pageok
pageok
pageok
Lessig on the Kozinski Kerfuffle
Larry Lessig has a blog post on what he calls, The Kozinski Mess, by which he means "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 is how he explains the situation:
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.
(Hat tip to Glenn)

Related Posts (on one page):

  1. Mrs. K for the Defense:
  2. More on Kozinski:
  3. Kozinski:
  4. Lessig on the Kozinski Kerfuffle
egn (mail):
I maintain that the best part of this story -- and one part that's undeniably true -- is that Judge Kozinski's son is named Yale. I mean, my god.
6.13.2008 1:36pm
DangerMouse:
The issue isn't that he has pr0n in general. The issue is that he's presiding over an obscenity trial and he's got stuff that's very close if not similar to the material currently at issue.

There is no way he's a fair judge in that trial. And furthermore, his lack of candor on that is a gigantic mark against him. He should be impeached.
6.13.2008 1:37pm
anonymouseducator:
More than anything else, this episode reveals Judge Kozinski's incredibly lame sense of humor:

[H]e defended as humorous a picture showing two women sitting in a cafe with their skirts hiked up to reveal their pubic hair. Behind them is a sign reading "Bush for President".

"That is a funny joke," Mr Kozinski said.
6.13.2008 1:38pm
demosthenes.or.locke (mail):
Your analogy would be better if the internet was a private area. Kozinski had this stuff where anyone who knew the address could access it. Thats very different from something you keep in your house, faulty lock or not.

Besides the obvious bits about personal bias.
6.13.2008 1:43pm
JonC:
Can anyone clarify whether any part of the website was publicly viewable without any "jiggering"? If so, the analogy to a home den would seem to be imperfect.
6.13.2008 1:44pm
cboldt (mail):
I wonder if Judge Kozinski has a cause of action against the intrusion.
.

And what of the parallel with Manny Miranda, who viewed unsecured material on a network that he had legitimate access to?
6.13.2008 1:44pm
Bski:
The issue is that he's presiding over an obscenity trial and he's got stuff that's very close if not similar to the material currently at issue.

Wouldn't a lack of "the material at issue" imply a bias in the opposite direction?
6.13.2008 1:45pm
Michael F. Martin (mail) (www):
demosthenes.or.locke,

Aren't houses in a public area?
6.13.2008 1:46pm
Sk (mail):
"The issue isn't that he has pr0n in general. The issue is that he's presiding over an obscenity trial and he's got stuff that's very close if not similar to the material currently at issue."

You are either being disengenuous, or you know absolutely nothing about the trial.

Sk
6.13.2008 1:47pm
cboldt (mail):
-- Can anyone clarify whether any part of the website was publicly viewable without any "jiggering"? --

.

There is no "hotlink" or other means to explore that part of the internet. The viewer had to guess folder/directory names in order to explore.

.

A better analogy would be open door or window in the backyard, no lock jiggering required, but you have to explore to find the way in.
6.13.2008 1:47pm
Manny Klausner (mail):
Thanks for posting this. It's important for the blogosphere to set the record straight -- and help ameliorate the reckless excesses of the MSM in these sorts of cases.

Kozinski's a brilliant judge and an extraordinary intellect. The Los Angeles Times has done a major disservice by giving front page coverage to this "baseless smear." Larry Lessig's post deserves wide circulation.
6.13.2008 1:48pm
one of many:
But Demosthenes, it was in a "private area". It was a server owned by the judge's son which was supposed to be accessed by a limited number of people. How much more private does something have to be in order to be private? My house is privately owned but is on a public road, does that the fact that is accessible from a public road mean that it is not private?
6.13.2008 1:51pm
jrww (mail):
Isn't mere possession of child pornography a felony?

I ask this because one of the pornographic images from Kozinski's computer depicts a young man - I'd guess 12-14 years old - engaging in sexual activity. Not to get too graphic here, but he was performing oral sex on himself.

Of course Kozinski is innocent until proven guilty and all that and we don't even know for sure if these images were, in fact, on Kozinski's computer.

But if this image was it seems that the US Attorney should be involved to open an investigation into whether Kozinski possessed child pornography.
6.13.2008 1:52pm
cboldt (mail):
-- the reckless excesses of the MSM in these sorts of cases --

.

I advocate the media to do more reckless excess, to make it obvious to all but the most blinkered that the media is infested with unrepentant liars of the first order.

.

Bush said to pray for Bill Clinton in light of his heart surgery and the crowd booed -- made up out of whole cloth.
6.13.2008 1:52pm
Pliny, the Elder (mail):
I am fascinated by the fact that many of the same peope that are hostile to the Judge were defending President Clinton's sodomizing of his government subordinate in his government offcie as a "private" matter.
6.13.2008 1:53pm
Erick:
Amazing hit job by the Times. None of this is anything close to what's in the trial, but the Times did a good job of putting up descriptions that have made people think it is. And since the Times was apparently given a CD with all or most of the material on it, they were well aware that the materials on the website were not as they described them.
6.13.2008 1:54pm
DangerMouse:
You are either being disengenuous, or you know absolutely nothing about the trial.

The news accounts report that his folder contained people defecating, nude women depicted as animals, people sexually aroused near animals, and other related images. The obsenity trial involves people sexually involved with defecation, animals, and other sorts of obscenity.

It might not be the same degree but it's related enough that he should have recused himself. That he tried to cover it up and presided over the trial by misrepresenting himself as objective is worse. He should be impeached. There is no possible way he's a fair judge.
6.13.2008 1:54pm
Gabriel Malor (mail):
"That is a funny joke," Mr Kozinski said.

If you'd ever met Judge Kozinski, you'd know that that's exactly the sort of thing that he would actually find funny.
6.13.2008 1:54pm
Aultimer:
A better analogy would be that the "stuff" was heaped in a corner of the front porch of the house. Maybe the litigant rooted through the pile a bit, or maybe just walked over to the corner for a closer look. No obvious trespass was required to see it, but reasonable people would understand that it wasn't displayed to public generally.

In any event, Lessig has the privacy part right, except that statists on both sides can't resist their "if you don't have anything to hide, why do you need privacy?" moralizing reaction.
6.13.2008 1:55pm
Wayne Jarvis:

The issue isn't that he has pr0n in general. The issue is that he's presiding over an obscenity trial and he's got stuff that's very close if not similar to the material currently at issue.


Is there any evidence any he had anything "very close if not similar"?
6.13.2008 1:55pm
Erick:
Also, the standard for a public official to win a defamation suit against a newspaper is absurdly high, but I'm wondering if this case would meet it. The Times basically said the Judge was into beastiality and scat, they were well aware he is not and there was no reasonable basis for them to believe he was (as they had copies of the materials and didn't have to go on incorrect 2nd hand information like the readers of the Times' article).
6.13.2008 1:56pm
Chris Newman (mail):
DangerMouse:

The "stuff" he had is about as similar to what's at issue in the trial as this SNL skit is to 2 girls 1 cup.
6.13.2008 1:57pm
Alex Blackwell (mail):
There is no "hotlink" or other means to explore that part of the internet. The viewer had to guess folder/directory names in order to explore.

I didn't have "to guess." I actually found the website last year via Google while searching for some hard-to-find Kozinski articles. Although the root directory of alex.kozinski.com was bolted shut with a placeholder index file, Google showed the existence of the following directory:

http://alex.kozinski.com/articles/articles.by.ak.list.htm

Which, up until it was locked, wasn't updated since early 2007. As far as I can tell, it contained scanned PDFs of every article Kozinski had ever written, even dating back to his service on the old U.S. Court of Federal Claims.
6.13.2008 1:58pm
William Spieler (mail) (www):
Dangermouse:

The news report entirely misrepresented the items in question that would be most pertinent to the question of recusal in the trial in question.

This is the image of defecating in question, which is clearly not pornographic.

This is the video of the "people sexually aroused near animals" in question, which is a) actually "animal sexually aroused near people," and b) clearly not pornographic.
6.13.2008 1:59pm
anonymouseducator:
I don't doubt that he finds the bush joke funny.
6.13.2008 2:00pm
hattio1:
For those who know Judge Kozinski's decisions well, I have a question (I am NOT one who knows how he'd be likely to rule in any given case). If the government had done the same thing, accessed a file that was supposed to be kept to friends and family, would he have upheld a suppression motion? If the answer is no (and I don't know that it is), then the media circus may be unfair, but it's ironic...and funny.
6.13.2008 2:00pm
Q the Enchanter (mail) (www):
"Can anyone clarify whether any part of the website was publicly viewable without any "jiggering"?"

The Kozinskis locked the den window, unaware that there was an alternate passageway hidden from view. A stranger exploits this passageway...
6.13.2008 2:00pm
jgshapiro (mail):
I don't know that I agree with the analogy to a locked den, upon which much of this analysis rests. Anyone typing the correct URL into their browser would get into this website; it was not password-protected so it is not as if someone 'hacked' their way in.

Moreover, as someone pointed out in the comments on Lessig's blog, a robots.txt file simply prevents indexing and does not mean that Kozinski had taken basic precautions to keep the site private. It is not the equivalent of a sign reading "keep out," rather it is the equivalent of a sign reading "no solicitations," or "no trucks" which would signal to certain people to keep out, but have no relevance to others.

So the site was indeed "on the web" in the relevant sense, unless we are to decide that anything that is not Google-able (even if it is nonetheless easily found in a public forum) is equivalent to something you keep in a locked room in your home.

More generally, there is an appearance issue with federal judges that does not exist with other private figures or even public officials (most of whom at least are subject to elections or retention votes). His behavior off the bench influences public perceptions of, and confidence in the judiciary as a whole. That is partly why federal judges hold their office during 'good behavior', and not unless they commit a high crime or misdemeanor.
6.13.2008 2:01pm
Glenn W. Bowen (mail):

Here is how he explains the situation:


let's see... I have the phone in my right hand holding it to my left ear, with my left hand I'm typing, and I have the shoe off my right foot so I can use my big toe to press the "play" button on the tape recorder on the floor underneath the desk.

like Rose Mary Woods, this guy's a contortionist.
6.13.2008 2:02pm
Christopher Hundt (www):
I think that saying that this is "perfectly" analogous to breaking and entering is quite a stretch. Setting up a web server in the way this one was set up means that you are instructing a computer to respond to any request for a file by sending the file, regardless of the source of the request. The fact that this receptiveness to requests was not advertised (through links) does not mean that anyone's privacy was violated by sending such a request.

Even the analogy suggested above of an open door or window does not fit, due to the communicative nature of the whole transaction.

A much closer analogy would be a phone line with an unlisted number that played rude messages to anyone who called it. Would you say anyone who found out about the number and called it was violating the privacy of the person who operated the phone service?
6.13.2008 2:03pm
DangerMouse:
I'm unable to view the links to the images/videos you provided right now, so I have no idea if what you're saying is accurate.

However, I'm still in favor of impeaching him. Judges should always be on their toes to be extra special careful. Better to impeach him and throw him the hell out of his lifetime appointed elitist position and get someone in there who knows the guy he's replacing was thrown out for an appearance of being unfair. The Courts have got to be tamed. Perhaps it sucks to be him, but an example has to be made.
6.13.2008 2:03pm
jrww (mail):
If you keep your child pornography locked in a drawer in your den, is that defense?

See my 12:52 post above.
6.13.2008 2:04pm
Viceroy:
I'm fan, and will continue to be, but to use this to bash the media is silly.

Lessig was off the mark in his analogy. Surprising, given his tech-focus. I guess you can say the same about the Judge.
6.13.2008 2:04pm
Abomi Nation:

The issue isn't that he has pr0n in general. The issue is that he's presiding over an obscenity trial and he's got stuff that's very close if not similar to the material currently at issue.



That is certainly not a legitimate issue any more than it would be an issue if the judge drove a Porsche and was presiding over a speeding trial. Judges are, believe it or not, human beings. Absent an actual conflict or bias, the mere fact that he may or may not have pornography on his personal computer is irrelevant. Now if, for example, he were making and distributing fetish movies - that would be a conflict requiring recusal.
6.13.2008 2:04pm
Brian Mac:

This is the video of the "people sexually aroused near animals" in question, which is a) actually "animal sexually aroused near people," and b) clearly not pornographic.

I dunno, I felt a bit of a tingle...
6.13.2008 2:06pm
cboldt (mail):
Maybe the good folks who host volokh.com could set up an example. Make a folder that isn't linked from any web page (I don't know the details of the Kozinski case, so this might be inapposite)

.

http://volokh.com/private

.

http://volokh.com/orinkerr

.

I've found some websites that have "draft" or other un-linked material -- can't think of an example off the top of my head, but it's not unusual.
6.13.2008 2:06pm
John Burgess (mail) (www):
I like the open window analogy better than the locked window. Stupidity--or sometimes just accidents--do happen and a window can be left unsecured.

But my address is published (at least in the phone book) and my street is quite public. So is my URL (you can find it by clicking on my name in this comment, in fact). The fact that my address is known does not invite anyone to come inside and poke around. No more should my URL be construed as an invitation to see what I might have on a server.

Both are invasions of privacy. Both should be punishable by law.
6.13.2008 2:06pm
tarheel:

The Times basically said the Judge was into beastiality and scat, they were well aware he is not and there was no reasonable basis for them to believe he was

The line between "basically said" and "actually said" are two very different things in defamation law.

Kozinski would be insane to sue unless he wants several months of discovery into all corners of his life. This controversy seems bogus to me, but a defamation remedy is not going to happen.
6.13.2008 2:07pm
Bode (mail):
Unfortunately I don't think the home window analogy is a great one. Technically, what happened was that the server was configured so it output the directory listing when you asked for a directory. What kept the contents more-secret-than-not was the fact that you had to a) know that the web site existed and b) know the name of the directory (i.e. stuff). What most likely happened is that someone, somewhere posted a link to a file the judge was storing in his "stuff" directory. A robot of some sort lopped off the file name, asked for the directory, and cataloged the links. According to the angry litigant who started all this, he found the original link in a Russian MP3 search engine via google. I take that with a grain of salt, though -- that's the angle the guy was playing. That it happened, though, makes perfect sense -- Internet search robots are nothing if not persistent and omniscient.

Anyway, I honestly don't know the answer to how unsavory this type of access is, but I do know it was almost certainly unintended. Just for demonstration purposes, I'll pick on the Volokh's. Here's their old software company:

www.vesoft.org/pages/customers.html

Now, I'm a curious guy, maybe they have some unsavory material hiding. So, I lop off the file name and ask my browser to load just the directory that file is located in:

http://www.vesoft.org/pages/

Aha! Nothing unsavory, but you get the idea -- now you can see all of the files the server has to offer, regardless of whether such access was intended (and in the above case, I suspect it was not intended).

So, I'm not buying the "just like a window with a crappy lock" defense. Maybe it is more like a secret public easement behind a private gate you could have locked but forgot to? Or maybe there's just no real-world analogy. The take-home lesson is that if you put up a web site, you have to be really careful to make sure the contents don't end up catalogued. And the overall importance of it is related to who your enemies are and how high-profile you are.
6.13.2008 2:07pm
jrww (mail):
Burgess - do you think that possession of child pornography should also be shielded as an invasion of privacy?
6.13.2008 2:08pm
Alex Blackwell (mail):
The Kozinskis locked the den window, unaware that there was an alternate passageway hidden from view. A stranger exploits this passageway...

I admire Alex Kozinksi as a judge, though I don't agree with all of his jurisprudence. Nevertheless, his lack of pretension and (up till now) relative accessibility have, I think, been beneficial to the Federal judiciary.

That said, I'm surprised at how amateurish alex.kozinski.com was designed. The security of the site was laughable, so I'm not sure how "reasonable" an expectation of privacy there could be. Simple coding could have made the content, and even the directory structures, invisible to search engines.

Perhaps Judge Kozinski should have left management of alex.kozinski.com in more capable hands. Perhaps another son or daughter, this one named "MIT" or "Berkeley."
6.13.2008 2:08pm
U.Va. 3L:
He should be impeached.

On what grounds? Refusing to recuse himself? Where's the high crime or misdemeanor?

(To be fair, I suppose one might argue that Kozinski should be gone because he's violated the "good behavior" requirement of tenure. See Prakash &Smith, How to Remove a Federal Judge, 116 Yale L.J. 72. But I don't see the misbehavior here, either, since no one ever stops to question whether a judge who doesn't look at pornographic images is biased against defendants in obscenity cases.)
6.13.2008 2:09pm
PersonFromPorlock:
anonymouseducator:

More than anything else, this episode reveals Judge Kozinski's incredibly lame sense of humor:

Heck, a few years ago we had a President who didn't know which end of the young lady was the cigar end... and the Europeans thought he was sophisticated!
6.13.2008 2:09pm
jrww (mail):
UVA 3L

The grounds for impeachment?

How about possession of child pornography? - which is a felony, I believe. (See my 12:52 post)

I have no idea whether he should be impeached, but if that boy was underage (and he almost certainly was) I think that might be a problem in terms of violations of federal law.
6.13.2008 2:11pm
cboldt (mail):
-- Google showed the existence of the following directory: http://alex.kozinski.com/articles/articles.by.ak.list.htm --

.

Thanks for the "example." Yeah, Google's spiders are good explorers. There must have been some sort of "common" linkage to that directory structure and file by web pages.

.

And even if the base folder (alex.kozinski.com) is locked down, it'd be easy to try things like alex.kozinski.com/pictures, alex.kozinski.com/jokes, etc. ... even if those never showed up in Google.
6.13.2008 2:14pm
jgshapiro (mail):
A better analogy might be to his un-fenced backyard, some of which is viewable from the street.

So he did not leave prurient materials in the front yard where everyone would see them, regardless of whether they were looking for them, but he did leave them in the back yard where they were easily accessible if you knew to look there, and where you also might stumble across them even if you weren't looking for them.

So would this be a story if a federal judge left prurient items in his back yard? I think so.
6.13.2008 2:15pm
ejo:
does a sense of shame enter into the equation at any point. porn is legal, like a lot of other things. that doesn't make it a net positive or something to take a great deal of pride in-it also, like many legal things, doesn't put the possessor in a very positive light.
6.13.2008 2:16pm
L.A. Brave:
jrww: Do you have a source for the child porn claim? The LA Times only says it is a "young man" in the pose.
6.13.2008 2:16pm
htom (mail):
Do we know that the complainer (or someone else) didn't dump porn through the window, adding to the "funny" trash that was already there?
6.13.2008 2:17pm
Erick:
jrww,
If you want to view the "child porn" auto-fellatio picture, you can see it here

Yes, its a boy (age unknown, teenager of some sort probably) sucking his own penis, but the point of the photo is not pornographic. Like the defecation photo, its a humorous play on the "priceless" mastercard commercials. I don't know exactly how the child-porn laws work, but I really doubt you're ever going to see someone prosecuted for this. Who knows what the point of the original photo was, but its been used for a very different purpose at this point.

Dangermouse,
Are you really saying that even though there's no wrongdoing, we should "punish" random federal judges just because? Are you an idiot?
6.13.2008 2:19pm
Per Son:
That is a great point UVA 3L. To the people who think the Judge should recuse himself, do you think non-porno looker at'ers should be recused as well - since they have a bias as well.
6.13.2008 2:21pm
Joe Bingham (mail):
IMO, the posts alleging there's child porn involved here should be deleted. They're false and slanderous, and may mislead people who haven't fully researched the story.
6.13.2008 2:21pm
jrww (mail):

jrww: Do you have a source for the child porn claim? The LA Times only says it is a "young man" in the pose.

I saw the photograph yesterday and I estimate the boy's age at 12-14. Maybe 16 at most.

The link to the image was, and is, available on a reputable and well known law blog.

There is no way in the world that I am going to link to it because I don't know if that would qualify as distribution or not.

After I saw the image, I was shocked and recognized it as child pornography so I immediately scrubbed by cache to make sure that I didn't have the image.
6.13.2008 2:23pm
cboldt (mail):
-- The take-home lesson is that if you put up a web site, you have to be really careful to make sure the contents don't end up catalogued. --

.

Better still, CAN'T get cataloged. Or, assume that everything in the directory tree -- cataloged, hotlinked, password protected, under an odd port or not -- can be found, and don't KEEP things there that you prefer to share with a small circle of friends.
6.13.2008 2:24pm
Dave N (mail):
jrww,

I have no knowledge of the actual picture you describe. However, if YOU looked at the picture and it ended up on your harddrive (even in a temporary file) then you would be guilty as well.
6.13.2008 2:25pm
jrww (mail):

IMO, the posts alleging there's child porn involved here should be deleted. They're false and slanderous, and may mislead people who haven't fully researched the story.

So an image of a minor engaged in sex is not child pornography if it has a "funny" caption?

I am not an expert in federal child pornography laws, but I don't think defense will fly. If it did, all pedophiles would have to do is put ziggy captions under their pictures.
6.13.2008 2:25pm
Alex Blackwell (mail):
I saw the photograph yesterday and I estimate the boy's age at 12-14. Maybe 16 at most.

Wow, that's an amazing talent to have.
6.13.2008 2:26pm
Ben P (mail):
Of all the analogies here, the "open back window" seems the best. Maybe if the window were hidden behind a tree.

The data was "out there" for anyone to find, but to find it you had to know where it was. There wasn't truly a "lock" in place, but it wasn't a public area.

I guess then the real question is whether accessing a server that is the property of someone and is intended to be private but is not secured can be considered the same as trespassing on real property.
6.13.2008 2:27pm
David M. Nieporent (www):
The issue isn't that he has pr0n in general. The issue is that he's presiding over an obscenity trial and he's got stuff that's very close if not similar to the material currently at issue.
If the material at issue in that trial were "very close" to what has been revealed about what Kozinski had, then there'd have been a directed verdict of acquittal. Nothing that has been revealed is within light years of "obscene."
There is no way he's a fair judge in that trial.
To quote Adam from the Lessig comments: "It's very telling that people have a problem with a judge who views pornography judging obscenity (because he may be biased) but then they subtly don't mention that someone who doesn't view pornography may be biased in the opposite direction. People aren't worried about bias, they're just worried that the bias match their own bias."
6.13.2008 2:27pm
jrww (mail):

I have no knowledge of the actual picture you describe. However, if YOU looked at the picture and it ended up on your harddrive (even in a temporary file) then you would be guilty as well.

Yep - that is why I immediately deleted my browser cache and run a program every night that scrubs off all deleted files.

I decided to do this instead of trying to blame my son for maintaining my computers or whatever Kozinski's dodge was yesterday.
6.13.2008 2:28pm
Stormy Dragon (mail) (www):
The issue is that he's presiding over an obscenity trial and he's got stuff that's very close if not similar to the material currently at issue.


Giving how widespread the consumption of porn has become, it's hard to argue that this along baises a judge in their ability to judge community standards of obscenity. If anything it is the judge who has never done so who should recuse themselves as they're unfairly biased in favor of the prosecution.
6.13.2008 2:31pm
jrww (mail):
Nieporent - you don't think that a image of an minor engaged in sexual activity is "within light years" of obscene?
6.13.2008 2:31pm
Chris Bell (mail) (www):
For what it's worth, I read yesterday that the Judge offered to recuse himself from the obscenity trial after the story broke and the parties turned him down.
6.13.2008 2:32pm
eric (mail):
jrww apparently thinks his estimation of a young man's age is conclusive proof that this was child porn.
6.13.2008 2:33pm
Anon21:
If the guy in the photo were actually underage, the purpose probably wouldn't matter for determining criminal liability. But if it's a parody in even semi-wide circulation, he probably is not in fact underage, but is in fact a lookalike, a technique commonly used in the actual pornography industry.

jrww, of course, has no way of knowing the person's age other than a completely subjective assessment of his own, and is merely blowing smoke.
6.13.2008 2:33pm
L.A. Brave:
jrww:
You are the only one that has made the child porn claim. None of the reports I have read have suggested it is child porn.

The LA Times went so far as to suggest that hosting a half dozen mp3s on his website could subject Kozinski to copyright infringement liability (in other words, they were really stretching to find some wrong-doing). Why would they have not discussed the possibility that the image was child pornography?
6.13.2008 2:36pm
David M. Nieporent (www):
I guess then the real question is whether accessing a server that is the property of someone and is intended to be private but is not secured can be considered the same as trespassing on real property.
It might not be trespassing in the sense that one can be punished for it, or even in the sense that it's morally wrong. But how about publicizing it? That certainly seems wrong.

Consider if you found someone's personal diary on a park bench where he accidentally left it. You pick it up and leaf through it, not realizing what it is; you haven't done anything wrong. Once you realize it, you're certainly coming close to the line. But if you then photocopy entries from it and send them to everyone you know and the newspaper; you're past the line.
6.13.2008 2:36pm
Erick:
I am not an expert in federal child pornography laws, but I don't think defense will fly. If it did, all pedophiles would have to do is put ziggy captions under their pictures.

As another non-expert, I don't think a prosecution would be successful. Context matters, and people aren't actually so damn that we can't tell the difference between an actual joke/parody and slapping on a ziggy quote that doesn't do anything.

If the guy in the photo were actually underage, the purpose probably wouldn't matter for determining criminal liability.
Why not? Purpose matters for child porn. An underage nude picture isn't necessarily illegal. There are a few artists who specialize in photos of teenagers or children, as long as the pictures are not sexual, its not illegal. They're always controversial, but I don't think they've been prosecuted and I thought you could buy their works at mainstream retailers. (I don't remember any names so no way to check offhand)
6.13.2008 2:41pm
Ben P (mail):

Consider if you found someone's personal diary on a park bench where he accidentally left it. You pick it up and leaf through it, not realizing what it is; you haven't done anything wrong. Once you realize it, you're certainly coming close to the line. But if you then photocopy entries from it and send them to everyone you know and the newspaper; you're past the line.


Under what law though? State invasion of privacy claims?

In my (admittedly very limited) experience with that kind of law, claims like that are quite difficult to prove.
6.13.2008 2:43pm
William Spieler (mail) (www):
As a third non-expert, let me weigh in and point out that purpose doesn't matter for child porn. Child pornography is defined broadly as "a minor engaging in sexually explicit conduct." Regardless of the purpose of the picture, it's hard to see how photograph of a minor performing auto-fellatio is not a photograph of "a minor engaging in sexually explicit conduct," regardless of the clear humorous intent of the display of the photograph. This isn't to say, of course, that the person in the photograph in question here is a minor; I doubt not, if only because it seems as though this is a picture that has gone through wide circulation (judging from the other things that were alleged to be contained within the directory and my own experience as someone who's received his fair share of "FW: FW: CHECK OUT THIS FUNNY PICTURE!!!" e-mails; hell, the donkey video was on VH1's Web Junk 2.0, I'm fairly sure), and it has gone uncommented-upon for some time.
6.13.2008 2:49pm
Chris Bell (mail) (www):
I think David M. Nieporent's "diary on a park bench" metaphor is excellent, and it shows why the publication of this info was immoral and sleazy (though not illegal).

Of course, in this case, it would be more accurate to say that the disgruntled litigant followed the Judge around hoping that he would leave his diary out.
6.13.2008 2:51pm
Erick:
As a third non-expert, let me weigh in and point out that purpose doesn't matter for child porn. Child pornography is defined broadly as "a minor engaging in sexually explicit conduct."
I don't think I was using purpose the way I meant to. I was mostly trying to respond to the idea that an underage nude was automatically illegal, which its not, as you need the sexually explicit conduct you mentioned, and was sort of conflating purpose with the sexuality requirement.
6.13.2008 2:54pm
John Armstrong (mail) (www):
People commenting on the autofellatio picture are showing their age. It's in poor taste, sure, but he looks easily old enough to be in my freshman calculus classes. How many of you have (as awkwardly as this can be read) been in regular contact with a wide enough variety of 18-year-olds that you can consider yourself an expert on what they look like?
6.13.2008 2:55pm
David M. Nieporent (www):
Nieporent - you don't think that a image of an minor engaged in sexual activity is "within light years" of obscene?
Other than your own magic age-estimating glasses, there's no evidence that it was a "minor."

As to obscene, that sure doesn't appeal to my prurient interest.
6.13.2008 2:57pm
William Spieler (mail) (www):
I would note that if the person in question is in fact underage, this whole event made criminals of I'd say at least a quarter of the legal profession.
6.13.2008 2:57pm
Dave N (mail):
jrww,

From a legal standpoint, I see several problems with a prosecution. First, obviously, would be proving the age of the person in the photograph. I have no doubt that an endocrinologist or a pediatrician would have to provide expert testimony that the person was, indeed, under the age of 18. Add to this would be issues of whether the photograph has, in any way, been digitially remastered. For example, if you have an 18 year old performing as you described but photoshopped in a picture of a 14 year old's head to replace the 18 year old's head, would that be child pornography? I suggest the answer is no.

The second issue would be whether the photograph, if authentic, was also pornographic. My guess is that it is, in the sense that this activity would appear to be a form of masturbation, which is covered by the federal statute.

If the photograph is, in fact, authentic and pornographic, then you have a huge problem proving scienter. At least two people had permission to have access to the website (Alex and Yale). I suspect there were others--plus there was the trespasser who "shopped" the contents. To prove a case against Alex, you would have to prove that he at least had knowledge of the photograph's existence on the website and that it was clearly illegal (I suspect that, even more so than attorneys, judges are presumed to know the law).

How do you prove knowledge? I am sure his computer's browser history might tell--but then again, it might not. As you, yourself stated, you "scrubbed" your cache to remove any history of viewing the offending photograph.

To use an analogy, when police come across a group of people (group being defined as more than 1) and an illegal substance is found in the group's general vicinity but not on a specific person, more often than not, the substance will be confiscated but no arrests will be made, if for no other reason than the various parties will be pointing to each other as the source and proclaiming their own innocence.
6.13.2008 3:00pm
ejo:
so, it might not be illegal, just disgusting, juvenile but perfectly appropriate for a judge who should know better to not only view once but save? while it is nice to defend someone who might be a colleague or even show up at some of the same legal functions, he seems from a distance to be someone incapable of shame or common sense.
6.13.2008 3:03pm
one of many:
The autofellation is child porn? I don't see it, to me he looks to be in his early 20s, in fact when I first saw it I was reminded very much of someone I know when he was in his 20s.

does a sense of shame enter into the equation at any point. porn is legal, like a lot of other things. that doesn't make it a net positive or something to take a great deal of pride in-it also, like many legal things, doesn't put the possessor in a very positive light.
With regards to this judge, it really doesn't seem to enter into it. First, the judge seems actually to take pride in having a crude sense of humor which most of this seems to be. Second it seems from what a Patterico poster managed to unearth of the directory it appears that the judge didn't consider the material as specifically pornographic but just as general oddball "stuff", the closest to porn in the judges files would be the "cameltoe" sub folder, presumably containing something the judge found erotic (although he may also be crude enough to find those especially funny), otherwise a fair chunk of the offensive pictures seem to come from a generic folder labeled "stuff" containing a variety of things, like the ominously named alex.kozinski.com/stuff/health.doc . If the judge were using these for prurient purposes, he was making it very hard on himself by not creating a sub folder for porn and keeping them all in one place (like the cameltoe folder) instead of scattering them all over. So the judges position that he considers these to be humorous instead of pornographic (which seems in line with the way the files are set up) and his lack of concern for having a crude sense of humor combine to indicate that "sense of shame" do not enter into the equation. Correction, there may be some sense of shame over the revelation of the cameltoe folder but I doubt it is a strong one.
6.13.2008 3:04pm
Dilan Esper (mail) (www):
The image of the boy (linked above by Erick) is clearly child pornography and there is no "artistic" or "fair comment" exception. I would urge everyone NOT to view it, as even viewing it (and thereby downloading a copy onto your computer) is a clear violation of federal (and possibly state) law.

It isn't worth it.
6.13.2008 3:04pm
ejo:
one might beat the rap on the child porn charge-doesn't mean you would beat the ride.
6.13.2008 3:05pm
DangerMouse:
The image of the boy (linked above by Erick) is clearly child pornography and there is no "artistic" or "fair comment" exception. I would urge everyone NOT to view it, as even viewing it (and thereby downloading a copy onto your computer) is a clear violation of federal (and possibly state) law.

Can we impeach him NOW?
6.13.2008 3:10pm
OrinKerr:
jrww,

In the Ninth Circuit, courts interpret the phrase "minor engaged in sexually explicit conduct" in the child pornography statutes using the six factor test of United States v. Dost (9th Cir. 1987). Dost offers list of six factors to consider:

******************
1. whether the focal point of the visual depiction is on the child's genitalia or pubic area;
2. whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity;
3. whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4. whether the child is fully or partially clothed, or nude;
5. whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
6. whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
**************

I haven't seen the image/video that you refer to, but you apparently have: I'm curious how you think the six factor test applies to the image/video you refer to.

Also, if the image is actually child pornography, and you yourself knowingly viewed the image (as I understand you did, having described the image as you did), didn't you yourself violate 18 U.S.C. 2252(a)(2), knowingly receiving child pornography, a federal crime with a five year mandatory minimum sentence? If so, do you think you should be investigated as well?
6.13.2008 3:13pm
L.A. Brave:
According to someone on the other thread, the picture comes from a foreign publication of Playboy.

http://volokh.com/posts/1213378597.shtml#385563
6.13.2008 3:14pm
David M. Nieporent (www):
The image of the boy (linked above by Erick) is clearly child pornography
Well, except for the part about the "child" which is not "clear" at all.
as even viewing it (and thereby downloading a copy onto your computer) is a clear violation of federal (and possibly state) law.
One would hope that mere possession of child pr0n is not a strict liability crime, but requires some sort of mens rea. Clicking on a link about a newsworthy story without knowing what's there is hardly sufficient.

(That doesn't mean that wiping one's cache isn't advisable.)
6.13.2008 3:15pm
Philosopher:
Dilan Esper's view of federal law is questionable. Knowingly possessing or receiving child pornography is criminalized, but viewing it is not. Although some prosecutors have prosecuted based upon the fact that the image was found in a "cache" or temporary internet files folder, it is difficult to do because you have to prove that the person knowingly received it. It's easier when there are massive amounts of porn than it is with one stray image. In any event, you have an affirmative defense if you delete the image once you discover it on your computer and promptly contact law enforcement.

But yes, as others have said, the image is most likely child pornography under federal law.
6.13.2008 3:17pm
jrww (mail):
Orin

The picture depicts a boy contorting himself to engage in self-fellation.


1. whether the focal point of the visual depiction is on the child's genitalia or pubic area;

Yep.

2. whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity;

I think fellatio is a pose associated with sexual activity

3. whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

The pose seems unnatural to me.

4. whether the child is fully or partially clothed, or nude;

Nude.

5. whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

Yep

6. whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Well, it didn't do anything for me, but if you like looking at pictures of boys engaging in self-fellatio, it would be right up your alley.


Also, if the image is actually child pornography, and you yourself knowingly viewed the image (as I understand you did, having described the image as you did), didn't you yourself violate 18 U.S.C. 2252(a)(2), knowingly receiving child pornography, a federal crime with a five year mandatory minimum sentence? If so, do you think you should be investigated as well?

If you had taken a moment to read the comments before posting, you would see that I immediately recognized this as a possibility and promptly deleted my browser cache.

When I clicked on the link, there was no indication that it showed child pornography, so the "knowingly" element might be absent in my case. Unlike Judge Kozinski, I did not save and store the image onto my hard drive so I could return to it later or share it with friends.
6.13.2008 3:23pm
bumpy:
6.13.2008 3:27pm
William Spieler (mail) (www):
David M. Nieporent:

Actually, it's also pretty clear that it's not pornography. Definitions of pornography [i]have[/i] turned on the intent of the work in question, i.e., is the intent to cause sexual excitement in the viewer.

Given the attempts by Congress to criminalize depictions of adults that appear to be of minors who are engaging in explicit sexual conduct, and given that the depiction of explicit sexual conduct can have other intended purposes than to cause sexual excitement in the viewer, that leads to the strange result of attempting to criminalize child pornography that contains neither child nor pornography.
6.13.2008 3:31pm
EH (mail):
Yes, following on to OrinKerr, it appears that jrww has admitted to viewing an image that he himself describes as child pornography. This is a straight-up felony.
6.13.2008 3:31pm
jrww (mail):
EH - you may want to join Orin in reviewing all of the comments before you post as your point has been addressed three times now.

But, by the way, if you think my viewing the image was a felony, what do you think Judge Kozinski actions of viewing and storing the image on a hard drive is?

Hmmmm?
6.13.2008 3:33pm
DangerMouse:
But, by the way, if you think my viewing the image was a felony, what do you think Judge Kozinski actions of viewing and storing the image on a hard drive is?

Don't expect people to treat the Black Robed Unelected Masters the same as they would a peasant such as yourself. This blog has too many judicial sycophants.

I say, we can't impeach this guy fast enough.
6.13.2008 3:40pm
L.A. Brave:
jrww:
Apparently a bunch of people at the LA Times and Sanai (the lawyer who handed the material over) are felons too.


The LA Times would love nothing more than to break a story that the Judge had child pornography. They have seen all of the material, and have suggested no such thing. And the editorial board of the very same LA Times wrote an editorial defending the Judge. Surely they would have viewed the material before writing such a defense, and yet they went ahead.

In other words, it seems you are the only person that is certain this is a child. Maybe you are just more adept at spotting child porn than I am.
6.13.2008 3:43pm
jrww (mail):

In other words, it seems you are the only person that is certain this is a child.

Actually 3 other commenters in this thread seem to share my assessment.

But I am sure that the investigation that Judge Kozinski himself has requested will ferret out the truth.
6.13.2008 3:52pm
OrinKerr:
jrww,

My apologies -- I started to look at the cases, and I realized that the Ninth Circuit has not adopted Dost. Under the Court's Weigand case, I believe the ultimate question is whether the image is "so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur." Wiegand, 812 F.2d at 1244." The Court in United States v. Hill, 459 F.3d 966 (9th Cir. 2006), commenting on this test and the Dost factors, explained:
The Dost factors can be a starting point for judges to use in determining whether a particular image is likely "so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur." Wiegand, 812 F.2d at 1244. But the factors are neither exclusive nor conclusive. Dost itself acknowledged that it did not seek to offer "a comprehensive definition of ... lasciviousness," because a determination of lasciviousness "ha[s] to be made based on the overall content of the visual depiction." 636 F.Supp. at 832. The factors are merely "general principles as guides for analysis."
So I believe the real legal question is essentially that last Dost factor, whether the images were presented in a way that suggests an intent to arouse. Your analysis of this factor in your comment above seems non-responsive to the inquiry, as it only discusses whether you were personally aroused by the image and whether someone who is aroused by images like it would be aroused by it (which as a tautological matter would seem to be "yes").
6.13.2008 3:52pm
L.A. Brave:
jrww:
You continue to avoid the point that no one at the LA Times, neither the staff writers or the editorial board, seem to think it is child pornography.
6.13.2008 3:59pm
jrww (mail):

So I believe the real legal question is essentially that last Dost factor, whether the images were presented in a way that suggests an intent to arouse. Your analysis of this factor in your comment above seems non-responsive to the inquiry, as it only discusses whether you were personally aroused by the image and whether someone who is aroused by images like it would be aroused by it (which as a tautological matter would seem to be "yes").

I am sorry that you thought my comment was non-responsive.

I am not an expert on this area of law -and, obviously, neither are you since you didn't know which standard applied - and I confess I don't know whether Judge Kozinsky is aroused by pictures of boys self-fellating themselves.

Is that the test? Or is it a reasonable person test? I mean normal adults are not aroused by pictures of young children being sodomized but sick pedophiles are. (Oh, and there is no reason to believe at this time that Kozinski had any images like that.)

The picture apparently had some caption that tried to make it into a joke or something. (I didn't pause to read the caption, I confess, I was so offended by the image that I immediately closed the browser) So I guess someone might argue depending on what the caption said that this was all just a joke. You know, just for the funny. I will pass on commenting on what such a sense of "humor" says about the person but wonder if this defense has been successful in other child pornography contexts.

I seem to recall that there was a radio host up in San Francisco who was busted for child porn and he tried to claim that he had the images for purposes of research on a book or something. Perhaps Kozinski could make that argument, too, since he apparently was about to preside over some sort of pornography trial.
6.13.2008 4:01pm
jrww (mail):

You continue to avoid the point that no one at the LA Times, neither the staff writers or the editorial board, seem to think it is child pornography.

Do you have any reason to believe that they saw this particular image? I saw it from another source. Perhaps the Times saw only a selection of images.

And, in any event, I don't think the staff writers or the editorial board of the LA Times is charged with the responsibility of determining what is and what is not child pornography.
6.13.2008 4:03pm
Erick:
Well the altered image with the "priceless" text is obviously not intended to arouse, its intended to be humorous. Now was the original picture meant to arouse? Don't know. Really its more ridiculous than sexual. It seems like there's a lot of history we'd need to know.

Even if we assume or discovered that the original picture was meant to arouse, what does changing it around do?
6.13.2008 4:04pm
Steve2:
Doesn't the "autofellatio" picture, by definition, have to be airbrushed? I mean, isn't the act supposedly depicted impossible to do? I'd think it would follow that there'd be no such thing as an actual photo of it...
6.13.2008 4:07pm
OrinKerr:
jrww,

I'll leave up to others whether I am an expert in computer crime law, but I have now read the Ninth Circuit's cases and I now understand the Ninth Circuit law here. As I understand it, the test is objective: whether the image "so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur." Wiegand, 812 F.2d at 1244. Put another way, is the image presented as something designed to arouse, or is it an image presented as a joke, or something weird, or just something shocking?

It sounds like based on your own description it was presented as a joke:
The picture apparently had some caption that tried to make it into a joke or something. (I didn't pause to read the caption, I confess, I was so offended by the image that I immediately closed the browser) So I guess someone might argue depending on what the caption said that this was all just a joke. You know, just for the funny. I will pass on commenting on what such a sense of "humor" says about the person but wonder if this defense has been successful in other child pornography contexts.
Sounds to me that under the Ninth Circuit's caselaw, this was not child pornography, at least based on your description. I realize that you did not find the joke funny, but possession of an unfunny joke is not a crime.
6.13.2008 4:11pm
L.A. Brave:
The LA Times writes: "In one, a young man is bent over in a chair and performing fellatio on himself."
6.13.2008 4:11pm
David M. Nieporent (www):
Doesn't the "autofellatio" picture, by definition, have to be airbrushed? I mean, isn't the act supposedly depicted impossible to do?
I don't know, but I'd like to see the Daubert motion on the expert witness who was called to testify to that point.
6.13.2008 4:14pm
Gary Anderson (mail):
Cmon Orin.
I like privacy, freedom and independence too, but you're twisting yourself into a pretzel here and coming off as a fan boy.

If the good Judge didn't get off on these images, why collect em? If it wasn't somehow working for him in the arousal or "haha" dirty humor department, you don't save, trade and collect. Or have your son put them up in a gallery for those directed to the sight.

I appreciate that you're all recusing yourself in admitting you can get past your bias toward the man and judge him neutrally. Probably why y'all are professors, and not judges.

But defending this kind of garbage -- I for one am hoping that is a boy sucking himself off. (Haven't taken the bait and clicked the link) Because for everybody saying, "no no, this kid's an adult, in his 20s at least" well to me, that's even more sad. For the little boys in men's bodies we seem to be raising as a country these days. And particularly for the male-oriented choice of the judges -- and his son's -- er, "collection".

Is Yale "out" by any chance? And might a diagnosis of latent homosexuality do a good deal of explaining such a shared collection between father and son?
6.13.2008 4:17pm
JohnnyMiller123:
There was a 52 year old teacher, with no previous crimianl record, from Arizona, who received a 200 year sentence for possessing 20 images of child porn. Ouch!

I don't think this case was discussed on Volokh.com at all.
6.13.2008 4:18pm
OrinKerr:
Gary, I banned you back in January, right?
http://volokh.com/posts/1201188703.shtml#319300
6.13.2008 4:19pm
David M. Nieporent (www):
Orin, I think you're off base on the law here; the question in Wiegand -- which the factors you cite were intended to address -- was the definition of lascivious in 18 USC 2255. But 18 USC 2256 (the renumbered 2255) defines "sexually explicit conduct" as any one of five categories of conduct, of which "lascivious exhibition of the genitals or pubic area of any person" is only one. 2256 (2)(A)(v).

2256 (2)(A)(iii) lists "masturbation" as a separate category, and I think that the picture in question would probably qualify in that category.

So if this is a minor, I think it's probably illegal contraband.
6.13.2008 4:23pm
jrww (mail):

I'll leave up to others whether I am an expert in computer crime law, but I have now read the Ninth Circuit's cases and I now understand the Ninth Circuit law here. As I understand it, the test is objective: whether the image "so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur." Wiegand, 812 F.2d at 1244.

I wasn't aware that computer crime law was synonymous with child pornography law, but, in any event, I see that in the 28 minutes that have passed since you posted the incorrect standard that you have satisfied yourself that you can now understand the Ninth Circuit law re child pornography. Fair enough.

Wiegand seems to arise from a case against a photographer. (I haven't read it and am just guessing) so it seems that test wouldn't quite apply since Kozinski did not present the image as a photographer.

We don't really know the circumstances surrounding the creation of the image. Perhaps it was taken by a pedophile with the intent of arousal then it found its way to someone else who put the "funny" caption around it. Does that mean its no longer child pornography. What if you remove the caption?

Or, perhaps more to the point, suppose this image was created completely as a joke intending to put the caption around it. If a pedophile is then aroused by the image and downloads the image for the purpose of arousal is it then child pornography?

Beats me.
6.13.2008 4:26pm
Gary Anderson (mail):
Sounds to me that under the Ninth Circuit's caselaw, this was not child pornography, at least based on your description.

I don't know, OK. Again, seems like you're not quite the "expert" you present yourself as.

If the boy's age turns out to be say, 14, then you really think a "It did nothing for me!!! Honest!!" defense is going to work? For non-favored judicial sons, that is?

I don't. Otherwise, everybody slapping the laugh track on say the pedophilic priest scandal, and insisting they thought watching a 14-year-old pleasure himself was so funny they had to share with selected others... I'm not buying it. Something in this mess surely aroused the judges interest -- whether it got him hard or not viewing what, say, might be a 14 year old going at himself, that's pretty much beside the point.

I'm guessing (and hoping) it was a kid. They're more flexible, and dumb enough to go along with taping such an act. Which probably wasn't all that funny but more gratifying before the "haha" laugh track got slapped on the video. Cmon... let's all grow up and enjoy more mature sexual tastes, and somebody take the judge in hand and pull him away from the alleged boys getting off. Sounds like this one mistrial is costing the public plenty. All the more reason to ensure we get adult characters on the bench, plus those who know the value of remaining neutral especially during the testing times.
6.13.2008 4:26pm
Gary Anderson (mail):
Lol.
"Banning" -- the last resort of those who know they're in trouble if somebody expresses a contrary opinion. You can't stack the deck all the time -- come out and wade in the real world, where self proclamation's of "expertise" don't carry so much weight, and you actually have to do some of the heavy lifting of making your arguments convincing? Might do ya some good...
6.13.2008 4:30pm
NickM (mail) (www):
L.A. Brave - the foreign Playboy was about the picture of women painted to look like cows.

David - there's a Wikipedia article on the topic, but it's very NSFW.

Nick
6.13.2008 4:32pm
Per Son:
I thought that for something to be child porn - there must be a child.

Has that been established yet, and if so, by whom?
6.13.2008 4:32pm
TDPerkins (mail):

I'm guessing (and hoping) it was a kid.


That's more sick and perverse than anything the judge is alleged to have done.


They're more flexible, and dumb enough to go along with taping such an act. Which probably wasn't all that funny but more gratifying before the "haha" laugh track got slapped on the video.


If it was sexually gratifying to you under any circumstances--by your admission it is somewhat gratifying to you with the laugh track--I believe you've just admitted you are turned on by imagery of young men being sexually pleasured.


Cmon... let's all grow up and enjoy more mature sexual tastes, and somebody take the judge in hand and pull him away from the alleged boys getting off.


In the context of being a parody of the "Priceless" commercials, a tag line identifying that image as showing priceless flexibility is both funny and not arousing...possibly envy inducing.

And yes, you seem to be a miserably humorless person.

You probably don't have any use for the Stooges either.

You Philistine.

Yours, TDP, ml, msl, &pfpp
6.13.2008 4:36pm
OrinKerr:
Gary,

Actually, my recollection is that I agreed with you on the merits; it's just that you were insulting and obnoxious, and therefore violated our comment policy.

David,

Ah, that's very helpful. Thanks for clarifying.
6.13.2008 4:40pm
L.A. Brave:
Per Son:
By no one. The only media outlet that has the images (LA Times) describes the person as a "young man." Basically, jrww looked at it and he is "sure" that the person depicted is 12-14.

Orin:
For what its worth, Gary seems to be doing similar inappropriate trolling over on the other thread.
6.13.2008 4:42pm
one of many:
Doesn't the "autofellatio" picture, by definition, have to be airbrushed? I mean, isn't the act supposedly depicted impossible to do?

I don't know, but I'd like to see the Daubert motion on the expert witness who was called to testify to that point.




I'll second that, it sould be a nifty hearing.
6.13.2008 4:45pm
ys:

Yep - that is why I immediately deleted my browser cache and run a program every night that scrubs off all deleted files.

I decided to do this instead of trying to blame my son for maintaining my computers or whatever Kozinski's dodge was yesterday.

George Orwell, where are you when we need you? Roll over and tell Heisenberg the news.

jrww:

The Big Brother knows now that you used to have it, so all your scrubbing was for naught.
6.13.2008 4:53pm
jrww (mail):
What L.A. Brave says:

Basically, jrww looked at it and he is "sure" that the person depicted is 12-14.


What I actually said in my 12.52 post:

I ask this because one of the pornographic images from Kozinski's computer depicts a young man - I'd guess 12-14 years old - engaging in sexual activity. Not to get too graphic here, but he was performing oral sex on himself.


In a later post I even said that he might even be 16. And in a later post I said as far as I knew, he might be a 40 year old man with make-up made to look like a teenage boy.

I will note that 3 other people just in this thread who have seen the image believe to to be a teenage boy.
6.13.2008 4:53pm
Sean O'Hara (mail) (www):

Your analogy would be better if the internet was a private area.


Many parts of the Internet are -- your computer, for example, is accessible to anyone with the slightest technical competence unless you take positive measures to block them, but you almost certainly think of your hard drive as private.
6.13.2008 4:57pm
Tony Tutins (mail):
I will note that 3 other people just in this thread who have seen the image believe to to be a teenage boy.

I don't have enough experience viewing images of naked teenage boys to feel confident to judge. But if you guys want to claim subject matter expertise, go ahead.
6.13.2008 4:59pm
Tony Tutins (mail):
But, remember 18 and 19 year olds are still teenagers.
6.13.2008 5:00pm
jrww (mail):

2256 (2)(A)(iii) lists "masturbation" as a separate category, and I think that the picture in question would probably qualify in that category.

So if this is a minor, I think it's probably illegal contraband.

David - thank you for providing the correct legal test.

Do you have any thoughts about whether adding a "funny" caption to an illegal photograph would be a defense?
6.13.2008 5:04pm
Erick:
If you don't want to view the auto-fellatio image but are curious about the surround text it basically goes like this:

A MASTERCARD BILL YOU WOULD RATHER NOT RECEIVE
Internet Connection: $19.99/month
CyberSex Chatroom membership: $9.99/month
Hidden Cam your little brother bought: $69.99
Then you have the picture
Your Brothers revenge on you for years of torment, by posting a "private moment" of you on the Internet: PRICELESS

The picture itself looks about webcam quality and is show from a lowish side angle. The kid is in a computer chair in front of a computer, the screen of which looks like it has been photoshopped to make it look as though it contains a graphic/logo for the "phrozen crew" some sort of hacking/cracking group. No idea if the kid has been photoshopped, there's some odd coloring but it could just be a crappy camera.
6.13.2008 5:15pm
ejo:
it would be a defense under the distinguished scholar with an irreverent sense of humor clause that is there somewhere.
6.13.2008 5:16pm
Bill Sommerfeld (www):
Analogies between the internet and the physical world are often strained.

The analogy proposed by Mr. Barnett is that simply deducing the name of a file stored on a server is tantamount to trespass. I simply don't buy that. In particular, I really don't think it would be appropriate to treat it criminally like trespass.

If you don't want something to be public, don't put it on a server which serves it up to anyone who asks for it.

Security by obscurity is not security.
6.13.2008 5:23pm
TDPerkins (mail):


If you don't want something to be public, don't put it on a server which serves it up to anyone who asks for it.


If you don't want something to be public, put it in a place which you pay for and to which you do not invite the public.

Yours, TDP, ml, msl, &pfpp
6.13.2008 5:58pm
josh:
This all sounds great to me ....

And utterly anathema to conservative jurisprudence
6.13.2008 6:08pm
Jon Rowe (mail) (www):
Re the auto-fellatio pic.

The male pictured looked like he could be anywhere between 16 to 22. The male was obviously "fully mature" in a biological sense. Unless someone has smoking gun evidence that this was someone under 18 I'd say there is no way it is child porn and any push to conclude it was would make me seriously rethink my support of said laws.
6.13.2008 6:54pm
Dave N (mail):
Jon Rowe,

I would agree with you, except I think the younger limit might be 14 or 15. Because of the possible age disparity, absent finding actual proof of the young man's age (good luck with that), I think there is probable cause that the picture is child pornography but not proof beyond a reasonable doubt that it is.
6.13.2008 7:04pm
Mike S.:
In addition to being the name of a university, Yale is an old jewish name. I believe it is a Yiddish pronunciation of "Joel"
6.13.2008 7:22pm
Dilan Esper (mail) (www):
I will also remind everyone that not only is ANY photograph of sexually explicit conduct involving a minor child pornography under federal law (Professor Kerr is wrong about the Ninth Circuit test-- that only relates to nude photographs, not sexually explicit ones), but the photo likely constitutes child pornography under state law as well, unless this really is a photo of an adult who just looks underage.

And to view the image, you have to possess it, because a copy will be saved (albeit temporarily) on your computer.

Again, I would caution people that this shouldn't be on the internet, it shouldn't be viewed, and Judge Kozinski may end up in a lot of trouble for it if it is what I think it is.
6.13.2008 7:35pm
NickM (mail) (www):
I always figured that Judge Kozinski named his son after Prof. Yale Kamisar.

Nick
6.13.2008 7:37pm
Jon Rowe (mail) (www):
Dilan,

If you are right then child pornography laws are in need of serious reform so that only images where the viewer/possessor knows that the actor is underaged qualify which certainly is not the case regarding the linked image.
6.13.2008 7:49pm
Dilan Esper (mail) (www):
Jon:

Technically, under United States v. X-Citement Video, there is a scienter requirement with respect to age. But like any such scienter requirement, it just means the prosecution has to prove, and can prove with circumstantial evidence if it wishes to, that the defendant knew the person depicted is underage.

While that could potentially result in a not guilty verdict if a jury believes the defendant's claim, it's not something that presents a reliable safe harbor for one's conduct with respect to these sorts of images.
6.13.2008 7:55pm
Dave N (mail):
I rhink that the scienter requirement would likely be a "reasonable person" knowing that a picture was of someone under the age of 18. For someone pre-pubescent it is fairly easy. You do not need an expert to testify that a child showing no signs of sexual maturity is under the age of 18.

Likewise, if the person depicted is in the first stages of puberty, there are demonstrable, observable signs that the person is sexually immature or just becoming sexually mature.

However, when dealing with a post-pubescent adolescent, it becomes much, much harder. In that context, there is more of a defense for possessing a picture depicting a 17 year old who looks 19 than a 17 year old who looks 15. And likewise, there is more need for expert opinion that the person depicted is truly under 18 in order for the jury to have sufficient evidence to find guilt beyond a reasonable doubt.
6.13.2008 8:11pm
Kazinski:
Dilan,
Kind of reminds me of my trip to Spain a couple of weeks ago. I was on a beach and a group of topless girls about 15 - 17 were sitting less than 20 ft from me. I could ogle them as much as I liked, if their standards were low enough I could legally have sex with them (Spain's age of consent is 13), but God help me if I take my camera out and take a grainy out of focus picture of them because my ass would be going to jail if I try to bring it back in the country.
6.13.2008 8:12pm
Jon Rowe (mail) (www):
There is no way to "know" that the actor in the linked to image is under 18 unless you specifically knew the person to be (i.e., I know that to be Billy X who lives down the street and is 15) The problem is there are plenty of 18 year olds who look "youngish" and plenty of 14-17 year olds who can pass for 18 (think of pro-golfer Michele Wie who was 6-foot tall and playing professional golf when she was 13). If the actor is clearly pre-puberty in development or hovering around puberty (not the case here) then it seems to me, the scienter requirement could be met. However, if the actor turns out to be a fully developed 15-year-old, I don't see how a viewer could be responsible for knowing that fact unless child porn laws were strict liability in intent.
6.13.2008 8:12pm
Dilan Esper (mail) (www):
Jon and Dave:

Basically, your knowledge will be a jury question (unless the Court decides to take it from the jury on the ground that no reasonable jury could find beyond a reasonable doubt that you knew the boy was under 18).

Again, I am not saying this defense will not prevail much or most of the time-- it very well might-- but simply that it isn't really a safe harbor. It is perfectly possible to be convicted for possessing a picture of a 17 year old kid engaging in sexual conduct, if the jury decides that you could tell that he was 17.
6.13.2008 8:24pm
JnoSwift (mail):
Much of this discussion has focused on the issue of privacy; some of it has also focused on the possible illegality of some of the pictures. Isn't a first amendment question also presented? Judge Kozinski's status has obscured this issue. The outrage over the content--expressed with the same sincerity as the prefect's shock over gambling at Rick's Cafe Americain--is similar to the calls to condemn speech merely because some group might find it offensive. The content is what makes the speech the issue--questions of treatment of women or sexual conduct by minors. If these were just your run-of-the-mill-dirty-jokes, would anyone really care? Since some subgroup out there believes they are not run of the mill dirty jokes, should we care?

My own view is that we are far better off allowing some folks to be offended than to risk stifling the free exchange of ideas. I for one think that the donkey video is hilarious, and that we are better off as a society for it having been made and distributed. I will never, ever pull off the side of the road to relieve myself on another's property.
6.13.2008 8:27pm
Dave N (mail):
And only vaguely off-topic to the kiddy porn discussion, today singer R. Kelly was acquitted of possession of child pornography charges even though the evidence seems rather substantial:
R. Kelly's child pornography trial wasn't very complicated. On one side, you've got a 27-minute sex tape. This tape shows a man who looks like R. Kelly giving money to, having sex with, and urinating on someone who looks like his goddaughter, a girl who would've been around 14 at the time. All of this takes place in a log-cabin-style sauna room that looks exactly like R. Kelly's log-cabin-style sauna room. On the other side, you've got the Shaggy defense (It wasn't me!), the Little Man defense (It's my head on some other dude's body!), the Sparkle defense (I was framed by a bunch of money-grubbing lowlifes!), and the "ghost sex" defense (I'm actually not sure what the point of this one was, but there were headless people having sex and it was weird and creepy). On Thursday, the jury retired to weigh the evidence. On Friday, they emerged with a verdict: not guilty on all counts. R. Kelly walks, and Little Man becomes the first Wayans brothers movie to contribute to a man's welfare.
If anything, this case demonstrates the difficulty in proving a child pornograhy case.
6.13.2008 8:34pm
Ex-Fed (mail) (www):
The process of finding analogies sometimes clouds the analysis of the original event.

How about this one: I have an 800 number that anyone can dial. There's a greeting at the beginning telling you to press one if you want to hear about my resume, press two if you want to hear about my kids, press three if you want to hear my analysis of the Presidential race, etc. Sometimes I give out this number and invite people to dial it and push four or eight or twelve to hear a particular thought I've recorded, because I'm smart an famous and people like to listen to my thoughts.

I've recorded intimate conversations with my wife and left them for my own use on the system. It's only accessible if you press two-four-six-zero-one, which is not one of the menu options announced at the beginning of the call, and which I've never given out. That's how I access it from my phone line. It didn't occur to me that anyone else could reach it by dialing that code, but I didn't educate myself about the system sufficiently to foresee it. Someone guesses the number --- or painstakingly tries each number until he discovers it. Is that a violation of my privacy, an intrusion?
6.13.2008 8:37pm
David M. Nieporent (www):
Again, I am not saying this defense will not prevail much or most of the time-- it very well might-- but simply that it isn't really a safe harbor. It is perfectly possible to be convicted for possessing a picture of a 17 year old kid engaging in sexual conduct, if the jury decides that you could tell that he was 17.
And if you had downloaded it from "KiddiePr0n.com" after clicking on a link that said "Lol!ta Pix Here!!!!!!!", it would be relatively easy to show scienter. But given that this picture is clearly meant to be one of those humorous pictures forwarded around the internet, and not intended to appeal to prurient interest, and assuming it's the only one someone possessed, a prosecutor would have to be crazy to bring a prosecution based on it.
6.13.2008 8:51pm
Dave N (mail):
David M. Nieporent makes an excellent point. In the training I have had in prosecuting cybercrime, I was taught to look at the how the pictures are stored on the computer--as well as the actual number of photographs to provide proof of scienter.

No prosecutor worth his salt is going to prosecute for kiddie porn found in a normally inaccessible cache or for a single picture (like this one) where there is a genuine question regarding whether the person is or is not under the age of 18.
6.13.2008 9:17pm
Dave N (mail):
Btw,

I am curious regarding the hash value of the picture in question and whether the National Center for Missing and Exploited Children has it classified as child pornography.
6.13.2008 9:19pm
Dilan Esper (mail) (www):
Dave N:

But the problem is, that's not a reliable safe harbor. The best policy for a citizen is stay far clear of this stuff, because you don't want to be relying on prosecutorial discretion in situations where a jury COULD find against you.
6.13.2008 9:41pm
L.A. Brave:
Dilan Esper:
Can't you say that about anything? Never act unreasonably, because you might commit a tort and be liable? Don't speed because you could cause a 10 car pile up and be liable for extensive damages? At every moment I need to consider how a hypothetical jury might construe the actions I am taking?

Who operates their life that way? Should I save this image on my computer? Someone with a vendetta might spend a month looking for questionable content on my reasonably well secured website. And on top of that, if someone with a vendetta does look for questionable conduct on my computer, and finds a flaw in my reasonably well secured website, some conceivable jury could find me guilty of some conceivable crime for that content.
6.13.2008 10:34pm
fishbane (mail):
There is no way to "know" that the actor in the linked to image is under 18 unless you specifically knew the person to be (i.e., I know that to be Billy X who lives down the street and is 15) The problem is there are plenty of 18 year olds who look "youngish" and plenty of 14-17 year olds who can pass for 18 (think of pro-golfer Michele Wie who was 6-foot tall and playing professional golf when she was 13).

But this isn't a defense against publishing the photo without supporting information and some other hoops to jump through. Folks in this thread should look at Title 18, U.S.C. 2257.
6.13.2008 10:56pm
whit:

If anything, this case demonstrates the difficulty in proving a child pornograhy case.


not really. the case was weak as hell. certainly reasonable doubt in my mind.

1) the "victim" claims it wasn't her on the tape
2) several people who know the victim say it isn't her
3) the only 'proof' that it is her comes from other people who know her who say it is her
4) r kelly said it wasn't him on the tape

etc.

sorry. but the case SCREAMED reasonable doubt.

i've been involved in child porn cases. they are not "hard to prove". in many cases they are quite simple, since many morons leave incredible amounts of evidence on their computers, digital cameras, etc.

that wasn't the case here. based on what i have read of the case, the jury made the right decision.
6.13.2008 11:28pm
Pron:
I have viewed porn on some of the free porno sites that is similar to youtube. You can not tell a person's age just by looking at photos or a video. You could be off anywhere from 1 to 15 years. At my local Safeway grocery store, they said they will ask for ID for anyone up to 35 years of age. I was asked for an ID when I was 36?! Crazy isn't it? I have seem viewed some videos in free porn sites such as youporn, xporn, pornotube, etc. Some of them pepole looked very young, but I seriously doubt, they are underage.
6.14.2008 12:38am
LM (mail):

Some of them pepole looked very young, but I seriously doubt, they are underage.

Why? If those sites are like Youtube, where people post their own videos, I'd think there'd be a higher risk of underage material than in commercial productions, the producers of which I assume meticulously avoid criminal liability.
6.14.2008 12:47am
David M. Nieporent (www):
But this isn't a defense against publishing the photo without supporting information and some other hoops to jump through. Folks in this thread should look at Title 18, U.S.C. 2257.
2257 does not apply to person who merely passes along a picture he receives.
6.14.2008 5:02am
fishbane (mail):
David - putting pictures online that are accessible to anyone who looks for them (I think being indexed by Google qualifies there) seems to satisfy this:

Whoever produces any book, magazine, periodical, film, videotape, or other matter which—
(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and
(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;
shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.


Am I missing something? I see no qualification for intent in the statute.
6.14.2008 11:51am
LM (mail):

Am I missing something?

I assume "produces" means "creates," not "put[s] pictures online that are accessible to anyone who looks for them." But I haven't read any cases.
6.14.2008 1:29pm
fishbane (mail):
I assume "produces" means "creates," not "put[s] pictures online that are accessible to anyone who looks for them." But I haven't read any cases.

I know that porn sites are extremely paranoid about providing 2257 information, and many of them don't produce (create) original images - they purchase them from upstream bulk providers, in sort of the same way that the AP provides news to lots of newspapers (more "batch" than "streaming", but basically the same model).

So the question remains.
6.14.2008 1:48pm
fishbane (mail):
Also, as Orin can elaborate upon, "passing on" a physical picture is different than uploading an item, which involves copying. I very am far from an expert here, but courts seem to see digital reproduction (especially googlable, thus public replication) in a different light than loaning a magazine.
6.14.2008 3:27pm
Dilan Esper (mail) (www):
Can't you say that about anything? Never act unreasonably, because you might commit a tort and be liable? Don't speed because you could cause a 10 car pile up and be liable for extensive damages? At every moment I need to consider how a hypothetical jury might construe the actions I am taking?

The difference is the stakes are higher.
6.14.2008 10:58pm