitoring and …, 2005 – Springer

    • Kenrod March 23, 2015 at 8:10 am

      Will be easier to help if you were to provide links to the articles….

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