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.