LA Times Embarrasses Itself With Kozinski Coverage

from the digital-dumpster-diving dept

Last week we wrote about the hoopla surrounding some racy images and videos Judge Kozinski had accidentally made public on his personal web server. This week, it was announced that a panel of federal judges will be investigating Kozinski’s conduct. I don’t understand why an investigation is needed because it’s pretty clear what happened, and that Kozinski did nothing wrong. My colleague Jim Harper links to a defense of Kozinski by Larry Lessig. I share Lessig’s conclusion that the treatment of Kozinski has been disgraceful, but I don’t think the analogy Lessig uses is especially apt. Lessig analogizes the situation to a man who climbs into Kozinski’s den through a poorly-secured window and makes copies of the materials he finds within Kozinski’s house. He also uses the term “hack” to describe the process of accessing Kozinski’s files. I don’t think this is quite right. It was a public web server; the files were readily available without a password to anyone who went looking for them. What was done to Kozinski was unsavory, but it wasn’t illegal, and it’s not analogous to breaking and entering.

A better analogy is dumpster diving. What happened was the digital equilvalent of somebody combing through Kozinski’s trash and discovering an issue of Playboy. No respectable respectable newspaper would publish a front-page story about finding porn in a federal judge’s trash. It’s no more newsworthy that Kozinski inadvertently made some racy images available on his personal website. Kozinski’s wife, Marcy Tiffany, wrote a letter about the affair that’s well worth reading in full. She claims (and others agree) that the files were unearthed by an attorney with a grudge against Kozinski, who obtained the files months ago and has been shopping them around to different newspapers ever since. The LA Times apparently had this story months ago, but waited until Kozinski had finished the grueling work of impaneling a jury for a big obscenity case (it’s hard to find a dozen people willing to watch hours of defecation and bestiality videos) before putting the story on its front page.

Even worse, the LA Times coverage appears designed to cast the material on Kozinski’s computer in the worst possible light. For example, it describes one video as depicting “a half-dressed man cavorting with a sexually aroused farm animal.” This description prompted a number of follow-up reports, including one in the San Francisco Chronicle, to describe the contents of the video as “bestiality,” despite the fact that the video in question obviously doesn’t depict bestiality. (The Chronicle story was here, but the word “bestiality” has since been deleted) The LA Times really ought to apologize to Judge Kozinski for needlessly dragging his reputation through the mud.

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Comments on “LA Times Embarrasses Itself With Kozinski Coverage”

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thecaptain says:

Re: Re:

Actually it’s the OTHER way around.

*WE* the public have access to a lot more information that the L.A. Times has shown in their coverage. The L.A. Times pruned and arranged the facts they knew to give a completely damning (and wrong) picture of this non-story to manufacture outrage and sell papers.

By looking at other sources, you can see that this isn’t about porn, or anything illegal or even particularily embarassing (as the L.A. Times would like you to believe) and all this is just a VERY successful smear campaign by a disgruntled lawyer).

Crosbie Fitch (profile) says:


I’m also bemused at the idea that a web server’s published files can be considered private by dint of a lack of promotion or prominence.

The term ‘private’ seems to be abused to describe personal information or material that one would wish to be kept private (such a wish often increasing after consequences of public availability have been appreciated). In terms of a right to privacy, the term strictly only applies to material that IS private. Aspiration is not actuality.

It is possible that the private domain gets fuzzy at the edges, e.g. an unclasped briefcase left on a train. Its owner has an expectation that the privacy of their private property will be recognised and respected despite having been lost, except that it may be invaded as far as is necessary to return the lost property. Here we can argue whether expectation or accessibility defines privacy.

In Kozinski’s case it’s as if he has pinned a scrapbook to a noticeboard, and an index alongside it – an index that omits to mention the contents of some pages. For some people it is quite natural to leaf through the book without consideration of the index. All pages must be considered public. Especially since the webserver’s raison d’etre is to publish files to members of the public who ask for them.

I wouldn’t agree that it was like dumpster diving. I would argue that trash is private, and garbage collection companies were ‘common carriers’, i.e. not authorised to permit inspection or publication of what they were conveying.

There is a fair bit of web chat at the mo ( ) that seems to drift into the idea that personal information is the rightful property of the person it describes. This could easily drift into the idea that being found in possession of embarrassing IP is the rightful secret of the person so embarrassed, even though they unwittingly let it slip.

Chronno S. Trigger says:

Re: Privacy

“I would argue that trash is private”

You’re in the UK, trash may be different there. In the US trash is abandoned property so anyone can go look threw it without consequence. I do agree with you that dumpster diving is an invalid comparison but there is no better.

From what I read he just left the files in a browsing enabled folder, it’s not like he wrote the HTML code to publish it on his website. Someone had to go looking for that. Probably someone with malicious intent.

@AC #1 and 2: If the LA times were a reputable company they would not have information we don’t because they would have told us already. Whether they’re holding back information or blowing this story completely out of proportion, it doesn’t hold well for their reputation.

colony (profile) says:


yea totally but
“I would argue that trash is private, and garbage collection companies were ‘common carriers’, i.e. not authorised to permit inspection or publication of what they were conveying.”
you want to try living in the uk :

Ima Fish (profile) says:

“I do agree with you that dumpster diving is an invalid comparison but there is no better.”

I have a better one. Imagine the judge having a yard sale and inviting people onto his property to sell his stuff. He has various tables out front with his stuff and people are milling around looking at the stuff.

Someone who was invited onto the property wonders whether there is other stuff on the property. So he leaves the front yard for the back. There are a lot of trees and its hard to see anything, but eventually with a lot of searching, the guy finds a stash of porn hidden in the woods.

The trash analogy doesn’t work because the judge did not intend to throw away those files. They were not found in he computer’s deleted cache.

The trash analogy also doesn’t work because it ignores the fact that the files were on a publicly accessible webserver. Most people do not keep their garbage in public, but on the very edge of their own private property. (I know it’s legal to go through someone’s trash, but you still have no right to trespass to get to that trash.)

My analogy works because the guy was invited onto the property. The judge may have not wanted him to go in the back yard. However, the judge did not limit the guy’s permission or access to go to the back, so he waives any right to complain about it.

Crosbie Fitch (profile) says:

Re: Re: Re: Re:

Yes, in your example.

In actuality this is not what the judge did.

We’re talking about a webserver that hands out documents to any member of the public who asks for them.

No member of the public is invited on to anyone’s private property.

If you’re a visitor at an exhibition and an organiser rep has a tray of brochures for each exhibitor and the venue facilities, and you ask them for the brochure of the exhibitors’ lounge and they give it to you, this is not a violation of the organiser’s privacy (irrespective of the fact you wouldn’t get in the lounge, and the availability of the brochure isn’t advertised).

Even if you ask to look in the tray to have a rummage around to see if any brochures look interesting, if the rep lets you rummage, then this isn’t a privacy violation either.

If the conference organiser later finds out that their reps are allowing punters to browse through the tray or are being allowed to have brochures only intended for exhibitors, that’s their carelessness. They can’t complain their privacy has been violated. The rep and visitors naturally expected the brochures and the tray in which they were held were available to the public.

Ima Fish (profile) says:

Re: Re: Re:2 Re:

“In actuality this is not what the judge did.”

It was an analogy. By its very definition an analogy is not what actually happened. If I made up a story of what actually happened it would not be an analogy, but a retelling of the event.

We’re talking about a webserver that hands out documents to any member of the public who asks for them.

But all webservers are not open to the public. For example Westlaw’s webserver require a password to enter. Accessing that site without permission is hacking and would be analogous to trespassing.

No member of the public is invited on to anyone’s private property.

A person’s webserver is private property. However, if it is connected to the internet without any restricts, I agree that it is open to the public.

If you’re a visitor at an exhibition and an organiser rep…

Your analogy is great!

ehrichweiss says:

Re: Re:

No it wasn’t. It missed most of the main points of what this is about. This wasn’t a yard sale and there was no “private” anything even though he thought it was private. His yard sale analogy would work if he put all his stuff he wanted private on the sidewalk and then walked indoors thinking all was secure.

Ima Fish (profile) says:

Re: Re: Re:

“This wasn’t a yard sale”

You have no idea what an analogy is. By its very definition an analogy is not what actually happened. If I explained what actually happened it would not be an analogy, but a description of the event.

“there was no “private” anything even though he thought it was private”

Webservers are private. However, once you connect that server to the net without any protection, it at that time becomes public. is on the net, but it is blocked to the public. Even though it is on net does not mean it is publicly accessible. If you access Westlaw’s data on without permission you’d be hacking. Hacking is analogous to trespass as they both involve access without permission.

“His yard sale analogy would work if he put all his stuff he wanted private on the sidewalk”

You don’t understand how the internet works. You don’t just place information on the internet. You place data on webservers. The information that judge had was not “on the internet” but was placed by him on a webserver. That webserver was then connected to the internet and was configured to allow open access. Therefore, the data was still on the judge’s (or an agent of the judge) property: the webserver.

That’s exactly what happened here. The judge took his porn and placed it in his back yard (his webserver is his yard). He then gave the public access to his yard (his webserver by connecting it to the internet and allowing public access). And then someone found porn in the backyard (A part of his website that was not linked to his homepage, but was still publicly available.)

ehrichweiss says:

Penn and Teller's Bullshit!

Coincidentally, Penn and Teller had the season premiere of their show and it was all about the war on porno and all the lies that are spread about it.

One thing we learned was to watch out for the term “violent porn” because they like to slip that in as though it were one word and the moment you read/hear it you need to make the distinction that most porn is not violent, and I recommend doing it in the person’s face in such a way as to show their ignorance to them entirely.

So if you hear “violent porn” come up regarding this case, just call bullshit.

Lloyd Shugart (user link) says:

Morality or Free-riding

I am just sorry that the Honorable Judge Kozinski, especially his wife, and family have to become victims, of something so patently wrong with society. Hope that one day you never find yourself in front of the Public, having to attend to such.

Is this issue the change in morality of society? When Thomas Jefferson penned the constitution, his belief was that most were moral, and the laws should address the same.
To be shunned by the members of your society was at that time, a punishment that most respected. There was a need for law & punishment(public flogging in the square stockade) to effectively deal with those who lacked morals, and respect of others properties.

In this day and age of Free-riding, society loses.

First I am not deluded in belief that morals equals manners or the vise versa. Nor do I believe that ones own morals should be the rule of others. My family were staunch abolitionist at the dawn of this great country. They had different ideas about many issues confronting society then, yet they only sought to empress their ideas around freedoms due all of man, certainly not implicating that all should live as they did, in all ways.

That being said , I believe as they did. Yet as Mr. Jefferson recognized you can’t legislate your own morals, and that morals are not in fact just ones own, but are those that the benefit the greater society.

I feel that there is a growing disrespect for people and their properties, and the idealism that if you don’t (opt-out of public domain) lock it away, that society at large is welcome to take as they please.

I believe in the Public Domain, and in fair use….I don’t believe in stretching those in ways that congress never intended, in either direction.

For those whom advocate a free everything on the net…this may just be the issue that brings Judicial Notice, to why it’s wrong for society.


Lloyd Shugart (user link) says:

Europe Gets It

21. Piracy, and in particular the use of peerto-
peer (P2P) for illegal fi le sharing, remains
a burning issue in the digital arena because
it simply siphons off part of the revenue
that could be made online and thus creates
disincentives to legal online business on
both the supply and demand sides. Most
stakeholders (content owners, distributors)
consider the current legal arsenal not effi cient
and deterrent enough. Besides, it has been
extremely disparate across Europe.

Now that legitimate content is fully available and
awareness campaigns have been undertaken,
content stake-holders believe resilient piracy
should be tackled with greater energy, through
increased liability of internet intermediaries
and individual liability of illicit P2P users.

Internet service providers now share this
concern and are increasingly co-operating with
content owners to fight online piracy. On the
other hand some consumer associations, some
consumer electronics players and some artists/
authors societies argue for moderation in
prosecution of individual users, especially with
regard to the use of P2P to share content or
even for systems authorising P2P file sharing
– P2P being not illegal in itself – through
‘blanket licence’ systems. Actions have recently
been taken by the European Commission to
reinforce and harmonise legal means to fight

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