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Posts Tagged ‘Patterico’

Is the Kozinski story less than it seems?

Posted by Fred on June 13, 2008

By now everyone knows the story of Alex Kozinski, Chief Judge of the 9th Circuit Court of Appeals, who recently suspended an obscenity trial due to some issues of his own:

A closely watched obscenity trial in Los Angeles federal court was suspended Wednesday after the judge acknowledged maintaining his own publicly accessible website featuring sexually explicit photos and videos.

Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, granted a 48-hour stay in the obscenity trial of a Hollywood adult filmmaker after the prosecutor requested time to explore “a potential conflict of interest concerning the court having a . . . sexually explicit website with similar material to what is on trial here.”

That’s a story bound to attract attention, what with the sex and the alleged hypocrisy.  Prof. Lessig, however, says all is not as it appears to be:

What I mean by “the Kozinski mess” is 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 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.”

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.

According to Jesse Walker (linking to conservative pundit Patterico), the lawyer with a grudge who outed Kozinski was Cyrus Sanai.

I don’t think the professor’s analogy is entirely apt – the server in question was accessible to the world at, although the index page just provided a message telling a visitor to go away.  That’s not really private, and blocking the Google spider via a robots.txt file doesn’t make it private either.  It could have been private with a password or other security, but it wasn’t.  So it’s not really the same as Judge Kozinski’s house.  But it’s not a “publicly accessible website featuring sexually explicit photos and videos” either.  Nor is the material revealed to date a “sexually explicit website with similar material to what is on trial” before the Judge.  It appears to be far more akin to the sort of mildly offensive viral email that would have gotten Kozinski in trouble had he forwarded it from work.

None of this should bar Judge Kozinski from presiding over this trial, of course.  Who is really aggrieved by any of this?  This offended lawyer with a grudge, to be sure.  People who hate judges generally or the 9th Circuit in particular.  People who think pornography should be excised from society by any means necessary and are afraid Judge Kozinski won’t put this particular smut-peddler in jail where he belongs, even if he didn’t actually break any laws.  That’s not necessarily a huge group, but it is a loud one, so this story isn’t going anywhere anytime soon, truth be damned.

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