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 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.