Lessig on the Kozinski Kerfuffle
Larry Lessig has a blog post on what he calls, The Kozinski Mess
, by which he means "the total inability of the media — including we, the media, bloggers — to get the basic facts right, and keep the reality in perspective. The real story here is how easily we let such a baseless smear travel - and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage."
Here is how he explains the situation:
Here are the facts as I've been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski's son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.
Cyberspace is weird and obscure to many people. So let's translate all this a bit: Imagine the Kozinski's have a den in their house. In the den is a bunch of stuff deposited by anyone in the family — pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family's stuff. He finds some stuff that he knows the local puritans won't like. He takes it, and then starts shopping it around to newspapers and the like: "Hey look," he says, "look at the sort of stuff the judge keeps in his house."
I take it anyone would agree that it would outrageous for someone to publish the stuff this disgruntled sort produced. Obviously, within limits: if there were illegal material (child porn, for example), we'd likely ignore the trespass and focus on the crime. But if it is not illegal material, we'd all, I take it, say that the outrage is the trespass, and the idea that anyone would be burdened to defend whatever someone found in one's house.
Because this is in many ways the essence of privacy. Not the right to commit a crime (though sometimes it has that effect). But the right not to have to defend yourself about stuff you keep private. If the trespasser found a Playboy on the table in the den, the proper response is not to publish an article reporting this fact, and then shift the burden to the home owner to defend the presence of the Playboy (a legal publication, harmless in the eyes of some, scandalous in the eyes of others). The proper response is to give the private party the benefit of privacy: which is, here at least, the right not to have to explain.
This analogy, I submit, fits perfectly the alleged scandal around Kozinski. His son set up a server to make it easy for friends and family to share stuff — family pictures, documents he wanted to share, videos, etc. Nothing alleged to have been on this server violates any law. (There's some ridiculous claim about "bestiality." But the video is not bestiality. It lives today on YouTube — a funny (to some) short of a man defecating in a field, and then being chased by a donkey. If there was malicious intent in this video, it was the donkey's. And in any case, nothing sexual is shown in that video at all.) No one can know who uploaded what, or for whom. The site was not "on the web" in the sense of a site open and inviting anyone to come in. It had a robots.txt file to indicate its contents were not to be indexed. That someone got in is testimony to the fact that security — everywhere — is imperfect. But this was a private file server, like a private room, hacked by a litigant with a vendetta. Decent people — and publications — should say shame on the person violating the privacy here, and not feed the violation by forcing a judge to defend his humor to a nosy world.
When it comes to government invasions of our privacy, we are (and rightly) a privacy obsessed people. We need to extend some of that obsession to the increasingly common violations by private people against other private people. There is nothing for Chief Judge Kozinski to defend because he has violated no law, and we live in a free society (or so he thought when he immigrated from Romania). A free society should feed the right to be left alone, including the right not to have to defend publicly private choices and taste, by learning not to feed the privacy trolls.
(Hat tip to Glenn
I've tried to avoid blogging about the Judge Kozinski story, because I'm so obviously biased on the subject. I clerked for the Judge. The Judge officiated at my wedding. I talk to him often. I consider him a close friend, he's taught me a huge amount, and he's helped me tremendously in my career, and not just by giving me a valuable credential. What I say on the matter will naturally and properly be discounted because of my bias. Still, I can't help myself any longer, so I'll pass along what I think, and you can give it whatever credit you think is due.
Here's what seems to me to have happened:
A lawyer (Cyrus Sanai) who has long had a grudge against Judge Kozinski finds out that the Kozinski family has a network server with various files on it. The controversial files on that server aren't linked to from the Web, and aren't indexed on search engines. They are generally meant only for family members and a few other people who get specific pointers to them. [UPDATE: Patterico reports that the directory's index was available on Yahoo, though apparently not Google, deep in the results of a search for "alex.kozinski.com"; I presume this was because of some error in kozinski.com's robots.txt file. The lawyer, though, didn't find the files this way, and the files themselves weren't indexed.]
But the lawyer figures out the private server's internal directory structure, rummages around, finds some of the files, and downloads them. And some of the files contain what is basically — if what I saw at Patterico's site is representative — visual sexual humor. There are some spoofs, for instance of the MasterCard commercials, some puns, some absurdities. Kozinski, or someone in his family, apparently got them sent to him, and decided to save them alongside a bunch of other stuff he found interesting or amusing.
Now the fruit of this disgruntled lawyer's rummaging through someone else's personal files somehow becomes a national news story. Why? Because Kozinski is presiding over an obscenity trial? All this stuff — the sort of sexual humor that gets circulated all the time — is not remotely in the same league as what the defendant is being criminally prosecuted for. Recall that the defendant is being prosecuted precisely because his sex-and-defecation movies are so far out even by modern standards of actual pornography. Sanai's discoveries are similar to someone's finding that a judge who's presiding over a drunk driving trial has some screw-top bottles of rosé wine in his cupboard at home, shamelessly displayed in a way that the whole world can see them, if the whole world stands on its tiptoes and peers through a back window. The news value of that would be what, exactly? (Yes, I know screw-tops are becoming legit, but pretend it's ten years ago.)
OK, people are saying, it was careless of Kozinski not to make sure that the site (which was apparently managed by one of Kozinski's grown sons) was properly secured. Sure, in retrospect, whenever something leads to this sort of media circus, by definition one would have been wise to take more care to prevent it. But surely even otherwise reasonable people might fail to plan for their enemies' rummaging around through the files on a private family server.
It's kind of like your parking your car on the street, locking it, but forgetting to close a back window — or like your throwing out something in the trash without shredding it and leaving the trash cans by the curb. Then someone who has a grudge against you comes by and starts using the open window to rummage around in the stuff you have piled up in the back seat, or starts rummaging through your trash. (Note that to my knowledge such rummaging probably isn't even a crime in many places.)
Lo and behold, one of the items your enemy finds is a notebook in which you've pasted some visual sex jokes that people have sent you. He takes pictures of all the pages and then runs to the newspaper; because of your high-profile job, the newspapers all cover this. Should you have closed the back window? Should you have shredded the stuff before putting in the trash? In retrospect, sure. But how many of us live like that in everything we do?
Jeez, folks, Kozinski has a quirky sense of humor, and keeps some joke pictures and videos on his computer rather than throwing them away. I'm sure they aren't the kinds of things some people would enjoy seeing. But he wasn't trying to show them to those people! He was just minding his own business, keeping some files on his own private server. And now it's a national news story.
Enough already. As Larry Lessig puts it, no-one should be put in the position of "hav[ing] to defend publicly private choices and taste" in a situation like this. We should all leave Kozinski to his own privately expressed sense of humor, as we'd like the world to leave us to ours.
More on Kozinski:
I don't have a great deal more to add to what Eugene [and Larry Lessig] have already said about this; there's nothing here that impugns Kozinski's status as a judge (or should cause him to recuse himself from an obscenity trial), and I agree that we should let the private story and its private embarrassments die. But there's one interesting angle here, that I haven't heard anyone comment on. This past March, I spoke at a very interesting conference at UC Santa Clara Law School, on law and cyberspace and virtual worlds and the like, and Judge Kozinski was the keynote speaker. I was really looking forward to hearing him; we had never met, though I've always been something of an admirer of his, and think of him as certainly one of the more interesting, and capable, members of the federal judiciary. Plus, I knew enough about him to know that at least we'd be entertained, if not necessarily enlightened, by his talk.
Judge Kozinski's talk centered on the increasing difficulty, these days, of finding and navigating the line between what is private and what is public. I don't have his text in front of me [I believe it will be published in the Santa Clara Computer and High Technology Law JOurnal, along with the other symposium stuff], but the examples I recall him focusing on included Google Earth [he described, vividly, Barbra Streisand's discomfort at discovering that her carefully hidden home was basically available for all to peer into through this little piece of software), and he also spent a fair bit of time decrying the habits of those who feel no compunction whatsoever about revealing, while talking on a cell phone at high volume in a public space, pretty intimate details of their lives to total strangers who happening to be, say, sitting in the airplane seat next to them. He also talked at some length about the fuss he made, as Chief Judge of the 9th circuit, when he found out that federal agents were routinely monitoring the Internet traffic into and out of the federal courthouse buildings, and about his role in getting that to stop.
In truth, I found the talk a little disappointing -- a little on the whiny side about the cell phones, a little too much on the theme of "things were a lot better in the old days." But that's neither here nor there; the talk does look different in light of recent events. The story here, to the extent there is a story, is precisely "about" the difficulty of navigating between private and public spheres, and in particular about Judge Kozinski's confusion (which, I hasten to add, he shares with millions of people) about what, on this "internet" thing, is private, and what isn't. Had he done what millions of people do -- store photos, some salacious and some not, on their hard drives, or in hard-copy in a locked file cabinet -- then there is, of course, no story here at all. You wouldn't think it would matter that he chose a different storage medium -- a "private" (or is it "public"?) webpage -- for those photos, but in some ways it does matter, and I think Kozinski was, as he seemed to be indicating back in March, quite genuinely confused on the matter -
Mrs. K for the Defense:
Marcy Tiffany, the wife of Judge Alex Kozinski, comes to her husbands defense. She notes many inaccuracies and distortions in media coverage about the contents of the Kozinski family server, and offers this bottom line: "The fact is, Alex is not into porn - he is into funny – and sometimes funny has a sexual character."