Patterico's Pontifications

6/16/2008

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.

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

  1. Conservatives simply have fewer rights than liberals. That sounds pathetic and defensive and sheepish, but when the LA Times and many outlets like it get to decide how you are portrayed to the world and what can remain a secret, it’s very very much the truth.

    This judge has done nothing wrong, the paper admits, but the contents of his server which are harmless enough must be distorted to the world into the worst possible light.

    A democrat, however, can commit actual crimes and be ignored by the paper.

    The story here is not the psycho stalker Casus and his bizarre and disgusting behavior. And the story certainly isn’t what the Judge has on his laptop. The story is that the newspapers of California lied and distorted and destroyed someone’s privacy for a story they admit is without any relevance or merit.

    Jem (4cdfb7)

  2. It is a sad day for freedom when:

    1. People take offense to humorous porn.

    2. People talk about criminalizing access to a website by typing truncated URL’s.

    Another example of why I think the so-called ‘right of privacy’ as defined by the legal establishment is pure bunk. Hiding secret cameras in your bathroom? Ok – I understand why society might want to take steps to prevent that. But that is hardly what we are talking about here. Internet culture would be destroyed if one had to have explicit permission to visit and download material from servers that are on the grid.

    Justin Levine (91e107)

  3. I think the “so what” part gives it away.

    They are agitating on behalf of Ira Isaacs, the defendant in the trial, and for the serious kind of obscenity that is near and dear to the hearts of your typical LA Times writer.

    While they exaggerate the Kozinski stuff, they would downplay the Isaacs stuff, if they even were to describe it all. They want the response to be “so what?” in both instances so they try to make the two things equal.

    j curtis (c84b9e)

  4. 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!

    Well, yes, if by “they” you mean “a couple yahoos among a sea of commenters.” It’s not as though Volokh et al have endorsed the theory.

    Xrlq (b71926)

  5. It’s all so much simpler if the standard everyone is held to is the lowest common denominator. A Court of Appeals judge, a stand up comic, a professional athlete, an actor, what’s the difference? They’re all public figures, they serve their essential function of filling newsprint with ink, and beyond that why should newspaper editors care?

    nk (4bb2be)

  6. Directories without an index file will show a file list of their contents when accessed either directly or by accident.

    Having an index.html file that states “You don’t have access to this area” or whatnot and that has a link to or redirects someone to the home page or out of your site altogether will stop a good bit of this type of intrusion.

    If in doubt, password protect!

    okie (cff009)

  7. Is the claim that the Times held the story until it would do maximum damage to the Judge and to the jucidial process verifiable? If so, is it necessary to consider that the paper could be carrying water for an actual pornographer by disrupting his prosecution?

    I’d be extremely careful about vetting the information on that CD, given Sanai’s history of unethical behavior.

    brobin (c07c20)

  8. “Well, yes, if by “they” you mean “a couple yahoos among a sea of commenters.” It’s not as though Volokh et al have endorsed the theory.”

    Orin Kerr has said that he wants to write about it further, and that he thinks the ultimate result should be that it’s not criminal — but he makes it clear that the possibility is not (in his mind) frivolous or to be lightly discounted.

    Patterico (cb443b)

  9. Is the claim that the Times held the story until it would do maximum damage to the Judge and to the jucidial process verifiable? If so, is it necessary to consider that the paper could be carrying water for an actual pornographer by disrupting his prosecution?

    My recollection from what Sanai told me is that Weinstein had the story since January but didn’t seem interested. Glover, I believe, had the CD as of last Monday, according to Sanai, and published the material on the web on Tuesday Wednesday, I believe (with the print edition printing the story on Wednesday Thursday).

    Patterico (cb443b)

  10. “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.”

    Bravo. I hope you can wring a correction out of them–and also out of the SF Chronicle’s even more distorted description.

    WCJ (cc882a)

  11. LA Times, National Enquirer, same thing.

    cboldt (3d73dd)

  12. 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.)

    Well, that’s the whole point, isn’t it? Nobody would even know about it if it hadn’t been splashed on the front page of the LA Times, and that wouldn’t have happened unless this Sanai guy ran to them with it.

    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.

    So if you threw a party at your house, you’d have no problem with one of the guests taking pictures of everything –your bedroom, the contents of your medicine cabinet, your DVD collection, etc. — and getting them published in a major newspaper. Or, in this case, the LA Times.

    Jim Treacher (847ea3)

  13. “So if you threw a party at your house, you’d have no problem with one of the guests taking pictures of everything –your bedroom, the contents of your medicine cabinet, your DVD collection, etc. — and getting them published in a major newspaper. Or, in this case, the LA Times.”

    Obviously I would have a problem with that. I just don’t think that is the right analogy, for the reasons I express in the post.

    Patterico (8088fd)

  14. Patterico, I think I’d have a problem with someone reverse engineering my server urls to snoop into my files. Just as you’d have a problem with your guest taking pics of your house. They are both very rude things to do.

    Though they are both legal as far as I am aware, as you’re explaining.

    The argument that this Cyrus guy didn’t break the law (this time anyway… it sounds like he breaks the law when it suits him) is irrelevant. Only a couple of people are claiming that URL tinkering is privacy violative.

    It’s too bad for Kozinski, though I realize he was already at the near top of his profession and he wasn’t likely to ascend further (though it was possible). He’s going to be ok, though his public name has been ruined because he left his private life open to a hideous slime like Cyrus. It’s a great warning about the perils of the internet. Using this stuff without an understanding its basic nature is a bad idea. I can only imagine what will happen with Cyrus-type monsters manage to find people’s google search historys, break into email accounts, track forum posts by IP, etc.

    It’s a brave new world.

    Jem (4cdfb7)

  15. Patterico – Have you heard from Sore Loserman today? His blood pressure has got to have spiked a bunch after reading today’s postings and comments.

    daleyrocks (d9ec17)

  16. we are all voyeurs. i am a cheerful, upfront, out-of-the-closet voyeur. if i’m walking down the public sidewalk and i see through someone’s front window a couple having sex, yeah, i’ll stop for a minute and watch, if she’s hot. driving past a gruesome auto wreck, i’ll turn my head to look just like everyone else. the way you avoid attention from voyeurs is to close the drapes when you’re having sex, drive carefully on the road, and secure your private system from public access. is this too simple for any of you to understand?

    assistant devil's advocate (bf5b30)

  17. 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!”

    Unless you live in Canada.

    andycanuck (56c3fa)

  18. I think the major issue here is not the porn but the mp3′s the judge had on his server which WERE publicly accessible (and by his own admission, distributed without consent).

    Inasmuch as the layperson might engage in this practice on a nightly basis (and deem it appropriate because it is fair use), it is a far different story when a judge who decides these issues (and his collegues in the 9th Circuit HAVE on the side of the recording industry, not the user) attempts to do so.

    In this instance, Judge Kozinski broke his own court’s interpretation of the law and should be removed from his post.

    Charles Seiverd (37b037)

  19. 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.

    That’s a bunch of horse hockey.

    Simply having a registered domain name does NOT make any site a public site. If that proposition were true, then every website of the US Government would be public access, and no crime could be committed by accessing it. But I think if you check

    Just because I have a “pointer” somewhere does not make my material public access, “free for all”.

    Joe (072866)

  20. Apparently it does, Joe. I’m not at all clear on why, but so these people keep saying.

    Jim Treacher (847ea3)

  21. “On the other hand, I am not alone in being disturbed by the image of a young man fellating himself.”

    Indeed, aren’t we all. Such activity can lead to serious back problems in one’s later years.

    Bad (5318cf)

  22. It is pretty clear that Kozinski intended for the “stuff” to be private, not public. That the server was not configured properly and allowed unwanted access is irrelevant. What if the server were at a bank, and the file in question contained account balances?

    Kozinski was stupid and careless, but that is irrelevant to the question of whether the behavior was ethical. Clearly it was not. I suspect that it is not illegal, but it should be.

    You have all been brainwashed by the “internet=free” silliness. Sanai should be disbarred for ethical behavior. He knew he was accessing material not intended for him, and took it anyway.

    Tom J. (64e899)

  23. The LA Times should be ashamed of itself. After so many stories have been exposed by Patterico, the Times ought to buy him out. You know, pay him a big salary to work for them, which means they won’t print a single thing he does. But he sure could use the money.

    Alta Bob (d2c526)


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