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Summary:

The case of Judge Alex Kozinski has a lot to teach us about privacy and community standards on the Internet. Here’s a quick summary of events so far: Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals, was presiding over an obscenity case when […]

The case of Judge Alex Kozinski has a lot to teach us about privacy and community standards on the Internet.

Here’s a quick summary of events so far: Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals, was presiding over an obscenity case when the LA Times reported that the judge was hosting sexually explicit images on his own, publicly accessible, web site.

As Lawrence Lessig explains in a good overview of the situation, the judge sent a link to a file on his server. The server wasn’t very well configured: Visitors could browse its directories at will, even though Kozinski told the LA Times he “was not aware the images could be seen by the public.” A disgruntled plaintiff forwarded a variety of material to the press.

Kozinski requested an investigation into the situation, then subsequently removed himself from the proceedings of the original obscenity case. As he told the San Jose Mercury News earlier this week, “A lot of this is OK in private but looks awful put into the public.”

The situation reveals two major issues we have to come to terms with as a society, and even as a species, as we connect ourselves to the global Internet and one another.

The first is intended privacy. We use many systems to store personal information, both private and public. It’s easy to get them mixed up. The privacy the publisher intended, not that which the meddler was able to obtain, should be what matters. The fact that the server was readable doesn’t mean the judge intended to share the materials; it was a misconfiguration.

The second is that of community decency. As Lessig points notes, a Playboy magazine on the table is “a legal publication, harmless in the eyes of some, scandalous in the eyes of others.” We judge what’s acceptable based on the standards put forth by the community in which we live. Nude sunbathing is fine on the Riviera, verboten in the Vatican. The act of taking an adult magazine, or a viral video, out of the house and into the community changes the standards to which it is compared. Put it on the Internet and someone’s bound to be offended.

When the disgruntled plaintiff put content that was intended to be private into a public place, he changed the standard to which it would be held. That doesn’t mean the judge should have to tailor his private material to the public Internet. If there’s something genuinely illegal going on, then we have legal systems to investigate and expose it, but those systems aren’t meant to tar and feather those with whom we merely disagree.

The web broadens our community of standards to include that of the whole world. Leaky privacy means someone’s personal predilections and closed-door kink can be held up to the most offended audience in the world: The Internet. Often, a minority of vocal objectors sets the tone for the “community” because it’s an open-access medium. Those same critics aren’t able to take an adult film from Cinemax, screen it on Nickelodeon, and then cry foul. But as things stand, they can take a person’s content and make sure it shows up on the nightly news.

Whether the judge was right or wrong, we need to revise our definition of community and privacy if we’re to live together in a connected world.

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  1. Marcy Tiffany Monday, June 16, 2008

    I am Alex Kozinski’s wife of 30 plus years.

    In the words of Daniel Patrick Moynahan, “Everyone is entitled to his own opinion, but not his own facts.”

    Your readers may want to read my email on Patterico.com where I explain what actually happened.

  2. Alistair Croll Monday, June 16, 2008

    Marcy,

    Thanks for the note. Hopefully the fact that this was not a public site, and that while it was accessible through HTTP it was not intended as a public resource, came across in the article. As I pointed out, “The fact that the server was readable doesn’t mean the judge intended to share the materials; it was a misconfiguration.”

    The http://www.patterico.com link is a great resource for those who want a more in-depth look at the story.

    A.

  3. Daniel Golding Tuesday, June 17, 2008

    Judge Kozinski is one of our best appeals court judges. I’m saddened to see the media react so irresponsibly – this is a blot on the already suffering reputation of the LA Times. Print media is going to suffer a very nasty and drawn out death – look at the Washington Post.

    Perhaps we should institute 24 hour surveillance on all of our judges to ensure that they never look at anything “objectionable”? Of course, thats a pretty broad swath. Maybe we should just weld blinders to them?

  4. ol’ yeller Tuesday, June 17, 2008

    Great rebuttal Marcy.

    Good to know a 9th Circuit Court judge has a current sense of humor.

    The LA Times reporter should be publicly (verbally) skewered.

    I don’t expect anything but trash from the SF Chronicle, so no surprise there – I don’t even read that ‘weekly’ quality daily for local news, let alone anything serious.

  5. To whom falls the role of moral watchdog? at diversity.net.nz Friday, June 20, 2008

    [...] do we just put it down to context, as Alistair says over on GigaOm; We judge what’s acceptable based on the standards put forth by the community in [...]

  6. Kozinski is the one who started the net crusade, he put his letter on the Recorder Net, to bash that Sanai fellow to seek to humilate, and ridcule him.
    But, he was not sitting as a lawful, duly sitting judge on some case on that on the merits, he was—-hanging out there.
    Some seem to fail to get that.
    He is the darling of the NET-wing nuts, and seemed to gravitate into the cyber lands… but,cyber land is not a Federal court—-DUH.
    Isn’t that the lesson here—indeed.
    How come so many fail to see that ?
    The judge’s wife’s letter seeking to defend the Judge, can not fit him in black robes. He simply was not a sitting judge in federal court when he pulled his antics, and it is amazing that so many fail to see that.
    If some guy is a judge , and whips his wong out in the Castro District, and urinates on the street, he is acting as just some smuck, not as a judge in some Chambers in some judgeship role.
    Larry Lessing seems to be clueless, Kozinski’s chambers do not extend worldwide, beyond the limits of Chambers etc..
    His ranting to be a mouth piece for the judge, fails to note the above.
    Why is that, is he blind betwen the real world and some cyber delusions ?

  7. Some one made an interesting point:
    It was Sanai who took the material and put it out beyond the reach of a private site.(so some assert, as gospel)
    So, who is it that is publishing the smut if it is smut ?

    If the WWW is filled with SMUT, if one goes into some cyber smut site, if one does not want to, he/ she can avoid. STAY CLEAR… STAY WAY CLEAR
    But, who published or extended the Kozinski stored smut if it was indeed so—broader in the cyber world ?
    Can any address that ?
    Yes, Marcy(faithful servant of Alex) notes some are not entitled to their own facts..
    Does that apply to the Kozinski’s as well.
    What ever the facts are as determined by <>>>, behind some sheilds, and kept secret, are one of those unkown unknowns, at this point.
    Mr Sanai must have felt humilated by the Kozinski’s antics, but he did that in no judgeship role on any merits of any case where he had jurisdiction.
    If Alex is so smart, or is wife is, don’t they know that, even as UCLA grads ?
    Sad..

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