Who should have access to the complex software able to predict changes to Louisiana’s endangered coast as billions of dollars are pumped into projects in the coming decades to curb coastal degradation?
That question is at the heart of a high-stakes dispute in which two local coastal scientists were hit with criminal charges earlier this month. It has also forced a debate over who owns computer programs built on traditionally free, open-source data.
On June 5, federal authorities handed down indictments for Ehab Meselhe and Kelin Hu, two coastal restoration scientists working at the Baton Rouge nonprofit group The Water Institute of the Gulf. The allegations were Meselhe, a preeminent scientist in his field, conspired with his colleague Hu to illegally download a computer model that forecasts changes to the Mississippi River delta. They then planned to take it with them to new jobs at Tulane University, according to the indictment.
Both scientists have pleaded not guilty and reject the charges. In court filings, Meselhe’s attorneys argue the model he helped create does not constitute any “trade secrets,” as the federal indictment alleges, but rather is based on open-source data from a Dutch research group that’s free for all to access and use.
“ … Dr. Meselhe is a world-renowned scientists and academic whose reputation has been shattered by this indictment,” reads a motion filed Monday (June 24) in federal court. “Dr. Meselhe believes that these charges are completely unfounded and wishes to clear his name as soon as possible.”
The Water Institute, through a spokesperson, declined to address questions directly from NOLA.com | The Times-Picayune. It deferred comment to the U.S. Attorney’s Office for Louisiana’s Middle District, which is prosecuting the case.
“The scientists and researchers at The Water Institute of the Gulf remain focused on our mission to help coastal and deltaic communities thoughtfully prepare for an uncertain future,” said Amy Wold, the Water Institute’s communications director.
In a motion filed Friday, federal prosecutors asserted the model is protected under the Economic Espionage Act as a legal “trade secret.” The law bars public sharing of anything considered a trade secret that “derives independent economic value from not being generally known to the public,” the motion said.
“The Water Institute has treated the Basin Wide Model as a trade secret and it is not in the public realm,” prosecutors asserted.
Meselhe and Hu’s trial has been set for Aug. 5 in Baton Rouge.
Trade secret or free for all?
The software, called the basin wide model, has been key in shaping major coastal restoration projects where the Mississippi River spills into the Gulf of Mexico. They include the massive, costly Mid-Barataria and Mid-Breton sediment diversion initiatives, which aim to redirect the river’s flow in certain areas to replenish wetlands rapidly eroding into the Gulf.
According to court documents Meselhe’s attorneys filed this week, the basin wide model’s creation was funded through a $45 million agreement between the Water Institute and the Louisiana Coastal Protection and Restoration Authority (CPRA). The state agency is tasked with channeling $50 billion over the next 50 years into efforts meant to strengthen the coast.
The federal indictment claims the basin wide model entails “a highly sensitive, proprietary and valuable trade secret” for the Water Institute, without which the nonprofit “would lose its trade secret and competitive edge” to win future contracts. Meselhe and Hu, the indictment alleges, schemed “to steal and otherwise misappropriate” the software by downloading it and discussing it through their personal email accounts, allegedly to avoid scrutiny from the Water Institute as they moved to Tulane.
In court filings, Meselhe and his attorneys argue the Water Institute “has no ownership rights” over the basin wide model. They contend it was constructed from sharable open-source data and paid for with public money. They also point out the Water Institute’s agreement with the CPRA would actually grant ownership of the model to the state, not the nonprofit, once its terms have ended.
“Because the Water Institute does not ‘own’ the publicly funded Basin Wide Model, the Government cannot, as a matter of law, prove the essential element of ownership required under (federal law),” says a subpoena Meselhe’s attorneys filed this week. “Further, the Basin Wide Model is public property of the State of Louisiana: thus, as a matter of law, it cannot qualify as a ‘trade secret.’”
Meselhe’s attorneys have filed a sweeping public records lawsuit for a trove of internal Water Institute documents, including memos, emails and other communications. Prosecutors have opposed the move, framing it in a court motion Friday as “an end-run around” for Meselhe to obtain the basin wide model through the lawsuit.
One crucial email that Meselhe’s legal team already possesses was attached to a motion filed Monday. It lays out a list of software and models, including the basin wide model, that Meselhe said he planned to copy and keep with him prior to departing for Tulane. Meselhe sent the email to the Water Institute’s president and CEO, Justin Ehrenwerth.
The Water Institute’s response to Meselhe’s email is unknown. The nonprofit, deferring to federal authorities, declined to answer questions about the email.
The Dutch connection
Meselhe’s recent court motions cast a spotlight on open-source codes provided free to the public by the Netherlands-based nonprofit Deltares, which has collaborated on many environmental projects in Louisiana in recent years. These codes, collectively called Delf3d and accessible on Deltares’ website, formed the backbone of the basin wide model, according to Meselhe’s motions.
Responding to questions this week, Deltares USA’s director, hydrologist Edwin Welles, highlighted the group’s philosophical statement on open-source data, which is published on its website.
“We believe in openness and transparency, as is evident from the free availability of our software and models. It is our firm conviction that sharing knowledge and innovative insights worldwide enables living in deltas,” the statement says.
Welles said Deltares and its U.S.-based affiliate “are not aware of any loss of their intellectual property nor any financial harm done to them” stemming from the allegations facing Meselhe and Hu.
Meselhe’s court filings also claim that an “agreement” between Deltares and the Water Institute exists stipulating “that any code and any additions to it … and any rights therein belonged to Deltares were subject to a General Public License.” That type of license keeps applicable software free to use, share and alter by the public, according to the nonprofit Free Software Foundation.
Welles declined to share the agreement with NOLA.com | The Times-Picayune but said the company would provide any subpoenaed documents once they are made available to Meselhe’s legal counsel.
The Water Institute declined to answer questions about the agreement.