Monthly Archives: June 2008

I’ve gotten lots of email and comments about my criticism of privacy-revealing behavior related to Chief Judge Kozinski. After reading that criticism, I am more convinced.

1. Privacy is not determined by technology: The core point that’s important to me here is to reject the sense many have that “privacy” is that stuff you can’t get access to technically. So something’s private if encrypted, but if there’s a way for me to hack into it, it is public. I reject that sense of the norm of privacy. Think of a party line telephone. Anyone on the party line had a simple ability to pick up the telephone and listen to any conversation going on. But if you did that, others would rightly call you a louse. You had invaded the privacy of the people having a telephone call, even though it was technically trivial to listen to that private conversation.
2. This FTP server was improperly configured (given its use): Though you could access this (or practically any) FTP site through the web, this was not a web site. It was a file server. Just like the server that contains the files for this blog, that means it enables people to get access to files. But it also enables the maintainer to control who gets access to what files. So with this blog, if you download a file I’ve linked from the blog, you can easily figure out what directory that file is located in. But you can’t (without serious hacking) see the other files in that directory, or see the directory structure. That’s because those friends who have helped me set this up have disabled that ability. Yale Kozinski apparently didn’t with the Kozinski server. So again, as with the party line, it was trivial to see all the files in any particular directory, or the directory structure. But that doesn’t make peddling the list of stuff kept on the server to news organizations not a violation of privacy.
3. Metaphors are metaphors.: My original metaphor here was about someone jiggering a lock and breaking in. That was a metaphor. As with any metaphor, there are an infinite number of ways the metaphor is like the particular example, and an infinite number of ways it is unlike the particular example. The parts I found analogous were these: like someone breaking in, the litigant went where he wasn’t invited; like someone breaking in, the litigant found stuff in a place anyone could have placed it; like the den where anyone could place stuff, you can’t know who is responsible for whatever is there; like the den in a private house, privacy means not having to defend or explain what is in your den. As I explained in the comments, I didn’t mean the metaphor to suggest the litigant was a criminal for trespassing. As many of you know, I am not a believer in the trespass theory of cyberspace. But just because you’re not a criminal doesn’t mean you’re not a chump.
4. “Hacker”: I called the litigant a “hacker.” That was the nicest thing I said about him. I do not subscribe to the view that “hacker” predicates only of criminals. RMS is famous for his greeting “Happy hacking.” It means nothing more than someone who explores. But again, that it is a good thing to explore does not mean it is a good thing to wander into someone’s den.
5. The irrelevance of the MP3s.: Some suggest my view would have been different had I known the judge had MP3s on his site. Those sorts are wrong. Indeed, I did know he had a few MP3s on his site — the first reporter calling me about this told me that. That fact does not change anything in the analysis. As the Fed Circuit has indicated in an unrelated case, an unindexed FTP site is not a “public” site. The fact that you have copyrighted MP3s on a nonprivate site does not make you a copyright infringer. Kozinski was not offering this content to the world. The fact that some Russian MP3 sites found it doesn’t change Kozinski’s responsibility. Obviously while I don’t support the practice of wrongful distribution of copyrighted material, I certainly do believe people have the right to space-shift their material, and even share it with a friend (“Hey, listen to this…”) That’s all that’s happening here.
6. Your privacy should not depend upon your political party.: This also disappoints me here — the schadenfreude. Here’s a Republican judge getting in trouble for racy content with questionable copyright status. So we (or some of us) liberals get all outraged and angry at his bad behavior. But had the politics been different, would the reaction have been the same? Privacy, in my view, is more important than this. A Republican judge deserves his privacy as much as the rest of us.

I’ll add to this as I think of it. Now I’m late to taking my kid to see Alcatraz. Continue reading →

Against the Orphan Works Act of 2008. (Obviously I’m not keen about the “eternity” part in the petition, but one doesn’t need to support the ultimate ends of an ally to find an ally.) (See also my oped about a month ago.) Almost a decade since the Sonny Bono Copyright Term Extension Act, and we’ve still learned nothing. Continue reading →

So the wires are a twitter with the story of Chief Judge Alex Kozinski’s “web site” which, from reading the stories, you’d think was filled with porn (and worse), revealing a dark soul who, some experts in legal ethics suggest, shouldn’t be presiding at an obscenity trial. That, you think, is what I mean by “the Kozinski mess.”
It’s not. 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.”
I take it anyone would agree that it would outrageous for someone to publish the stuff this disgruntled sort produced. Obviously, within limits: if there were illegal material (child porn, for example), we’d likely ignore the trespass and focus on the crime. But if it is not illegal material, we’d all, I take it, say that the outrage is the trespass, and the idea that anyone would be burdened to defend whatever someone found in one’s house.
Because this is in many ways the essence of privacy. Not the right to commit a crime (though sometimes it has that effect). But the right not to have to defend yourself about stuff you keep private. If the trespasser found a Playboy on the table in the den, the proper response is not to publish an article reporting this fact, and then shift the burden to the home owner to defend the presence of the Playboy (a legal publication, harmless in the eyes of some, scandalous in the eyes of others). The proper response is to give the private party the benefit of privacy: which is, here at least, the right not to have to explain.
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.
When it comes to government invasions of our privacy, we are (and rightly) a privacy obsessed people. We need to extend some of that obsession to the increasingly common violations by private people against other private people. There is nothing for Chief Judge Kozinski to defend because he has violated no law, and we live in a free society (or so he thought when he immigrated from Romania). A free society should feed the right to be left alone, including the right not to have to defend publicly private choices and taste, by learning not to feed the privacy trolls. Continue reading →