Kozinski and Community: What's Decent in a Connected World?

The case of Judge Alex Kozinski has a lot to teach us about privacy and community standards on the Internet.

Here’s a quick summary of events so far: Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals, was presiding over an obscenity case when the LA Times reported that the judge was hosting sexually explicit images on his own, publicly accessible, web site.

As Lawrence Lessig explains in a good overview of the situation, the judge sent a link to a file on his server. The server wasn’t very well configured: Visitors could browse its directories at will, even though Kozinski told the LA Times he “was not aware the images could be seen by the public.” A disgruntled plaintiff forwarded a variety of material to the press.

Kozinski requested an investigation into the situation, then subsequently removed himself from the proceedings of the original obscenity case. As he told the San Jose Mercury News earlier this week, “A lot of this is OK in private but looks awful put into the public.”

The situation reveals two major issues we have to come to terms with as a society, and even as a species, as we connect ourselves to the global Internet and one another.

The first is intended privacy. We use many systems to store personal information, both private and public. It’s easy to get them mixed up. The privacy the publisher intended, not that which the meddler was able to obtain, should be what matters. The fact that the server was readable doesn’t mean the judge intended to share the materials; it was a misconfiguration.

The second is that of community decency. As Lessig points notes, a Playboy magazine on the table is “a legal publication, harmless in the eyes of some, scandalous in the eyes of others.” We judge what’s acceptable based on the standards put forth by the community in which we live. Nude sunbathing is fine on the Riviera, verboten in the Vatican. The act of taking an adult magazine, or a viral video, out of the house and into the community changes the standards to which it is compared. Put it on the Internet and someone’s bound to be offended.

When the disgruntled plaintiff put content that was intended to be private into a public place, he changed the standard to which it would be held. That doesn’t mean the judge should have to tailor his private material to the public Internet. If there’s something genuinely illegal going on, then we have legal systems to investigate and expose it, but those systems aren’t meant to tar and feather those with whom we merely disagree.

The web broadens our community of standards to include that of the whole world. Leaky privacy means someone’s personal predilections and closed-door kink can be held up to the most offended audience in the world: The Internet. Often, a minority of vocal objectors sets the tone for the “community” because it’s an open-access medium. Those same critics aren’t able to take an adult film from Cinemax, screen it on Nickelodeon, and then cry foul. But as things stand, they can take a person’s content and make sure it shows up on the nightly news.

Whether the judge was right or wrong, we need to revise our definition of community and privacy if we’re to live together in a connected world.