An attorney for Fazlul Sarkar, the Wayne State University researcher who claims he lost a job offer because of comments about his research on PubPeer, has asked a judge to reconsider last month’s decision not to release information about the site’s anonymous commenters. As a consequence, the brief in support of that motion identifies a key commenter as the pseudonymous Clare Francis.
On March 19, a Michigan court ruled that PubPeer had to disclose identifying information about a single commenter, who left the second of these comments:
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”
PubPeer has since filed a motion to stay enforcement of that decision, and has requested an appeal, as has Sarkar. But in a supplemental brief filed on Friday, April 9, Sarkar attorney Nicholas Roumel reveals that Wayne State provided the email exchanges quoted in the comment in question, and that they were between the pseudonymous Clare Francis and Julie H. Miller, secretary to Wayne State’s Board of Governors. Roumel quotes from a November 10, 2013 email from Francis:
“I am writing to you about multiple scientific concerns about the published work of Fazlul H Sarkar which have been aired on Pubpeer.
“You can find the entries on Pubpeer here: …
“Many of the entries mention things which amount to what many think of as scientific misconduct….”
Part of PubPeer’s argument has been that there is no grounds for a defamation suit against the commenter, because the comments do not contain libel. The emails, Roumel argues in the filing, mean that:
Simply put, PubPeer is dead wrong. They have argued repeatedly that there is no way any of the pleaded statements are capable of defamatory meaning – i.e., accusing Dr. Sarkar of intentional research misconduct. On the contrary – even the anonymous poster and emailer was astute enough to know that “Many of the entries mention things which amount to what many think of as scientific misconduct….” This supports Dr. Sarkar’s argument all along that in the scientific community, people reading on PubPeer would be fully aware that he was being accused of intentional research misconduct – a serious charge and accusation of illegal acts – rather than simply stating their opinion that certain images resembled each other.
Francis tells Retraction Watch that a lawyer from the American Civil Liberties Union (ACLU), which represents PubPeer, has asked if he or she wanted help protecting his or her anonymity. Roumel has previously said that he and Sarkar would be fine with an order that protects the name of the commenter.
Francis also said:
My comments to Wayne State are pointing out the obvious. They are in the public interest (throughout the world).
Roumel tells us that Wayne State did not object to the subpoena for the email exchange. We found that puzzling, since our understanding is that federal regulations require keeping the identities of complainants confidential. Roumel agreed that was true, but said:
…they did not release (nor did I ask for) any documents having to do with any alleged actual, formal complaints…
It’s not clear to us that confidentiality is only required for formal complaints, but this is of course a legal question others will decide. The information from Wayne State does not include Francis’s IP address, which the judge ruled PubPeer must provide to Roumel.
We have reached out to Wayne State and an attorney for PubPeer, and will update if they respond.
Update, 10 a.m. Eastern, 4/14/15: PubPeer’s attorneys responded:
We are deeply troubled that a scientist who exercised his or her right to anonymously report anomalies in scientific research is being threatened with possible liability. The First Amendment protects the right to speak anonymously precisely so that, in circumstances like this one, individuals can report on matters of public interest without fear of retribution. This case is especially troubling because it threatens to weaken the foundation of scientific research, which relies on honest feedback and criticism from one’s peers.
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Sad, but probably inevitable. Francis has made some powerful enemies.
Many enemies. But, if you can’t stand the heat, don’t play in the kitchen.
There is something deeply chilling about the action of Wayne State here. What they are signalling is that if you raise possible concerns about one of their researchers, they will be happy to hand over all the information they have about you to the researcher, opening you to the full range of reprisals. In other words: we don’t want anybody to raise any concerns with us.
You can raise them, but do not ever expect a blanket canvas of anonymity. That should never be reasonably expected.
Modern universities today are a business, run by business-people (with advanced academic degrees, but business people, CEOs, mindful of liability and coached, cajoled, even threatened, by their own lawyers. Boldness is ironed right out of them and corporate self-preservation, and career earnings and employ-ability in their own competitive job arena, as well as business prospects for their employer as a research enterprise, are understandably utmost.
Most Universities operate in this way. They do not, in-fact, have any obligation to keep your ID a secret. Those responding to allegations of misconduct (such as a University Research Integrity Officer) are well versed in the appropriate warnings to correspondents, namely “we will do our best to protect you but cannot guarantee it”. Anyone making such allegations should be aware of this type of policy, even if not explicitly stated in the response.
That is absolutely true. Even the recommendations I write for promotion and tenure come with the same disclaimer that my anonymity can’t be guaranteed. Wayne State really lucked out because Sarkar resigned his tenured appointment so they now have him on a fixed term appointment that will be simple to terminate. I expect they are being extra careful to appear to be treating him fairly. The lawsuit mentions that his appointment ends in June. it will be interesting to see if he is reappointed.
Researchers all over the world should support Francis and ask Wayne State when the issues around the questioned articles by Fazlul Sarkar will be investigated to clarify in this case.
Yes they should applaud the work. Additionally, if someone’s career and reputation is adversely affected, there should also be consequences. That is why in a court of law there is the defense, and the prosecution. If Francis is prosecuted, she/it can defend itself. There is something called accountability, and transparency. If one is brave enough to make such accusations, one should have the courage to defend them. Simple – why hide behind the cloud of anonymity. If there is only the truth, then remove the cloak and show yourself.
However, why should anonymity by reasonably expected? In times of increasing transparency, accountability, and moves to even have the peer-review system unblinded and transparent, there should be no realistic expectation of complete anonymity across all media. The pseudonymous identity of Claire Francis is a welcome development. For someone to be as enthusiastic a campaigner, working for the greater good, I have to say, it is curious how and why an individual should have such vested enthusiasm, and the time to do it. While I support this person’s sleuth and detection work, one should also be very careful. There is the Freedom of Information Act (FOIA) for example. If your facts cannot stand up in the court of law, no matter the pretension of acting in the public interest, it is best not to post at all, if you are not prepared to defend yourself. Anonymity is a privilege, and I stand by what I say above in that it should not be reasonably expected across all media. There are protections I know, but there are also many exceptions.
Ha ha ha ha ha. No seriously, ha ha ha ha ha!
It is beyond side-splitting that for all Sarkar’s lawyering and chest-thumpery, all he’s succeeded in doing is kicking the can down the road by “identifying” a pseudonym as the mystery commenter. Does he honestly think that with the thousands of papers CF has flagged over the past few years, (s)he would be so foolish as to not use a proxy or IP masking service? All that will happen next, is PubPeer eventually hands over the IP, and that information will get Sarkar precisely nowhere. For that reason, why isn’t he subpoenaing RW? They have Francis’ email and IP address on file, as does anyone who has ever run a website on which (s)he ever left a comment.
As regards the notion that CF’s speech is defamatory, that’s highly debatable in my opinion. All CF said is that the evidence “amounts to what many think of as scientific misconduct”. That’s an expression of opinion protected by the first amendement. CF didn’t outright say “this is fraud” but instead suggested that other people might think it is fraud – there’s an important distinction.
It’s depressing that we need to use such Fox News-like weasel words when discussing data. Truly the lawyers have won. (Only in the US, perhaps?)
In the U.S., truth is the absolute defense. If what the anonymous source said was true, that others were suggesting scientific misconduct, then no slander has been committed.
Quite true, CF’s comment should be protected by the first amendment. But as far as I understand this legal thing, that’s not really what Roumel is interested in anyway. He argues that the Pubpeer-comments that make people think this might be a case of scientific misconduct are the defamatory comments. That’s his argument, “look judge, Clare Francis states that the pubpeer comments give the readers the impression that fraud took place, so these comments are defamatory”.
As a matter of fact, as painful as it would be for those involved: It would be interesting to see such a case move on in the courts. There seems to be a need for clarification that everyone has the 1st amendment right to post “look, these bands look funny, don’t you think?”.
“Quite true, CF’s comment should be protected by the first amendment.” NOT if they are defamatory or libelous, or have an effect of damaging an individual.
Not really. The information about (somebody who identfied as) Claire Francis is not the outcome of the attempt to force PubPeer’s hand. If that attempt is successful, it will reveal an ip address. Now, that ip address may well be useless, but we already knew that. Furthermore, whether the PubPeer comment is defamatory is beside the point. The plaintiff’s intent is to determine the identity of the person who sent various emails and possibly did some other, nasty stuff (e.g., impersonating a US senator).
Bingo. From what I read, what was written was, “Many of the entries mention things which amount to what many think of as scientific misconduct….” That is a statement which is verifiable – are there comments on the site attributing “things” to Sarkar, and are there comments in which people interpret those “things” as scientific misconduct? If both exist, then under U.S. law there is no slander (truth is the absolute defense). What Sarkar is trying to do is kill the messenger. His targets should be those on the site “mentioning things,” that others would see as scientific misconduct.
I wonder if you are mistaken by believing Clare Francis is an individual. Why couldn’t the moniker be for a group of like minded people much like the group of hacktivists call themselves Anonymous? I’m guessing that if it is a group of people the amount of time spent doing this work wouldn’t looks so suspicious.
Sorry, I meant for my post to be a reply to Ethical Observer.
Very funny that Francis is the source. She hasn’t been outed yet, so I suspect she is smart enough not to let an IP address identify her. Everyone can be found, but I’m assuming Anonymous wont get involved, so I doubt they have the sophistication and/or desire to really pursue it beyond this point.
No way were her comments defamatory anyway. What is the world coming too???
Reread “The Purloined Letter” by Edgar Allan Poe… Clare Francis doesn’t need to hide away. She even has a public home page: http://www.clarefrancis.com/ (No, that isn’t really her.)
You can’t hide your IP address that easily, unless you have an IP address modulator. A signature trace is in the metadata my friend.
I must note again that one would be well advised to consult the outcomes of copyright-troll litigation before elevating “IP address” to magical status.
Hiding an IP address is straightforward if you have the correct tools (which are free; using Tor from Tails, for instance) and use them carefully. VPN services that don’t keep logs like Mullvad are also potentially reliable. “IP address modulator” is not a term I’m familiar with.
I thought that the logic of the Sarkar suit was that the person who contacted Wayne State might also be the person who put flyers in people’s mailboxes at Wayne State suggesting that Sarkar was under ORI investigation and also contacted The University of Mississippi to alter them to these concerns which then derailed his employment there. CF clearly has enormous energy to devote to these kinds of cases but is it credible to suggest that she/he/they could have be responsible for all of these incidents?
Institution vs 1? The modern day Davis vs Goliath.
Now it all makes sense. The behaviour of WSU is deplorable and ethically the absolute low point. Isn’t there any US authority which could look into this sort of behaviour? The fact that WSU employs and so blatantly takes the side of Sarkar, despite all his PubPeer record…Why? How much overhead funding does he bring WSU? Then this bizarre court decision, granting the right to the most powerful and wealthy party, past any pretence of proportion or common sense. Are we in Russia here? Nice future for “science”, eh?
Sarkar and everybody else who feel wronged by Claire Francis can now mount their legal battle of annihilation. I am in shock and awe indeed.
I don’t think Wayne State are on Sarkar’s side. Part of the motivation for the lawsuit is that Wayne State would not re-hire him as a tenured faculty member so now he is a fixed term research track faculty member and his appointment ends in the summer.
I do hope you are right. The proper action would have been an institutional investigation (yes, WSU, this is something institutions are supposed to do when questions are raised), instead of what may end up as a most friendly separation. And now these news, how they treated the whistle-blower.
The contrast between the Sarkar and Kumar cases is interesting. In the latter case the institution (GWU) has removed Kumar from his position, refused to accept his grants and shut down his lab. This is all documented in the Kumar lawsuit. Basically GWU are saying that they are sure they are in the right and are prepared to defend their position in court. Certainly at the place where I work when we had a case that rose to the same level as the Sarkar and Kumar cases may turn out to be (if when they finally generate ORI reports) the institutional response was more in line with the GWU response than the Wayne State response. But on the other hand, Wayne State are fortunate that Sarkar has voluntarily given up his tenure. If the fixed term positions at Wayne State are the same as where I work they are annually renewable and it would be as easy to not reappoint him as it is for me to not reappoint any of the research track faculty that work with our group (not that I would do that because these are all decent hard working and valuable colleagues). So why bother to go to all of the trouble to sack him and close down his lab when this is now the default outcome unless he is reappointed.
This is the relevant information from the lawsuit. My reading would be that unless he is reappointed he will not have a job at WSU on August 1 2015.
79. Nonetheless, in apparent recognition of Dr. Sarkar’s many years of contributions to
its institution, Wayne State did allow him to do so in this instance – but only for a one year
appointment through July 30, 2015, and in a non-tenure track position as a Distinguished Professor
– making such an offer on August 11, 2014.
Thought this solution is very convenient for WSU, it is not appropriate at all. Now, Sarkar can take up another professorship elsewhere or move to a high-profile position at the industry, untainted by any institutional investigations whatsoever against himself.
Lets face it, while I am sure Mississippi state is a fine institution its not in the top tier of US biomedical research universities. So if they have concerns about hiring Sarkar then I can only imagine these concerns would be shared by other more selective institutions.
And if you google Homme Hellinga you will see that even not being found to have technically committed misconduct can have long lasting negative consequences for your grant getting mojo.
Bottom line, I don’t think its going to be that easy for Sarkar to get another job.
Nice point. But remember our old friend Anil Potti MD of Duke University School of Medicine? He found another job. http://www.bakkentoday.com/event/article/id/243218/publisher_ID/40/ To learn more about research misconduct, including other high profile cases, visit UNH’s Misconduct in Scholarly Activity webpage http://www.unh.edu/research/misconduct-scholarly-activity and the UNH Web-based Misconduct in Scholarly Activity training module. It is a benchmark resource in my very humble opinion.
You’ve gone straight to the Potti argument. I can’t refute that one but I suppose in the end someone has to balance the harm done by potential misconduct against the possibility that individuals deserve a chance at rehabilitation after their research and academic careers have been destroyed.
Mind you, Potti also lucked out by finding a particularly uninformed employer:
http://www.grandforksherald.com/content/controversial-cancer-scientist-now-works-grand-forks-cancer-center
Potti is a victim of “politics” at Duke, Noyes said. “If a guy can’t get a second chance here in North Dakota, where he trained, man, you can’t get a second chance anywhere.”
On January 16, 2015, an individual who goes by the name of Faz Alam posted extensive comments about Dr Sarkar’s dilemma and proceeded to evaluate the gel profiles in over 100 of his papers, concluding that PubPeer comments were fair for 89 of them, unfair for 20 and for 7 he was neutral . I responded to Faz Alam’s analysis on my blog (http://www.integritywatchforscienceandmedicine.com/pubpeer-appears-to-peer-properly/). I examined 22 publications co-authored by Sarkar that were signaled as having been cited on PubPeer and were among the first 200 (of 538) citations listed for him on PubMed. I found that Sarkar was the corresponding author, grantee or both on 16 of those 22. I said in my blog “I hold Dr. Sarkar to be the principal who is most at fault [for the alleged image manipulations] because, as corresponding author, he was responsible for the data that was presented and as the grantee, he took further responsibility to make certain that the reports were accurate and complete. However, in spite of his findings, Faz Alam does not think that Sarkar should be held guilty of misconduct. You can find Faz Alam’s essay at http://www.sciencemadeeasy.kinja.com/the-case-against-pubpeer-1679940590. I recommend it highly.
I say, thank God for Clare Francis. S/he needs to remain anonymous until such time that scientists can comment freely and openly when they question experimental results without fear of law suits.
A thought is that anonymity is important on terms of allowing allegations and complaints to stand on their own, independent of the reputation of the person submitting the complaint.
This is probably a reach though, and to be honest I am very confused as to what the objectives here might reasonably be.
This is great. The appendix to the supplemental brief, which is alleged to contain “[t]he entire email chain,” is printouts of the E-mail without headers.
It’s utterly meaningless.
My suspicion would be that most of the people involved here are not savvy enough to know that such a thing as “full email headers” even exist, let alone how to go about displaying them within their chosen email software package. It won’t do them much good anyway, since Gmail does not include the originating IP address in the full headers (whereas Yahoo mail does – a good reason to avoid using it).
I just sent an E-mail from my primary account to a Gmail account that is set to autoforward to the original account. The received forward shows the true sender IP in the first “Received:” line.
Useful to know….But even if you have the best possible protection (VPN, modulating IP, TOR etc) in the end the “entry point” is the weak link that can potentially be used to identify the originating IP.
But anyway, the “@googlemail.com” in the E-mails doesn’t mean anything either. It appears that I successfully sent Ivan an E-mail “from” that address last night by talking SMTP to his MX (although I didn’t receive the cc:).
Ah, that should have been a reply to my reply to Paul Brookes, sorry.
I can’t help feeling that Ethical Observer’s pious views about pseudonimity (sp?) would carry more weight if s/he wasn’t actually anonymous him/herself.
Having said that I am vaguely curious as to the identity of Clare Francis and outing Paul Brookes doesn’t seem to have done him any harm.
I don’t see how there is a claim against Francis re the job offer, if Sarkar felt he had been unfairly treated he should have sued the institution who withdrew the offer.
Tom Eppes, a spokesman for Mississippi, said that Sarkar was given the opportunity to explain the research-related allegations “before going forward with employment.” But Eppes said the professor “never responded or otherwise provided assistance in addressing the questions.”
If U Miss is the same as the big state university where I work then the trustees and administrators have considerable latitude to act in what they consider to be the best interests of the institution and by association the State. This concept of sovereign immunity would make it very difficult to go after U Miss in court for not hiring him, particularly after an effort was made to engage Sarkar in discussion about the PubPeer concerns.
Assuming what you say is correct and that Universities are allowed to act in an unfair and arbitrary way in the US, I still don’t see how all the liability that normally would attach to an institution can suddenly be transferred to a third party because of sovereign immunity.
If sovereign immunity functions the way you claim, then presumably it extinguishes Sarkar’s claim, it doesn’t distribute it randomly to other parties.
Not sure what you mean by a “third party”? Do you mean that Sarkar could sue individuals at the University? I don’t think so.
Universities cannot misuse this as you correctly put it unfair and arbitrary power and there are plenty of cases where this has been challenged. However the difference is that to prevail the plaintiff would have to first show that they didn’t do anything wrong. Sarkar was given the opportunity to defend himself and didn’t take it. And the letter rescinding his appointment made it clear that there was a real and I am sure sincere concern that hiring him would damage the institution.
In earlier discussions on Retraction Watch, Scrutineer has presented images that may have been reused in different papers e.g.
http://retractionwatch.com/2014/09/22/scientist-threatening-to-sue-pubpeer-claims-he-lost-a-job-offer-because-of-comments/
Here, it is possible that an example of image reuse across seven papers exists
http://i.imgur.com/rOsfAOW.png
Special thanks to Scotus for mentioning the additional lawsuit being brought by Rakesh Kumar, affording a rare opportunity to double up with the image analyses
http://i.imgur.com/MKsXTSf.png
The PPAR band similarities were reported earlier, as were potential problems with Fig. 4, but those stretchy-constrasty vinculins should be new
https://pubpeer.com/publications/8441D4E5054602B1E63B8A94DC83F8
Yet somehow doctors, lawyers etc who break professional rules and ethics lose their licences, while scientific misconduct is sometimes considered forgiveable or not serious enough. Honest job applicants are rejected, because a fraudster needs another chance. How about some “alternative careers” for them?
Potti is a physician but his research and academic meltdown has not impacted on his ability to practice medicine and he maintains active medical licenses in several states. He was censured by the NC board who also note that there have been settlements paid to patients in connection with the clinical trials that were based on his fraudulent research but his license is still active even in NC.
Here’s how Duke is responding to those suits: http://www.cancerletter.com/articles/20150123_2 Here was Baggerly’s analysis: http://retractionwatch.com/2011/05/04/the-importance-of-being-reproducible-keith-baggerly-tells-the-anil-potti-story/ We’ll see which one a jury finds more believable.
I suppose these issues could be revisited as a result of the ongoing medical malpractice suit brought by patients in the Potti trials against Duke but the longer this goes on the more likely it is that there will be a settlement and nothing will be resolved about the blame and responsibility for at best enrolling patients in unnecessary trials and at worst denying them appropriate treatment.
Until then, it appears as though he will be free to practice medicine. At least his research and academic careers are now over.
Figures of 2013 Sarkar paper revisited:
https://pubpeer.com/publications/7EF6F12D84A3BC8F98FC8809FD4FD1#fb42813
New queries about 2007 Sarkar paper:
https://pubpeer.com/publications/BBAD864021C791C98A794E2FAC8A43