Sterling and the Shrinking Scope of the Purely “Private” Sphere

“These days, the only way you can have a private conversation is to talk to yourself.”

-- “Susan_Gale” (Board of Wisdom)

Last month, BSB covered the saga of Mozilla CEO Brandon Eich, who resigned after amid a torrent of criticism for his $1000 donation in support of California’s Proposition 8, a ballot measure that sought to ban same-sex marriage. At the time, there was considerable discussion about whether public pressure should be directed at an individual like Eich purely on account of his political beliefs.

More recently, a similar firestorm erupted in the National Basketball Association, as Donald Sterling, the octogenarian owner of the Los Angeles Clippers, was recorded making deeply racist comments. The recording was captured by one of Sterling’s associates, V. Stiviano, who later gave it to a third party for “safe keeping” only to have the contents leaked to TMZ.

Recent reports indicate that the recording was made with consent from both Sterling and Stiviano (California is a “all-party” (or “two party”) consent state, whereas New York is a “one-party” state requiring only one individual to have consented to a recording).

While some have hailed Stiviano as a “hero”, others have questioned whether the real story—aside from the vile commentary unleashed by Sterling—is the nature of private communication in modern life.

NBA great Kareem Abdul-Jabbar even went so far as to say, “Shouldn’t we be equally angered by the fact that his private, intimate conversation was taped and then leaked to the media? Didn’t we just call to task the NSA for intruding into American citizen’s privacy in such an un-American way?”

ESPN columnist Jason Whitlock added:

If TMZ plans to make “pillow talk” public and the standard is set that “pillow talk” is actionable, it won't be long before a parade of athletes joins Sterling on Ignorance Island.

A right to privacy is at the very foundation of American freedoms. It's a core value. It's a mistake to undermine a core value because we don't like the way a billionaire exercises it. What happens when a disgruntled lover gives TMZ a tape of a millionaire athlete expressing a homophobic or anti-Semitic or anti-white perspective?

Lastly, Globe columnist Jeff Jacoby issued a cautionary warning, “[I]t isn’t only other people’s dirty laundry that the whole world can get a good look at. It is yours and mine, too. Once our privacy is gone, don’t count on getting it back.”

So what are we to make of this? At the outset, we need to define whether the decline in privacy is a problem in the first place. Presumably, we believe that a shrinking private sphere will lead to self-censorship and the decline in discourse that may at the time seem abhorrent but later becomes not only accepted, but embraced (countless ideas in history follow this trajectory, from Copernican heliocentrism to marriage equality).

At the same time, each of us as “public citizens” must be prepared to shoulder the consequences of our views. But which views? Perhaps those that we affirmatively choose to share with others. For instance, Brandon Eich contributed to a public campaign and was held to account in the marketplace. Donald Sterling did not make such an affirmative choice, though as most others have noted, given Sterling’s history of behavior, he garners little sympathy.

Beyond whether a communication was intended to be public or private, are there important lines to be drawn between politicians and public figures—who we expect to uphold a certain type of consistency across audiences—and private “everyday” Americans? The law already differentiates between these classes of persons in libel law, where public figures must prove “actual malice” to recover. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

Of course, this only begs the question of who constitutes a public figure. It’s easy to say that a billionaire NBA owner is a public figure—but what of the small business owner on the corner or the superintendent of a small regional school district?

None of these questions are easy to answer, but the Sterling story should generate conversation about the nature of privacy in the modern age—an issue that we’ve done little to address, other than using technology to provide a quick fix (here’s looking at you, Snapchat).

Furthermore, it acts as a reminder that each of us is aware that people say things they don’t mean (we’ve all done it) and that attaching permanent pariah status on another individual for thoughts shared with intimates behind closed doors is often unfair and short-sighted. A society built on open dialogue and second (and third) chances cannot function if there is no safe space to discuss controversial subjects in a constructive manner (again, Sterling’s do not remotely fit this description, but other controversial comments do).

Now I better log off and put pen to physical paper. After all, privacy isn’t dead yet.

SCOTUSWatch: The iPhone Meets the Fourth Amendment

“The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider ‘intimate.’”

-- Justice Antonin Scalia, Kyllo v. United States, 533 U.S. 27 (2001)

This morning, the Supreme Court will hear argument in United States v. Wurie and Riley v. California, two cases concerning the right of police officers to search cell phones incident to an arrest without a warrant.

These are just the latest in a long line of cases in which the Court has had to try to graft the text of the Fourth Amendment’s prohibition against unreasonable searches and seizures onto modern technology.

Since 2001, the Court has ruled that placing a GPS device on an individual’s car constitutes a search (United States v. Jones, 132 S. Ct. 945 (2012)), the warrantless use of a thermal device to scan the inside of a home for evidence of heat lamps that could be used to grow marijuana violates the Fourth Amendment (Kyllo), and, my personal favorite, that a California law limiting the sale of violent video games to minors violated the First Amendment (Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011)).

Brown is noteworthy not just for the Court’s strong affirmation of the First Amendment, but also for revealing the limits of the Justices’ understanding of modern technology. During oral argument Justice Elena Kagan stated, “A reasonable jury could find that Mortal Kombat -- which is, you know, an iconic game, which I'm sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing,” at which point Justice Scalia interjected, to the laughter of the courtroom, “I don't know what she's talking about.”

Suffice to say, every Supreme Court justice has a cell phone (whether they have smart phones is another story—the Justices are famous for their paper-based inter-chambers communication), and therefore the issues at stake in the Court today should be at least somewhat familiar.

What are those issues precisely? From my perspective, there are two major questions posed by these cases: (1) What types of content on a phone carry a reasonable expectation of privacy; and (2) How (if at all) does the advent of “cloud” based storage change the calculus for police who seek to preserve evidence incident to an arrest?

First, as NYCLU Associate Legal Director Chris Dunn wrote in a column in the New York Law Journal in February, our phones include a vast amount of information, from emails, photographs, and social media postings to browsing histories, financial data, and GPS-based location tracking.

Some of these “possessions”—like financial records and health information—would seem to fall under the most stringent privacy protection, while others, particularly social media postings (which almost by definition are meant for public display/dissemination), seem to lack the type of reasonable expectation of privacy usually linked with the Fourth Amendment.

Indeed, given that law enforcement agencies already patrol Facebook/Twitter/etc for leads—particularly regarding youth gangs—it would seem odd to not permit cops to examine public social media postings after an arrest, even without a warrant.

On the other hand, why not get a warrant in these situations? For one, a legitimate fear that has long been cited for the need to quickly perform a search incident to an arrest is the concern that evidence could be tampered with, spoiled, or otherwise rendered useless during the booking process. Today, digital “evidence” is uniquely capable of being destroyed from anywhere at anytime by anyone, since a friend could theoretically log in to someone's account and delete potentially incriminating material. That concern creates at least some urgency to a review.

While the First Circuit insisted in Wurie that officers could remove the phone battery, place the phone in a available bag that blocks incoming signals, or copy the phone’s contents without examining them before obtaining a warrant, the fact remains that the evidence accessible via the phone often isn’t on the physical phone. Even the New York Times editorial board fell into this trap, insisting that “any evidence on the phone can be preserved by using special devices to prevent remote deletion of the data.” That’s not true now and is far from a guarantee in the future.

Finding a way to preserve potential evidence stored in the cloud within the framework of the warrant system is a challenge, but not an impossible one. Warrant procedures would need to be streamlined—such that if probable cause exists that evidence of a crime is accessible via the phone, a warrant could be issued in something close to real time.

Establishing such a system is important because the Times is right on the merits—cell phones today are not the 5-pound blocks of Wall Street fame, but are instead repositories of our most intimate associations, private thoughts, and day-to-day movements. For originalists, this means viewing phones as diaries, bank ledgers, and general store receipts rolled into one—precisely the type of “papers and effects” that the Fourth Amendment was designed to protect.

Net Neutrality: A Revolutionary Solution to a 21st Century Problem

 “Whatever facilitates a general intercourse of sentiments, as good roads…a free press, and particularly a circulation of newspapers through the entire body of the people…is favorable to liberty.”

--James Madison, Public Opinion, 19 Dec. 1791

This week, the Federal Communications Commission (FCC) announced a major shift in policy concerning “net neutrality”—the principle that has heretofore established that all legal internet traffic must have equal access to the networks of service providers. This shift will potentially allow larger companies (particularly providers of bandwidth-busting streaming video, like Netflix or ESPN) to pay for preferential access to the internet’s infrastructure—what the New York Times deemed “the digital equivalent of an uncongested car pool lane on a busy freeway.”

A host of consumer and civil liberties groups—from Common Cause to the American Civil Liberties Union (ACLU)—have spoken out against the proposed rule changes, with the ACLU predicting, “barriers to innovation will rise, the marketplace of ideas on the internet will be constrained, and consumers will ultimately pay the price.”

On the other side of the argument are telecommunications companies that for years have insisted that “tiered” bandwidth would benefit the majority of consumers. As David Cohen, an executive at Comcast declared at an FCC hearing at Harvard Law School in 2008, “Bandwidth-intensive activities not only degrade other less-intense uses, but also significantly interfere with thousands of Internet companies’ businesses.”

While I personally believe that net neutrality should remain the law of the land, I am not blind to the pressures facing ISPs or the writing on the wall from the FCC. Therefore, I want to focus today on the potential effect that a “bandwidth to the highest bidder” system could potentially have on a free press and whether an ancient Constitutional clause long forgotten—the Post Roads Clause—can be seized on by Congress to ensure a free and equal exchange of ideas online.

I propose that Congress enact legislation recognizing fiber-optic/broadband cable as the post roads of the 21^st century, and (assuming the FCC’s plans go through) require all ISPs that choose to implement differentiated services to permit news organizations to have free and uninhibited access to the fastest possible connection to end users. This designation would reduce the potentially devastating effects of “bandwidth to the highest bidder” and would comport with the history of Congressional awareness of the importance of a free and open press.

The Old Boston Post Road-- From Wall Street to the Hub

In 1791, Massachusetts Congressman Elbridge Gerry declared, “Wherever information is freely circulated there slavery cannot exist; or if it does, it will vanish, as soon as information has been generally diffused.” Shortly thereafter, the first Postal Act passed and ever since, the Post Roads power of Congress (Art. I, §8, Cl. 7) has been used to support the work of newspapers. Newspapers were permitted to use the mails at deeply discounted rates throughout the 18^th and 19^th centuries and were eventually joined in that privileged position by magazines, books, and other periodicals.

Over time, the Post Office has continued to be at the forefront of using transportation and communications technologies to improve both the reach of the press and the speed at which its product could be transmitted across the continent.

In 1823, waterways were declared post roads. In 1838, all railroads in the United States were declared post roads. And in 1922 and 1923, the Post Office was awarded the Collier Trophy for important contributions to the development of aeronautics for its contributions to airliner safety.

The Post Office not only asserted control over transportation technology, but also over new forms of communication technology. As the Supreme Court of the United States noted in Pensacola Telegraph Company v. Western Union Telegraph Company, a case upholding Congressional regulation of telegraph lines:

Post-offices and post-roads are established to facilitate the transmission of intelligence…The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth.

Pensacola Tel. Co. v. W. Union Tel. Co., 96 U.S. 1, 9-10 (1878) (internal citations omitted) (emphasis added).

Like the canals, rails, and wires before it, the internet has become the great facilitator of knowledge—tying the nation and the globe together and transmitting ideas across oceans in ways the Founding generation never could have imagined. And yet, as the Court said 136 years ago, the Constitution stands ready to adapt to the “progress of the country.” In 2014, the time has come for Post Roads to meet Cyber Space.

Connectivity and the Prisoner's Dilemma

Bay State Brahmin will be off on Monday in honor of Patriots Day. We'll be back on Tuesday, April 22.

“The peculiar problem of constant connectivity: any silence of more than a few hours provokes apocalyptic thoughts.”

-- Dave Eggers, A Hologram for the King, 2013

Last week, labor unions and corporate leaders in France agreed on a framework to limit connectivity for at least 11 consecutive hours a day. This “obligation to disconnect from remote communications tools” is designed to ensure that individuals are actually able to be free from the 24/7, on-call demands that have come to characterize many U.S. workplaces, especially in the years since the Great Recession.

While France is (in)famous for embracing a blunt approach to labor regulations, there are certain contexts in which regulation short of absolute bans (literally turning off the switch) will invariably fail to achieve the desired ends. Indeed, the world of ever-present connectivity is just such a context—a classic prisoner’s dilemma where all would benefit from signing off and checking out, but the incentives are so strong for people to be constantly available that all end up feeling pressured to always be “on-call.”

As Allison Rimm, a management consultant, told the Boston Globe, “You can have all the policies in the world. But if you are the leader, and you’re sending late-night e-mails, that creates a certain culture. It’s a real leadership issue.”

Part of the reason why connectivity and the effort to achieve work-life balance constitutes a classic prisoner’s dilemma is that many people eschew the very idea of balance in the first place. As former General Electric Chairman and CEO Jack Welch said in 2009, “There’s no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences.”

And in 2011, Chief Judge Loretta Preska of the United States Court for the Southern District of New York issued a historic ruling in EEOC v. Bloomberg L.P., 778 F. Supp. 2d 458 (S.D.N.Y. 2011), stating:

The law does not mandate “work-life balance.” It does not require companies to ignore employees' work-family tradeoffs – and they are tradeoffs – when deciding about employee pay and promotions. It does not require that companies treat pregnant women and mothers better or more leniently than others. All of these things may be desirable, they may make business sense, and they may be "forward-thinking." But they are not required by law…In a company like Bloomberg, which explicitly makes all-out dedication its expectation, making a decision that preferences family over work comes with consequences.

I believe Preska’s interpretation of the law as written is the correct one. But of course, that only begs the question—so often asked by Chief Justice Earl Warren—is the law right? Is it good? The answer—at least for the majority of Americans who desire greater balance—would seem to be no.

As is so often the case, technology itself offers a solution—this time to the constant connectivity problem. Apps offering “freedom” from connection have proliferated in recent years, helping thousands of Americans unilaterally detach.  As reported in the Times, some corporations have taken this step company-wide, with Volkswagen shutting down its Blackberry servers off-hours.

As I sit here at 1 A.M. finishing this entry, I am not naïve enough to think that American companies will soon follow suit—unless, of course, the companies themselves are convinced that such disconnection is a net positive to productivity.

Indeed, as Philip Roth told GQ, “I can only really write when I'm alone in a place that’s mine, that I’m accustomed to, and there's no interruption. I don't have a phone. I don’t have anything that can distract me. And I spend the hours ruminating. If you spend six or seven hours ruminating on your invention, the next part of it will come to you.”

You don’t have to be world-famous author to realize how connectivity leads to burnout and disconnecting to rejuvenation. Recent surveys have shown that over 80 percent of American workers check work email on weekends and over half of workers respond to emails off-hours either in close to real-time. This pattern contributes to a high rate of stress among U.S. workers that is estimated to cost the economy about $300 billion annually.

In the end, like any prisoner’s dilemma, the only lasting solution to the problem of constant connectivity likely lies in collective action. In our nation, that action is unlikely to come from the government. As a result, advocates must convince business leaders to change their policies—for the good of their profits and the people they employ.

True Transparency in Gov’t: A “Common Sense” Approach

“I know it when I see it…”

-- Potter Stewart, Associate Justice of the Supreme Court

Jacobellis v. Ohio, 378 U.S. 184 (1964) (concurring)

Last year, in a dispute surrounding emails allegedly sent by then-New York Attorney General Eliot Spitzer concerning an investigation of officials at AIG, New York Supreme Court Justice Christopher Cahill ruled that that the use of personal email accounts by government officials for agency-related business cannot be used as a shield against disclosure under the State’s Freedom of Information Law (FOIL).

“Pursuant to judicial precedent and the underpinnings of FOIL, the [Office of the Attorney General] has both the responsibility and the obligation to gain access to the private email account of former Attorney General Spitzer to determine whether the documents contained therein should be disclosed to petitioner in accordance with its FOIL request.” Smith v. N.Y. State Office of the AG, 2012 N.Y. Misc. LEXIS 4166 (Sup. Ct. Albany Cty. 2012).

The case continues to wind its way through New York’s courts. Just last week, the New York Law Journal reported that the State continues to argue that “FOIL does not compel disclosure of records that are not in the possession or control of the state at the time the request is made.”

Spitzer isn’t the only elected official in New York who has sought an end-around FOIL. Governor Andrew Cuomo (in)famously uses BlackBerry PIN messages that are not retained by provider Research in Motion and do not leave a paper trail.

Former Mayor Michael Bloomberg used “Bloomberg.net” email addresses with his top officials, siphoning public business off of “official” email and on to private servers that are either beyond the reach of FOIL or, at the very least, extremely difficult for public agencies to track down.

In 2002, Former Mayor Rudolph Giuliani sent his official papers to a nonprofit he controlled instead of transferring custody directly to the city’s Municipal Archives.

All of this has taken place despite the fact that New York’s Committee on Open Government (COOG) has issued advisory opinions declaring that private communications, when used to contract public business, are subject to FOIL. “[E]mail kept, transmitted or received by a town official in relation to the performance of his or her duties is subject to the Freedom of Information Law, even if the official ‘uses his private email address’ and his own computer.”

Furthermore, it is curious the lengths elected officials go to avoid FOIL given that FOIL specifically provides an exception for “inter-agency and intra-agency” deliberative materials (see N.Y. Pub. Off. Law Sec. 87(2)(g)) and courts routinely uphold the withholding of material about press strategy and other potentially sensitive political decision-making.

So what’s a good government advocate for transparency to do? How do we determine what is a problematic end around FOIL vs. what is a routine practice essential to the open and frank deliberation that any political office must necessarily engage in?

The Embodiment of Government Secrecy.
CC License: Flickr user "Raoul Pop"

First, we can acknowledge how technology has far outstripped FOIL (which was initially passed in the wake of Watergate, in 1976) and that new regulations and penalties may need to be devised to increase the potential cost of moving governmental communications “off book.” For instance, there may well be no reason why official communications should occur outside of official channels that are ultimately within the possession of a given government entity. If that is indeed the case, perhaps penalties should attach to the use of private communications for government work, regardless of whether the private email was used in an effort to evade FOIL.

More importantly, I think we need to apply a little dose of common sense—the type that Justice Stewart was referencing what he penned his famous line about knowing pornography when he sees it, or that the Fourth Circuit Court of Appeals discussed in South Carolina State Ports Auth. v. FMC, 243 F.3d 165, 174 (4th Cir. 2001) (determining that an adjudication “walks, talks, and squawks very much like a lawsuit”).

That common sense approach would look at the subjective motivation of the communication in question. For instance, was the use of private email deliberately employed in an effort to avoid FOIL? After all, if it looks like an end around FOIL, it’s probably an end around FOIL.

The New York Post editorial board recently stated, “If politicians can escape scrutiny simply by doing their work via private e-mails, we lose all hope for government accountability and transparency.” I agree and I hope that New York’s courts rule in favor of complete disclosure of public work, whether on government servers or private email.

However, regardless of how the issue plays out in the courts, citizens should demand that elected officials clearly and transparently share their disclosure policy—both what they will affirmatively share (and in what format/timeframe) and what they will withhold so that voters can hold their leaders accountable for valuing true transparency.

Transportation Tech: From the Mass Pike to the Friendly Skies

“Last night on the Mass Pike, thought I was losing you. Last night on the Mass Pike, I fell in love with you.”

--“Mass Pike,” The Get Up Kids, 1999

Few things are more frustrating than sitting in traffic at a tollbooth, taxiing for takeoff for hours, or standing on crowded trains directed by century-old switches. But what if I told you that we had technologies at the ready to address each of these problems, only to have failed to adequately seize on their potential?

Last week, the Globe profiled forthcoming changes to the Mass Turnpike in Allston, noting that straightening the turnpike will improve safety, smooth traffic, and free up 60 acres of land, some of which is prime territory a stone’s throw from the shores of the Charles River.

Today, I want to focus on one particular aspect of the plan—the introduction of 100 percent cashless (electronic) tolling on the Pike—as well as several other transportation technologies that will pay long-term dividends if we commit to investing in them today.

As the map below from the Pennsylvania Turnpike Commission shows, cashless tolling is being embraced by states across the country as a way to reduce congestion (and the pollution/productivity effects associated with it) and save money on toll collection that can make a small, but meaningful contribution to rebuilding our nation’s roads and bridges. For instance, the Golden Gate Bridge’s new cashless tolling system is expected to save $16 million over eight years (the bridge faces a $66 million budget deficit over the next five years).

This is particularly important in light of the troubles with the national Highway Trust Fund, which is fast approaching insolvency thanks to a gas tax that hasn’t budged in 20 years and the proliferation of more fuel-efficient vehicles.

Cashless tolling should be a requirement for any new federally funded transportation project that includes tolls and the Highway Trust Fund should incentivize states to adopt cashless tolling by providing capital grants for implementation of new systems and cost-sharing arrangements with states.

Another critical transportation technology that has encountered a litany of challenges in recent years is the Federal Aviation Administration’s rollout of Next Generation air traffic control (“NextGen”).

The FAA’s largest-ever procurement, NextGen would replace radar-based ground control with GPS navigation and require airlines to adopt technology that allows pilots and air traffic controllers to have improved access to real time data, allowing planes to fly more direct routes closer together, improving efficiency and productivity in our nation’s skies. When completed, the project is expected to yield a system that can handle three times more air traffic while reducing FAA’s operating costs.

In addition, NextGen is expected to yield the following benefits by 2030:

·       More than $100 billion in net economic benefits

·       27 million hours in flight delays saved

·       Reduce carbon emissions by cutting 4.6 billion gallons of fuel

However, as the Inspector General of the U.S. Department of Transportation recently found, the FAA has failed to embrace NextGen’s potential. This includes a failure to rapidly introduce GPS capabilities at many of the nation’s busiest airports, including those in the NYC-metro region that account for nearly half of all flight delays nationwide.

The list of transportation technologies that are underused goes on and on. In New York, Albany continues to stonewall the City’s efforts to expand the speed camera program—a critical part of Mayor de Blasio’s “Vision Zero” initiative (though Governor Cuomo insists that the issue will be taken up after the holiday recess).

Few cities—including New York—have committed to transforming antiquated street parking with technology (like that in use in San Francisco) that promises to reduce congestion, improve safety (with fewer cars circling for spaces/double parking), and more appropriately value public space.

And we continue to rely on mechanical, switch-based subway systems constructed in the early 20^th century instead of using Communication Based Train Controls (CBTC), which offer improved reliability, lower costs, and greater efficiency. Despite the fact that systems around the world have implemented CBTC, only a single NYC subway line (the L) currently has CBTC, with the 7 slated to have it installed by 2017. Worse, under the current MTA capital needs assessment (2015-2034)—a plan funded almost entirely with debt—it will take until the 2030s (or beyond!) for the entire NYC system to have CBTC installed.

Leveraging technology in transportation will pay for itself. But that will only happen if we generate strong, grassroots support by making these esoteric projects “real” to the public. Indeed, Americans have shown time and again that they are willing to fund infrastructure improvements when they understand precisely how they stand to benefit.

Global Gateway Alliance is trying to generate public awareness of airport improvements in NYC, just as the Straphangers Campaign has long advocated for the interests of bus and subway riders. What’s needed next is recognition by elected officials that the benefits of these technologies will flow to constituents in every corner of the city/state/nation.

The "Magic Semicircle": The Future of the Route 128 Corridor

“Route 128 is more than a highway…It is, as the blue signs posted for many years, ‘America’s Technology Region.’”

--Alan Earls, Route 128 and the Birth of the Age of High Tech, 2002

This week, the Martin Institute for Prosperity published a new report, “Start-up City: The Urban Shift in Venture Capital and High Technology.” Written by University of Toronto/NYU Professor Richard Florida (author of The Rise of the Creative Class), the report finds that while “[s]uburban high tech is not going away…the newest and most innovative developments in the industry are likely to emerge from urban and urban-like locations.”

While the 128 corridor remains, in Florida’s words, a “classic suburban nerdistan,” the highway once known as “the road to nowhere” has lost share of VC funding in recent years to Cambridge and Boston.  Indeed, while the “978” remains the 15^th largest recipient of VC funding—with 42 deals worth nearly $350 million in 2012—there is room to grow VC funding on the 128 belt—particularly in Essex County, as shown in the map below.

Source: "Start-up City" Report, Martin Institute, p.25

How then can Massachusetts poiicymakers ensure that the “Massachusetts Miracle” of the 1970s, which witnessed the establishment of Route 128 as one of the nation’s leading tech hubs does not fade into the Massachusetts mirage? [for a terrific primer on Route 128’s history, check out “Silicon Valley and Route 128: The Camelots of Economic Development,” in the May 2013 issue of the Journal of Applied Research in Economic Development].

We can start to answer that question by defining what cities and towns in Essex County cannot do: become dense metropolises like New York City. The infrastructure of the North Shore won’t allow it and the proud history of the Essex County National Heritage Area precludes communities from tectonic shifts in development priorities.

To state the obvious, Northeast Massachusetts can’t compete with New York and San Francisco on the playing field of the “global city.” Instead, our region must leverage its unique assets to drive growth in a way that shows fidelity to history and takes advantage of new modes of suburban living that emphasize mixed-use, sustainable neighborhoods.

We already have models of what these walkable suburban centers can look like. Salem and Lynn earn relatively high scores from WalkScore, but when you drill deeper into the mapping, it is clear that the downtowns of these ancient cities are extremely walkable. Not coincidentally, these downtowns are located near train stations that can whisk residents to Boston in about a half hour.

In recent years, development throughout NE Mass has focused on walkable neighborhoods and live-work environments. As stated in the 2009 Bridge Street Revitalization Plan prepared for Salem, “The Bridge Street Neck neighborhood should be an active mixed-use neighborhood, incorporating lively commercial and residential areas. The neighborhood should have a safe and enjoyable pedestrian environment that connects its different amenities and serves its residents and businesses.” The City of Beverly has also promoted its walkable downtown in its effort to woo business to the home of the Panthers.

Governor Deval Patrick must have been listening. Three years later, he announced a plan called the “Compact Neighborhoods Policy” which calls for the construction of multi-family homes, rental apartments, and starter homes near jobs, transit, and city and town centers. Providing incentives to cities and towns to engage in such “smart growth” is one of the keys to ensuring the continued vitality of the suburban ring, not just the entrepreneurial engines of Boston and Cambridge.

In addition to embracing smart growth and walkable, mixed-use neighborhoods, Essex County also needs to do more to capitalize on the creativity of our college students. Gordon College in Wenham, Endicott College in Beverly, Salem State University in Salem, Northshore CC campuses throughout the region, Merrimack College in North Andover—each of these institutions of higher learning should be nodes for innovation on the North Shore.

Public-private partnerships that position incubators and affordable housing near campuses (linked to downtowns with free/low-cost bus/van transportation) can help to ensure that graduates not only see Essex County as a great place to learn, but also as a prime location to start a business and raise a family. Salem State’s Enterprise Center is a terrific start, but more can be done to harness this enduring asset. In particular, universities should actively partner with existing private sector incubators with proven results, from Newburyport’s CleanTech Center to Beverly’s North Shore InnoVentures.

This last element leads me to my final ingredient for the success of the Route 128 corridor—preserving the natural treasures and community assets that make Essex County such a sought-after place to live. This means protecting our beaches, from Salisbury and Crane to Good Harbor and Preston, as well as taking advantage of our history to drive tourism.

But it also means continuing to invest in our schools, many of which consistently rank among the best in Massachusetts. Salem Academy Charter School ranks 5^th in the State and 139^th in the nation, serving a diverse student body where 2 in 5 students are economically disadvantaged. And last year, Masconomet Regional High School ranked in the top 15 in statewide testing on math and science.

Route 128 may no longer be known as “America’s Technology Region,” but on the North Shore, it remains a critical job corridor in the modern innovation economy—one that can and should be exploited to transform the ancient industrial cities and shipbuilding ports of Essex County into engines of creative class growth.

Climate and Community: Solarize, Mosaic, and Economies of Scale

“Economies of scale are a good thing. If we didn’t have them, we’d still be living in tents and eating buffalo.”

-- Jamie Dimon, Chairman and CEO, J.P. Morgan, 2010

This weekend, the Globe highlighted Solarize, a pilot program that encourages development of residential and business solar arrays by taking advantage of economies of scale to drive down cost.

Since Beverly High School installed solar panels in 1981 (see image), the North Shore has been at the cutting edge of renewable energy installation. It comes as no surprise, then, that Round 2 of Solarize includes the North Shore communities of Salem and Swampscott, which together have signed up so many people that they have reached “Tier 4” (of 5) status, meaning additional savings for participants in the program and an even greater snowball effect to encourage neighbors to join the movement. Other cities and towns across the Commonwealth are also taking part in the current round, from Andover to Egremont.

In 2011 and 2012, Solarize Mass led over 900 residents and business owners in 21 communities to install over 5.6 megawatts of solar electricity. The 10 cities and towns that participated in Round 1 of 2013—including my beloved Lee, Mass.—added another 3800 kilowatt hours of solar capacity.

This type of community-oriented green energy strategy has emerged with force in recent years. In particular, Mosaic, an investment platform that uses a crowd-funding model to finance solar farms across the country, has showcased the incredible potential of leveraging the pent-up demand for renewable power by bringing individuals together.

From the installation of 47 kWh of solar through Oakland, California’s Youth Employment Partnership (6.38 percent yield) to powering New Jersey’s Wildwood Convention Center (4.5 percent yield) and creating a solar roof on a school in Connecticut (5.5 percent yield), Mosaic has already provided a mechanism for thousands of Americans to directly invest millions of dollars in solar projects in their backyards and across the country.

The uptick in community-based economies of scale is not only spurring green energy (and in turn, reducing carbon emissions), it is also being used by Google to promote high-speed fiber Internet connectivity in cities across the country. Google Fiber expands to “fiberhoods” if/when communities secure enough signups to make the construction of the infrastructure economically viable.

Of course, this model has its pitfalls, particularly when it comes to ensuring access to new technologies across the income spectrum. As Newsweek noted last month, when Kansas City’s fiberhoods were unveiled in 2012, “the online map of fiber-hoods was largely divided by lines like Troost Avenue,” a street that for generations has separated affluent white families to the west and poor families of color to the east.

This outcome was not for lack of trying on Google’s part. As Newsweek stated, the company offered lower-speed broadband service on a monthly payment plan, partnered with community organizations on outreach, and hired people to canvass poor neighborhoods, sometimes with free ice cream. And yet, the divide remained.

This fact should not dissuade us from using community-based economies of scale to nudge neighborhoods toward taking up innovative technology. Rather, it simply highlights the fact that the State must do even more to subsidize the use of green tech in poor communities, many of whom stand to benefit disproportionately from its effects (such as reduced emissions).

In Massachusetts, this means expanding Solarize from the relatively wealthy communities that it has targeted thus far, to communities across the income spectrum—from Lawrence and Lynn to Springfield and Southbridge. It also means changing regulations to allow individual investors to pool resources through platforms like Mosaic.

While Congress dithers on climate policy (and tries to block the President’s historic regulatory efforts related to power plant emissions), communities across the country are hungry to support grassroots efforts to rid America of dirty energy and do their part to make the U.S. a leader in the green tech economy of the 21^st century.