Confidentiality Clauses and BP

BP is trying to lock up information about the consequences of the gulf oil spill by enticing oceanographers to enter into consulting contracts complete with NDAs. The researchers, naturally, deny that payments will influence their data collection or conclusions: ““The data are what the data are.” But BP seems to be trying to buy off entire segments of the academy, denying funding to those who won’t agree to keep their results a secret:

“Faculty who are not contracting with BP or the government want to do independent research in the Gulf and along the coast,  . . . But they are finding funding and access very hard to come by. … [And BP was] rejected in an attempt to contract with the University of South Alabama’s entire marine sciences department. But individual faculty still have the freedom to do so, said department chairman Bob Shipp.”

Now I’m not sure that an NDA preventing disclosure of a catastrophic society risk would be enforceable.  So as an initial matter, I wonder whether BP is really getting what it thinks it is buying.  But more generally, isn’t this exactly the kind of low-hanging political fruit that the Obama administration  would do well to pick?  It ought to be easy to force BP to surrender its right to enforce these NDAs as a condition for receiving one of the many other kinds of federal largess that comes its way, or for the state to insist that faculty not enter into agreements like these as a condition of their continued employment.  The argument that academic freedom means that you get to make money on a consulting contract and to sign a nondisclosure agreement that prevents the public from knowing what might be harming it seems to me to be quite weak.

(H/T: Robert Blumberg, TLS ’12)

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