Screaming Penguin - Source Does Matter

Larry Lessig is, for lack of a better word, a hero of mine. Really. I can think of very few people alive today I have more respect for. He has, however, completely jumped the shark with this one.

To summarize the events in question, a judge in an obscenity trial got busted with porn on his website. Basically the story goes something like this: Kozinski's (adult) son put the material on his site, but it wasn't linked. It was "discovered" through the directory indexes on the site. Basically, rather than following links, someone went to the "/images/" path and BOOM, porn.

Now, I tend to sympathize with Lessig's stance here: this is crap. Really, who cares. Quite frankly I care less about the porn than the fact that, in our current climate, someone should be tagging the judge with copyright infringement. However, in reaching for a way to back up what is the obvious conclusion that, "this shouldn't be a deal," Lessig goes completely bonkers:

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 is crap, but before I really get into this, I want to include a bit of his follow up, so we can be perfectly clear on how he is describing this transgression against Judge Kozinsky...

Privacy is not determined by technology: The core point that's important to me here is to reject the sense many have that "privacy" is that stuff you can't get access to technically. So something's private if encrypted, but if there's a way for me to hack into it, it is public. I reject that sense of the norm of privacy. Think of a party line telephone. Anyone on the party line had a simple ability to pick up the telephone and listen to any conversation going on. But if you did that, others would rightly call you a louse. You had invaded the privacy of the people having a telephone call, even though it was technically trivial to listen to that private conversation.

This FTP server was improperly configured (given its use): Though you could access this (or practically any) FTP site through the web, this was not a web site. It was a file server. Just like the server that contains the files for this blog, that means it enables people to get access to files. But it also enables the maintainer to control who gets access to what files. So with this blog, if you download a file I've linked from the blog, you can easily figure out what directory that file is located in. But you can't (without serious hacking) see the other files in that directory, or see the directory structure. That's because those friends who have helped me set this up have disabled that ability. Yale Kozinski apparently didn't with the Kozinski server. So again, as with the party line, it was trivial to see all the files in any particular directory, or the directory structure. But that doesn't make peddling the list of stuff kept on the server to news organizations not a violation of privacy.

Metaphors are metaphors.: My original metaphor here was about someone jiggering a lock and breaking in. That was a metaphor. As with any metaphor, there are an infinite number of ways the metaphor is like the particular example, and an infinite number of ways it is unlike the particular example. The parts I found analogous were these: like someone breaking in, the litigant went where he wasn't invited; like someone breaking in, the litigant found stuff in a place anyone could have placed it; like the den where anyone could place stuff, you can't know who is responsible for whatever is there; like the den in a private house, privacy means not having to defend or explain what is in your den. As I explained in the comments, I didn't mean the metaphor to suggest the litigant was a criminal for trespassing. As many of you know, I am not a believer in the trespass theory of cyberspace. But just because you're not a criminal doesn't mean you're not a chump.

So I want to alter Lessig's metaphor: This was more like a class building in public akin to the pyramid at the Louvre with a sign that says "ONLY LOOK IN THIS WINDOW". When you connect a computer to the internet, the assumption is that it is public. This goes to the reasoning behind image search legality, search index legality and a number of other issues for which Lessig should be intimately familiar. There is an implicit grant of "public" to anything you put on a public server. Now, ANY technological means, however feeble, you put to restrict access to your server should be honored with the full force of the law. However, failing to do so, doesn't make you a "victim." It makes you a moron.

We have seen this kind of crap before. the idiocy at Harvard assuming that a URL was "private" because they didn't "tell" someone about it was profoundly stupid. The idea that using unsecured, advertised WiFi is a crime is equally stupid. What both of these have in common is the perspective of trespass. To be in violation of some reasonable standard of property, any of these should require some kind of posting. Since the internet, or the airwaves, freely bring anything into anyones sphere, it is only logical to assume that they are public.

To reach back to my glass pyramid for a moment, if they only want people to look into one window, they would put up some curtains.

To say that "typing a URL into your browser" represents even the most trivial circumvention of an access control is stupid. You might as well say, "Since I didn't give you my address, you are trespassing on my property by driving to my address and looking at my house." Nobody ever left the "public" space of the Internet or the airwaves. They certainly didn't jump a proverbial fence or jimmy a proverbial window lock.

What happened to the judge here is an injustice, I agree. But not one committed by the person who found the material on a server somewhere. It was committed by the idiocy of a society that hasn't yet come to terms with the fact that the internet is going to redefine privacy in new ways. The threat doesn't come from people "stealing" your privacy, but from your willingly giving it up.

Bill O'Reilly has a hard-on this week about a story of some high school kids emailing around naked pictures of each other. For once, I am at least in half hearted agreement with him that this is a story. The problem is, the story isn't the moral decay of our youth -- kids will *cough* play doctor in whatever means the current decade gives them. The real issue here is that these photos are never going to go away. Once it is in "The Google", or "A Google", that you have sent "An Internet" around with a naked picture of yourself, it will never go away. This judge's plight represents, as a great man once said, the future unevenly distributed. The next generation is going to have to live with the reality that every horrible thing said about them on a highschooler's blog, every embarrassing photo of them drunk at a party, everything, is going to live forever. There is no stopping this. Legislation, even legislation in the form of code, to borrow from Lessig's own work, can't change this fact now. We, however, as a society need to just grow up a little and take it for granted that everyone has some stupid shit on their web site. Everyone did something dumb in college, or if you are the president, the whole time from 18 to 40 that you won't talk about.

Letting stupid shit online keep someone out of a job is insane. Those of us who didn't grow up with the internet are going to have to get used to it. Even young-old-codgers like me came to terms with the fact that DejaNews/Google Groups preserved every stupid thing we posted online when we were 12 years ago. The Brownian motion of the future continues to work, and I suspect in a few more years, we will be at that place. For the time being, however, we can only look at situations like these and shake our heads.