Brill’s Much Ado About Zittrain

Earlier this week, Emily Brill published this story at the Daily Beast:

Harvard vs. Steve Jobs

Harvard Law star Jonathan Zittrain is an influential critic of Apple—so why doesn’t he talk about donations to his research center from Steve Jobs’ competitors? Emily Brill investigates.

Brill’s investigation centered on the notion that when Zittrain wrote an op-ed critical of Apple in the Financial Times, he didn’t disclose the fact that his academic home, the Berkman Center for Internet & Society, receives funding from some of Apple’s competitors, such as Google and Microsoft.

Now, while Zittrain’s op-ed doesn’t (and couldn’t) list any/all the of the funding sources that might — might — present a source for a conflict of interest, Berkman is quite clear about its funding sources, and a simple Web search would provide someone that information.

Nonetheless, Brill seems determined to explore (and accuse) whether Zittrain — and the Berkman Center generally — succumbs to the pressures of funding sources in forming research conclusions and policy opinions.

Of course he doesn’t.

I’ve known Zittrain since my participation in the 2007 edition of the Oxford Internet Institutes’s annual “Summer Doctoral Programme,” which was held at Berkman that year. It was a wonderful experience, and I benefited directly from Zittrain’s public critique of my research presentation (both its content and style). Since this initial interaction, I’ve helped organize a book talk by Zittrain at Yale Law School, chaired panels with him on reputational privacy online, and participated with him on a panel addressing privacy issues related to Library 2.0. In the end, I think I can consider Jonathan both a friend and a colleague.

Even with my short time knowing Zittrain, Brill’s suggestion that Berkman’s funding relationships with companies that happen to compete with Apple — coupled with Apple’s notable absence from the list of sponsors — is what prompted him to write an op-ed, let alone his book The Future of the Internet and How to Stop It, is extremely far-fetched. While I’ve had reason to criticize Berkman on other occasions, I don’t question their intellectual integrity, nor any of their founders or faculty members.

I’ll leave it to others to criticize the attempted takedown. (Update: Here, too)

But I do want to comment on my own connection to Brill’s article.

I met Emily Brill this February at the A2K4 conference at Yale Law School. She noticed in my bio that I was the Microsoft Resident Fellow at the Yale Information Society Project, which got us to talking about the issue of corporate funding of academic centers. She mentioned, generally, this issue of whether Zittrain should have disclosed Berkman’s funding sources in his op-ed, and I related some of my reflections on how the Yale ISP wasn’t impacted by funding it had received from companies like IBM and Microsoft. Technology companies, generally, respect and appreciate the academic and policy work that comes from centers like these, largely because so many of the companies have their roots in academia. And, not surprisingly, many of the companies own policy people are graduates of these universities and law schools, and had affiliations with places like Berkman and the Yale ISP.

I did relate an anecdote, that I told her was fuzzy in my memory banks, about how some folks at Microsoft weren’t thrilled with a white paper that was written by ISP fellows that was critical of Microsoft’s position regarding open document standards. As far as I knew, a Microsoft employee that the ISP had contact with merely expressed his displeasure, but nothing came of it, and the ISP never changed anything in the article.

We continued to chat generally about the nature of disclosure and possible influence by technology companies in scholarly research. I don’t recall precisely what I said, but I’m confident in stating that I highly doubt Zittrain or Berkman would compromise their intellectual standards merely to get funding.

After this meeting in February, Brill and I had a few additional phone conversations on the topic, where she sought my general opinion on Berkman, Zittrain, etc. I shared my general thoughts, and I recall noting that the kind of expertise necessary to really understand and address emerging technology policy issues is condensed in a relatively short list of (very intelligent) people.

I recall suggesting that a complementary project would be to map out how these individuals have moved between academia, industry, advocacy, and government roles — perhaps creating a map how of people of Zittrain’s ilk move between these spheres in overlapping ways: one year you’re teaching, the next you’re working for a tech company, the next you might be at the FTC, and often with the same people. Kinda like these cool maps of overlapping spheres of executives and board members in the corporate world.

Brill apparently hasn’t pursued that project, and instead kept her focus on criticism of Zittrain. A shame, as I think my suggestion would’ve made for a much more interesting — and informative — piece.

15 Comments

  1. Michael, while I share your high regard of Zittrain, it’s a lot more complicated than that. When you write “I highly doubt Zittrain or Berkman would compromise their intellectual standards merely to get funding.”, that’s too simplistic. Would Berkman – which has many lawyers, remember – write advocacy of positions favored by big funders? That’s a different question.

    Noting how many people go back and forth between Berkman and Google is interesting.

    Think of the problems with drug companies funding medical research.

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  2. Seth: “Would Berkman – which has many lawyers, remember – write advocacy of positions favored by big funders? That’s a different question.”

    Yes, that is a different question. But the key is whether they happen to write advocacy papers that happen to align with certain funder’s positions, or do they right advocacy papers because of certain funders. There’s an important difference.

    It wouldn’t be surprising that Berkman or similar centers create output that (often) aligns with their funding sources, since they likely attract and accept donors with similar ideological leanings. (You wouldn’t expect Berkman to write something in favor of strict copyright controls simply because the RIAA offered them money.)

    But what Brill seems to suggest (or least be concerned with) is whether they write because of a funder’s ideology. That, I believe, does not happen with the institution in question.

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  3. Again, there’s an excluded middle formulation. Consider a medical researcher who says “the key is whether they happen to do clinical studies that happen to align with certain drug company funder’s positions, or do they do clinical studies because of certain drug company funder’s positions”. Or members of Congress, “the key is whether they happen to vote on issues that happen to align with certain big campaign contributor’s positions, or do they vote on issues because of certain big campaign contributor’s positions”. See the problem with that formulation? By making it either/or, with an implicit aspect that one pole is unprovable and another deemed no-problem, it’s a way of dismissing any problem.

    Brill doesn’t have the story of the attempt by one Berkman person, not Zittrain, to raise a $100 million dollar venture capital fund. But I find it ludicrous to believe such a thing had absolutely no effect, even if one would never find a smoking-gun connecting anything directly to the desired 100 MILLION DOLLARS. And similarly, when one of their biggest funders is involved in a dispute worth billions, just as an abstract statement, it’s amazing what people could find they’ve always believed.

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  4. “By making it either/or, with an implicit aspect that one pole is unprovable and another deemed no-problem, it’s a way of dismissing any problem.”

    I see you point here regarding my binary treatment. My only (imperfect) defense is that Brill provides nothing more than innuendo and personal speculation, so it’s hard for me to properly formulate a response that includes the necessary middle-grounds you suggest.

    Regarding the venture capital fund and disputes you mention, I plead ignorance, as I don’t know what you’re referring to.

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  5. The venture capital fund was “RSS Investors”. Here’s an early blog post of mine:

    “RSS Investors” fund and The Sign Of The Bubble

    Can I point out that if this was quite open, with press releases and business articles – what other MULTI-MILLION DOLLAR stuff might there be around Berkman, but not quite so public? And even though it’s no secret at all, very few people seem to be aware of the story. I think there’s a lesson there about how limited the effect of “transparency” is by itself.

    By “one of their biggest funders is involved in a dispute worth billions”, I meant N*t N**tr*lity, which is basically Google vs. telecos on the business model for large amounts of bandwidth.

    I wish Brill’s article was better. That’s a failing of the system we have to do journalism. But there is still a real issue here, even if arguably Zittrain was treated unfairly on a personal level.

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  6. “Can I point out that if this was quite open, with press releases and business articles – what other MULTI-MILLION DOLLAR stuff might there be around Berkman, but not quite so public?”

    C’mon, that’s just a speculative cheap shot.

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  7. Speculative? Yes. Of course. Almost by definition. That’s sort of the point.

    Cheap shot? NO. It’s grounded in evidence, and is a reasonable extrapolation. Here’s what’s so frustrating about exploring this:

    Fact: There existed a very public attempt to raise a $100 million dollar venture capital fund.

    Speculation: They may exist other similar matters which are not so public.

    Reaction: “cheap shot”

    I’d say that speculation is the most obvious and baby-simple question to ask in terms of the issue. If it’s ruled out of bounds, that’s incredibly constraining. We’ve already established there’s one little-known matter. It should be quite reasonable to ask from that if there are others even less known. Otherwise there’s another logical paradox of having to have proof before investigation.

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  8. “There existed a very public attempt to raise a $100 million dollar venture capital fund.”

    I’m not completely understanding what is so controversial about this (and I admit I know nothing of it other than the link you provided). One of Berkman’s leadership team was involved in venture capitalist activity. Are you suggesting that academics refrain from any other outside activities? I trust the integrity of Palfry would prevent conflicts from arising between anything that venture was involved in and the academic/policy output of Berkman. If you don’t share that trust, then we’re clearly at odds.

    My concern is that there’s a lot of emotion rising out of what “might be”, and little substantive exploration into what “actually is”. The former is easy and cheap, IMO. The latter requires more work, but will be more meaningful. That’s the problem with Brill’s article and with what I read into some of your comments. Could these concerns be real? Sure. But in the absence of evidence, this becomes more of a rant, and less of a critical examination.

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  9. > “Are you suggesting that academics refrain from any other outside activities?”

    “outside activities” strikes me as an extremely trivializing way of describing trying to do a $100 million dollar venture capital fund. See also medical researchers funded by drug companies. And are you suggesting that members of Congress not help their constituents with legal issues?

    “I trust the integrity …”

    But would you trust the medical researchers, or the members of Congress? Oh, how can you have so little faith in them?

    This is one of the problems – if one doesn’t have the nigh-impossible to get smoking gun, it’s an insult to integrity, hence the critic is a bad person.
    Bluntly, I don’t trust *anyone* to have unclouded judgment if they’re involved in trying to raise 100 million dollars, or dealing with billion-dollar issues of major funders. Absolutely right I don’t trust there.

    And look at what happened with these trivial comments of mine. Trying to investigate this sort of stuff causes all manner of problems.

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  10. I don’t know what you mean by “what happened with these trivial comments of mine”. We’re having a discussion, no? And which of your comments were trivial — I presumed you consider them all worthy of serious consideration.

    But, again, you haven’t explained to me precisely the problem with a group of researchers being involved in a a $100 million dollar venture capital fund. Was there intent to tie Berkman research to this fund? Nothing indicates such. Again, I’m not meaning to push back against you, but just need you to expound on this further.

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  11. > I don’t know what you mean by “what happened with these trivial comments of mine”

    Not to be too huffy, but e.g. “cheap shot … I trust the integrity …”. It’s likely not clear to you, but I have done serious journalistic investigations on other matters, and people in power often will retaliate very nastily. Hence my perspective. So I’m viewing the above in terms of what could happen in terms of personal attacks on a writer who did a long article on stuff like that.

    > And which of your comments were trivial

    I meant that in terms of this is an obscure blog comment thread (sorry!), as opposed to the reach of a _The Daily Beast_ article, or something like that.

    > “precisely the problem with a group of researchers being involved in a a $100 million dollar venture capital fund. ”

    And that is indeed the problem – there’s no way I’m ever going to be able to trace specific causes to specific actions. Does this mean, in terms of decomposition fallacy, that there is no effect? Brill does get into this in the latter part of the article, talking about Lessig and corruption work, which I think was the better part if the less talked-about. And note the more suggestive evidence I give, then the more I get into the problem of accusation without having absolute proof. Every time, the reply will be “How can you think I did X because it would help me in the goal of $100 million dollars? That’s an insult to integrity!”.

    Once that logical paradox is articulated, what then? That is, there’s a high probability of SOME effect based just on human nature, but virtually impossible to pinpoint the SPECIFIC effect. Going around this endlessly is just going around this endlessly.

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  12. Now I better understand the context behind your comments, Seth. Please understand that my pushing for explanation and evidence doesn’t mean I reject the possibility of there being outside influences, but rather that I think these kinds of discussions must be grounded in actuality, not potentiality.

    Thanks for the conversation on this obscure blog! :)

    Reply
  13. Innuendo doesn’t get us anywhere. Like saying: “It is publicly known that Seth Finkelstein uses computers to communicate with academics. Who knows what OTHER kinds of people Finkelstein communicates with privately, and on what topics”. Or, “We know Michael Zimmer received federal funding for research under the Bush Administration, so it is perfectly reasonable to accuse that — unless proven otherwise — his research is tailored towards that administration’s ideology”

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  14. In JZ’s book and supporting lectures he takes Xbox, Microsoft Passport, the Google App Engine, and Google Maps API to task, among other examples. By his reckoning the Apple II rates as an invention on par with the Internet in driving the free digital ecosystem. He’s also a vocal iPhone lover despite his reservations.

    Not trying to claim parity in his public assessment of the three companies, but a shill Zittrain ain’t.

    Reply

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