America's dreadful Internet

A few weeks ago I blogged a review of Susan Crawford's important book Captive Audience about how awful broadband service is in the US--barely extant in some places, with one or maybe two providers elsewhere. (See Jell-O and US Broadband Inferiority.) The lack of competition in densely populated areas, and the lack of regulations or incentives from the government to force service to be diffused in rural areas, mean that with very rare exceptions, service in the US is much slower that it is in many  developed countries. And because cable is the dominant medium, where fast service exists it is highly asymmetrical: optimized for customers to receive video, not for them to upload large files. I noted that even in Boston, my ophthalmologist cannot send retinal scans from one of his offices to another. 

After I published that review, a friend in the cable industry directed me to a Wall Street Journal review by a fellow at the American Enterprise Institute that comes to a rather different conclusion. (See The Joys of Oligopoly.) Crawford doesn't understand economics, says the reviewer, and doesn't know much history either. The government should keep its hands off the Internet service market.

[T]he bipartisan deregulation movement of the 1970s and early 1980s that liberated trucking, airlines and telecommunications from choking regulation was a moment of reckoning, an attempt to come to terms, at last, with the legacy of progressive regulation. It wasn't often that Ted Kennedy and Ronald Reagan joined hands in common cause, but they did in this case. The practical shortcomings of regulation were overwhelming.

 The reviewer doesn't actually say whether he expects service to get better, or whether the US could ever hope to rise to the level of connectivity in, say Finland (to take a place with plenty of sparse country).

Today, god bless 'em, the WSJ has a stunning article about how the ISP for small-town America is … McDonald's. Not for watching movies: for kids in public schools writing papers. I mentioned in my review that students need to go to the public libraries in many areas to get Internet service, if it is unavailable or too slow residentially. This article adds a new twist: When the libraries close (and of course they close early, where municipal budgets are under stress), students go to fast food restaurants, sometimes studying over Cokes and hamburgers, and sometimes simply sitting in cars in the parking lots, within reach of the WiFi signal. (The Web-Deprived Study at McDonald's. I am sorry that this is behind a paywall.) Here is the beginning:

CITRONELLE, Ala.—Joshua Edwards's eighth-grade paper about the Black Plague came with a McDouble and fries. 

Joshua sometimes does his homework at a McDonald's restaurant—not because he is drawn by the burgers, but because the fast-food chain is one of the few places in this southern Alabama city of 4,000 where he can get online access free once the public library closes. 

Cheap smartphones and tablets have put Web-ready technology into more hands than ever. But the price of Internet connectivity hasn't come down nearly as quickly. And in many rural areas, high-speed Internet through traditional phone lines simply isn't available at any price. The result is a divide between families that have broadband constantly available on their home computers and phones, and those that have to plan their days around visits to free sources of Internet access. 

That divide is becoming a bigger problem now that a fast Internet connection has evolved into an essential tool for completing many assignments at public schools. Federal regulators identified the gap in home Internet access as a key challenge for education in a report in 2010. Access to the Web has expanded since then, but roughly a third of households with income of less than $30,000 a year and teens living at home still don't have broadband access there, according to the Pew Research Center.

What a disgrace. And good for the WSJ for reporting it.

Added 1/31:  I just noticed that this story was written by Anton Troianovski, a former Crimson reporter. Anton covered the most important faculty meeting of the Summers years, in which several professors challenged the president over what Farish Jenkins, may he rest in peace, referred to as the "tawdry Shleifer affair."

Collaboration, Course Management, and Cheating

The story that appeared in the Boston Globe about the "cheating scandal" a few days ago (behind a paywall, sorry) spent a certain amount of time on the perceptions of accused students that they were involved in an adversarial rather than educational process with the University. I was reminded that it has been more than thirty years now since the educational philosophy of the Administrative Board was laid out by then dean of the College John Fox, in his Annual Report. It is an excellent report--and reminds me how much we lost when the protocol of public annual reports, by both the President and the deans, was abandoned a decade or so ago, after having been continuous since 1830. Today we see committee reports, and we see brief statements and speeches by educational leaders, but we almost never see such considered essays on complex and important issues facing the university. To get to the report of the dean of the College from 1980-81, click this link and then go to 19757 in the Sequence window.

The report describes the premises of the Board's operation very well, and why they differ so much from the expectations of a criminal trial. Students are expected to be both honest and candid, a lot of the work happening in one-on-onbe conversations between deans (then called "Senior Tutors," a nod to their status as educators). Most of the time, by the time the case actually comes to the Board, everyone is on the same page about the facts of what happened, and what the Board is likely to respond as a result.

There could hardly be a system less akin to the criminal justice system, in which accused parties are under no obligation to talk to prosecutors, and generally have every move scripted and vetted by their lawyers.

It has always been my view that the paternalism of this system is fitting for an institution, as the 1980-81 report says,

engaged in a task that some might refer to as moral education. Obviously, the Board's objective is not to instill specific moral beliefs. Rather the Board provides a process through which the College reaffirms the very general institutionally sanctioned practices, procedures and rules that provide a framework within which different moral values and goals can be acted upon and pursued. Honesty, and fidelity to agreements, are among the fundamental expectations of this framework. (pp. 57-58)

There is, of course, a downside to relying on students' candor.

I have emphasized earlier that the Board assumes that students will be utterly candid. I should add here that in operating on this assumption, members of the Board are not being naive. There are occasional cases in which a student's denial of wrong-doing defies the belief of the most credulous. In a few cases a student will proclaim his innocence to a Board whose members are convinced of his culpability; seldom does the Board act in the face of an unambiguous denial, and only when it is impossible rationally to believe the student innocent.… One result of the Board's high standard of proof is that each year there may be a few cases in which members of the Board are persuaded of a student's wrong-doing but decline to act because, by the Board's standards, the case is "unproven." (p. 68)

The report goes on to note that this is OK. An unpersuaded student is not going to learn anything from being punished; and truly bad pennies, as it were, tend to turn up again. (And, of course, the student might actually be telling the truth.)

The examples in this report are almost all from a world where plagiarism and citation are more well-defined than they are today, when a course like Gov 1310 may encourage collaboration in note-taking and prohibit it in answering take home exams (but then what if the collaboratively prepared notes were prepared before the exam?). In such an environment, it does no good to say "cheating is cheating"; there are indeed, as I said to the Globe, shades of gray. It would be interesting to see an articulation of how the Board thinks about the new world of collaborative academic work.

But the 1980-81 report also reminds me how dependent the operation of the entire system is on the premises and limitations surrounding it, for example the view that when doubt remains about a set of facts, deference is given to the student. That is consistent with the optimistic but not naive assumption that most Harvard students are eventually going to graduate and become constructive members of society. As Kingman Brewster put it in his 1971 Baccalaureate address,

The presumption of innocence is not just a legal concept. In commonplace terms, it rests on the generosity of spirit which assumes the best, not the worst of the stranger. (Quoted in Kabaservice, The Guardians, p. 458.)

Which brings me back to the worries about Campus Culture as I discussed a few days ago. I hope we are not evolving for a more literal-minded application of our rule book, just at the moment when we are encouraging more collaborative work and more work that is at the technological edge. I hope we would not throw the book at the next Bill Gates or Mark Zuckerberg, and I hope we will not punish students by the letter of the law in cases where the applicability of those laws is ambiguous. The imperative for equitable treatment of all students should not mean the end of a certain generosity of spirit toward them. Because if we lose those generous and paternalistic educational values in our disciplinary process, if we de facto are evolving toward a system that is more "brittle" as one of my colleagues put it, we might as well switch over to a purely adversarial and punitive process for adjudicating allegations of dishonesty, as some have argued is fairer, if less flexible.

Why Prosecutors Can Bully Defendants into Giving Up their Right to Trial

In discussing the case of Aaron Swartz and Carmen Ortiz, a colleague asked a reasonable question: is what Carmen Ortiz did, threatening decades of imprisonment but offering to settle for six months IF Swartz would forgo a trial, anything new? Haven't there always been plea bargains like this? Perhaps the statutes are vaguer, as the CFAA certainly is, and perhaps the law is having more trouble these days keeping up with technology. But is the bargaining leverage any different than it ever was?

I am grateful to Harvey Silverglate for pointing me to a report that makes clear the leverage has gotten a lot stronger in the past 15 years. This is a 2001 report reviewing the sentencing in a particular criminal trial.

"The law is clear beyond peradventure that a sentence based on retaliation for exercising the constitutional right to stand trial is invalid." United States v. Mazzaferro, 865 F.2d 450, 460 (1st Cir.1989) (Bownes, J.). Well, not really. At least not today in the First Circuit. Evidence of sentencing disparity visited on those who exercise their Sixth Amendment right to trial by jury is today stark, brutal, and incontrovertible. True, there has always been a sentencing discount for those who plead guilty and turn state's evidence. In this District, that discount used to range from 33% to 45%.^[32] Today, under the Sentencing Guidelines regime with its vast 68*68shift of power to the Executive, that disparity has widened to an incredible 500%.^[33] As a practical matter this means, as between two similarly situated defendants, that if the one who pleads and cooperates gets a four-year sentence, then the guideline sentence for the one who exercises his right to trial by jury and is convicted will be twenty years.
Not surprisingly, such a disparity imposes an extraordinary burden on the free exercise of the right to an adjudication of guilt by one's peers. Criminal trial rates in the United States and in this District 69*69 are plummeting^[34] due to the simple fact that today we punish people — punish them severely — simply for going to trial.^[35] It is the sheerest sophistry to pretend otherwise. This is nothing new, of course. Sugarcoat it as we may with terms like 70*70"acceptance of responsibility" for those who cooperate, we have always punished those who demand that the government carry its constitutionally-mandated burden of persuasion beyond a reasonable doubt before an American jury. What is new and unprecedented is the severity of the punishment we are meting out to those whose only differentiating factor is that they ask for the chance to have an independent jury evaluate the evidence.
Although this case does not require that the line be drawn with precision, were it open to me I would today hold that the 700% difference between Cimeno's three-year sentence and Berthoff's twenty-one year sentence is simply too great a burden on Berthoff's exercise of his Sixth Amendment right to trial by jury and a sentence of fifteen years (i.e., a 500% increase over Cimeno to a sentence in line with the one Judge Freedman gave Catalucci) would be more just.

Later, in an endnote, the report states, "In 1999, the U.S. District Courts completed the fewest number of trials in 30 years, while filings were two and one-half times higher than in 1970. Civil trials have been decreasing since 1982, and criminal trials have been decreasing since 1992. Declines in trials have occurred in all categories of cases and in both jury and nonjury trials. Most importantly, the proportion of cases terminated by trial has been declining."

Even if one disagrees with Judge Young (the author of this report) about where the limits of reasonable leverage should be, it is hard to deny that those limits should be somewhere. It would surely be unconscionable to rack up felony pleas by giving the defendant the option of 1 day in jail if he pleads guilty and the risk of 50 years in jail if he insists on his constitutional right to a trial with an uncertain outcome.

So yes, there has been a change. The prosecutors have more power to bully than they used to, and that is wrong.

A Question about Creationism I Don't Really Want Answered

I paused while in the Northwest Building today to admire the Ichthyosaurus skeleton hanging over the stairway (at least, that is what I assume it is -- couldn't find any identifying legend) Orca skeleton hanging over the stairway. [Fixed 3 Feb 2013. Thanks to my informant!]

The reason I spent a bit of time looking at it on this particular occasion was because I wanted to find the rib I broke (first rib, left side) and where I broke it (in the back, just below the shoulder blade). I also cracked the "transverse process"in between that rib and the first thoracic vertebra. Looking at my friend here, I was picturing what was happening when the fracture was moving and causing such pain.

It would have made more sense to look at a human skeleton, but I hadn't bumped into one. I did look at some 3-D computer-animated illustrations, but this was much more lifelike. Different numbers of vertebrae and so on,  but the "design" is all the same. The first few ribs wrap around and are attached to the sternum, the others are floating free at their distal ends, the vertebrae are graduated in size but change little in layout, and so on. And the ribs don't look that strong on this fellow; I bet his could get broken pretty easily just like mine, even though falling is not a hazard if you are in the water all the time.

When Creationists look at something like this, don't they think the Creator was displaying a notable lack of imagination to create all these different creatures simultaneously and from scratch using the same basic design all the time? Even giving us humans a tailbone just like the Ichthyosaur has.

You'd just think with infinite capacity a little more imagination could have been used for all these allegedly unrelated species.

Please don't comment with any explanations of how I don't understand what Creationists really think, or theological explanations of how this thing isn't an actual skeleton at all, just a hoax or a divine trick. I don't want to know. I just want to know how any rational being can look at that and avoid seeing the family resemblance, because it sure screams out at me.

Campus Culture

John Sununu has a terrific, apolitical column in the Boston Globe today entitled A Crisis of Values at MIT, about the Aaron Swartz case and what it says about changes in the "campus culture" at MIT. His  observations about culture apply much more broadly. Colleges have become, much more than they once were, captives of rule systems, their own and those that governments push on them. Professionalism in higher education administration now means sticking to the rules, even when they make no sense in the context of the presenting situation and do not serve the interests of the individuals most affected by them. If you respond to something one way, you had better respond to similar situations in the same way, without thinking too hard about whether the new situations may actually differ in important respects. As Sununu says,

How do we return cultural norms at institutions like MIT, and in our society at large, to those that value common sense above the letter of the law? 

Sununu reminds us of the famous MIT inflating-balloon prank during a football game in Harvard Stadium. I was there, and remember well the bewilderment in the crowd. Once the letters "MIT" became legible, we all got the joke. (I could read the letters from where I was sitting. I imagine people sitting far away couldn't but eventually figured out that we were laughing.) The game went on, and as far as I know no MIT students were charged with criminal trespass or (as happened a few years later to Star Simpson when she wore a flashing circuit board into Logan Airport) charged with a bomb hoax.

But "institutions like MIT" would include Harvard, which seems to have lost all sense of proportion in its prosecution of the scores of students alleged to have cheated in Gov 1310, a course that seems to have been so mismanaged in the way it set expectations that it was all but impossible to respond fairly to the great variety of overlapping elements alleged to have existed between students' take-home exams. I wish Harvard had responded paternalistically rather than legalistically. I am sure the College was operating within its own rules when it strung out into December its adjudication of exam papers written in May. But did it make any sense to do so? Does the University really think those students who were kept waiting with a cloud hanging over them for month after month after month will really be served well by being rusticated for a year? Won't they always doubt that the judgment was fair, simply because it took the University so long to reach it?

I don't know what led MIT to co-operate with the federal prosecutors in the Swartz case. After all, as Sununu asks, "Has anyone ever served a day for unauthorized use of MITs computer facilities?" I would speculate that one reason is that MIT, like Harvard and other research universities in the public eye, increasingly sees Washington, not its own students or faculty or alumni, as its point of reference when navigating treacherous waters. Whether the issue is research funding, or how tuitions are set and financial aid is awarded, or whether to co-operate with federal prosecutors, there is more likely to be some senior figure in the senior level of the university administration whose job it is to say, "Well, let me tell you how this will play in Washington …."

The sense that every decision must stand up to outside scrutiny pushes institutions toward literal-mindedness. Another sources of scrutiny is lawyers, in student disciplinary cases where careers can be at stake. Oddly perhaps, the sense that everything may wind up in court, or in the papers, disposes universities to be uniformly harsh, rather than risk having later to defend being selectively lenient. And if (cf. The Fall of the Faculty: The Rise of the All-Administrative University) crucial decisions are left in the hands of a bureaucracy that lacks the confidence to step back and look at the big picture, those decisions are more likely to be rule-bound and literal-minded. Nobody ever got fired for going by the book. At this point the mindless execution of rules becomes an end in itself, disengaged from the educational ends the rules were intended to serve--even if, because of technology or social change or faculty fumbling, the text of the rules is now being applied in an unanticipated scenario.

So I come back to the question I blogged a few days ago. What would be the response today, at either Harvard or MIT, to what Bill Gates or Mark Zuckerberg did at Harvard, or Robert Tappan Morris did at Cornell? Probably not to look the other way, as Harvard did in each case.

When I speak in Asia about the greatness of American universities and what China and Korea need to learn from them, one of the things the audience has the hardest time understanding is our indulgent attitude about students who will not stay within the lines. Asian nations will not be able to capitalize on the brilliance of their students, I explain, if they treat every nonconformist as a nail to be hammered down flush. I wonder if I need to start giving that talk in the U.S. as well.

Carmen Ortiz

Carmen Ortiz, the US Attorney with responsibility for the Aaron Swartz case, is taking a lot of heat for her role. A petition is calling for her dismissal, and there are predictions that her once-promising political career is finished. As Globe columnist Kevin Cullen says this morning, 

… Ortiz is doing herself no favors by refusing to explain at length decisions made in a case that raises legitimate concerns about antiquated laws and government overreach in the digital age. … It isn’t too much to expect a public servant to take questions that serve the public.

I am of two minds about Ortiz and her role here. Some have pointed out that she is only doing what federal prosecutors and US Attorneys do all the time--over-charge, then try to get defendants to bargain away their constitutional right to a trial in exchange for a less than absurdly long prison sentence. This line of argument suggests we should be fighting the system, which unjustly imprisons many people we have never heard of every day, not the individual who tried to do it to Aaron Swartz.

And yet there is something sickening about the statement that Ortiz finally did release, as Mike Masnick deconstructs it on TechDirt.

Ortiz wrote in defense of herself and her office,

The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.

Masnick notes,

The statement is complete hogwash, frankly. If what she claims is true -- that they recognized "his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases" then they would not have piled on more charges in the indictment in September. The original indictment, which had four charges against Swartz, had a maximum potential jail time of 35 years. And, Ortiz's own press release trumpeted that fact:

AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

And, then in September, nine more charges were added, which brought the total possible time up to 50 years. If Ortiz truly believed that his conduct did not warrant such "severe punishment" then she would not have trumpeted the 35 years in the first place, nor would she have piled on more charges. That would serve absolutely no purpose whatsoever if her claim here was true. 

Furthermore, as Swartz's lawyers have made clear, Ortiz and her assistant, Stephen Heymann were pretty explicit to Swartz's lawyers that if he did not take their plea bargain offer, the next offer would be for more jail time, and if he still chose not to accept the offer, they'd seek at least seven years for Swartz in court. Tossing out that six month claim as if it were proof of some sort of fair dealing on Ortiz's part is flat out insulting to the intelligence of any thinking person, and downright offensive to the memory of Aaron.  

It really is awful.

I am so glad that I live in a state where judges are not elected. This sort of history-rewriting makes me wish that the people who really pull the levers in the criminal justice system, who are the prosecutors and state and federal attorneys, not the judges, had to stay out of politics for five years after leaving office. Perhaps they would have less incentive to put out such self-serving distortions.

Aaron Swartz Developments

A bit of a grab bag here, but lots of important stuff is now coming out.

Tim Wu has a terrific piece in the New Yorker about the over-prosecution in the Swartz case and how, under current federal law, the prosecutors have the discretion to turn any of us into criminals. As defense attorney Harvey Silverglate said in the title to his book, we could all be charged with Three Felonies a Day, at the discretion of an ambitious federal prosecutor. As Wu says of Swartz and the JSTOR caper, 

The act was harmless—not in the sense of hypothetical damages or the circular logic of deterrence theory (that’s lawyerly logic), but in John Stuart Mill’s sense, meaning that there was no actual physical harm, nor actual economic harm. The leak was found and plugged; JSTOR suffered no actual economic loss. It did not press charges. Like a pie in the face, Swartz’s act was annoying to its victim, but of no lasting consequence.

 Wu compares what Swartz did to what Jobs and Wozniak did before founding Apple, just as I compared it to the edge-hugging stuff that Bill Gates and Mark Zuckerberg did at Harvard. Under the Computer Fraud and Abuse act that was used to charge Swartz, any of them could be charged today with unauthorized access to a protected computer. 

Apparently, we cannot trust federal law enforcement to tell the difference between a bank robber breaking into the computers of Bank of America to steal money, and a libertarian prankster. A petition to the White House is calling for the removal of Carmen Ortiz, the DA in the case, who has been considered a rising star. 

The complaint against Swartz carried a theoretical maximum imprisonment that has been variously reported as 35 or 50 years. "But of course he wouldn't have gotten that," people tell me. True, and Ortiz apparently offered as little as 6 months behind bars in exchange for a guilty plea to 13 felonies. While Ortiz has remained silent, supposedly out of respect for the family's feelings, that did not stop her husband from Tweeting,  “Truly incredible that in their own son’s obit they blame others for his death and make no mention of the 6-month offer.” Appalling. What is truly incredible is that the federal government, through this family backchannel, is saying, "We're the nice guys; we could have locked him up for life, but if he had only saved us the trouble of trying him, as the Constitution guarantees he can insist, we were willing to let it go with 6 months and 13 felonies on his record." MIT, inexplicably, would not back efforts to get a sentence with no jail time.

But it is far from clear that Swartz would have been convicted of anything had the case been tried. Read the analysis by Alex Samos, who was to testify on Swartz's behalf. But that potential for exoneration assumes that Swartz had the financial resources to fight the charges to the end. Which, because Swartz cared much more about ideals than about money, he evidently did not. It would have been a very costly trial, and the outcome could have been much more than 6 months imprisonment. What would you have done? 

Two related news items. First, Rep. Zoe Lofgren (D-CA) is introducing legislation that would tighten the infamous Computer Fraud and Abuse Act, which was the heaviest weapon the feds used against Swartz. Her rewording would exclude "Terms of Service" violations from the statute--so that, for example, if you lied about your age when registering for some Web site, you still might have to answer civilly to the business for which you were registering, but the feds could not stick you in a federal penitentiary for "unauthorized access to a protected computer." (The lying about your age part, readers of Blown to Bits will remember, is what they tried to get Lori Drew on, when they could not find any other statute she had violated.)

And finally, for those who would have locked Swartz away on the basis that he downloaded files he should not have---piracy!!!---consider the fact that Congressional offices are illegally downloading movies and TV shows, and are continuing to do it today, even though this practice was exposed more than a year ago, when it was happening even as anti-piracy legislation was being drafted in the same offices. 

Stop this cynical madness! Let's get laws that are focused on real crimes, and federal prosecutors who are more interested in justice than in opportunistically bullying the nation's talented youth.

Update: Retired federal judge Nancy Gertner has joined the ranks of those harshly criticizing Carmen Ortiz for abusing her prosecutorial discretion---and more generally, the pattern the case represents, in which prosecutors pursue high-profile cases to advance their own careers, ruining lives unnecessarily by bullying the accused into giving up their right to trial. See also this editorial in the Massachusetts Lawyers Weekly.

File this under "Good Grief"

Forbes reports that a site has posted the blueprints for 3-D printing a high-capacity bullet magazine of the kind that may soon be banned. They are simple spring-loaded boxes, after all. So people with access to 3-D printers can make their own. 3-D printers are available in many college engineering labs and prices are dropping rapidly---the low end is now in the $1000 range.

Makes you think that technological disintermediation and personal empowerment are definitely mixed blessings.

MIT Does It Right

Yesterday I asked, in the context of the tragic suicide of Aaron Swartz, "what was MIT's rationale for going after Swartz for exactly the kind of hack at which the Institute has traditionally winked?"

Hallelujah. MIT has asked itself the same question, and has chosen to answer it, not by referring the matter to its lawyers and communications professionals for an analysis of the risks and rewards of various public postures, but by asking a beloved, student-friendly, information-libertarian professor to investigate and report back. The Institute could not have picked a better person for the inquiry than Hal Abelson, co-author with me of Blown to Bits. First, the job will be done impartially and correctly, without undue influence from any side; second, it will be done in a way that is wise and sensitive to the realities of student culture; and third, Abelson is such an MIT mensch that the community will believe whatever is reported.

MIT has in recent years been a bit schizophrenic about how it treats its young. The very idea of a hack is an MIT invention. Putting stuff on top of the dome is probably not officially sanctioned, though it is fully expected. MIT has generally been pretty indulgent of weird people, entirely sensible given the number of eccentric, socially impaired geniuses that have gone through the place as students or faculty.

Which is why many at MIT were horrified when MIT was less than supportive of Star Simpson a few years ago when she was arrested at Logan Airport on bomb hoax charges because she was wearing flashing circuit boards. (She's an electrical engineer and an artist.) Aaron Swartz was not an MIT student, but he was plainly of the MIT culture, and was deeply admired by many at the Institute for his commitment to information freedom. I can think of no reason for MIT to support his harsh prosecution that would have served the best interests of either MIT students, or Swartz, or the Institute's basic mission. 

So good for MIT for asking itself whose interests were being served when it allied itself with the federal prosecutors in the Swartz case, and who made that decision.

I would venture to say that the New, run-like-a-business Harvard would never handle a similar situation with such existential soul-searching. Let's look at the Gov 1310 "cheating" case. Rather than just quoting myself (Harvard, Know Thyself), I'll quote an insightful blog post by Forbes contributor Richard Levick:

University policy demands total confidentiality. While Harvard naturally declined to reveal names, we should certainly not be reading that “Harvard officials called it the biggest such probe in living memory.” We should not know how many students are involved, nor how a teaching assistant was disturbed by what he read in the suspicious exams, nor what steps the university will take to spread the gospel of academic integrity – which assumes the as-yet unproven point that those steps are at all necessary in light of this inquiry.

It’s a very fair guess that, after a year of dutiful silence, Harvard was contacted by the media and decided to go proactive. Get ahead of the story. Don’t wait for reporters to tell it for you. Show how transparent you are. To be sure, corporations and institutions are well-advised to consider just such practices in the shadow of an impending crisis.

But absent sound judgment regarding the particulars of each situation, these bromides are just that – bromides, ill-advised and rather dangerous. Lawyers don’t typically comment on pending litigation, and for good reason. Boards don’t reveal the details of their investigations when CEOs are under fire, and for good reason.

In compliance with Harvard’s own policy, a brief statement, with only minimal confirmation (if any) that an investigation is being speedily conducted, would have sufficed.

Harvard then inexplicably strung the cases out for months longer than students were originally told to expect. Students were required to withdraw in December for cheating alleged to have occurred in May, even though they were originally told the could expect a decision in September. Some of them paid tens of thousands of dollars in fall term tuition, which is not being reimbursed. The extended delay, and the students' abrupt departure from campus late in the term, has led to many being identified, with unjustified and irreparable harm to their reputation.

My first reaction when I heard that more than a hundred students were being charged with cheating in one course was, "there is something wrong with the course." That only became clearer when it turned out that there was not a "cheating ring," but a wide variety of different forms of collaboration involving clusters that had no communication with one other.

Harvard needs to look not at student culture but at the faculty culture that created this mess. I have heard not a word to suggest it has any intention of doing so. I don't doubt that the particular professor has felt some blowback. But the fault cannot be just his, since he apparently had been setting low expectations for his students for several years, and nobody in the department or in the university administration cared enough to stop him. If they didn't notice something that hundreds of students knew, that in itself is a cultural problem. It would mean, among other things, that nobody is reading all those student evaluations we mandate must take place for every course.

I expect that the handling of the case will continue to be under the direction of Harvard's lawyers and communications experts, who will discourage any form of public introspection that would suggest, on the eve of a fund drive kick-off, the existence of huge holes in the university's masthead claim that "Harvard University is devoted to excellence in teaching, learning, and research."

Harvard needs to be as honest with itself as MIT is being. In some ways the tragedies are disproportionate; the Gov 1310 mess has cost no lives that I know of, though I understand that some students were under severe psychological stress, lost weight, and so on. On the other hand, it seems that many dozens will have their lives permanently altered by the experience and the black mark that goes with it on their transcript.

From my conversations with families and students involved in the Gov 1310 case, what strikes me is how un-family-like they feel their interactions with the university have been. Harvard's disciplinary process is meant to be paternalistic; to be sure parents must sometime discipline their children while still loving them. There is not much sense out there among the Gov 1310 students I know that Harvard loves them.

Good for MIT for recognizing that its reputation will, in the long run, be enhanced if it tries to figure out if and where it went wrong with Aaron Swartz, and that the best way to do that, in a family setting, is to ask a wise uncle to figure it out and report to the community. I wish Harvard had the same attitude.

Aaron Swartz: A Lesson

Aaron Swartz was the 26-year-old Internet freedom activist who committed suicide on Friday, as the date approached for his trial on federal charges. Swartz was charged on several counts after he allegedly downloaded a bunch of scientific papers from JSTOR via a connection he established in an MIT wiring closet. It was a peculiar act --- Swartz was a fellow at Harvard and could have accessed the papers in an authorized way. I leave it to others to speculate on the symbolic significance, but it's pretty clear he wasn't accessing anything he wasn't already authorized to have, and he wasn't planning to make any money by doing it.

I didn't know Swartz well, but it was a privilege to know him at all (we were in a meeting together at Charlie Nesson's house, strategizing about the Google Books settlement).  The New York Times has a good obituary---not easy to write, and it must have been written in haste. A memorial site has been set up to gather reminiscences and emotions. Aaron's partner has written a heart-wrenching remembrance.

I feel I know him better than I really do because I have known others who, in certain ways, resembled him: brilliant, intense, sleepless, idealistic, principled, ready to test the edges of conventional behavior. Aaron Greenspan seems to be right when he considers himself, in some ways, a kindred spirit. 

Greenspan shares with two of my other students, Bill Gates and Mark Zuckerberg, the distinction of having Harvard hassle them because of what some at the university regarded as sketchy behavior with information resources. Gates famously used Harvard's PDP-10 to write the original BASIC interpreter; there were those at Harvard who took a dim view of that, since the machine was funded by the Defense Department for government-sponsored research. A version of the Zuckerberg story is told in the Social Network movie; it was in fact reported in the Crimson at the time. That report suggests that Zuckerberg got off without any serious penalty. In all these cases, the hotter heads at Harvard did not prevail, and the students wound up perhaps annoyed at Harvard, but not seriously punished. (Of course, they also may have done nothing wrong, but that is never a guarantee that some vague rule will not be stretched to fit the facts of a case.)

Then there is the case of Robert Tappan Morris, Jr., who let loose the Internet Worm in 1987, while he was a Cornell graduate student. At the time the anger directed at Morris was intense, and he wound up with a felony conviction, and was fined, served probation, and had to do community service. Today many experts think even that was excessive punishment, given Morris's benign intent. After Cornell expelled him, he earned his PhD at Harvard, and he too has gone onto a successful career--he is a professor at MIT.

I thought of all these people when I read Larry Lessig's angry post about Aaron Swartz, Prosecutor as Bully.

I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you. 

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.” 

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. And so as wrong and misguided and fucking sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it. 

Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: Shame.One word, and endless tears.

Swartz's family released its own statement, calling out not just the federal prosecutors but MIT:

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.

 

What is it that leads those with prosecutorial authority to abuse it? In the case of the federal government in the Aaron Swartz case, there was almost certainly some score-settling; the feds decided to drop an earlier case against Swartz involving downloaded government documents once they realized that Swartz had done nothing illegal. But what was MIT's rationale for going after Swartz for exactly the kind of hack at which the Institute has traditionally winked?

I don't know, but I wonder if it isn't a phenomenon related to the unconscionable over-prosecution of the Gov 1310 "cheating case" at Harvard. (See Why Harvard Mishandled Its Cheating Scandal for a cogent analysis by Richard Levick, a Forbes blogger.)

Decisions like these about charging and disciplining young people should be informed by the fact that they are growing up, learning the ropes, and testing the limits. They may be operating in a zone where the rules are unclear, or have been interpreted differently in different circumstances. Context and intent should be important considerations. The very fact that the statutes allow a range of responses, including none at all, implies that superficially similar cases need not get the same response. As Lessig says, I get wrong. But I also get proportionality.

There is a lot of action on the Web about how to respond to Swartz's death. There is a petition to pardon him for the crime for which he was to stand trial. There is another petition to remove the US Attorney responsible for prosecuting his case. There is a paper-posting protest on Twitter, in honor of Swartz's JSTOR-liberating hack.

But I hope authorities everywhere, in college and in the state, remember the rewards to society of restraint in prosecuting young people in cases like these, where malicious intent and even the profit motive are entirely missing. Put yourself in the shoes of the alleged criminals, and don't try to build your career by showing how harsh you can be. Hounding a young person may cost a career, or a life.

Gentle hands, I beg you all.

Unlearning Liberty

Unlearning Liberty: Campus Censorship and the End of American Debate, by Greg Lukianoff, draws on the files of FIRE (the Foundation for Individual Rights in Education) to document the infringement of free speech at American colleges. It's an exhaustive catalog -- at least I hope it is exhaustive; I'd hate to think that misguided administrators somewhere could come up with any forms of censorship beyond those enumerated. It's also a very readable account, with chapters on freshman orientation, student groups, the campus judiciary, and so on, each illustrated by examples. A large number of the case studies are such blatant abuses that they would be silly if they were not so sad: Rules outlawing "offensive" or "hurtful" speech, or even worse, speech that is perceived as offensive or hurtful. The only way a speaker could be sure not to violate such a standard would b not to speak at all!

Really, some of the prohibitions are so remarkably stupid that there were times as I started to read the book that I wondered whether the subject was worth an entire book. For example, Lukianoff points out that a prohibition of speech that would offend any religion, or be considered blasphemous, would send any latter day Martin Luther off campus to post his 95 theses. Don't the people who draft and promulgate such rules see how inconsistent that is with the basic idea of a university, where ideas can be freely stated and discussed?

But Lukianoff does not stop with the laugh lines. He takes us through the real problems with these tendencies, and they are not ultimately about political correctness or the suppression of conservative ideas, for example, though that is what one most often hears from critics of campus speech codes and the like.

The book's analysis has two special merits. First, Lukianoff manages to avoid making the right wing the source of all the complaints. A number of cases are politically neutral, and many are simply confused, where both left and right have tied themselves in protective knots in which they find themselves trapped.

And second, Lukianoff takes the time to go back to first principles. The reason free speech is important is because debate is important, and the reason debate is important is that it is the key tool of deliberative democracies. If we don't train our students to argue with each other, without crying foul every time one side hurts the other's feelings, we will wind up with … a dysfunctional Congress, maybe?

So the book's mission is fundamentally civic, and I applaud it for that reason. Let's hope that university administrators will remember that our form of government relies on an educated citizenry. If everyone simply votes their immediate self-interests, we won't survive as an enlightened, prosperous nation. All the great figures in American politics, from Jefferson on down, seem to have understood this in ways it is very hard to find today, when education is seen mostly as a tool for economic advancement. (See my Harvard Magazine piece with Ellen Condliffe Lagemann, Renewing Civic Education.)

The root cause

Lukianoff identifies a root cause of campus censorship, a particular way in which good intentions have gone completely out of control. It is the growth of the student-service bureaucracy, the large number of non-academic staff whose job it is to make students feel good about attending their institution.

Multiculturalism, feminism, and so on often get the blame, but, like them or not, these cultural forces were not the problem in themselves. What happened was that as colleges diversified their student bodies, the faculty did not bear the burden of deciding what concomitant changes needed to happen. The administrative fix was to staff up with experts: People who allegedly knew what black students needed, what women needed, what gay students needed, and so on. These folks, many of them fine people, are not for the most part academic professionals, and do not instinctively think of academic freedom or the civic function of debate as core to their jobs. It is perfectly natural for student service deans to conclude that a key to making students feel comfortable on campus is to discourage their fellow students from saying things that will make them uncomfortable.

We are going through the same cycle now with social class and income level as the parameter.

A second force supporting the creation of a student-service bureaucracy whose values are not primarily academic or civic is the shift of colleges toward competitive entities vying for students as consumers. The costs of this trend in rock climbing walls and lavish student centers has been well documented, but it also means the creation of offices and deans and subdeans for "student life." That never used to be a concept at Harvard---student life used to mean the Houses ("a social device for a moral purpose," as Lowell called them) and student organizations (about which the College itself used to be, for the most part, benignly indulgent but not heavily involved, except for athletic teams and large musical groups).

Most recently, the student service bureaucracy is being called on in the battle for mental health. An unhappy student is a potentially suicidal student, goes the reasoning, so we need to do more to see to it that students are happy. So Harvard now has a committee to examine stress. I hope the committee recognizes that teaching students to cope with stress will in the long run serve them much better than trying to create a less stressful environment.

Now all these threads tend to bolster the self-sustaining bureaucracy in which academic values and faculty input are of very little relevance. This is the argument of another excellent book, The Fall of the Faculty. There are large parts of student life in which the faculty is not involved at all, and so there are many meetings planning freshman orientation and rules for residence life where there is no professor present who might say, "Well, perhaps, but isn't that something the students should debate and discuss, rather than being told?" (Among the funnier passages in Lukianoff's book are where he documents debate being avoided because it is so time-consuming and the outcome so uncertain; more efficient, given all the other demands on time, just to tell students the correct answer.)

Once the student service bureaucracy became large and empowered, it began to have its own conferences, its own handbooks of best practices, and so on. It began to have some of the characteristics of a profession, with its own standards for protecting itself, its own consultants, who left their universities to establish themselves as hired guns to tell other universities how to set up the best programs, and so on. Perverse financial incentives arose, for example, having regional accreditation boards consider the three threads and the extent to which an institution had staffed up for them a criterion in determining how well the institution was being run. Meanwhile, the faculty orbit became more and more disconnected from all these matters.

In other words, there is no longer an active, routinely present voice for free speech at most of the places where plans that abridge free speech are being formulated. It is my belief that until the faculty reasserts control of student affairs from the student affairs bureaucracy, nothing will happen to change this basic reality. So wherever you are, look at the juncture of the faculty to the student service deans and ask if the former has any influence over the latter. In most places the answer is no, and that is the way all parties prefer it---the faculty are happy to interact with students mainly via the classroom, library, and laboratory, and the deans prefer not to have the faculty looking over their shoulder---but that is, ultimately, why howlers such as Lukianoff documents come about.

The Harvard cases

I struggled with these issues when I was dean, and have continued to encounter them in the subsequent years. My only real criticism of Lukianoff's book is to wonder whether "censorship" is really the right label for all the cases he discusses. Because I was close to some of these cases, perhaps I am too sensitive to their subtleties. (Lukianoff presents some horrifying cases from the Harvard professional schools, in particular a couple from the Law School where they really should know better, but I can't comment on those from any first hand experience.)

I don't think either Lukianoff or I am wrong about the Freshman Pledge that Harvard floated in the fall of 2011 (p. 91 of the book). Though nobody ever said that students would be punished for not signing, the plan to list the names of those who had signed it and omit those who had not was so coercive as to count as abusive. The fact that the pledge itself was philosophically naive and semantically peculiar only made matters worse. It was basically an amateur job. One of the enduring mysteries to me is, where was the voice of the faculty when this idea was being hatched?

I think I also agree with Lukianoff about the de-listing of the Harvard Summer School courses of Subramanian Swamy, in the course of a routine faculty vote approving the course catalog (p. 90). Swamy had written an offensive article in an Indian newspaper; it had nothing to do with his teaching introductory economics in the Harvard Summer School. I wish the Economics Department had not re-hired him after he had excited such antipathy the previous summer for no good reason (there was no reason to have a debate at Harvard about whether India should annex Bangladeshi territory). But I thought it was a dangerous precedent for the rest of the faculty to peremptorily cancel Swamy's courses, and I had a friendly debate about the merits of the case on WBUR with my colleague Diana Eck. (Just as I feared, a few days later some undergraduates proposed that Harvey Mansfield should get the same treatment as Swamy, for his anti-feminist sentiments.)

The thing that makes the Swamy case a little more complicated in my mind is that it was very nearly a hiring decision. Swamy seems to be a crony of the Harvard economists and his position was renewed annually, but he had no contractual expectation that he would be rehired from year to year. So just to change the circumstances a bit, let's suppose that Swamy had never worked at Harvard before and was one of several comparable candidates for an assistant professorship. Would it be "censorship" if the Economics department did not hire him because of his inflammatory (though in the US, perfectly lawful) writings on political matters in India? It is certainly a defensible position to say that only teaching and research in the candidate's area of professional expertise should count. But in fact we want faculty also to fill a variety of collegial and citizenship roles, and we inevitably try to peer into their character and understand their values since we expect that our students will learn more from them than their technical subjects. When candidates come to campus for interviews, we chat informally with them one on one, and take them out for nice, relaxed dinners. Is all that inappropriate and irrelevant? There is a good argument to be made for that---someone once told me that the Math Department thought such interviews were a waste of time since the senior faculty had read all the candidates' papers, and their quality was the only legitimate basis for hiring decisions. But it doesn't seem to me wrong to try to figure out if future faculty will be people we will respect for more than their scholarship and teaching.

The Larry Summers case (p. 92) presents a different set of complexities. Though in fact Summers lost the confidence of the faculty for many other reasons---and in particular, because he lied to the faculty when asked if he had a view about the Andrei Shleifer affair---in the popular re-telling, the faculty ran him out of town on a rail because of his speculations about female intelligence in remarks to the National Bureau of Economic Research. I have always thought that the dominance of this tale, over the Shleifer affair, as the basis for the faculty no-confidence vote was in no small measure the work of Summers himself and his allies. That is, there is a kind of heroism in being dissed for speaking unpopular speculations, and exciting over-reactions; there is no dignity at all in defending a self-dealing protege and then misrepresenting your role in protecting his reputation.

The vote the faculty took was a simple no-confidence statement; each individual who voted could choose his or her own reasons for lacking confidence in the president. So the vote, as a binary classifier, made very strange bedfellows. I personally thought the Shleifer affair was disqualifying. But I also thought the NBER speech was part of a pattern that made Summers unsuitable to be president---though not unsuitable to be an economics professor, to be sure. That is because I do not think that the free-speech guarantees that protect citizens and professors apply to presidents or deans. You sacrifice, out of respect for the welfare of the institution, some of your free speech rights when you take such a job. The job of the president is to represent the institution's best interests, and it was not in Harvard's best interests for the president to piss off a lot of people unnecessarily. This was not the first time he had done it, and he plainly never would accept my characterization of his responsibilities. But IMHO he was simply wrong to say, as he did at the beginning of the NBER speech, that he was not speaking as president. When the president of Harvard speaks publicly (and this was public for all intents and purposes), he cannot shed his presidential role.

So bottom line---though it wasn't the main thing on my mind, and I agree with those who say it wasn't that outrageous (or even that original---a lot of what he said is in Pinker's Blank Slate), it seemed to me one more reason to lack confidence in his presidential qualities, and I voted accordingly. I don't consider that censorious because I thing presidents sacrifice some of their freedom of speech when they take the job.

Finally, the Christian groups. Lukianoff does not specifically discuss a Harvard case, but there was one of the kind he discusses on p. 169. I'm probably closer to his view now than I was then, but at least in this case the rationale for Harvard insisting on nondiscriminatory membership on the basis of creed was not the one Lukianoff cites (sympathy for gay rights). It was instead Harvard's nasty history with anti-Semitism. I was reluctant to grant an exception (a constitution stating that you have to be Christian to join this group) that might be exploited to exclude Jews from other groups (you can't join this group if you are Jewish). Though the exception was ultimately made and peace reigned, without FIRE being called down on me, the right thing to have done would probably have been to have carved out a special category of religious groups, with some neutral committee to decide whether a group was pulling our leg about its religious purposes in order to achieve some exclusionary membership agenda. But that was long ago and I haven't looked at the language for student groups in a long time.

A final question

There is one category about which I remain confused, and it is typified by my interaction with President Faust about Professor Michael Porter's having dubbed the Libyan government of Ghaddafi a "democracy" and being paid handsomely for doing so. I thought that sullied the reputation of Harvard and suggested that any of us could be bought for a price. It seemed to me important for the university to say---without threatening to punish Porter---that what Porter did was inconsistent with truth-telling and other basic values of the university. The president's response was that her job was to protect Porter's right of free speech, and mine, but not to pick sides. (See my write up on this blog for more details.)

This did not and still does not seem right to me. But I wonder what Lukianoff thinks. Is it ever right for a president to criticize or chastise a professor for what the professor says? If not, can the university really be said to represent any values at all? If so, what of the argument (made by people I respect) that criticism, even with no punitive force, will unacceptably chill free speech on campus, and make other faculty, especially untenured faculty, reluctant to say what they really think?

Great job, Greg Lukianoff. Congratulations!

The Gun Owner Next Door

A couple of observations about the Journal News publishing online a map of gun ownership, and all the high drama that has followed (now the newspaper is hiring armed guards).

First, if there is a problem, isn't the problem with the law that makes the names and addresses of licensed gun owners public information, not with the newspaper that decides to publish public information?

Now it is a favorite theme of mine that what used to be "public," in the sense that you could go to town hall and make an individual query about it, is very much more "public" today when someone can sit in Islamabad and look at the information on a Google map. But still -- there was a reason for the provision that this information be public. What were those reasons? Do they still hold? Does the difference in scale really matter? Why not fix the law if that is the problem?

And second, even the gun owner map is a replay of an old story. In 2008 a Memphis, TN newspaper published exactly the same map for its neighborhoods. All the same arguments were put forward: Gun owners would be endangered. No, they wouldn't; if you are going to commit a burglary the last place you want to break into is a house with a gun in it. Well then the house next door will be endangered (I am not sure the gun owners who advanced this argument ever got the support of their next door neighbors in their claim). And so on.

Two CMU computer scientists noted that if they waited a few months they could study the crime data and maybe draw some conclusions on the basis of actual numbers rather than speculations. 

“… despite activism on the part of gun owners against the publication of such databases, we found no evidence that publishing the identities of gun permit holders led to an increase in crimes aimed at stealing their weapons, relative to other forms of theft or burglaries. If anything, the loss of privacy seemed to carry a positive, but short-lived, externality for both those whose identities were published on the database, and for some of those living near them.”
Guns, Privacy, and Crime, by Aquisti and Tucker.

In other words, the attendant publicity made burglars with wits tend to stay away from neighborhoods with a lot of guns. The effect wasn't that strong and it faded fairly quickly with the passage of time, but if anything, experience would support the hypothesis that when there is publicity about a neighborhood having a lot of guns, and even exactly where they are, burglars tend to burgle elsewhere. Until they forget or a new crop of burglars arrive. And of course a lot of burglars don't read the newspapers and their behavior wouldn't be affected at all. 

Am I the only guy who remembers this study? Have the authors or anyone else done more?

More importantly, does the gun lobby know this study? Probably. They keep good track of what is being said about them.

But after weeks of mourning over the six-year-old victims in Sandy Hook, they feel a desperate need to be victims again, to recapture their status as the freedom loving folks the government hates. For the gun lobby to act victimized by the publication of these maps, in spite of the fact that the science points in the opposite direction, is contemptible.