article

07.05.10

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.

This article has been updated with several notes and corrections.

Professors at Harvard Law School’s influential Berkman Center for Internet & Society consistently take positions on hotly debated business issues in support of companies like Google, which favor a free-wheeling Internet culture and less control over intellectual property, and against companies like Apple and AT&T, which—at least when it comes to hardware like the iPhone—favor closed digital systems and stricter intellectual property rights.

For example, a week after the iPad announcement last January, The Financial Times published an op-ed by Berkman Center founder and star professor Jonathan Zittrain critical of Apple, declaring: “iPhone thus remains tightly tethered to its vendor—the way that the Kindle is controlled by Amazon … Mr. Jobs ushered in the personal computer era and now he is trying to usher it out.”

What most readers don’t know is that the Berkman Center and many of its leading professors have financial and personal ties to Google and other tech companies—ties that are not disclosed when these academics speak or publish, and that I discovered after auditing a class with Zittrain. The 40 year-old Harvard professor is best known for his 2008 book The Future Of The Internet—And How to Stop It, which lays out his career thesis: that “the generative,” or free and open Internet, “is on a path to a lockdown, ending its cycle of innovation—and facilitating unsettling new kinds of control,” the book jacket summarizes. (Editor's Note: The original version of this article did not report that Berkman's website includes Google Inc. on a list of current sponsors.)

Zittrain visited Stanford Law School in January to teach a three-and-a-half week seminar called “ Difficult Problems in Cyberlaw.” (Disclosure: I was invited to audit this class in the course of applying for a part-time research job at the Berkman Center—a job I did not get.) What first struck me as odd about the course was its lavish catering. On January 4 the menu offered, among other choices, Mista Salad: Simple and Delicious Mixed Field Greens with Cucumbers and Ripe Tomatoes in a Light Vinaigrette, and Harvest Roasted Turkey with Oven Roasted Turkey Panini, Sage Aioli, Cranberry Chutney, and Munster Cheese. According to invoices supplied by an employee at the caterer, the meal tab for Zittrain’s seminar was $4,647.56.

The class, it turned out, was funded by “a special grant from Microsoft,” according to Stanford Law School Dean Larry Kramer. Students were not made aware of Microsoft’s involvement.

After finding out about the Microsoft grant, I became more curious about how academic work about the Internet is funded, and began asking the Berkman Center and Zittrain for more details. According to a statement provided on June 10 by Berkman co-directors John Palfrey and Urs Gasser, Google is the center’s top corporate backer and its fourth-largest donor (Harvard University is fifth), providing roughly $500,000 over the last two years to support an overall annual operating budget of approximately $5 million. Palfrey and Gasser say the Berkman project receiving the most financing from Google, StopBadware, is “now a separate 501(c)(3) entity,” but when I spoke to the project’s director, Maxim Weinstein, in May, Weinstein said he still works in Berkman-leased office space in Cambridge and that actual plans to phase out StopBadware’s relationship with Berkman are “fuzzy.”

According to Google public affairs representative Emily Wood, StopBadware is “the best example” of how Google has worked in partnership with Berkman.

Zittrain is also personally close to Google co-founder Sergey Brin; Zittrain’s colleague and former research assistant, Elizabeth Stark, said she and the professor, whom she calls “JZ,” celebrated New Year’s Eve in California with “Sergey and Anne.” (“Anne” is Anne Brin, Mr. Brin’s wife.) (Update: On December 30, Stark mentioned plans to spend New Years Eve with the Brins. Stark says she and Zittrain did not end up spending New Years Eve with the Brins.)

Indeed, my seminar with Professor Zittrain made clear that his sphere of influence includes some of Silicon Valley’s most powerful, and that these relationships are overwhelmingly aligned with the free/open source crowd. We were treated to special sessions with some of the most powerful players in Silicon Valley, including Brin, Google search guru Matt Cutts, Mozilla Chairperson Mitchell Baker, Twitter General Counsel Alexander Macgillivray, Facebook Deputy General Counsel Michael Richter, Wikipedia General Counsel Mike Godwin, Creative Commons Chair Esther Wojcicki (Brin’s mother-in-law), and Craigslist Founder Craig Newmark.

The seminar was highly enjoyable, but it seemed more like an insider briefing from one side of a broad debate than a scholarly discussion of those “Difficult Problems in Cyber Law.”

All of which makes it ironic that the class was funded by Microsoft, the original closed-systems computer monopoly. Yet Zittrain is generally a fan of Bill Gates’ brainchild, according to a 1999 Slate article about the federal government's antitrust case against Microsoft. "I'd better reveal a possible bias: I really like Microsoft," Zittrain wrote. In the piece, he reminisced about his college internship with the company in the 1980s, working to improve the spreadsheet software Excel. (Editor's Note: The original article did not note that in the same 1999 Slate piece, Zittrain also called Microsoft's actions "textbook antitrust" and supported a judge's ruling against the company.)

According to Palfrey, Microsoft has donated between $100,000 and $150,000 to the Berkman Center for 2010. Apple, on the other hand, does not fund the Berkman Center. AT&T, currently the exclusive carrier of Apple’s iPhone (the product Zittrain loves to hate), has participated in just one Berkman project—an Internet Safety Technical Task Force that took place in 2008 and included 20 other companies and organizations. AT&T contributed $10,000.

On June 3, as I was reporting this piece, asking about the nature of Berkman's funding, AT&T suddenly appeared on the Berkman Center’s website list of “current sponsors.” After I inquired about the change, on June 7 AT&T returned to the website’s “past supporter” list, but the center would not comment on why.  (Editor's Note: Before the article was published, Berkman provided a comment to the author that it stated was not for publication. Since the article was published, Berkman has explained for publication that it and AT&T were discussing a grant at the time, but AT&T felt the listing as a "current sponsor" was premature and asked that it continue to be listed as a past sponsor until the new support was finalized. AT&T corroborates this account.) AT&T spokesman Michael Balmoris said he has no idea why Berkman would list (or unlist) the company as a "current sponsor." 

The trust Zittrain inspires makes it all the more important that he disclose the financial backers of his research. He is virtually a rock star to his students; not only a highly regarded teacher, but approachable and passionate about his work, without being pretentious. Like his students, Zittrain prefers jeans and a backpack. “He's still like a 14-year old boy,” Stark says of “JZ.”

No one has alleged that anyone at Harvard Law School has formulated opinions because he or she was paid to. But Berkman and Zittrain, due in no small part to the force of Harvard's branding, have become increasingly important players in Internet policy and media circles. The appearance of conflicts matter; even if such conflicts are not the stuff of life and death, as they might be in medical research, they do impact legislation, stock prices, and consumer choices.

In other words, the “boy” and the Internet center Zittrain co-founded in 1997, just two years after earning his J.D., have hit puberty. The problem is that the nature of Berkman and Zittrain’s corporate support is never mentioned when he or the center are cited as authorities.

When I visited Berkman in April—its offices are across the street from the Harvard Law School’s main quad—Communications Director Seth Young told me there was a reporter from Fox News in the building interviewing a professor. Weeks before, The New York Times’ Steven Johnson cited Zittrain as “one of the Web’s brightest theorists.” Brian Stelter, a media reporter at the Times, told me he’s been reaching out to Zittrain and the Berkman Center for as long as he can recall.

In repeated email and voice mail exchanges, Zittrain declined requests to answer questions about his personal corporate backing or speaking engagements. (Zittrain is listed on the Washington Speaker’s Bureau website, which quotes his speaking fee as between $15,000 and $25,000; he is also listed on the Monitor Talent Speaker’s Bureau website as available for consulting or keynote addresses. Both companies declined to comment.) He said he was feeling ill the week in June that we had scheduled for a phone interview, canceling it. I then asked Zittrain over email if he had a personal disclosure statement or policy. He answered that he could not “engage on this,” citing major surgery he had in May. After I learned he was back on the speaking circuit, I made several attempts to follow up by email and by phone. He continued to decline comment, citing his health and other “long-arranged” commitments.

Harvard Law School and the Berkman Center reacted to my questions just as awkwardly. HLS Communications Director Robb London says faculty disclosure requirements are “contained in the faculty manual, which is not a document that we make public.”

Berkman Center staffers seem unfamiliar with this document. “Don’t be a jerk,” Berkman Managing Director Colin Maclay, who handles fundraising, said lightheartedly. “I mean, do we have a policy? No, not that I know of.”

But the Berkman Center’s relaxed approach may soon change. Harvard has quietly been working on a new "University-wide conflicts-of-interest policies and principles" framwork that could have a significant impact on Berkman Center-affiliated faculty. Vice Provost for Research Dr. David Korn, who is leading efforts to craft the policy, says it will cover all university faculty.

Korn is a former dean of the Stanford School of Medicine; he was recruited by Harvard in 2008 after a controversy over Harvard Medical School professors promoting drugs manufactured by companies such as Pfizer and Merck, from whom they had been paid as consultants.

A model for Harvard could be the stringent personal disclosure policy of Lawrence Lessig, a long-time Zittrain colleague. Although now directing Harvard’s Safra Center for Ethics (where he says his focus is “institutional corruption”), and no longer connected to Berkman or teaching cyberlaw, Lessig remains the biggest name in Internet legal academia.

Lessig posts his disclosure policy on his website, including details on how he navigates his relationships with technology companies and organizations with corporate sponsors. Lessig notes on his website that by exhaustively articulating his disclosure policies, he intends to call attention to “corruption in a more subtle sense….even at the risk of indirectly calling some of my friends ‘corrupt.’”

Asked generally about the responsibilities of high-profile professors working in areas like law and medical research, where their opinions can affect big business, Lessig spoke approvingly of Harvard’s efforts to draft a new conflicts and disclosure policy. “It’s the most ambitious of any in the country,” he said. (Editor's note: Because of a misunderstanding in an email correspondence, the article originally stated that Lessig would not comment on Zittrain's or Berkman's disclosure policies. Lessig did state in an email, "I believe Berkman's (and as I understand it, Z's) policy will be seen to be exemplary in the light of [Harvard's forthcoming disclosure] policies.")

The new policy—the result of two years of work—will be announced in late July, according to Korn. He said the Law School was the last of Harvard’s units to agree to the draft, in what he said has been an exhaustive school-by-school review process.

“They like to be left alone,” he explained. “For them it took quite a bit of conversation and discussion to get them to join the party. … But they really didn’t have any choice. In the end everybody was going to be part of this.”

Harvard Law School Dean Martha Minow did not respond to a series of emails and phone calls seeking comment about the school's conflicts policies and Korn's assessment of the law school's attitude toward his work. London, however, the HLS communications director, told The Daily Beast in an email that HLS has "joined with colleagues" from across Havard's many colleges to participate in the process. "The expectation," London wrote, "is that, informed by the principles developed by the university-wide committee, each faculty will work over the next year to develop an updated policy."

Professor Lessig's disclosure statement conIudes, "I don't offer this as a tool to condemn. I offer it because I believe this is a conversation we all should have."

This article has been corrected to reflect that Craig Newmark is the founder, not the founder and CEO of Craigslist. It also mistakenly identified Elizabeth Stark as Zittrain's current research assistant, a position she formerly held. It also mistakenly identified Lawrence Lessig as a co-founder of the Berkman Center, which he is not. 

Four editor's notes were added to this article on October 12, 2010.

Emily Brill graduated from Brown University with a degree in history. She has written for The Philadelphia Inquirer, and has worked at MSNBC’s Morning Joe , and for Journalism Online, LLC. She lives in New York.