As I read #3, the hypothesis doesn't depend on individual researchers acting unethically by validating against the test set. Instead, I read it as an analogy to significance bias in other sciences: machine learning models that don't perform as well on the validation set simply aren't published, so the field as a whole over-fits, as if validation is performed on the test set.
In the paper you link, the authors themselves do explicitly note some test-set shenanigans:
> But this assumption [that the models are independent of the test set] is undermined by the common practice of tuning model hyperparameters directly on the test set, which introduces dependencies between the model $\ˆf$ and the test set S. In the extreme case, this can be seen as training directly on the test set
However, it absolutely does not answer the question that is asked in the title of the paper, and the process they use is incapable of answering that question.
If you go back and read the original CIFAR10 paper, you'll see that the process they carefully went through meant that they curated the most suitable images for each category. By definition, what's left over (which is what the Recht et al paper chose from) is less good images, which are of course therefore harder to classify.
All the experiment measures is how good they are at matching the distribution of the original dataset. The answer, they discovered, is: not very.
What #3 has described is a totally normal workflow:
1. Conceptualize a new model idea
2. Implementing and training is totally legal without involving test set.
3. However, once finished, the model is evaluated on test set, the performance of which will decide whether this idea is worthy of publishing or not. If not, they go to the first step and repeat.
Such loop essentially makes the test, the actual validation set, if you think human as his/her own optimizer, and he/she takes a look at the test set periodically, and decide whether to pursue the current idea or not. Sounds like early stopping, isn't it?
Remember back in 2015, there is a debacle from Baidu, where a researcher had fabricated multiple accounts to run unlimited tests against ImageNet's own reserved test set, which the competition straightly forbade.
If a test set is a 'true' test set, then it should work like a test in a real world: be kept secret before revealing to the public, once evaluated, the same problems/examples shall never appear in the later tests ever. But such approach would not be accepted because the cost is simply too high.
In the Recht et al. study, the reason the new test accuracy is wildly outside of a binomial confidence interval around the original test set accuracy is that the distribution is different. The CI only applies to data drawn from the same distribution.
ML research still suffers from replication issues; such is the nature of the scientific incentive structure. However, these issues generally come in the form of poorly tuned baselines, buggy code, and claims with insufficient experimental/theoretical justification. Outside of some isolated cases, publication bias and cheating at hyperparameter tuning do not seem to be major factors.
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[1] Statistically speaking, to compare two models on the same dataset, one does not care about the accuracy numbers but instead about the number of examples model A gets right that model B does not and vice versa; see McNemar's test.
Also the footnote on the first page cracks me up: "Authors ordered alphabetically. Ben did none of the work."