The Swartz suicide and the sick culture of the Justice Dept.

Harvey headshotRepublished by permission of Massachusetts Lawyers Weekly, where this article first appeared. Thanks to my friend Harvey for making this available to readers of Media Nation.

By Harvey A. Silverglate

Some lawyers are joking when they refer to the Moakley Courthouse as “the House of Pain.” I’m not.

The ill-considered prosecution leading to the suicide of computer prodigy Aaron Swartz is the most recent in a long line of abusive prosecutions coming out of the U.S. attorney’s office in Boston, representing a disastrous culture shift. It sadly reflects what’s happened to the federal criminal courts, not only in Massachusetts but across the country.

It’s difficult for lawyers to step back and view the larger picture of the unflattering system from which we derive our status and our living. But we have an ethical obligation to criticize the legal system when warranted.

Who else, after all, knows as much about where the proverbial bodies are buried and is in as good a position to tell truth to power as members of the independent bar?

Yet the palpable injustices flowing regularly out of the federal criminal courts have by and large escaped the critical scrutiny of the lawyers who are in the best position to say something. And judges tend not to recognize what to outsiders are serious flaws, because the system touts itself as the best and fairest in the world.

Since the mid-1980s, a proliferation of vague and overlapping federal criminal statutes has given federal prosecutors the ability to indict, and convict, virtually anyone unfortunate enough to come within their sights. And sentencing guidelines confer yet additional power on prosecutors, who have the discretion to pick and choose from statutes covering the same behavior.

This dangerous state of affairs has resulted in countless miscarriages of justice, many of which aren’t recognized as such until long after unfairly incarcerated defendants have served “boxcar-length” sentences.

Aaron Swartz was a victim of this system run amok. He was indicted under the Computer Fraud and Abuse Act, a notoriously broad statute enacted by Congress seemingly to criminalize any use of a computer to do something that could be deemed bad.

As Harvard Law School Internet scholar Lawrence Lessig has written for The Atlantic: “For 25 years, the CFAA has given federal prosecutors almost unbridled discretion to bully practically anyone using a computer network in ways the government doesn’t like.”

Swartz believed that information on the Internet should be free to the extent possible. He entered the site operated by JSTOR, a repository of millions of pages of academic articles available for sale, and downloaded a huge cache. He did not sell any, and while it remains unclear exactly how or even if he intended to make his “information should be free” point, no one who knew Swartz, not even the government, thought he was in it to make money.

Therefore, JSTOR insisted that criminal charges not be brought.

U.S. Attorney Carmen Ortiz obscured that point when announcing the indictment. “Stealing is stealing, whether you use a computer command or a crowbar, whether you take documents, data or dollars, and whether its to feed your children or for buying a new car” she said, failing to recognize the most basic fact: that Swartz neither deprived the owners of the articles of their property nor made a penny from his caper. Continue reading “The Swartz suicide and the sick culture of the Justice Dept.”

How empty space led to experimentation at the Globe

Creative technologist Chris Marstall at the Boston Globe Idea Lab.
Creative technologist Chris Marstall at the Boston Globe Idea Lab.

The New York Times has a terrific story today about how the downsized Boston Globe — a sister paper — has turned over a chunk of unused space to entrepreneurs, its online radio station, RadioBDC, and even a pilot for a television series.

As Times reporter Christine Haughney observes, the experimental venture by Globe publisher Christopher Mayer has already paid off in the form of a partnership with Michael Morisy, the co-founder of the public-records website MuckRock.

Dominating the space is the Idea Lab, where a small group of smart young people try out new ideas, such as different approaches to tracking Globe stories on social media and a wall-size group of screens that plots Instagram photos on a map of Boston. The latter ended up playing a role in the Globe’s recent interactive series on life in the Bowdoin-Geneva neighborhood of Dorchester, “68 Blocks: Life, Death, Hope.”

I’ve brought several groups of students to tour the Idea Lab. For anyone interested in the future of journalism, it’s one of the most interesting places you can visit.

Photo © 2012 by Megan Lieberman and used by permission.

Sununu blasts MIT and Carmen Ortiz in Swartz case

It’s interesting that even a conservative like John E. Sununu is disgusted with the actions of MIT and U.S. Attorney Carmen Ortiz regarding their investigation of the late Internet democracy activist Aaron Swartz.

Sununu, an MIT graduate with some serious basketball moves, writes in The Boston Globe that Swartz was charged criminally for behavior that in an earlier time might have been considered no more serious than any one of a number of pranks for which the university is known. The whole thing, he says, should have been handled in house:

Whereas the institute once would have taken pains to find an appropriate and internal resolution to violations of regulations — and even laws — within its campus, it chose to defer to others. That reaction isn’t unique to MIT, but rather a reflection of gradual changes in accepted cultural and government behavior over the past 20 years. Today, regulators and prosecutors regularly use their power to impose agreements, plea bargains, and consent decrees with little judicial review. They threaten the maximum penalty allowable — regardless of whether a rational mind would consider it fitting for the infraction — in order to gain an outcome that enhances their stature or pleases their political base.

Meanwhile, Noam Cohen of The New York Times takes a detailed look at how MIT caught Swartz, who downloaded nearly 5 million academic articles from the JSTOR subscription service without authorization.

In Haverhill, from a newspaper war to a “news desert”

Haverhill’s historic shoe district

Banyan Project founder Tom Stites refers to Haverhill and cities like it as “news deserts” — that is, as communities so underserved by local journalism that government accountability and civic life are harmed. He and local activists hope to launch Banyan’s first online news co-op, Haverhill Matters, later this year. (I touch on Banyan in the Epilogue to “The Wired City.”)

Two generations ago, though, the mid-size industrial city, located in the Merrimack Valley near the New Hampshire border, was the scene of a daily newspaper war. According to an account recently published by the city’s online nonprofit radio station, WHAV, a newspaper strike led to years of debilitating rivalry between the established Haverhill Gazette and the upstart Haverhill Journal.

The Journal was started by the notorious William Loeb, owner of the Manchester Union Leader (now the New Hampshire Union Leader), in December 1957. The Gazette had temporarily ceased publishing after it was struck by members of the typographical union. And Haverhill merchants, worried that they had no place to advertise their Christmas wares, went to Loeb and asked him to do something. He published a couple of free shoppers, and then decided to start a full-fledged newspaper.

The WHAV article, by Tim Coco, is full of colorful details, especially concerning the federal antitrust case that grew out of the rivalry. In a nutshell, Loeb secretly paid businessmen to buy ads only in the Journal and to badmouth the Gazette at every opportunity. And the Gazette sold ads below cost, which can in some circumstances be illegal. But it was great for readers while it lasted. As Coco puts it at the beginning of his essay:

News media competition helps ensure the inner workings of every government department are exposed to the light of day and held accountable, every service club talk is covered and every military personnel homecoming is treated with reverence.

On the other hand, U.S. District Court Judge Charles Wyzanski, who presided over the antitrust hearings, concluded it was impossible for two daily papers in a city the size of Haverhill to operate profitably unless they offered “limited news coverage” and “inferior general quality.” The Gazette quickly ran into trouble, and in 1958 it was acquired by a consortium of newspaper publishers. The unstable rivalry persisted until Loeb shuttered the Journal in 1965.

Eventually the Gazette was acquired outright by The Eagle-Tribune, headquartered in North Andover but traditionally associated with Lawrence. The Eagle-Tribune started a daily Haverhill edition and converted the Gazette to a weekly. In 2005, The Eagle-Tribune and its affiliated papers on the North Shore were bought by CNHI, a Birmingham, Ala.-based chain. And as Coco notes, in March 2012, The Eagle-Tribune closed the Gazette’s Haverhill offices.

“After 191 years,” Coco writes, “The Haverhill Gazette no longer had a physical presence in Haverhill.”

Now, nearly a half-century after daily newspaper competition came to an end in Haverhill, the city is on the verge of becoming a hotbed of experimentation in community journalism. In addition to the Banyan Project, WHAV has launched something called the “Democracy, Independence and Sustainability Project.”

I’m hoping there’s going to be a lot more to come as 2013 unfolds.

Update: After I posted a link to this on Twitter, John Dodge let me know that another, lesser-known daily paper called the Independent published in Haverhill in the late 1970s. Begun by longtime Gazette staffers, Dodge says the Independent couldn’t survive because the DeMoulas supermarket chain wouldn’t buy any ads.

Earlier:

Photo by Marc N. Belanger via Wikimedia Commons.

GlobalPost takes stock of “The Great Divide”

[vimeo http://www.vimeo.com/57082399 w=500&h=375]

Boston-based GlobalPost has gone live with a major new project. “The Great Divide: Exploring Income Inequality” examines the growing gap between rich and poor in the United States and compares it with other countries.

The project contains plenty of data and interactive features to drive home its findings and to make it possible for users to learn about where they live. For instance, I discovered that income distribution in Greater Boston is about the same as it is in Ecuador.

The video above documents life in gritty Bridgeport, Conn., and how it compares with Greenwich, its wealthy counterpart 15 miles southwest on I-95. Those communities, in turn, are used to demonstrate a similar divide between rich and poor neighborhoods in Bangkok.

The project, funded by the Ford Foundation, is the product of six months of work, according to an announcement from Charles Sennott, executive editor and co-founder of GlobalPost. He writes:

Our hope is that by drawing these comparisons, we might hold a mirror up for our audience to see just how wide the gap between poor and rich has become in America. As our reporting teams have discovered, inequality comes at a great social cost and we hope this series will reveal why this issue should matter to us all.

The series is a serious, in-depth examination of one of the most important issues of our time. It also shows how a philanthropic organization like the Ford Foundation can help fund public-interest journalism at a time when for-profit news organizations are struggling.

The Globe turns up the heat on Carmen Ortiz

Given The Boston Globe’s past favorable coverage of U.S. Attorney Carmen Ortiz, I’m heartened to see how aggressively the paper is covering her conduct in the investigation of the late Internet activist Aaron Swartz.

Screen Shot 2013-01-16 at 9.50.45 AMToday the Globe fronts a story by Shelley Murphy about some repulsive tweets posted by Ortiz’s husband, IBM executive Thomas Dolan, in which he defended his wife and lashed out against Swartz’s grieving parents. Dolan’s Twitter feed has since disappeared, but BuzzFeed posted what I can only hope is the worst of them Tuesday.

Murphy’s story follows an angry piece by Globe columnist Kevin Cullen on Tuesday. Cullen wrote:

The argument about whether prosecutors should have been insisting that Swartz, who had written openly and movingly about his struggle with depression, serve at least six months in prison is not an academic question. It is a question about proportionality and humanity, and on both fronts the office of US Attorney Carmen Ortiz and the prosecutors who handled this case, Steve Heymann and Scott Garland, failed miserably.

For too long Ortiz has led a charmed existence, using and abusing the power of her office in order to burnish her law-and-order credentials. In 2011 The Boston Globe Magazine went so far as to name her its “Bostonian of the Year.”

Ortiz is not to blame for the suicide of a young man who had long struggled with depression. Nevertheless, her insistence that he serve prison time was absurd given the nature of his offense. Now we’ve lost a brilliant, creative thinker whose greatest contributions were yet to come.

Correction: Updated to fix Thomas Dolan’s name.

In Chicago, too much hyperlocal competition?

A couple of friends today sent me a link to Mike Fourcher’s ruminations on what he learned running the Center Square Journal, a hyperlocal news site in Chicago that he started three years ago. He offers 21 lessons, and they’re not without value. But what stands out from my reading of them is that he simply faced too much competition for advertisers and readers. And that, in turn, was a consequence of his making an unfortunate choice of location.

Screen Shot 2013-01-15 at 4.07.11 PMThe sites I profile in “The Wired City” — mainly the New Haven Independent, but also The Batavian, CT News Junkie, the Connecticut Mirror, Voice of San Diego and Baristanet — have very different business models, but they all have one thing in common: a niche that was being woefully underserved before they came along to serve it.

New Haven illustrates my point. Paul Bass launched the Independent in 2005 to provide city and neighborhood news that was largely being ignored by everyone else — including the region’s daily paper, the New Haven Register, which tended to focus on the suburbs around New Haven. Eight years later, the Independent and the Register still serve different audiences. They compete for certain types of city news, but mainly they stay out of each other’s way. And because the Independent is a nonprofit, they’re not competing for scarce advertising dollars.

The Batavian is very different from the Independent, but it has similar advantages. The for-profit site was launched in Batavia, N.Y., by the GateHouse chain in 2008 as a pilot project. In 2009 it was acquired by Howard Owens after he was let go as GateHouse’s director of digital media.

The Batavian was up against two established news organizations: The Daily News and WBTA Radio. Owens formed a partnership with the radio station and competed fiercely with The Daily, as the locals call it. Unlike Fourcher’s experience in Chicago, though, there really wasn’t anyone else.

Like Paul Bass in New Haven, Owens carved out a niche by going more local than his competition — one county for The Batavian versus three for The Daily. It turned out that the business community was vibrant enough to support a daily newspaper, a radio station and a community website. But if there were, say, a half-dozen websites all trying to turn a profit, it’s not likely any of them would be able to make money.

Fourcher, a refugee from the robo-news operation Journatic, is now trying something interesting. He’s called a community meeting for Jan. 31 to see if his readers like the Center Square Journal enough to help him continue it in some form, or possibly to take it over in its entirety.

What’s evident from his 21 lessons, though, is that he fell short of making the Journal a vital part of his readers’ lives — possibly because there were already too many other voices competing for people’s time, attention and dollars.