Patterico's Pontifications

6/16/2008

If You’re Visiting This Site from an Associated Press Story . . .

Filed under: General,Kozinski — Patterico @ 7:28 pm

And you’re looking for the e-mail from Judge Kozinski’s wife, then click here.

Or you can just scroll down a couple of posts.

UPDATE: When you’re through reading her e-mail, you’re welcome to take a look at the post that exclusively shows you some of the content that was actually on Judge Kozinski’s server/site, here. Also, if you’re interested, you can read my thoughts about whether this was a legitimate story here.

And feel free to bookmark my main page and return from time to time.

Same-Sex Marriage: Legal in California

Filed under: General — Patterico @ 7:20 pm

As of 5 p.m. today. And some licenses have already been issued.

I think this is a good time to echo Eugene Volokh’s sentiments from May 15:

Whatever one might think of the social or legal consequences of this sort of decision, it pretty clearly makes them [same-sex couples] happy, and happy for the right reason — the common human desire to have them, their families, their love, and their mutual commitment recognized. So congratulations to all these couples, those whom I know well personally and the many more whom I don’t.

Those couples, by the way, include David Ehrenstein and his partner of 37 years. A special congratulations to them.

AP Reports on Marcy Tiffany’s E-Mail

Filed under: Dog Trainer,General,Kozinski — Patterico @ 5:44 pm

The Associated Press reports:

A federal appeals court judge under scrutiny for sexually explicit videos and photos posted on a personal Web site is the victim of distortions and “outright lies” published by the Los Angeles Times, his wife charged Monday.

Marcy Jane Tiffany, wife of 9th U.S. Circuit Court of Appeals Chief Judge Alex Kozinski, described some of the material stored on the home computer as raunchy and juvenile. Only a handful of files among hundreds had a “sexual aspect,” but they were not pornography, she said.

“Alex is not into porn he is into funny and sometimes funny has a sexual character,” Tiffany wrote in a nearly 2,000-word defense of her husband, posted on a Web site called patterico.com.

Of the several hundred files in the computer folder at issue, “the vast majority was cute, amusing and not in the least bit sexual in nature,” Tiffany, a Torrance, Calif., lawyer, wrote. “The tiny percentage of the material that was sexual in nature was all of a humorous character.”

The Times account is “riddled with half-truths, gross mischaracterizations and outright lies,” she said. She also faulted the media for repeating and embellishing what she described as misleading statements in the Times about the material.

Read the whole article, which is interesting.

Meanwhile, the article reports, “U.S. Supreme Court Chief Justice John Roberts named five judges from the 3rd U.S. Circuit Court of Appeals, based in Philadelphia, to handle the ethics investigation into [] Kozinski’s conduct.”

UPDATE: There is also a post noting the e-mail on a blog at . . . wait for it . . . the L.A. Times.

I can’t help but recall how dismissive Judge Kozinski was of blogs in April 2007, calling them “self-indulgent” and “grandiloquent.”

I wonder: has his opinion of blogs changed?

Alex Kozinski’s Wife Speaks Out

Filed under: Dog Trainer,General,Kozinski — Patterico @ 1:27 am

I have received the following e-mail from Alex Kozinski’s wife:

Mr. Frey:

My name is Marcy Tiffany. I have been married to Alex Kozinski for over thirty years and we have raised three sons together. First, let me thank you for making the effort to discover the truth about what happened, and for giving me an opportunity to respond to the stories that have been circulating about Alex.

Turning to the facts of the matter, the LA Times story, authored by Scott Glover, is riddled with half-truths, gross mischaracterizations and outright lies. One significant mischaracterization is that Alex was maintaining some kind of “website” to which he posted pornographic material.

Obviously, Glover’s use of the word “website” was intended to convey a false image of a carefully designed and maintained graphical interface, with text, pictures, sound and hyperlinks, such as businesses maintain or that individuals can set up on Facebook, rather than a bunch of random files located in one of many folders stored on our family’s file server. The “server” is actually just another home computer that sits next to my desk in our home office, and that we use to store files, perform back-ups, and route the Internet to the family network. It has no graphical interface, but if you know the precise location of a file, you can access it either from one of the home computers or remotely.

Using the term “website” also gives the impression that Alex was actively aware of all of the material, when, in fact, it had accumulated over a number of years and he didn’t even remember that some of that stuff had been stored there or whether it had been put there by him or one of our sons, who also have access to the server.

Glover also wrote that “the sexually explicit material on the site was extensive.” In fact, of the several hundred items in the “stuff” folder, the vast majority was cute, amusing, and not in the least bit sexual in nature. For example, there’s a program that lets you build a snowman (no private parts involved). There’s a “stress reliever” that lets you take a virtual hammer to your desktop (which I’ve been using a lot lately). There’s a picture of freshly painted double-yellow lines that go right over road kill, with the caption “not my job award.” There’s something called “cool juggle” that shows a video of a guy juggling who drops a ball outside the frame and becomes a stick figure when he goes to pick it up. There are over 300 individual items in the “stuff” folder, the vast majority of which are of this nature. In addition, this folder contains about a half-dozen items that, while humorous, also have some kind of sexual aspect. Most of these you have already identified on your website.

I would note that in addition to the “stuff” folder, which Alex and my sons used to store a hodge-podge of miscellaneous humorous items, we use to the server to store several dozen other folders that contain a lot of personal material. For example, there is a folder that has copies of papers my kids have written in school. There is another folder that has family photos. There is a folder that has copies of articles that Alex has written. Obviously, the advantage of using a server is so that we can access the material from other computers and also send family members and friends links that will allow them to see a specific item in a folder. For example, this allows me to send links to my sisters so that they can see the latest photo of our grandchild.

This brings us to another falsity in the LA Times article. The reporter describes the handful of comic-sexual items as follows: “the sexually explicit material on the site was extensive.” He then includes graphic descriptions that make the material sound like hard-core porn when, in fact, it is more accurately described as raunchy humor.

One especially egregious misrepresentation is that there was a “video of a half-dressed man cavorting with a sexually aroused farm animal.” In subsequent articles, including one in the S.F. Chronicle, this has been described as a “bestiality” video. In fact, as you reveal on your Blog, it is a widely available video of a man trying to relieve himself a field when he is attacked by a donkey he fights off with one hand while trying to hold up his pants with the other. I would note that there is a version of this video on YouTube that apparently aired on the Fox channel. Crude and juvenile, for sure, but not by any stretch of the imagination is it bestiality. The fact is, Alex is not into porn – he is into funny – and sometimes funny has a sexual character.

The tiny percentage of the material that was sexual in nature was all of a humorous character. For example, the “women’s crotches” was one of the many “camel toe” series that is widely available on the net. The insidious effect of these misleading descriptions is that even many of those who have come to Alex’s defense have expressed the view that judges are entitled to look at “porn” if they choose, as if that’s what was really going on here, when it is not.

I think that there is another very important piece of this story that has not received the attention it deserves, and that is the role of Cyrus Sanai.

Cyrus Sanai, a disgruntled attorney/litigant, has widely claimed credit for engineering this smear campaign. In a 2005 decision, District Judge Zilly USDC Western District Seattle, describes Sanai’s conduct in a case before him as “an indescribable abuse of the legal process, unlike anything this Judge has experienced in more than 17 years on the bench and 26 years in private practice: outrageous, disrespectful, and in bad faith.”

Judge Zilly references a decision by LA Superior Court Judge Elizabeth Grimes where she describes Sanai’s conduct in a different lawsuit as follows: “Plaintiff has proliferated needless, baseless pleadings that now occupy about 15 volumes of Superior Court files, not to mention the numerous briefs submitted in the course of the forays into the Court of Appeal and attempts to get before the Supreme Court, and not one pleading appears to have had substantial merit. The genesis of this lawsuit, and the unwarranted grief and expense it has spawned, are an outrage.”

Washington State Superior Court Judge Joseph A. Thibodeau also had a run-in with Sanai, who harassed him to the point that he had to recuse himself from Sanai’s case. I believe you have a copy of the transcript of that hearing. (You may want to link to Overlawyered.com which has some additional details about how Sanai’s conduct).

Sanai wrote a vicious attack against the Ninth Circuit panel (Judges Leavy, Gould and Clifton) that ruled against his efforts to get the federal court to take jurisdiction over his parents’ ugly divorce case. You can read his vitriol at www.ninthcircuit.us (a website obviously designed so that people trying to find the Ninth Circuit website would stumble on his page instead).

Alex, who did not participate in the decision, wrote a public defense of the panel, and thus made himself a target. Sanai apparently made it his mission to retaliate against Alex. He managed to access our private computer and copy these files, which he then shopped around to reporters for months. Finally, he got the LA Times reporter to print the story that set off this firestorm. Sanai not only admits his involvement in all this – he brags about it.

As to how Sanai accessed our server and was able to rummage through our personal files, frankly we are still trying figure it out. Apparently, if a person is able to find a link to an item in the “stuff” file, and he knows what he is doing, it is possible for him to reverse engineer his way into other items stored in that file without our knowledge or consent. Although we typically would only send links to friends and family – who would be unlikely to do such a thing and who would certainly not try to injure us with what they found if they did – it is possible that a link to something in the “stuff” file became public, and Sanai used it to access the other material stored there. Moreover, since there wasn’t anything that remotely resembles a “collection of porn” stored there, we didn’t pay as much attention to the security risks as we obviously should have.

This is a sad and dangerous lesson to anyone who dares to stand on principle and publicly speak out against people like Cyrus Sanai, who are willing to stop at nothing to wreak his petty vengeance on a good and decent man like my husband. It is even more disturbing that Sanai, who is a member of the bar and an officer of the court, can get away with attacking judge after judge after judge, in this fashion.

It is also an indictment of Scott Glover and the LA Times, who are willing to knowingly distort the facts and with cavalier disregard of the injury they are causing to the reputation of a brilliant and distinguished jurist, in order to sell a few newspapers. And then, of course, there are the bevy of other purportedly respectable publications such as the San Francisco Chronicle, that are willing to repeat Mr. Glover’s story, while adding embellishments and further mischaracterizations along the way. This is apparently what now substitutes for responsible journalism.

While I’m on the topic of responsible journalism, it has recently come to light that the LA Times learned about this material months ago, and sat on it until it would do the maximum damage. Selecting the jury was a very grueling undertaking. Over 150 potential jurors were screened for hour after painful hour on Monday and Tuesday. Scores of men and women took the trip into the jury box, only to leave soon thereafter because they confessed themselves unable to view the materials. A number of others disclosed embarrassing facts about themselves and their families in order to explain why they could not sit on this jury. It was a difficult and painful process for just about everyone who was called into the jury box. Finally, after considering 109 members of the panel, a jury was selected and sworn at the end of the day on Tuesday. And Glover was present in court while all this was going on, biding his time. Only on Wednesday, after the jury had started to hear the case – and jeopardy had attached – did the LA Times choose to “break” its story.

A newspaper – especially a major newspaper as the Los Angeles Times purports to be – is supposed to be a responsible member of the community, not a predator. If the presence of certain files on a judge’s computer is a truly a newsworthy matter, it would have been so months earlier, before Alex was assigned this trial, and certainly a few days earlier, before a jury had been chosen and the trial had commenced. But what excuse is there for timing the story with surgical precision so as to do maximum damage to the judicial process? In doing so, the LA Times caused the effort of the court, the parties and the 150 citizens who answered the call of duty by reporting for jury service from near and far to go to waste, just to make a big splash. This strikes me as worse than irresponsible.

On the brighter side, once again, it is the bloggers such as you, who are willing to look behind the story to discover the real facts. One can only hope that through these efforts, the truth will eventually come out.

Marcy J.K. Tiffany, Esq.

Ms. Tiffany sent me an earlier version of this e-mail Saturday morning. It was she who confirmed for me that the “video of a half-dressed man cavorting with a sexually aroused farm animal” (to quote the L.A. Times description) was really the silly YouTube video of a man running away from an aroused donkey.

When I received her e-mail, I asked her whether she had intended for me to publish it. (I don’t want to publish anything that was intended as a private communication, so if there’s any doubt, I ask. That’s how I’d like to be treated, so it’s how I treat others.) We have since spoken about the matter twice on the phone. On Sunday night, she sent me a more polished and up-to-date version, which she authorized me to publish.

I am pleased to give Ms. Tiffany this forum to express her thoughts.

P.S. The partial transcript of the hearing involving Judge Thibodeau may be viewed here. The Overlawyered.com posts with more about Mr. Sanai, referred to in Ms. Tiffany’s e-mail, can be accessed here and here.

UPDATE: The Associated Press has published an article about Ms. Tiffany’s e-mail.

UPDATE x2: If you’re interested in seeing some of the content that was actually on Judge Kozinski’s server/site, click here. Also, if you’re interested, you can read my thoughts about whether this was a legitimate story here.

Also feel free to bookmark my main page and return from time to time.

L.A. Times: Judge Kozinski Should Say “So What?” To That Story We Put on the Front Page

Filed under: Dog Trainer,General,Kozinski — Patterico @ 1:25 am

I would have loved to have been a fly on the wall in the Kozinski household when Alex Kozinski read this editorial in Saturday’s L.A. Times:

Judge Alex Kozinski’s statements about the stash of sexually explicit images he collected and that the public (until this week) could view on his website have been varied, although not necessarily inconsistent: He thought the site was for private storage and offered no public access (although he shared some of the material on the site with friends). People have been sending him this stuff for years (implying that it just accumulates, like junk mail). He might accidentally have uploaded the photos and videos when intending to upload something else. His son did it.

There’s a different statement we’d like to hear from him, and no, it’s not an apology, an expression of regret or even an explanation. It’s this: “So what?”

So what?

So what?!

So why did your paper put this story on the front page?

I understand that most papers, including the L.A. Times, have a “wall of separation” between news and editorial.

Still, there’s something very ironic about the disconnect between the two sides. The news side thinks the story is the most important story of the day, giving it the most prominent possible space, above the fold on the front page. Meanwhile, the editorial side tells the judge to say it’s no big deal, and to blow it off.

So which side is right? Is this a story, or isn’t it?

The answer appears to depend on your perspective.

As it turns out, the divide between the news and editorial sides at the L.A. Times mirrors the debate I have watched unfold on legal blogs — mine and others — over the past several days.

People have disagreed about a number of aspects of the controversy, mirroring the apparent disagreement between the news and editorial sections at the L.A. Times.

For example, take the question: were the images obscene?

Many people, viewing the sampling of pictures that I provided on my site, believed that Judge Kozinski’s material were, in the words of the Wonkette blog, “the sort of naughtiness you’d find in the dirty birthday cards section at Spencer Gifts.” But some others were very offended by certain of the images, and were shocked that they had been posted by a federal judge.

I can understand both reactions. Clearly, many of the images were less extreme than they seemed when you read about them in the newspaper. An informal poll of my readers confirmed that. On the other hand, I am not alone in being disturbed by the image of a young man fellating himself. However, even that one was not quite as described in the newspaper, which completely failed to describe the fact that the image was part of an attempt at humor.

Are there more disturbing images than the ones we’ve seen? I don’t know for sure yet. Cyrus Sanai has already mailed me a copy of the CD of what he downloaded from Judge Kozinski’s computer. I should receive it today or tomorrow. I’ll review it and let you know what I find.

Another question is, was the judge’s site/server public or private?

Larry Lessig and Eugene Volokh have passionately argued that alex.kozinski.com is simply a way to access a private server. Today, I publish an e-mail from Alex Kozinski’s wife, Marcy Tiffany, who makes the same argument, with force and conviction.

I’d love to agree with Eugene Volokh, because I like him. I’ve been to his house. He’s a tremendously intelligent and entertaining man. I think he has handled this situation with a remarkable combination of loyalty and rationality. I almost always agree with him, in part because he’s so reasonable and smart that he makes it easy to. I’d like nothing better than to agree with him on this.

Similarly, I spoke to Ms. Tiffany on the phone. I liked her. I would love to agree with her that this was a terrible invasion of privacy.

But I don’t. At least, I don’t think there was anything wrong with anyone accessing these files to begin with. (What they did with them once they found them is a different question.)

I agree with the people who think of the alex.kozinski.com URL as a public web site. There is good reason to think of it this way. The idea of the Internet is that web sites are public; the point of the Internet is to allow any stranger to come to your public site and browse around.

With Kozinski’s server/site, you type in an “http” request and out comes a file. Judge Kozinski had shared certain links with the public at large, including at least one from the “stuff” subdirectory.

Contrary to the assertion of Eugene Volokh, the controversial material was indeed indexed on a search engine — namely, Yahoo. [UPDATE: Eugene has updated his post to reflect this fact.]

Even today, you can type “alex.kozinski.com” into Yahoo and easily navigate to a cached page that lists the contents of the “stuff” folder, with links. I just did it; the list is still there.

And, as Seth Finkelstein shows, “the Yahoo spider will try to search a directory from a file.” Finkelstein performed an experiment to prove it. Finkelstein says: “This practice has some significant implications for people who claim that trying truncated URLs is improper behavior and even possibly unauthorized access.”

A commenter at my site found a court case that agrees with my view that placing information on web sites that can be accessed by the public makes the information public. Here is the relevant quote:

The Court is convinced that placing information on the information superhighway necessarily makes said matter accessible to the public, no matter how many protectionist measures may be taken, or even when a web page is “under construction.” While it is true that there is no case law on point regarding this issue, it strikes the Court as obvious that a claim to privacy is unavailable to someone who places information on an indisputably, public medium, such as the Internet, without taking any measures to protect the information.

United States v. Gines-Perez, 214 F. Supp. 2d 205, 225 (D.P.R. 2002), vacated on other grounds by, 14 F. Supp. 2d 205, 2002 U.S. Dist. LEXIS 20472 (D.P.R., 2002).

That makes sense to me. Yet on Volokh’s site, they’re seriously talking about whether it might be a crime to access Kozinski’s site by truncating a URL. A crime! I throw in my lot with Charles Chapman, who says:

I guess I’ll have to have some t-shirts made:
“Typing in a web url is not a crime!”
“Typing in valid http request is not a crime!”

Right on, brother!

I think that, in other circumstances, Lessig and Volokh would be very concerned about the implications of criminalizing the act of clicking on a link, or typing a web address into a browser’s address bar.

But I respect the views of those who disagree with me on this — and I recognize that some very smart people do. Again, this controversy has a lot of gray areas.

Ultimately, because I think the material was public, I think it probably is a valid story — just not quite the story that the paper pretended to have. Based on what I know, that the L.A. Times misrepresented the contents of Judge Kozinski’s website/server. And knowing all the facts, I can understand why some might support the judge if he issued a flat “So what?” in response to all the fuss.

So, as weird as it is to see one section of the L.A. Times treat this as a huge story, while another section shrugs it off as unimportant, maybe this makes a strange sort of sense.

What doesn’t make sense is harming a man’s reputation by leaving out important context. And I intend to follow up with the paper about that.


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