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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Filed Under: alex kozinski, coverage
Companies: la times


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  1. icon
    Crosbie Fitch (profile), 20 Jun 2008 @ 4:13am

    Privacy

    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 ( http://www.digitalproductions.co.uk/index.php?id=117 ) 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.

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