Tug of War over Researchers' Data Illustration by Mark Steele

Two recent attempts to shake data out of Harvard faculty members--one in the courts, one in Congress--have sharpened a debate about who should have access to researchers' hard-won materials. In the court case, Microsoft tried but failed to gain access to interview notes for a book coauthored by a Business School professor about the software giant's rivalry with Netscape--a failure that appears to have won academic researchers greater control over their data in such cases. But a new federal law slipped into last year's budget bill could force many federally funded researchers to release their data to anyone who asks. Both developments are skirmishes in a continuing tussle between researchers and industry over control of researchers' data and over important privacy and property rights of both researchers and research subjects.

The Microsoft case is the simpler, and for researchers the more encouraging. Last fall, Starr professor of international business administration David Yoffie and a colleague, Michael Cusumano of MIT, were awaiting publication of their book Competing on Internet Time: Lessons from Netscape and Its Battle With Microsoft (Free Press, 1998) when Microsoft subpoenaed large portions of their research materials. The company was preparing to defend itself against the government's antitrust case, which hinged largely on its competition with Netscape; Microsoft apparently hoped that Cusumano and Yoffie's notes, which included extensive interviews with Netscape employees, might strengthen its argument that Netscape's problems stemmed from poor management rather than unfair competition. (Yoffie says Microsoft based its request partly on the contention that the company "lacked the resources" to conduct similar interviews on its own.)

Not in a million years, is how Yoffie characterizes their reply. The local federal district court backed them, ruling that Microsoft's need for the material was outweighed by the authors' proprietary interest and, more important, the public's interest in First Amendment protections of the confidentiality of press sources. A three-judge panel of the First Circuit U.S. Court of Appeals later confirmed that decision, finding that in such cases "academicians engaged in pre-publication research were entitled protection commensurate to that accorded journalists."

Yoffie calls this a significant decision because previous cases had left unclear whether First Amendment protection of sources and information extended to academics--as his own lawyer had discovered. Attorney Allan Ryan of Harvard's general counsel's office, who worked on the case, says the unanimous appellate decision "should substantially strengthen the hand of academics hoping to control their research materials in similar cases."

Public Law 105-277, however, could do just the opposite. The new federal law requires federal- ly funded researchers whose work is used to create federal policies to surrender their underlying data to anyone who asks for it under Freedom of Information Act (FOIA) procedures. The Office of Management and Budget (OMB) created draft rules for the new law in February and took public comment on them until April 5, prior to reviewing the comments and publishing final rules. But no matter how it is worded, the new law's critics say it will impose potentially crippling constraints on many researchers.

Advocates (among them Senate majority leader Trent Lott) say the law simply gives the public access to data it has paid for, and that FOIA guidelines will protect the privacy of human research subjects and the proper interests of researchers. Most of the nation's research community, however, including the National Institutes of Health, the National Academy of Sciences, the American Anthropological Association, and the American Association of University Professors, say the new law will severely compromise the confidentiality of sometimes sensitive personal data and could subject those investigating controversial issues to harassment in the form of endless requests for, and challenges to, their data. As these critics have noted, the original advocates of the law were almost exclusively industries affected by scientifically driven regulations; the proposal was added to last year's 4,000-page omnibus spending bill by Republican senator Richard Shelby of Alabama without discussion or debate (even though similar bills had been debated and defeated in Congress before, including a House version voted down last fall); and the law as passed contradicts several Supreme Court decisions specifically exempting federally funded nongovernmental researchers from FOIA requests.

"The public and the courts long ago decided that it benefits the public to fund neutral, disinterested investigators to do research that supports public policy," says Joel Schwartz, an associate professor of environmental epidemiology at the Harvard School of Public Health. "There are already numerous mechanisms to verify and correct shoddy research. This is not about public access. This is about industry access."

Schwartz speaks from experience. Both at Harvard, where he has done extensive analyses of air pollution's health effects in the late 1980s and 1990s, and previously at the U.S. Environmental Protection Agency (EPA), where he did work in the late 1970s and early 1980s that helped inspire the ban on lead in gasoline, he has spent much of his time countering industry-funded campaigns to debunk his findings.

Most observers, in fact, think the new OMB disclosure law was created largely in response to industry frustration over the refusal of Schwartz and his School of Public Health colleague Douglas Dockery, professor of environmental epidemiology, to release the data analyses the two researchers did in the early and mid 1990s that showed a clear link between high levels of fine airborne particulates and increased death rates (see "Airborne Assassins," September-October 1995, page 23). Those studies led in 1997 to stricter EPA regulations on such pollutants. When coal-burning and other industries affected by the new EPA rule asked for the underlying data, Dockery and Schwartz declined, saying such disclosure would violate the privacy of the participating subjects. That refusal led industry to lobby more heavily than ever for the sort of access it has won through the new OMB rule.

The concerns he and Dockery cited about subject confidentiality, Schwartz says, "are not idle." He can cite numerous instances in which industries won access to such data and then contacted some of the subjects, upsetting or even intimidating them. And in the statistically powerful studies Schwartz and many other health-effects researchers carry on, even blacking out the names of the participants won't necessarily protect their privacy, for their identities can often be derived by analyzing the demographic variables that form the heart of such investigations.

"If we can't promise these people that their information will be kept private, few will participate," says Schwartz. "The new rule will make it really hard to get enough people for a broad, representative study. And it denies citizens the right to selectively contribute useful information to neutral, scientifically motivated organizations. It violates the privacy rights of both researchers and subjects."

Critics of the new law cite other worries as well: that researchers could lose copyright and patent rights, since the early release of underlying data may allow others to create products before the researcher can obtain such protection; that institutions and individuals will have to shoulder new administrative burdens to handle the information requests; that disputes will emerge about which studies contributed to which laws and regulations; that vagueness in the drafted rules about what constitutes "data" could leave virtually all notes, draft papers, and even e-mail correspondence open to perusal and attack.

These problems, say Schwartz and his colleagues around the country, destroy an existing, healthy balance between researchers' proprietary and privacy rights and the need for oversight of scientific research. "The United States has created a research capacity that is the envy of the world," notes Harvard provost Harvey V. Fineberg, himself a former dean of the School of Public Health. "PL 105-277, as presently crafted, could do unforeseen damage to a process that has served the public interest well for many decades."

Most of the research community is not only lobbying OMB to water down the rules as much as possible, but is pressing Congress to pass H.R. 88, a bill introduced in January by Democratic representative George Brown of California to strike the new rule. Yet even if OMB's final rules ameliorate the law's worst aspects, or H.R. 88 cancels it, the struggles to control research materials likely won't disappear. If the Microsoft and Public Law 105-277 examples make anything clear, it's that researchers will enjoy the liberty to do their work only at the price of considerable vigilance.

~ David Dobbs

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