Top Silicon Valley tech battle judge probed over sex pest claims

Alex Kozinski accused of showing women clerks porn, sexually harassing staff

Judge

A misconduct inquiry has been opened into top US tech judge Alex Kozinski over allegations that he showed female law clerks pornography and repeatedly asked inappropriate sexual questions.

The inquiry was announced [PDF] Friday by the chief judge of the Ninth Circuit, Sidney R. Thomas, who noted that a formal complaint had been lodged against Kozinski "based on allegations contained in a Washington Post article."

That article earlier this month detailed allegations from six women, all former clerks to the influential judge or junior staffers at California's Ninth Circuit court, who claimed Kozinski had "subjected them to a range of inappropriate sexual conduct or comments."

In one case, a former clerk said she was called into his office several times and shown pornography on his computer, then asked if it aroused her. A different clerk recalled how Kozinski repeatedly suggested she exercise naked at the courthouse gym. Others complained about being ogled and made to feel uncomfortable by sexually suggestive and inappropriate comments about their bodies and sex lives.

Since the article came out, a number of other women have also come forward to allege similar behavior and commented on the "hypersexualized world" that existed within his chambers.

Uh-oh

The allegations have also revived a story from 2008 in which Kozinski was found to be hosting pornographic material on his own website and running an email list that was used to send crude sexual jokes.

Kozinski's antics led to him recusing himself from an important case – United States v. Isaacs. It was an obscenity case in which the accused was charged with distributing bestiality pictures and videos – videos that Kozinski hosted on his personal website at alex.kozinski.com.

Examples included naked women painted to look like cows, a video of a half-naked man running away from an erect donkey, and various pissing/shitting pictures and videos.

When the publicly available content was discovered and raised in court, Kozinski defended some of the content as being "funny", then argued it may have been posted by his son, then gave himself 48 hours to review whether the situation represented a conflicts of interest, then recused himself.

A subsequent judicial misconduct hearing cleared him [PDF] of any wrongdoing – to no one's surprise at the time. A year later, he was accused of disabling controls on the appeals court's computer systems in order to download porn.

Kozinski is widely regarded as one of the most important senior judges in the US legal system, particularly when it comes to technology issues.

Sitting on the Ninth Circuit, based in California, he helps decide many of the cutting-edge cases brought against both tech firms and content companies based in Silicon Valley and Hollywood respectively.

Clarity

His judgments are closely followed and noted for their combination of humor and clarity. He is renowned for seeing clearly the future implications of legal judgments on emerging technology, and for standing up to flawed current practices.

In one case – White v. Samsung Electronics America – Kozinski famously dissented for a decision to rehear an appeal against Samsung which had used a robot in a funny ad that took place on a set similar to the game show Wheel of Fortune. Game show hostess Vanna White brought the case arguing that the robot was stealing her image, and the court agreed.

Kozinski did not. "One is Vanna White," he said. "The other is a robot. No one could reasonably confuse the two." He went on to argue that "all creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy."

He then poked fun at himself and the court noting that "for better or worse, we are the Court of Appeals for the Hollywood Circuit."

That was back in 1993 and was extraordinarily prescient given the creative explosion that subsequently happened as digital technology and the internet made it far easier to grab, reuse and mash-up content.

In a second, related case – Wendt vs Host International, where robots were used that looked like characters in the TV show Cheers and were placed in airport bars – Kozinski started off his dissent with the note "Robots again" and made his case a second time.

In another case, concerning the theft of the domain name Sex.com, Kozinski broke with the legal consensus of the time and decided that an address on the communications network could in fact be property. It changed the course of internet law.

And more

Other notable cases have included Roommates.com and Perfect 10 vs Visa. In those cases, and many others, Kozinski repeatedly proved his tech saviness and understanding of cutting-edge technology, giving him the reputation in the tech industry of a judge who was trying to understand what direction the law needed to move, rather than the overly cautious or occasionally Luddite approach taken by less savvy judges.

In one case, he famously referenced John Perry Barlow's "A Declaration of the Independence of Cyberspace" – a manifesto of sorts for the internet generation – and then tore it to pieces by rejecting the notion that the internet was somehow separate from the rest of the world and special.

"Technological innovations give us new capabilities, but they don’t change the fundamental ways that humans deal with each other," Kozinski argued, noting wisely that "when the internet is involved in a controversy only because the parties happened to use it to communicate, new legal rules will rarely be necessary."

In many ways, that opinion has forged the legal direction of internet technologies ever since.

Another of his dissents – much criticized at the time – is also slowly becoming accepted as correct. Kozinski repeatedly rejected the notion that third parties online were not in any way liable for actions carried out by others.

Financial service providers – FSPs – were given a complete pass for the transactions carried out over their networks. In this case, it was pornography again – Perfect 10. The company sued Visa because it was allowing the processing of payments to websites that were hosting Perfect 10's content without permission.

The court held that Visa could not be responsible. Kozinski was not persuaded and argued, with an amusing play on words, that: "If cards don't process payment, pirates don’t deliver booty." He argued FSPs could be viewed as the same as bagmen for illegal details and should be held responsible.

Future

As time goes on, the once unassailable position that third parties cannot in any way be held liable is slowly eroding. Most recently is the Backpage.com situation – where the tech industry recently backed down from an absolute position and agreed that child exploitation and prostitution was something that they would need to be held more responsible for tackling.

And then of course there is the coming fight over companies like Facebook being told to take greater responsibility for the content that appears on its platform in the light of fake news, or face new legislation.

In short, Kozinski is one of the most important judges in the United States – and hence the world – when it comes to understanding the legal context in which new and disruptive technologies need to be positioned in order to ensure they can thrive, without damaging society.

Which makes it that much sadder that he has been accused by numerous women of sexual misconduct.

In a statement following the original story – a statement that the judge has since declined to update – Kozinski said: "I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done."

He also told the Los Angeles Times: "I don’t remember ever showing pornographic material to my clerks," adding, "if this is all they are able to dredge up after 35 years, I am not too worried." ®




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