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Lessig Blog:

... 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.

This is a very interesting post. Lessig, who is a friend of Kozinski, makes two moves here. First, he defines non-indexable (robot.txt) file directories as "private." I am not so sure. But I am willing to consider the notion, as Kozinski and his family clearly considered the directory beyond the gaze of the public -- just like my family photo site.

However, the second move Lessig makes limits the description of the controversial material to a silly video that is available on YouTube. There was clearly much more there and much of it possibly troublesome. Was it pornography? Was it merely stuff in bad taste? Does it matter? I am not sure of the answers to any of these questions. Generally, I think judges -- like everyone -- should not be held to public ridicule and criticism for the legal things they have, read, and do in their homes.

Had Kozinski intended to publicly distribute this stuff, then it's a clearer problem.

If the material demonstrated disrespect for women, then it's another potential problem. I have no idea about the nature of the material and none of the news coverage has been clear or accurate. So I don't know. From what I have been able to gather, nothing in the collection was very disturbing. I could be wrong.

Still, so many questions remain: Should we care what judges do in their private lives? Was this a matter of a private life? Was the presence of this material his doing or his son's? Did the LA Times get everything wrong?

Only three things are clear: Kozinski has a weird sense of humor; he broke no laws; he was foolish to even have such a directory that included stuff he would not want the LA Times to write about. So we have to question the judgment of the judge and the accuracy of the newspaper reporter.

That Kozinski is a free-speech defender and strong libertarian is important. Kozinski has also been a strong opponent of surveillance his entire life. So I could see how this would strike a nerve for him, his family, and his friends.

When it first broke, I considered this a blip, a non-issue. After reading Lessig's defense of it, I am not so sure. It actually does raise some interesting questions.

Check out the comments after Lessig's post. There are many interesting responses. Readers challenge both the moves he makes.