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Kozinski:

I've tried to avoid blogging about the Judge Kozinski story, because I'm so obviously biased on the subject. I clerked for the Judge. The Judge officiated at my wedding. I talk to him often. I consider him a close friend, he's taught me a huge amount, and he's helped me tremendously in my career, and not just by giving me a valuable credential. What I say on the matter will naturally and properly be discounted because of my bias. Still, I can't help myself any longer, so I'll pass along what I think, and you can give it whatever credit you think is due.

Here's what seems to me to have happened:

A lawyer (Cyrus Sanai) who has long had a grudge against Judge Kozinski finds out that the Kozinski family has a network server with various files on it. The controversial files on that server aren't linked to from the Web, and aren't indexed on search engines. They are generally meant only for family members and a few other people who get specific pointers to them. [UPDATE: Patterico reports that the directory's index was available on Yahoo, though apparently not Google, deep in the results of a search for "alex.kozinski.com"; I presume this was because of some error in kozinski.com's robots.txt file. The lawyer, though, didn't find the files this way, and the files themselves weren't indexed.]

But the lawyer figures out the private server's internal directory structure, rummages around, finds some of the files, and downloads them. And some of the files contain what is basically — if what I saw at Patterico's site is representative — visual sexual humor. There are some spoofs, for instance of the MasterCard commercials, some puns, some absurdities. Kozinski, or someone in his family, apparently got them sent to him, and decided to save them alongside a bunch of other stuff he found interesting or amusing.

Now the fruit of this disgruntled lawyer's rummaging through someone else's personal files somehow becomes a national news story. Why? Because Kozinski is presiding over an obscenity trial? All this stuff — the sort of sexual humor that gets circulated all the time — is not remotely in the same league as what the defendant is being criminally prosecuted for. Recall that the defendant is being prosecuted precisely because his sex-and-defecation movies are so far out even by modern standards of actual pornography. Sanai's discoveries are similar to someone's finding that a judge who's presiding over a drunk driving trial has some screw-top bottles of rosé wine in his cupboard at home, shamelessly displayed in a way that the whole world can see them, if the whole world stands on its tiptoes and peers through a back window. The news value of that would be what, exactly? (Yes, I know screw-tops are becoming legit, but pretend it's ten years ago.)

OK, people are saying, it was careless of Kozinski not to make sure that the site (which was apparently managed by one of Kozinski's grown sons) was properly secured. Sure, in retrospect, whenever something leads to this sort of media circus, by definition one would have been wise to take more care to prevent it. But surely even otherwise reasonable people might fail to plan for their enemies' rummaging around through the files on a private family server.

It's kind of like your parking your car on the street, locking it, but forgetting to close a back window — or like your throwing out something in the trash without shredding it and leaving the trash cans by the curb. Then someone who has a grudge against you comes by and starts using the open window to rummage around in the stuff you have piled up in the back seat, or starts rummaging through your trash. (Note that to my knowledge such rummaging probably isn't even a crime in many places.)

Lo and behold, one of the items your enemy finds is a notebook in which you've pasted some visual sex jokes that people have sent you. He takes pictures of all the pages and then runs to the newspaper; because of your high-profile job, the newspapers all cover this. Should you have closed the back window? Should you have shredded the stuff before putting in the trash? In retrospect, sure. But how many of us live like that in everything we do?

Jeez, folks, Kozinski has a quirky sense of humor, and keeps some joke pictures and videos on his computer rather than throwing them away. I'm sure they aren't the kinds of things some people would enjoy seeing. But he wasn't trying to show them to those people! He was just minding his own business, keeping some files on his own private server. And now it's a national news story.

Enough already. As Larry Lessig puts it, no-one should be put in the position of "hav[ing] to defend publicly private choices and taste" in a situation like this. We should all leave Kozinski to his own privately expressed sense of humor, as we'd like the world to leave us to ours.

FantasiaWHT:

Some are some spoofs, for instance of the MasterCard commercials


The "Priceless" ones? Those are great.

Yeah, I completely agree. Way off base here. My first impression from the story was that this was some government, court, or official website of some kind, or at least that he was using work computers for it, but none of that appears to be the case.
6.13.2008 2:45pm
Impeach Kennedy (mail):
Hear, hear.
6.13.2008 2:46pm
taney71:
Well said!
6.13.2008 2:47pm
NickM (mail) (www):
Is picture of nude women painted to look like cows degrading, or incisive social commentary? It sounds like something you might find in a performance art exhibition.

Nick
6.13.2008 2:48pm
jrww (mail):
I am a big fan of privacy, too, but obviously there needs to be a formal investigation to determine, among other things, whether any of the images constitute child pornography. At least one of those images does raise that possibility. (This is discussed in the comments in another recent post, so I won't repeat it here.)

Kudos to Judge Kozinski for inviting an investigation of himself yesterday.
6.13.2008 2:50pm
MPP (mail):
I don't think your comments show bias; they show reason. Kozinski has done nothing wrong. Those trying to impugn his judgment or ability to fairly review an obscenity case are either: (1) desperate, (2) malicious, or (3)severely misguided.
6.13.2008 2:51pm
gwinje:
Screw-tops may work, but unscrewing a bottle of wine is like nails on a calk board for me.

Application fees: $1000
LSAT fee: $150
Tuition and fees: $100K
Room and Board: $50K
Finding out you have the same sense of humor as the wittiest guy on the ninth circuit: Priceless
6.13.2008 2:53pm
L.A. Brave:
The whole thing is way overblown, and the LA Times reporting on it was very deceptive. It borders on false light to suggest that there video of a "half-dressed man cavorting with a sexually aroused farm animal," obviously trying to make a connection with the bestiality allegations in the trial he is presiding over.

Once you see the actual video, however, a better description would be "a popular internet clip of a man being chased by a farm animal after he stopped to relive himself on the side of the road."

I don't see a false light claim getting anywhere against the paper (no malice), and not against Sanai (he just handed the material over).

Has anyone brought an intrusion claim based on an internet "prying"? If someone snoops around and gets to your personal, private computer files, that sure seems like a basis for a claim.
6.13.2008 2:54pm
gwinje:
chalk
6.13.2008 2:54pm
William Spieler (mail) (www):
a) The explosion of comments on Randy's post suggests that there was certainly some pent-up desire to talk about this topic among your readership.
6.13.2008 2:55pm
Witness (mail):
I like your analogy better than Lessig's.
6.13.2008 2:56pm
NE2d:

All this stuff -- the sort of sexual humor that gets circulated all the time -- is not remotely in the same league as what the defendant is being criminally prosecuted for. Recall that the defendant is being prosecuted precisely because his sex-and-defecation movies are so far out even by modern standards of actual pornography.

Sounds like someone hasn't seen the most widely circulated and famous video on the internet.
6.13.2008 2:56pm
William Spieler (mail) (www):
Well, second-most, at least. It'd be third-most if some brave soul were to create 2girls1rickroll, which could destroy the world as we know it.
6.13.2008 3:00pm
L.A. Brave:
NE2d: I wonder "2 Girls 1 Cup" would be deemed obscene at this point. It is such a powerful and pervasive meme that it probably commands "serious artistic value" now.
6.13.2008 3:02pm
alkali (mail):
Judge Kozinski gets props from this lefty for being the kind of judge who notices that prosecutors and police offices sometimes step over the line. I wouldn't wish this melodrama on anyone, but if it had to happen it's a shame it couldn't be visited on a judge (left or right) who lacks Kozinksi's healthy respect for freedom of speech and thought, and for privacy.
6.13.2008 3:04pm
Gary Anderson (mail):
Close Eugene, but no cigar. You're downplaying the man's right to his choice of adolescent porn. Instead of: "We should all leave Kozinski to his own privately expressed sense of humor, as we'd like the world to leave us to ours.", your post would have been much weightier if you had defended his choice of smut. Who cares?

The thing I object to, is do we all need to know that some of our esteemed professional "thinkers" are really only half-grown men? This is a non-story, but surely it tells us something about Kozinski's character, and his kinda twisted family relationship. (In my day, fathers and sons operated independently.)

So his reputation suffers, and the world realizes that just because you're smart, you still might have adolescent tastes in "naughty" sex. Diminishes the office sure, but the ideal of a well-developed grownup man has pretty much gone out the window these last decades. He really got off on "collecting" this stuff, huh? Emotional v. intellectual maturity, I guess. And a good reason not to elevate those pedastals too high... give me a grown up man over this kind of guy any day. But sure, he can still do the job he's being paid to do...

That boy Yale, though, he needs to grown up and get independent and not be sharing his stage in life so much with his Daddy. Hopefully that's still the way it goes in most families
6.13.2008 3:06pm
NickM (mail) (www):
Well, the missing "the" in the first sentence of my last post makes me sound like a recent immigrant from Eastern Europe. :-/

By reading comments on Patterico's blog (Eugene linked to Overlawyered, which links to Patterico), I find out that that picture came from a foreign edition of Playboy magazine. I also learned that a number of people are so clueless as to not just First Amendment law, but the ordinary meanings of words, that they think a picture of a radio host in a Halloween costume (priest costume, with rag doll designed to resemble a young boy facing it and attached to the crotch) was actually a graphic depiction of sex with a minor.

Nick
6.13.2008 3:08pm
Patterico (mail) (www):
"The controversial files on that server aren't linked to from the Web, and aren't indexed on search engines."

A couple of the .mp3 files were linked by an .mp3 site. You can still see this if you run "alex.kozinski.com" through Google. This is how Cyrus Sanai discovered the structure of the subdirectory.
6.13.2008 3:09pm
Cold Warrior:

Once you see the actual video, however, a better description would be "a popular internet clip of a man being chased by a farm animal after he stopped to relive himself on the side of the road."


Thanks.

Seriously. After reading that LA Times article, I had a very mistaken impression about what we're talking about. In fact, I found it astonishing that someone would put such an image (as described by the LAT) on any kind of website, open or closed. But, of course, that's not what we're talking about.

And thanks to Prof. Volokh for setting the record straight. There is simply no connection between Kozinski's behavior and the behavior of the defendant. Having said that, I think I'd still have to suggest recusal if this were a bench trial, given the whole "I know it when I see it" standard. But query this: wouldn't a complete prude be assumed to have a similar (albeit in the other direction) bias? Should the unusually prudish judge similarly recuse himself?
6.13.2008 3:09pm
PLR:
On the plus side, if we must be inundated by media coverage of celebrity happenings, it's refreshing to see some coverage of a funny and intelligent federal judge, rather than some old sow in rehab for the fourth time.
6.13.2008 3:09pm
Gary Anderson (mail):
I mean, titty talk with your brother (when you're still young and maturing) or your buddy ... sure.

But with your Dad? Let the kids be kids, and the only way they get to do that is if the Daddies realize at some point, it's time to grow up. Not sure how grown up, indeed, some of these public intellectuals really are though, as this little epidode demonstrates.

Is there a woman in Kozinski's life, by chance, or is he among the legions of divorced? Wonder what Yale's mom thinks of this shared ... hobby. Also, were you privvy to the website, EV, had you earlier been directed there?

Inquiring minds want to know...
6.13.2008 3:10pm
ejo:
he is someone allegedly making decisions on the weighty issues of the day-yet he has no sense of shame or propriety. he is, apparently, the intellectual equivalent of the OK judge with the pump under the bench.
6.13.2008 3:10pm
John McE (mail):
Eugene,

Agreed that (a) what Judge Kozinski did is tame, even by comparison to modern network television and (b) his private behavior is immaterial. But reading between the lines of your post ("is not remotely in the same league as what the defendant is being prosecuted for") do I detect a belief that there is a dividing line between "obscene" and "non-obscene" in speech? Because it sounds like the old definition: erotica==what I like; obscenity==what you like.
I have long believed that the concept of obscenity is an anachronism. As it seems more likely that art imitates life than the reverse, almost any act on film is at worst a documentary of something people actually do (to wit, Mapplethorpe). I imagine many things people do would violate the sensibilities of their community, but they are certainly free (post-Lawrence) to do them, and can we really say that the act of documenting these things--an exercise of one of our most fundamental rights--reaches the level of criminality?

This defendant is deliberately trying to push the envelope, but I haven't heard of anything in his films that is outside the realm of (rare, but actual) sexual behavior. It seems that if the making of the films did not violate other laws (animal cruelty, child pornography, assault, rape, murder) then I find it hard to believe that they can still be considered criminal.

I'm reminded of a book by some psychologist that documented the sexual fantasies of a large number of subjects. Many of the fantasies would have violated "community standards" and some would have been downright illegal. The book itself was protected speech. If one were to turn the book into a film (using legal age actors, simulated animals, etc, but real sex) does the same content now become obscene? How and why? Can it be the case that one medium can be intrinsically more obscene than another?

I guess I'd love the opinion of the many distinguished lawyers here as to whether, in the 21st century, there is still room for a concept of (legal) obscenity...
6.13.2008 3:11pm
Gary Anderson (mail):
they think a picture of a radio host in a Halloween costume (priest costume, with rag doll designed to resemble a young boy facing it and attached to the crotch) was actually a graphic depiction of sex with a minor.

*Sigh* The whole world's becoming a bad Adam Sandler/Will Ferrell/Ben Stiller/Mike Meyers flick.

Really guys, try a little growing up. It's not so scary, really. And you might just enjoy the company of grown up women too, with healthy adult senses of humor.

This folks, is not it.
6.13.2008 3:14pm
William Spieler (mail) (www):
John McE:

Well, at least three highly distinguished lawyers thought there wasn't room back in the 20th century (Black, Douglas and Brennan, to my understanding)
6.13.2008 3:15pm
wfjag:

We should all leave Kozinski to his own privately expressed sense of humor, as we'd like the world to leave us to ours.


Don't see a problem with receiving, storing and possibly forwarding a picture that appears to show a minor giving himself a B.J.? Does UNITED STATES v. MICHAEL WILLIAMS,
___ U.S. ___, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (May 19, 2008), cause you to re-consider that conclusion? Or, does it not apply to federal judges and/or their family members.
6.13.2008 3:16pm
Cold Warrior:

Is there a woman in Kozinski's life, by chance, or is he among the legions of divorced?


http://www.specialedlaw.org/Marcy%20Tiffany%20Bio.htm

I have never met Judge Kozinski, but a long time ago I met his wife (I didn't know about the connection at the time), and she struck me as a very kind and intelligent person.
6.13.2008 3:16pm
William Spieler (mail) (www):
Gary:

Not having a well-developed sense of humor (and I'd certainly quibble over your definition of such) is hardly grounds for recusal, much less social opprobrium.

There's plenty of critical commentary on comedy, and I think that your views of comedy are well outside the mainstream critical view.
6.13.2008 3:18pm
GV:
Your post does seem to elide two important points discussed elsewhere. First, it’s not clear that it was legal to possess all of these files. At least one of the pictures is alleged to be child pornography. And there are allegations that some of the music files were illegally downloaded. Second, some of the pictures were degrading to women and the religious. These are clearly not illegal, but judges are held to a higher standard than a requirement to avoid illegality. Judges are expected to both actually be unbiased and also not to even given the appearance of being bias so that the public will continue to have confidence in their judiciary. Judges can’t do lots of things that we allow other people, including other public officials, to do. The presence of the allegations of criminality and the presence of files that might cast some doubt on the judges impartiality might make this story worthy of news coverage.

Finally, I do wonder what the reaction might have been if the judge named were Judge Reinhardt. I don’t think Professor Volokh’s response would have been different, but I suspect other media would have picked up the story. (Next, on Fox News: Liberal judge on crazy Ninth Circuit caught with horribly disgusting images!)
6.13.2008 3:18pm
kiniyakki (mail):
Good assessment. The only comment I would add is that it is unfortunate people rush to think one thing represents everything there is about a person. Gary Anderson believes this incident "surely ... tells us something about Kozinski's character, and his kinda twisted family relationship." Why? Does this really tell you that much about a person's life?
6.13.2008 3:19pm
Ex-Fed (mail) (www):
Prof. Volokh:

1. I don't think him having something pornographic -- even if it becomes public that he had it -- requires recusal.

2. L.A. Brave's clarification of what was in the video that some news sources referred to as "bestiality" secual conduct related to an animal settles my concern about that issue. (If he had something that could reasonably be described as bestiality, and it became public, there's a reasonable argument that his impartiality could be called into question, as the government will likely be arguing before him that bestiality is inherently obscene under the Miller test).

3. I'm a little more concerned about his response to the media questions (even if those questions were uniformed). I understand he said this when asked about the content of the computer: “‘Is it prurient? I don’t know what to tell you,’ he said. ‘I think it’s odd and interesting. It’s part of life.’” The reference to purience is a reference to the elements of the Miller test, it seems. I think that the entire discussion with the media on the issue when the obscenity case was pending was unfortunate, and that discussing purience as applied to such pictures during the trial could arguably call impartiality into question.

But I think it is a subject on which reasonable minds could differ.
6.13.2008 3:26pm
mls (www):
"Finally, I do wonder what the reaction might have been if the judge named were Judge Reinhardt. I don’t think Professor Volokh’s response would have been different, but I suspect other media would have picked up the story. (Next, on Fox News: Liberal judge on crazy Ninth Circuit caught with horribly disgusting images!)"


Actually, Fox had pretty much exactly that segment on Kozinski, although they may have assumed that he was a liberal wacko since he sits on the 9th Circuit.
6.13.2008 3:32pm
tvk:
When I first saw the LAT's description of the offending materials, I thought they were borderline obscene. Whether high-ranking government officials are entitled to privacy depends, for better or worse, on what they do with that privacy. Finding out that our judges have an unfortunate taste for porn is Too Much Information; finding out that our judges have seriously creepy tastes for highly offensive porn, however, would be a different matter in my book, possibly becoming more newsworthy.

For a liberal, and for anyone who criticized the Clinton impeachment on the basis that the prosecutors had no business ever asking whether Clinton had a consensual sexual relationship with an adult intern in the first place (the "if they never asked inappropriate questions, Clinton wouldn't have had to lie about it in the answers" reasoning), which I think includes every LAT editor, there is a serious question of hypocracy here. I cannot see how one can argue that Clinton is entitled to privacy but Kozinski is not.
6.13.2008 3:36pm
Alex Blackwell (mail):
OK, people are saying, it was careless of Kozinski not to make sure that the site (which was apparently managed by one of Kozinski's grown sons) was properly secured. Sure, in retrospect, whenever something leads to this sort of media circus, by definition one would have been wise to take more care to prevent it.

I respect your opinion, Mr. Volokh, and I certainly admire your passionate defense of Chief Judge Kozinski. I would expect nothing less from a former clerk.

I'll offer my $0.02, however.

I disagree with the view that the criticism of the lack of security at alex.kosinski.com is somehow unjustified because it is ex post facto. The fact that someone, even a disgruntled someone, could access a poorly secured website is, in my opinion, entirely foreseeable. If this was Justice Souter, who might still be using a quill pen and writing by candlelight, I might be more sympathetic. But given Chief Judge Kozinski's reputation, deserved or not, as being one of the most tech-savvy jurists (e.g., smoking out David Lat as Article 3 Groupie by sending emails to determine the IP header), I find it hard to believe that he, of all people, would argue that this criticism is unreasonable.
6.13.2008 3:37pm
anonymouseducator:
My issue is with the fact that he thinks a joke that was at best slightly humorous when it first appeared in 1988, at a Key West shirt stand, is "a funny joke."

That's not a quirky sense of humor, its a terrible one.

That said, this whole thing really is a non-story.
6.13.2008 3:40pm
BF (www):
6.13.2008 3:41pm
Gary Anderson (mail):
Not having a well-developed sense of humor (and I'd certainly quibble over your definition of such) is hardly grounds for recusal, much less social opprobrium.

There's plenty of critical commentary on comedy, and I think that your views of comedy are well outside the mainstream critical view.


Tell me about it William. That's my point, exactly. The current "mainstream" human is set at randy steer, fellatio, and fart jokes, it seem. Which surely appeals to the 14-year-olds in the audience...

My theory? If you don't get this stuff at 14, chances are you delay gratification. And thus, when your own boy comes across and starts "collecting", you're in on the game too. Best to let 14 year olds be 14 year olds, and then they don't find themselves stuck on this level of humor years into the future. It's cheap really, and think of all the truly grown up sexual humor and sights you might be missing out on because you're so busy spending time with the boys trading at this level.

Again, I guess you have to know better/see better to understand why it should be kind of embarrassing to admit you wasted file storage space on this stuff. (Not for Yale -- he's still a kid, right? But for his Daddy. "Grow up a bit Judge? -- it's like eating good. It only gets better")
6.13.2008 3:42pm
great unknown (mail):
The true measure of Kozinski's ethical stature and fitness is that he has called for a Board of Ethics investigation of his website. When was the last time a jurist/politician/public figure caught in an ostensibly compromising position has done that?
6.13.2008 3:48pm
Gary Anderson (mail):
Why? Does this really tell you that much about a person's life?

It tells me a lot -- and I suspect I'm very much in the American mainstream on this one -- that father/son allegedly "shared" this material.

Sorry, but I don't think for a minute that's something most American boys and dad's are open about. And personally, I think that's a good thing for the "different stages/growing up" reasons given above.

Just like too many divorced moms from the same generation seem to be a bit too ... intimate with their sons, making them the little men in their lives, I think the generations are better off recognizing there are some traditional family boundary lines that probably should be respected, if you want all parties to grow up in a healthy manner and all.

Father/son shared smut sites? What's next? Buying the kid's condoms for him, and playing wing man at his next party? Grow up boomer mama's and daddies -- your kids deserve their own chance, and if you don't, odds are, they won't .

Fwiw

Btw: I'd be curious what MRS. Volokh thinks of this relevation of the man who married her? Again surely legal and all too human, buy most of us kinda want to preserve that ideal about the mature representation the person who marries us represents.
6.13.2008 3:48pm
gattsuru (mail) (www):
I'm sorry, but I don't quite buy the "publicly private" distinction. We are talking about files with no password protection, IP address whitelisting, or any other real security mechanism on a web site.

There are a lot of options available if you want to keep web page access limited to a certain group of people, or at least require a reasonably hefty amount of time to crack, without getting very technical. The man didn't do so here.

It's not horrible or problematic stuff, but I have a reasonable bit of difficulty finding it to be particularly private.
6.13.2008 3:49pm
William Spieler (mail) (www):
The 1950s called, they want their Gary Anderson back.
6.13.2008 3:50pm
Smokey:
This sort of activity [snitching on someone who represents one of the pillars of our society and government] by the improper and outrageous use of extremely frail, questionable 'evidence', is part and parcel of a larger problem, which encompasses much of what is happening in the West. In earlier decades this kind of baseless character assassination would never have been tolerated by anyone either in the legal profession or in the press. Mr. Sinai should be disbarred for his actions. But this is 2008, so he'll probably skate.

Why? Because we're in the late stages of demoralization. The evidence is everywhere: the complete ownership of Congress by the environmental movement, which deliberately hobbles the country, and while the price of gasoline is absolutely crushing the average working family, by denying use of the hundreds of billions of barrels of recoverable oil under our jurisdiction, and which fights tooth and nail every proposal for clean nuclear power plants, which would provide the cheapest energy by far of all possible alternatives; the radicalization of many of our universities by "politically correct" intolerant faculty tyrants; the fanning of the anti-jewish flames, which are now spreading from the Middle East through the United Nations in direct violation of its Charter; the polarization of every aspect of American politics and jurisprudence, including Judge Kozinsky's casual personal destruction, abetted by a complicit media; the same media's total adulation of a flat-out Marxist presidential candidate, and the daily pass given by its refusal to ask any pointed questions or demand any explanation for questionable statements, proposed policies, actions or associations; the total intolerance of freedom of speech by groups like the UN and Canadian Human Rights Commissions - with the mass-murdering dictator Robert Mugabe, of all people, wielding power; the total and complete corruption of the UN and its propaganda arm, the IPCC proposing a "World Tax" of over $100 billion per year [for starters] to be paid by into the corrupt and opaque UN by U.S. taxpayers; the deliberate gridlock-induced infighting that allows the flood of millions of citizens of foreign nations to continue to rise exponentially year over year - exactly as happened just prior to the Dark Ages, when Rome failed to turn back the illegal Germanic tribes in the 4th - 5th centuries that settled on Roman territory; the corruption of the American voting franchise, allowing citizens of foreign nations to vote on our laws, representatives and taxes, etc., etc. And etc.

I worked at one of the giant U.S. defense contractors for 30 years. Mr. Bezmenov [in the link above] was invited by the Board of Directors to speak to the employees of the company following the fall of the Berlin Wall, and he traveled the country explaining to company employees the inner workings of the Soviet KGB. Mr. Bezmenov gave essentially the same facts in 1992 as he does here, but in much greater detail. He answered every question in a straightforward manner. At the time, company employees [like most everyone] had the feeling that the West had won the Cold War, and it was over. After all, the old Soviet Union had a population of well over 300 million, while Russia today has only about 141 million. Bezmenov asked if anyone believed that by changing the initials "KGB" to "FSB", that the long term KGB plan to demoralize the West, particularly the U.S., had been put on the shelf. He answered his own question by pointing out Yuri Andropov -- KGB officer. And now Russia is controlled by Vladimir Putin, also a high ranking KGB [oh, 'scuse me, an 'FSB'] officer.

It's a shame that Judge Kozinsky is now being devoured by the long term KGB plan, which was initially implemented in the 1950's, after Russia realized that world communism could not be achieved by military force. Their plan has been spectacularly effective, as anyone, such as Judge Kozinsky, can see by looking at the results.
6.13.2008 3:51pm
gwinje:
BF:

For all this, maybe it was just a clever ploy by Kozinski to not have to sit through a trial with hours and hours of bestiality and poo-porn.
6.13.2008 3:53pm
Erick:
The holier than thou BS about senses of humor is really tiresome. If you really can't laugh at any of this you're the one that has a problem. Enjoying cheap fart jokes doesn't mean you can't enjoy better things as well. It also doesn't mean you're a terrible person or you lack judgment. We've got years and years of writings and speeches to judge Kozinski on, why would you go through some tortuous exercise of trying to tie his sense of humor to his worth as a judge or human being when you have much better metrics available?
6.13.2008 3:53pm
L.A. Brave:
Basically, Kozinski has the sense of humor or someone in their mid-20s. Because if you are in your mid-20s you've already seen almost all of these pictures and videos in some form or another. That is because your friends constantly send them to you over email, instant message, and facebook. Really, I'd say most of the stuff is pretty damn tame. I say good for him. Maintaining a good youthful sense of humor is good evidence that you have also maintained "abstract reasoning, short-term memory, and cognitive flexibility."

Gary Anderson: Honestly, you sound like am miserably humorless person. For some reason I'm imagining you as the dad in FCC v. Pacifica Foundation.
6.13.2008 3:53pm
The Ghost of Xmas Past (mail):
My, we are a country of Puritans.

I'm not a fan of Kozinski, so I guess I should be thrilled.. but alas I just think it's another example of people looking for a reason to be morally outraged.
6.13.2008 4:03pm
Chris Newman (mail):
I'm perplexed by this recurring claim that certain pictures were "degrading to women and the religious." Why should every depiction or criticism of an individual be treated as an implied assertion about the entire group or one's attitude toward an entire group? Why are pictures making fun of the Catholic church's pedophilic priest scandal "degrading" to the "religious" in general? How does a silly or sexually explicit picture of a woman imply that all women are to be regarded in that way, or that this way of looking at a woman (even the woman depicted) is the only relevant one? This is the same logical fallacy underlying the feminist attack on pornography, which takes the basic irreducible fact that the female body is an object of male sexual desire and extrapolates from it the notion that any male so affected is thereby "objectifying" women, i.e., viewing them as "objects" in the sense that they lack volition and rights. Some men do view women that way, no doubt about it. And some may express that view using sexual imagery. But plenty of men love and cherish women as equal human beings--and STILL enjoy seeing explicit pictures of them. And some people enjoy offensive humor--sometimes despite its offensiveness, and sometimes precisely because its very offensiveness makes it funny. I agree that judges need to maintain an appearance (as well as a reality) of impartiality, but if viewing this kind of material destroys impartiality, so would, say, watching South Park, or the Daily Show, or reading the vituperative comments on the Huffington Blog, or a thousand other things. Just because explicit sexuality short-circuits your critical faculties doesn't mean it has that effect on everyone. Unless judges are not to have the same rights of free thought and free speech as the rest of us whose rights we expect them to protect, it seems to me that you need some other contextual evidence before using stuff like this to impugn their impartiality. Show me the articles or opinions by Judge K that evince a pattern of animus against women, or gays, or religious people, or auto-fellaters, and then try to fit some specific image into your case. Should judges whose homes contain environmentalist literature be recused from challenges to environmental regulation?

[Full disclosure: I'm an ex clerk as well.]
6.13.2008 4:05pm
jrww (mail):

Show me the articles or opinions by Judge K that evince a pattern of animus against women, or gays, or religious people, or auto-fellaters, and then try to fit some specific image into your case.

I think you may have it backwards here. Wouldn't the test be whether Judge Kozinski is aroused by pubescent auto-fellators, not whether he bears an animus towards them? In the previous thread Orin has outlined some of the child pornography tests.
6.13.2008 4:16pm
Splunge:
That Kozinski downloaded titillating and shocking images bugs me a whole lot less than that he didn't take even the elementary steps needed to keep -- not a talented hacker but a lawyer, fer Christ's sake -- from penetrating (sorry) his private system.

I mean, the former just means he's one of us, a sinner, a regular human being, not a robot. But the latter is dangerously irresponsible. He's net-savvy enough to register his own domain, but not enough to turn off the servers on his computer, or turn on the firewall, or at least turn off anonymous (non-password-protected) access to the stuff? WTF? Where else does he fly by the seat of his pants with new technology, not taking the trouble to learn about its major risks and limitations? I would not want to be litigating a case that involves modern computing in his courtroom.

But surely even otherwise reasonable people might fail to plan for their enemies' rummaging around through the files on a private family server.

No, they don't. This is equivalent to saying that "otherwise reasonable" people drive the family van without making the kids put their seat belts on. That is, "otherwise reasonable" is here a functional synonym for "unreasonable" or "careless."

There may not be any harm in having your enemy slip your private spicy photos to the newsboys -- but this is just the tip of the iceberg. What else does Kozinksi have on his private computer, that could be found by a more talented and dangerous hacker? Private e-mail from friends, other judges, revealing home location, or names and addresses of college-age children? Could be useful to a psychotic defendant, with tragic results. Stored passwords to his official e-mail account? Stored surfing history, including stuff he's looked up in the course of thinking about a case on which he's ruling? Very useful to the right defendant. You'd be amazed what can be dug out of your computer by a good hacker, once he has access to it, and the chances that Kozinksi has kept a perfectly impermeable barrier between every aspect of his personal and professional life are about zero. Even CIA spies trained to do so find it difficult.

Professor Volt's protestation is also a bit rich coming from a member of the legal profession, which is all about lecturing the poor sods standing in the Courtroom, looking at their shoes, about their criminal (as it turned out) failure to think out the consequences of their actions. Too many of us have stood in those shoes for there to be a whole lot of public sympathy for a judge (even a very good and decent judge) hoist by his profession's own petard.
6.13.2008 4:19pm
Amused:
In fairness, the dockey in the video as linked to in the post does appear to be sexually aroused, as opposed to simply having had his anger aroused (perhaps it was both), and seemed to be trying, with some limited success at the very end, to mount the poor fellow who could not wait for a proper restroom. Would the attempted bestial "rape" of an unwilling human count as obscenity? Anyone who has ever owned a dog that was inclined to hump people's legs would probably say no and that it was just plain funny and more than a little absurd. Sorry, Mr. Anderson, I still have not purged my juvenile sense of humor either. I am not really working on it either.
6.13.2008 4:25pm
Malthus:
I hope the judge gets defrocked. In Amerika, it's only when the priests, judges, legislators and presidents get hoisted by their petards that the stupid-ass oppressive laws get changed. This country has a long way to go to escape its religious sex obsessions, so we will have to see a lot of great men, like Clinton and Kozinski, fall, and there should be at least one for every condemned black man who just happened to be near the scene of a crime.
6.13.2008 4:29pm
William Spieler (mail) (www):
It's not even that he didn't make it not anonymous, he didn't use a .htaccess file with Options -Indexes

A bit easier than figuring out chmod

I'd point out, though, that I really doubt that this was his personal computer (much less anyone else's personal computer. Most likely, Yale Kozinski bought some commercially-provided consumer-grade hosting that allows for subdomains, and set one up for his father. I'd presume that the e-mail address alex@kozinski.com would have been used by him for personal e-mail, but a hacker obtaining access to the server would find, at most, only those e-mails still resident on the server (which would be none, as most clients by default delete e-mail from the server upon retrieval, I believe).
6.13.2008 4:29pm
MadHatChemist:
Oh the irony! The people who usually defend people having and usingstuff far worse then was on the judge's server turn around and attack him for having it...just because he was appointed by a Republican?

He has long been a defender of free speach. He is no hypocryte. The people attacking him are.
6.13.2008 4:30pm
Alex84:
I just don't get why people keep stuff like this or continue to get "off color" emails when they are in these positions.

I have a friend who used to send me semi-pornographic humor when we were in college, but when I got a real job, I said "dude, you have to take me off of your email list now"

It's common sense!! The higher power you are, the more people hate you, especially a judge!!

yeah, the lawyer's rummaging may be wrong, and Kozinski may have a strong case for his innocence, but for why even risk it. It's akin to all these moron politicians who charge hookers on company cards!!
6.13.2008 4:31pm
Dave Hardy (mail) (www):
"if it had to happen it's a shame it couldn't be visited on a judge (left or right) who lacks Kozinksi's healthy respect for freedom of speech and thought, and for privacy."

Yep. Now, if it'd happened to Warren Burger, it might be amusing. As it is, some vengeful clown cracks a website...

"Wouldn't the test be whether Judge Kozinski is aroused by pubescent auto-fellators, not whether he bears an animus towards them? "

More likely found it amusing as "bet you thought this was impossible." I still can't figure out how anyone could bend their spine that far.
6.13.2008 4:32pm
William Spieler (mail) (www):
It's more akin to buying Playboy on a private credit card, both in that a) it's legal, and b) he used personal, not employment, equipment.
6.13.2008 4:32pm
Gary Anderson (mail):
Enjoying cheap fart jokes doesn't mean you can't enjoy better things as well. It also doesn't mean you're a terrible person or you lack judgment. We've got years and years of writings and speeches to judge Kozinski on, why would you go through some tortuous exercise of trying to tie his sense of humor to his worth as a judge or human being when you have much better metrics available?

I'm hardly a Puritan, but sorry folks. It's creepy to think you would turn your kid on to stuff like this, or that you'd encourage your kid to collect and share such stuff with you. And yeah, fart jokes past say 16 are a waste of time. Think of all the better more adult pleasures you could be experiencing .. and your boy-child too, if you haven't stunted his growth by being too close a good Daddy.
6.13.2008 4:34pm
Volokh Groupie:
I should have been clear in the earlier post--everything about this story actually heightens my admiration for Judge Kozinski.

By the way, points to Gary Anderson for being the official dick/troll of the thread. If only we were all as grown up as him.
6.13.2008 4:35pm
William Spieler (mail) (www):
Am I the only one concerned about Gary Anderson's reference to adult pleasures with one's son in comments directed in significant part to a discussion about child pornography?

Or does that reflect an immature sense of humor?

Someone help me out here.
6.13.2008 4:37pm
Smokey:
Apologies for getting carried away on the 2:51 post. I started it when there were no comments and it took on a life of its own [not that I'd retract any of it as being untrue].

After reading the whole thread, I concur most with Erick:
...We've got years and years of writings and speeches [by] judge Kozinski... why would you go through some tortuous exercise of trying to tie his sense of humor to his worth as a judge or human being when you have much better metrics available?
6.13.2008 4:38pm
Gary Anderson (mail):
Sorry, Mr. Anderson, I still have not purged my juvenile sense of humor either. I am not really working on it either.

No problem. But if you go taking one of those respectable public servant positions, consider growing up a bit first and letting your humor tastes mature past bathroom jokes? Otherwise, you might just find your good character and judgement in question. And if the reports of a mistrial are true, you might just be costing the regular Joe Blow Taxpayer a bit of money. Plus, think of your poor kid who's never gonna grow up if Daddy don't.
6.13.2008 4:40pm
b10621:

Malthus: I hope the judge gets defrocked. In Amerika, it's only when the priests, judges, legislators and presidents get hoisted by their petards that the stupid-ass oppressive laws get changed. This country has a long way to go to escape its religious sex obsessions, so we will have to see a lot of great men, like Clinton and Kozinski, fall, and there should be at least one for every condemned black man who just happened to be near the scene of a crime.


Amerika? Please. Which "stupid-ass oppressive laws" would you like to see changed here? How are black men at all relevant to this discussion?

If you have a coherent point to make, then please make it, but if you just want to rant, please go elsewhere.
6.13.2008 4:42pm
Ken Arromdee:
I think the idea is not just that having the porn is bad, but that having the porn shows something wrong with his attitude. It's like saying in private that you think all Jews should be burned at the stake. If someone bugs your house to find out that you said that, they're invading your privacy, but the problem isn't really that you said it, but that you think it; those thoughts influence your public actions.

This is not to say that having porn does show that the man has warped ideas, but whether it does or doesn't has to be argued based on the exact nature of the porn; a blanket "it's in private so it shouldn't matter" isn't a reason to dismiss the argument.
6.13.2008 4:43pm
Bill Poser (mail) (www):
I agree with Eugene. It doesn't reflect badly on Judge Kozinski that he has a sense of humor and it is nobody's business. There's nothing to see here. Move on. There are lots of real problems in the world that need attention. This isn't one of them.

On the legal front, didn't Sanai commit a crime in accessing these files without authorization?
6.13.2008 4:45pm
SenatorX (mail):
Man tries to crap in field and gets assulted by horny donkey (I watched the video on youtube). -not beastiality

Man in priest costume has stuffed doll of alter boy performing oral sex - tastless comedy referring to rampant child abuse by clergy - not child pornography

Two women painted like cows with a milk jug in a field. -not beastiality

Overall just typical internet stuff, the human race is pretty funny, thankfully!

All pretty boring really. I thought the Bush sign and the stained glass in the church were funny though.
6.13.2008 4:48pm
ejo:
finding out that a judge said such things as you mentioned would surely not be a problem either-after all, not liking jews is legal, right? we couldn't consider it a sign of poor character, right? after all, he might just be acting a bit irreverent and really mean it in the nature of satire.
6.13.2008 4:51pm
William Spieler (mail) (www):
ejo:

One of these things is not like the others
One of these things just doesn't belong
Can you tell which thing is not like the others
By the time I finish my song?
6.13.2008 4:55pm
Anderson (mail):
Thanks for the post -- understandable you were reluctant, but the topic is an important one.

Agreed completely that this material was meant to be private, should've been private, and (IMHO) the law should keep it private.

That said, I agree w/ Patterico that the .mp3 files are more "troubling" than any of the pix. They may of course have all been legally purchased -- I'm sure 5 people in America do that, and Judge Kozinski may've been one of them.
6.13.2008 5:00pm
Tony Tutins (mail):
the .mp3 files are more "troubling" than any of the pix. They may of course have all been legally purchased

At least one of them must have been ripped from a wax cylinder. Well, maybe a 78. The judge had only one post-1972 tune as I recall.
6.13.2008 5:03pm
autolykos:

The whole thing is way overblown, and the LA Times reporting on it was very deceptive. It borders on false light to suggest that there video of a "half-dressed man cavorting with a sexually aroused farm animal," obviously trying to make a connection with the bestiality allegations in the trial he is presiding over.


At the very least, the LA Times owes Kazinski a retraction. The man in the video wasn't "cavorting" with the donkey. While my guess is that the person who wrote the story simply isn't that intelligent and misused a five dollar word, but it's still incorrect and misleading and it wasn't until I saw the video (though I've seen the same video before) that I had any idea what the author was trying to say.

Otherwise I agree whole-heartedly with Prof. Volokh. This is a non-story and it's unfortunate the judge has to waste his time dealing with it.
6.13.2008 5:07pm
kiniyakki (mail):
Maybe somebody already spoke to this, but is this really father/son sharing? I took the description to mean that Kozinski's son maintains a family mainframe-type computer, with storage space alloted to everybody in the family, and Kozinski puts stuff on his storage space. For example, at my work, the State maintains the server, and I save documents there. But, it doesn't necessarily mean that anybody besides me is accessing it. Anybody know?
6.13.2008 5:08pm
one of many:
Just a quick question, has "post" become a synonym for saving a file? I thought posting was akin to publication, like posting a notice, and in no way resembled storing a file. Just asking because the LATimes story on Judge K. declaring a mistrial uses "post" but everything I've seen indicates it was just file storage.
6.13.2008 5:09pm
ejo:
yes, you don't care, one way or the other, about the judge's legal practice of having porn on his computer and think it says absolutely nothing about his character because, gosh darn it, he has a track record of brilliant legal scholarship. those that do are ignorant prudes, right?
6.13.2008 5:14pm
Bob from Ohio (mail):
Cyrus Sanai does not seem like much of a lawyer but he sure is a bulldog at revenge.

Serves Kazinski right, though.

He went out of his way to embarass Sanai in the opinion that started this. My impression is that Kazinski seems to like abusing people in his opinions.

Now Kazinski is embarrased by a target. Seem fair to me.
6.13.2008 5:16pm
theobromophile (www):
Prof. Volokh - very glad that you decided to post about this. Yes, you are biased, but your bias is precisely what makes you an excellent person to discuss this subject. You are not biased because you, yourself, have been in such a position; you're biased because you've known Judge Kozinski for many years. It is the bias of knowledge, not prejudice.

It seems as if the best anyone can say about this scandal is that he has a brilliant legal mind and that his opinions, not his website, speak for his judicial (and perhaps personal) temperment. It's incredibly sad, because it seems as if everyone who is so fortunate as to cross paths with Judge Kozinski speaks highly of his character. That is as relevant, if not more so, to his competence as a jurist than a cow picture that may or may not have been posted to a private internet directory by him (or his son).

One small addition:
We should all leave Kozinski to his own privately expressed sense of humor, as we'd like the world to leave us to ours.

Really, let's not tamper with AK's humour. He's wonderfully amusing, and it would be a shame if this mess put a damper on it.
6.13.2008 5:16pm
Edward A. Hoffman (mail):
Bill Poser wrote:
On the legal front, didn't Sanai commit a crime in accessing these files without authorization?
Yes. He violated at least one provision of California Penal Code section 502(c):
(c) Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense:
(1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B)wrongfully control or obtain money, property, or data.
(2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.
(3) Knowingly and without permission uses or causes to be used computer services.
(4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.
(5) Knowingly and without permission disrupts or causes the disruption of computer services or denies or causes the denial of computer services to an authorized user of a computer, computer system, or computer network.
(6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.
(7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.
(8) Knowingly introduces any computer contaminant into any computer, computer system, or computer network.
(9) Knowingly and without permission uses the Internet domain name of another individual, corporation, or entity in connection with the sending of one or more electronic mail messages, and thereby damages or causes damage to a computer, computer system, or computer network.

Disclaimer -- I, too, have known Judge Kozinski for a long time. Among other connections, he was one of my professors in law school. My most recent conversation with him was just last week (at a continuing legal education program), though it had nothing to do with this controversy.
6.13.2008 5:19pm
M. Gross (mail):
I wonder if the litigant in question peered at the ROBOTS.TXT file for the server?

I've always kind of questioned the wisdom of the things... after all, it's a list of files you don't want crawlers looking at... which often implies the contents are of interest to humans...
6.13.2008 5:22pm
alkali (mail):
It's creepy to think you would turn your kid on to stuff like this, or that you'd encourage your kid to collect and share such stuff with you. And yeah, fart jokes past say 16 are a waste of time.

I couldn't agree more. I would comment further but my father and I are going to engage in some morally-upright bonding by watching a good old fashioned Western together. I think it's called Blazing Saddles.
6.13.2008 5:23pm
Perseus (mail):
which I think includes every LAT editor, there is a serious question of hypocracy here.

Based on the LA Times editorial on the matter, it is Judge Kozinski's alleged own hypocrisy that appears to be part of its rationale for covering the story (which is tediously predictable for liberal media outlets like LAT):

The controversy about the site, to which Kozinski blocked public access after a story by Times reporter Scott Glover, would be less engrossing were the judge not so highhanded when holding forth on judicial propriety or taking apart a legal argument. The story might have a higher profile on TV and radio [i.e. Fox News and Rush Limbaugh] if he were a supposedly typical 9th Circuit liberal, rather than one of the nation's most brilliant conservative legal scholars. But it makes no difference whether the person with the porn site is left or right, smart or dull, a judge or anybody else.
6.13.2008 5:28pm
Malthus:
No, this is not a "non-story" as Eugene and a lot of you would like to think. The story is this: we who love the liberty lost in this country celebrate (as does Bin Laden, but for his own reasons) any finding that those of great stature have feet of clay. There are a lots of lessons the Amerikan people need to learn, and tolerance for folks and sex positions they don't understand comes right at the top of the list, as any normal European or Brazilian has already figured out.

You lawyers are the last to learn, it seems.
6.13.2008 5:28pm
CJColucci:
I've been buried under work, so I haven't seen the news coverage beyond the bare minimum, and I haven't looked at the porn itself, so I have to ask: who, exactly, is giving Judge K a hard time about this? Sure, he's embarrassed and will be the butt -- heh, heh, he said "butt" -- of jokes, but that's fair game. Is anyone giving him any serious grief, and, if so, who?
6.13.2008 5:36pm
TDPerkins (mail):

yes, you don't care, one way or the other, about the judge's legal practice of having porn on his computer and think it says absolutely nothing about his character because, gosh darn it, he has a track record of brilliant legal scholarship


The descriptions of those saved files leaves me certain there was no porn, and that you need as stunted a sexual development as Anderson has a vestigial sense of humor to think otherwise.

Yours, TDP, ml, msl, &pfpp
6.13.2008 5:43pm
Gary Anderson is unbearable:
Just want to chime in and join the chorus telling Gary Anderson that he seems to be an utterly unbearable person to be around and doesnt seem to have any understanding of what the precise issue is here.

Just because Kozinski and his son both used that site and because there were gross/immature pictures on that site doesn't mean that Kozinski was "turning his son on" to anything that was inappropriate.
6.13.2008 5:46pm
pete (mail) (www):

On the legal front, didn't Sanai commit a crime in accessing these files without authorization?


I sure hope not since I Have done similar snooping on other websites looking for files (not files quite like this, however). I have no I idea who owned some of these sites and in some cases I am pretty sure the owners just had poorly organized websites and had not set up links properly and could care less that I was looking at them. If you put something on the web, but do not do something as simple as password protect it, then it is assumed up for graps for antyone to look at.


The whole thing is way overblown, and the LA Times reporting on it was very deceptive. It borders on false light to suggest that there video of a "half-dressed man cavorting with a sexually aroused farm animal," obviously trying to make a connection with the bestiality allegations in the trial he is presiding over.


From just reading the LA Times article yesterday I thought the judge had very wierd sexual tastes what with the aroused animals and women painted like cows and all. The comments here make it sounds like these were all just crass jokes, which is a huge difference from having lots animal and furry prOn on your computer. It is crap like this that reminds me why I loathe most news reporting. I recently read several stories in the local press about my employer and they got key details of a story wrong that could have been fixed if the reporters had spent 30 seconds looking up the the main item of the story in google. In this case I suspect it may have been intentionally misleading since many readers like me would be reluctant to look up the pictures on our own because of how they are described.
6.13.2008 5:49pm
ejo:
stunted-nope, married with kids. hope I would be smart enough, should I get those darn hilarious youtube posts (is something being on youtube a legal defense?), to delete them before my kids see them and to retain some sense of shame if I didn't. as stunted as I apparently am, I appear to have more maturity than this exalted black robe sitting on the Court of Appeals.

if it's not criminal, it is an embarassment. however, with this judge, it doesn't appear that shame exists.
6.13.2008 5:49pm
CrazyTrain (mail):
I don't think your comments show bias; they show reason.

Yes, but I don't think that's the point. The point is that Volokh's views of this are clearly colored by his relationship with Kozinski. I doubt that his views would be as passionate if he did not have that relationship with Kozinski. Of course, that does not make his views wrong (I agree with them), and it does not mean that being passionate makes the views less right -- the best defenders are often ones who have a lot of motivation to defend. Had Volokh posted this without the preamble re his relationship with Kozinski, though, it would have looked odd and would have taken away from his defense.
6.13.2008 5:53pm
TDPerkins (mail):

and tolerance for folks and sex positions they don't understand comes right at the top of the list


The point is Malthus, that we should have no tolerance for actual child or bestiality—unlike presumably such benighted Europeans as do—and that this should be a non-story because there is no such thing here.

TDP, ml, msl, &pfpp
6.13.2008 5:56pm
CrazyTrain (mail):
hope I would be smart enough, should I get those darn hilarious youtube posts (is something being on youtube a legal defense?), to delete them before my kids see them and to retain some sense of shame if I didn't. as stunted as I apparently am, I appear to have more maturity than this exalted black robe sitting on the Court of Appeals.

First of all, they are adult children. Secondly, it's none of your business how he raises his kids even if they weren't of legal age.
6.13.2008 5:56pm
pete (mail) (www):
Edward A. Hoffman, which one did he break? He did not damage the system. And he did not break in. The files were not password protected or in any way blocked. He put them up on the web, its just that did not advertise them in any way.
6.13.2008 5:56pm
Crunchy Frog:
To those arguing against recusal:

a) Stuff much tamer than this would get a juror kicked during voir dire; and

b) The chances of this being considered grounds for reversal in Reinhardtistan (9th Circuit) are way too high to risk it.
6.13.2008 5:56pm
William Spieler (mail) (www):
Here, to my understanding, is how access to these files was technically obtained:

Judge Kozinski uses the alex.kozinski.com domain to host files that he wants to share with others. These files would typically be stored in various subdirectories. One such file was in a subdirectory called "stuff," such that the full URI would be "http://alex.kozinski.com/stuff/FILENAME.EXTENSION".

This URI would be embedded in a hyperlink in an e-mail that Judge Kozinski used to notify the recipient of the location of the file.

The webserver, that is the computer program that handles requests for webpages, that served the alex.kozinski.com domain was set up to allow for directory indexing. This is a fallback behavior of many webservers that is invoked when a request for the URI of the directory itself is received, and there is no file that is named according to what the webserver expects a default page to be located: typically this file would be "index.html".

The "/stuff" subdirectory on the alex.kozinski.com domain did not contain a file named "index.html". This means that when one requests the URI "http://alex.kozinski.com/stuff/" from the webserver, the webserver looks in the "/stuff" subdirectory for a file named index.html, and failing to find one, returns a listing of all files and folders contained in the subdirectory and hyperlinks thereto.

This is a configuration of the webserver that can be disabled on a directory-by-directory basis by including a file in the directory named ".htaccess" that contains the text "Options -Indexes". If such a file existed in the "/stuff" subdirectory and the webserver were to receive a request for "http://alex.kozinski.com/stuff/", the webserver would respond with an error page.

No subterfuge is required. The webserver, as configured, would respond to a query for the subdirectory with a listing. Such a query was received, such a response was sent, and here we are.
6.13.2008 5:58pm
Kazinski:
Bob from Ohio:

Serves Kazinski right, though.

He went out of his way to embarass Sanai in the opinion that started this. My impression is that Kazinski seems to like abusing people in his opinions.

Now Kazinski is embarrased by a target. Seem fair to me.

I think you mean Kozinski, not Kazinski, none of my embarrassments have been made public yet. I hope when they are, they're as innocuous as Kozinski's.
6.13.2008 6:00pm
TDPerkins (mail):
in the phrase "actual child or bestiality"

insert "porn" between "child" and "or"

TDP, ml, msl, &pfpp
6.13.2008 6:01pm
Javert:
Your post is an act of justice.

One quibble.

What I say on the matter will naturally and properly be discounted because of my bias.

Having a personal interest in another person's well being does not necessarily make one incapable of being objective. You presented the facts and gave good arguments. Why undercut yourself?
6.13.2008 6:11pm
theobromophile (www):
Is anyone giving him any serious grief, and, if so, who?

Concerned Women for America is calling for his resignation, and, failing that, impeachment proceedings. While the group has little to no ability to carry that out, it would fall under the heading of "grief." Judge Kozinski foreclosed other avenues when he voluntarily recused himself from the trial and asked for a full investigation into the matter. Whether that investigation brings further grief and embarrassment to the judge remains to be seen.

As for the father/son thing - who cares? Yale is grown, married, and has a kid. He's an adult who is more than capable of loosening the apron strings (or robes, if you will), but has, apparently, chosen not to. The fact that one's grown children choose to have a close relationship with their parents reflects well, not badly, on the parents in question.

There is no evidence that they shared the dirty jokes or pictures in question, just that they both used the server for storage. It's much like keeping your junk in the same basement.
6.13.2008 6:28pm
Richard W. Painter (mail):
Why is a lawyer going through a judge's private computer files? I would investigate the lawyer, not the judge. There are countries where judges can be intimidated by invasions of their privacy and threats to remove them from the bench for "misconduct". The United States is not one of them. In this Country, lawyers sworn to uphold the law should respect the privacy of all persons, including judges.

Richard W. Painter
6.13.2008 6:34pm
Edward A. Hoffman (mail):
pete wrote:
Edward A. Hoffman, which one did he break? He did not damage the system. And he did not break in. The files were not password protected or in any way blocked. He put them up on the web, its just that did not advertise them in any way.
If I leave my front door open and someone walks in despite knowing he was not invited, that would be trespassing. Your point that there was no password does not mean the public is welcome to look at the files, just as my open front door does not mean the public is free to enter my home.

Which subsection Sanai violated will depend upon the details. We do not yet have a reliable account of those details, so I can't answer your question. At a minimum, though, it seems he violated section 501(c)(7). That provision involves only accessing files without permission regardless of whether or how the defendant uses them. Permission is key; the lack of password protection is not the same thing. Even a person who knows the password but who also knows he is not welcome to access the files would violate this section if he accessed them anyway.
6.13.2008 6:37pm
Le Messurier (mail):
To Gary Anderson:

EV wrote:

OK, people are saying, it was careless of Kozinski not to make sure that the site (which was apparently managed by one of Kozinski's grown sons) was properly secured.
Emphasis added.

And you criticize the judge for having some distorted relationship with his own son? Who is an adult? Get a life. Like someone previously indicated, we are not in the '50's. (And I LOVED the '50's... The golden age of America.)
6.13.2008 6:48pm
Correction forthcoming from Prof. Volokh?:
Prof Volokh claims: "The controversial files on that server aren't linked to from the Web, and aren't indexed on search engines."

As comments by Patterico and William Spieler have demonstrated, the site most definitely WAS indexed and did have links to some of the critical files (the mp3 files ).

I hope you post a correction. It's a rather significant error to state that the site was not indexed. That is a clearly incorrect or false assertion.
6.13.2008 6:53pm
Humor?:
If you have viewed some of the images, you would find that many, many of the "jokes" derive their "humor" at the expense of women in degrading and stereotypical ways.

It raises serious questions about Kozinski's fitness as a judge. If I were litigating an employment discrimination claim based on gender bias (say an officer manager who had posted similar images in his office or who couldn't refrain from making repeated "humorous" observations like "gee, Susan, it's awfully 'nipply' in here, huh?"), I would absolutely move to have Kozinski recused from the case. And I think the motion would be proper and have a great deal of merit.

I understand you're biased, but this behavior really was disgraceful.
6.13.2008 6:59pm
Alex Blackwell (mail):
If I leave my front door open and someone walks in despite knowing he was not invited, that would be trespassing.

Extending "brick and mortar" analogies to cyber-trespass is interesting.

In Kozinski's case, not only was the front door open, but Google posted a public X-ray or MRI of the contents of the "house." Others came along and "took pictures" of the contents (i.e., downloaded copies of the files).

At least for the articles directory I directly accessed from Google, and which I noted in another post, there were no disclaimers (i.e., no "NO TRESPASSING" signs).

Is this really trespassing? Or was property "stolen" by downloading copies of the articles?
6.13.2008 7:02pm
TDPerkins (mail):
Humor?, you'd only have a point if Kozinsky was throwing links to the files around at work.

He wasn't.

Yours, TDP, ml, msl, &pfpp
6.13.2008 7:03pm
LM (mail):
Malthus said, "There are a lots of lessons the Amerikan people need to learn, and tolerance for folks and sex positions they don't understand comes right at the top of the list, as any normal European or Brazilian has already figured out."

Beneath its uncongenial presentation, isn't there a germ of truth there? Assuming everything Judge Kozinski had on his site was legal, isn't the conflict question analogous to a judge who gambles legally in Las Vegas sitting in a criminal numbers or bookmaking case (which I'm assuming wouldn't be cause for recusal)? So what's the difference, apart from our puritanical hypocrisy over sex? And I say hypocrisy based on my assumption that a high percentage of American men Kozinski's age have engaged in pre-marital or extra-marital sex, and/or possessed some item(s) of pornography, physical or digital.

BTW, the propriety of his possession of the MP3 files may be a legitimate question, but certainly not germane to the ethical questions that made this newsworthy.
6.13.2008 7:03pm
LM (mail):
Kazinski:

I think you mean Kozinski, not Kazinski, none of my embarrassments have been made public yet. I hope when they are, they're as innocuous as Kozinski's.

I can just imagine the things you've done. Please recuse yourself from the remainder of this thread.
6.13.2008 7:06pm
pete (mail) (www):

If I leave my front door open and someone walks in despite knowing he was not invited, that would be trespassing.


Yes, but a webpage is not a house! Will people please stop using that terrible analogy. The vast majority of house owners only let people into their homes on an invitational basis. The majority of website owners want as many random people as possible to view the website and if they do not want that they usually put up a password protected barrier.


That provision involves only accessing files without permission regardless of whether or how the defendant uses them. Permission is key;


So how do I know I have permission or not? Most people reasonably assume that any website that you can access without a password is open to the public, otherwise why connect to the internet where anyone can view it in the first place. Any time someone with a website got mad at someone looking at their site they could retroactively say "no you did not have permission to view that" and have them arrested. Do we really want to go down that road? Note that Kazinksi now has quite easily blocked the public from viewing these files and previously did not have any messages expressly forbidding the public to have access.
6.13.2008 7:07pm
William Spieler (mail) (www):
Correction forthcoming from Prof. Volokh?:

Well, it was indexed, but only on his own computer, so that's not quite the same thing. Reasonable measures were taken to prevent other indexing services from indexing the content (as robots.txt was used).
6.13.2008 7:10pm
R Gould-Saltman (mail):
Gee, and he's a Marshall H.S. grad, too. What'll I tell my son?

As hilarious an ink-blot test as some of these posts reveal the original story to be (part of the secret Commie plot for world domination? the come-uppance for Kozinski's hubris in oppressing, well, all of the oppressed? Clear signs of inappropriate relationship with his kids?) it's still more than a little troubling that the underlying stuff is being described, with a straight face, as "porn" and "sexually explicit". Anyone here watched FOX programming, let alone cable programming, in the last few years?
BTW, embarrassingly juvenile? Didn't PJ O'Rourke once say "'Sophomoric' is a code word liberals use when they mean 'funny'"? Anyone younger than me look recently at some ofP.J. O'Rourke's literary output in the days before he became a "conservative satirist"? Not all Swftian. I have a vague recollection, for instance, from my days as a h.s. sophomore, appropriately enough, of an ongoing series of, well, "cartoons", (I guess would be the closest word) in the Nat. Lamp. when O'Rourke was an editor, in which goofy word balloons were pasted onto a series of pictures of a rather "well-padded" young lady jumping around wearing boxing trunks, boxing gloves, and no shirt. . ..
6.13.2008 7:11pm
theobromophile (www):
<blockquote>It raises serious questions about Kozinski's fitness as a judge. If I were litigating an employment discrimination claim based on gender bias (say an officer manager who had posted similar images in his office or who couldn't refrain from making repeated "humorous" observations like "gee, Susan, it's awfully 'nipply' in here, huh?"), I would absolutely move to have Kozinski recused from the case. And I think the motion would be proper and have a great deal of merit. </blockquote>
You would also be doing your client an enormous disservice. Read Kozinski's dissent in the Harrah's case.
6.13.2008 7:15pm
one of many:
If you put something on the web, but do not do something as simple as password protect it, then it is assumed up for grabs for anyone to look at.
An interesting assumption but I doubt it's validity. Do you also assume that if man leaves an unlocked briefcase on the table in front of you, that you have a default invitation to rummage through it? Do you accept that a woman wearing a skirt in public has implicitly given permission to look up it to anyone who happens to be in a position to do so? Unsealed letters addressed to strangers are up for grabs?

Anyway, reasonable expectations of privacy in this case are somewhat moot, it is obvious from the Sanai's behavior that he was aware that Judge K. had not intended for the files to public information, yet he still continued to go through them despite realizing they were private.
6.13.2008 7:16pm
Edward A. Hoffman (mail):
pete wrote:
If I leave my front door open and someone walks in despite knowing he was not invited, that would be trespassing.
Yes, but a webpage is not a house! Will people please stop using that terrible analogy. The vast majority of house owners only let people into their homes on an invitational basis. The majority of website owners want as many random people as possible to view the website and if they do not want that they usually put up a password protected barrier.
That provision involves only accessing files without permission regardless of whether or how the defendant uses them. Permission is key;
So how do I know I have permission or not? Most people reasonably assume that any website that you can access without a password is open to the public, otherwise why connect to the internet where anyone can view it in the first place. Any time someone with a website got mad at someone looking at their site they could retroactively say "no you did not have permission to view that" and have them arrested. Do we really want to go down that road? Note that Kazinksi now has quite easily blocked the public from viewing these files and previously did not have any messages expressly forbidding the public to have access.
Your analysis makes plenty of sense as to people who are just exploring a site they found on the web, but not as to what Sanai actually did here. He clearly knew he was not welcome to look at these files; the reason he was looking around in the first place was to find some private dirt he could use against the judge. This is hardly the typical curious web use you describe.
6.13.2008 7:27pm
NickM (mail) (www):
TDPerkins - you mean Gary Anderson, not Anderson. Anderson has a good sense of humor.

But LM still wins the thread.

Nick
6.13.2008 7:33pm
pete (mail) (www):

An interesting assumption but I doubt it's validity. Do you also assume that if man leaves an unlocked briefcase on the table in front of you, that you have a default invitation to rummage through it? Do you accept that a woman wearing a skirt in public has implicitly given permission to look up it to anyone who happens to be in a position to do so? Unsealed letters addressed to strangers are up for grabs?


These analogies all fail because the web is by its very nature a place to be explored by strangers. People brag about how many strangers access their websites. Briefcases, houses, skirts, letters, etc are all stuff that are assumed to be private unless the owner tells you otherwise. Websites are not assumed to be private by the vast majority of people if you can just type in URL and get to them. And if you want to make a website or parts of a website private it is easy to do so.


Your analysis makes plenty of sense as to people who are just exploring a site they found on the web, but not as to what Sanai actually did here. He clearly knew he was not welcome to look at these files; the reason he was looking around in the first place was to find some private dirt he could use against the judge.


And you can read his mind to know that he knew he did not have permission? If he had actually broken in I would be 100% with you, but he just typed in a URL from what I read. I have friends who are network security professionals and I have downloaded files that are stored on their personal servers similar to how Kazinksy had his set up with you only having to type in a URL that is not indexed. When they want to block strangers from accessing them they password protect them.
6.13.2008 8:10pm
DCLawyer (mail):
Prof Volokh,

I don't think your wine metaphor quite works. It's more like a judge presiding over a drunk driving trial, having 3-4 glasses of screwtop wine for lunch, then driving home. It's not the same as getting tanked on a liter of vodka then hitting the road, for sure, but still a pretty careless thing to do nonetheless. Certainly MADD would not approve.

And let's stop acting like the pictures and stuff he had stored on his computer were normal office banter. Sure people view that stuff, but let's agree that's it's pretty creepy to be storing tons of it on your home computer. It makes it seem like your love of porn, would, say, get in your way of being impartial in a porn trial.

I've met Kozinski (I've seen the man take shots and dance, too, for goodness sake) and I think he's a brilliant and friendly guy. I don't think he's a pervert. But I do think he screwed up here. And seriously, does a man like Judge K who professes to build computers really not understand when a server is publicly accessible?

Just my two cents.
6.13.2008 8:22pm
LM (mail):
Smokey,

On the one hand you seem to regret your over-the-top rant . Had you stopped there, I too would have let it pass without further comment. But you apparently couldn't help yourself. You had to, in effect, repeat the rant by defending its accuracy, so I feel compelled to respond, though I'll keep it brief. I'll just point out the breathtaking irony of your complaining about "the polarization of every aspect of American politics and jurisprudence" in the same sentence you called Barack Obama "a flat-out Marxist," and blamed Judge Kozinski's current troubles on environmentalists, the UN, and voter fraud perpetrated by illegal immigrants you liken to the barbarians who sacked Rome.
6.13.2008 8:34pm
Humor?:
TDPerkins, your reply to my comment about wishing to *recuse* Kozinski from an employment discrimination case rather missed the point. I was *not* arguing that anybody had any kind of claim against AK. I was suggesting that many employment-discrimination cases based on gender bias involve very similar pieces of "humor." Would AK really be able to assess the impact of such "humor" in a neutral way? I doubt it.
6.13.2008 8:35pm
LM (mail):
... among others.
6.13.2008 8:37pm
Humor?:
Theobromophile -- I have read AK's dissent in the Harrah's case. I still wouldn't want him on my hypothetical case. He clearly finds sexism amusing and might well have a bit of sympathy for the poor boss &be utterly unable to see how such "humor" could cause great pain and humiliation and create a very hostile environment.
6.13.2008 8:37pm
NRWO:
Interesting discussion about password protection, indexing, and expectations of privacy.

Is there any case law holding that a person needs permission from a web site owner to access unindexed (but not password protected) material on a web page?

It seems many people believe such activity *should* be illegal based on analogies to entering a house without permission.

But the analogy seems inapt. A better analogy might be a man on the street who looks at an attractive neighbor while she walks around in her house in the nude. Would such a man be violating any law?

I'm curious: How does one prevent Google or any other search engine from indexing your web page?
6.13.2008 8:39pm
LM (mail):
... among others was an addition to my prior comment, not a response to the interning one.
6.13.2008 8:39pm
Correction Forthcoming from Prof. Volokh?:
No, the page was clearly search-able via Google.

See this link.

The bottom of that posts notes that:


If you do a Google search for http://alex.kozinski.com, page 2 of the results gives you this page. It includes a link to a site that shares .mp3 files, and which refers to the alex.kozinski.com/stuff subdirectory for a download of a Monty Python song. Mr. Sanai maintains that this, together with other evidence, is an indication that Judge Kozinski was sharing .mp3 files. This allegation will require further investigation.


The "hacking" or intrusion that Sanai did in this case was simply entering "alex.kozinski.com" into Google and clicking search.

That makes all the house analogies totally ridiculous. Lessig &co should really be embarrassed.
6.13.2008 8:47pm
Correction Forthcoming from Prof. Volokh?:
See also this page:

Not indexed???
6.13.2008 8:51pm
Bill Poser (mail) (www):

I'm curious: How does one prevent Google or any other search engine from indexing your web page?


You include a file called robots.txt, which contains instructions as to which spiders can access what files, in the top level directory of your web server. A simple robots.txt looks like this:

User-agent: *

Disallow: /

The first line specifies which spiders the restriction applies to. In this case, the asterisk indicates that it applies to all of them. The second line lists the directories to which the spiders are prohibited access. In this case, the single item on the list is the root of the filesystem, so the spiders are not allowed to index anything.

If you just wanted to block access to one directory, you could use a line like this:

Disallow: /MySecretStuff/Porn

You can use multiple pairs of user-agent and disallow lines. For example:

User-agent: Google

Disallow:

User-agent: *

Disallow: /

allows Google to crawl everything and blocks all other spiders entirely.
6.13.2008 8:57pm
TDPerkins (mail):

Would AK really be able to assess the impact of such "humor" in a neutral way? I doubt it.



Why?

There simply isn't any analogy between what is shared privately and what occurs in the semi (sometimes not semi) formal environment of work.

That's why the acronym NSFW exists.

Yours, TDP, ml, msl, &pfpp
6.13.2008 8:58pm
Bill Poser (mail) (www):
I now realize that my previous post may suggest that you can list multiple directories on a single Disallow line. Actually, you use multiple Disallow lines, e.g.:

Disallow: /MySecretStuff/Porn
Disallow: /MySecretStuff/FirearmsFantasies
6.13.2008 9:00pm
Correction Forthcoming from Prof. Volokh?:
Kozinski did not configure his robot.txt file correctly then.

See this: proof


See also this
6.13.2008 9:01pm
Edward A. Hoffman (mail):
Correction Forthcoming from Prof. Volokh? wrote:
The "hacking" or intrusion that Sanai did in this case was simply entering "alex.kozinski.com" into Google and clicking search.
Okay, but even you admit that all he found that way was a single mp3 file. That might be a problem, but it's not the problem everyone seems concerned about. What has people up in arms are the pictures, not the audio.

Even though you don't like house analogies, I'm going to give you another. Putting one file where people could find it was like putting something on display in your window. It's an invitation to the public to look at that one thing in the house, but it does not mean the public is welcome to come in and look around for other interesting stuff.
6.13.2008 9:03pm
Humor?:
TDPerkins, although I find it difficult to believe you are arguing in good faith, I shall try one more time.

My hypothetical lawsuit involved, say, a hostile workplace claim, made so by "humor" very similar to that which AK enjoyed. He saw it as harmless humor (that he hosted on a website), and he might well not see it as really making things all that bad. It's not as though AK labelled his site NSFW. He had it up there to share files with friends &family. Sure, he might understand the material isn't *ideal* for the workplace, but he might very well sympathize with the manager who did &who was the defendant in my hypothetical suit.
6.13.2008 9:04pm
Correction Forthcoming from Prof. Volokh?:
Edward, try clicking some of the links. It was very easy to see vast numbers of the files, and not just one mp3.
6.13.2008 9:05pm
Cyrus Sanai (mail):
I'm the "disgruntled lawyer" who found this stuff and tipped off the press.

A couple points.

First, Larry Lessig's recitation of the facts, upon which Prof. Volokh seems to rely is so wildly at variance with the reality as to constitute fantasy. Patterico, who was initially extremely critical of me, has changed his mind after a 2 hour walk-through of the documents. Check his posts at Patterico.com.

Second, the real problem, in my view, was not the porn (which is what the LA Times ran with), but rather file sharing of copyrighted MP3s. Terry Carter of the ABA Journal had been working on this side of the story for many weeks when the LA Times went forward. Check abajournal.com.

Given Judge Kozinski's dissent in Perfect 10, I have to say that there is a real variance between where he believes the law is and his personal behavior.

Third, I'm not merely "disgruntled". This is not the place to go into the underlying case and Judge Kozinski's ethical misconduct in regards to it, but I'll post the link when I've got the background fleshed out on Google News.

Cyrus Sanai
6.13.2008 9:32pm
William Spieler (mail) (www):
Regarding Kozinski and Perfect 10:

At most, he's "making available" (and whether it is knowing or not is as yet questionable) which is still not settled law as to infringement. At least as far as I know, assuming you didn't download the mp3. If you did, you're as liable as he is, of course.
6.13.2008 9:46pm
William Spieler (mail) (www):
But, I guess given the acrimony, it might be worth it to take one for the team, as it were (although I'm not sure how copyright infringement speaks to his fitness as a judge; I've never heard of a rule requiring any sort of censure or other punishment upon the imposition of civil liability).
6.13.2008 9:52pm
theobromophile (www):
Theobromophile -- I have read AK's dissent in the Harrah's case. I still wouldn't want him on my hypothetical case. He clearly finds sexism amusing and might well have a bit of sympathy for the poor boss &be utterly unable to see how such "humor" could cause great pain and humiliation and create a very hostile environment.

Well, would you prefer to have any of the eight members of the majority on your case?

Here's an excerpt from Judge Kozinski's dissent in Harrah's:
Imagine, for example, a rule that all judges wear face powder, blush, mascara and lipstick while on the bench. Like Jespersen, would find such a regime burdensome and demeaning; it would interfere with my job performance. I suspect many of my colleagues would feel the same way.
Everyone accepts this as a reasonable reaction from a man,
but why should it be different for a woman? It is not because of anatomical differences, such as a requirement that women wear bathing suits that cover their breasts. Women’s faces, just like those of men, can be perfectly presentable without makeup; it is a cultural artifact that most women raised in the United States learn to put on—and presumably enjoy wearing —cosmetics.

Those are not the words of a man who demeans women, nor are they the words of a man who takes as irrational the complaints of a woman (the paragraphs above are more relevant). If you can read his words but would prefer another judge on the case, that is your right as an individual; I would suggest, however, that you not screw around with your client that way. Keep your squeamishness to yourself and let Judge Kozinski's jurisprudence speak for itself. Consider that you would be asking to remove a judge who has gone on record as being aware of the different reactions of reasonable individuals.

Again, keep your squeamishness on your own time; it would be insane to request that the Judge recuse himself.
6.13.2008 9:53pm
theobromophile (www):
Third, I'm not merely "disgruntled". This is not the place to go into the underlying case and Judge Kozinski's ethical misconduct in regards to it, but I'll post the link when I've got the background fleshed out on Google News.

At least you admit that this is not about copyright infringement or pornography; this is about revenge. I fail to see any rational connection between Judge Kozinski's actions in regards to your divorce case and his web site. While divorce and pornography may, on occasion, be related topics, that is not the case here.

While your smear job was top-notch - you've made one of the most respected jurists in America the laughingstock (at best) of the nation - that does not support your legal position in regards to a divorce case. It only underscores the fact that this is about revenge - revenge for failing to knuckle under to your ridiculous wish that a federal court intrude upon state sovereignty by hearing a divorce case, revenge for not bowing to your wishes when you attempted to demean him in an editorial, and revenge for not treating you with kid gloves. That your reaction was to humiliate an eminent judge shows more about you than it ever will show about Alex Kozinski.

Full disclosure is probably mandated at this point: I am not without my biases. I've run into AK several times and, on one occasion, was "demeaned" and "degraded" when he shared some of the material from the website in question. (As there has yet to be an html tag for sarcasm, let it be known that I found his stash of material to be very humourous, although I tend to be a complete prude.)
6.13.2008 10:06pm
fishbane (mail):
This sort of activity [snitching on someone who represents one of the pillars of our society and government] by the improper and outrageous use of extremely frail, questionable 'evidence', is part and parcel of a larger problem, which encompasses much of what is happening in the West.

I don't want to drag this down (A.K. is someone I respect, and I see nothing wrong with the images I've seen, other than perhaps retroactive judgement arguments, but even those are weak tea). However, I wonder how you feel about "snitching" on people who do not"represent pillars of our society..."?

It seems to me that holding the people up to potential embarassment, even if in this case misguided, is a powerful right to be granted to either (even potentially misguided) complaintants,or for nobody. Being a "pillar" should hold one to higher scrutiny - or don't we want toencourage becoming one by enforcing whatever social norms are deemed valuble, rather than relaxing them?

There is a very tangible double standard based on status in this thread.

I wonder if the litigant in question peered at the ROBOTS.TXT file for the server?

I don't know if they have, but I have. It did not omit the "stuff" directory, which is why (contra Eugene's assertion), it ended up in search engines.

Look, I think this is a tempest in a teapot, too, and I mostly agree with Eugene (and Lessig). But if anyone doubts that this sort of thing introduced into a legal proceeding against a less powerful and respected person needs to think about it a bit more.
6.13.2008 10:26pm
Smokey:
LM:

Hey, hey, hey, I only tried to explain that I'd written my comment [which I stand by 110%] before I saw any other posts. You can't just claim that, "Had you stopped there, I too would have let it pass without further comment." That's baloney, because I was only commenting on Yuri Bezmenov, who I have personally met. So give me a break, OK? There are almost 150 posts on this issue. Why pick mine, which is way, way up thread? Are you just feeling ornery tonight?

CJColucci:
I've been buried under work, so I haven't seen the news coverage beyond the bare minimum, and I haven't looked at the porn itself, so I have to ask: who, exactly, is giving Judge K a hard time about this?
Michael Savage, the Bernie Ward of the right, was giving Judge Kozinski hell when interviewing the odious Cyrus Sinai today.

Sinai said [quote] that he had "stumbled across" Kozinski's computer files -- when not one in a hundred average Americans would know how to hack Kozinski's sub directories. Sinai came across as a reprehensible vermin [no doubt anyone can get the interview on the Savage website; I happened to hear it, although I listen to Michael Savage about once in a blue moon. It's probably well worth listening to by anyone interested in this issue].

Sinai raked Kozinski's reputation through the mud, based on his snooping and snitching of Kozinski's private files, and sending them to the media. Who is is the real vermin here?
LM:

Hey, hey, hey, I only tried to explain that I'd written my comment [which I stand by 110%] before I saw any other posts. You can't just claim that, "Had you stopped there, I too would have let it pass without further comment." That's baloney, because I was only commenting on Yuri Bezmenov, who I have personally met. So give me a break, OK? There are almost 150 posts on this issue. Why pick mine, which is way, way up thread? Are you just feeling ornery tonight?

CJColucci:
I've been buried under work, so I haven't seen the news coverage beyond the bare minimum, and I haven't looked at the porn itself, so I have to ask: who, exactly, is giving Judge K a hard time about this?
Michael Savage, the Bernie Ward of the right, was giving Judge Kozinski hell when interviewing the odious Cyrus Sinai today.

Sinai said [quote] that he had "stumbled across" Kozinski's computer files -- when not one in a hundred average Americans would know how to hack Kozinski's sub directories. Sinai came across as a reprehensible vermin [no doubt anyone can get the interview on the Savage website; I happened to hear it, although I listen to Michael Savage about once in a blue moon. It's probably well worth listening to by anyone interested in this issue].

Sinai raked Kozinski's reputation through the mud, based on his snooping and snitching of Kozinski's private files, and sending them to the media. Who is is the real vermin here?
6.13.2008 11:34pm
Smokey:
Don't know why the filter did that. Honest, it wasn't me, I swear!

Please disregard the italicized language at the top. Thanx.
6.13.2008 11:39pm
LM (mail):
Smokey,

As long as you stand by your comment, I stand by my response, but I wasn't targeting you personally. If I seemed more unpleasant than usual, that wasn't intentional either, and I apologize. If we could use emoticons, I'd put one here with a big smoochy kiss.
6.14.2008 12:36am
one of many:
re:pete @7:10

My fault with the analogies, I assumed I made a point which I didn't, that all the analogies took place in public areas. I'll run with woman wearing a skirt because it at least implies the public nature - a woman in public wearing a skirt is indeed opening herself to public inspection. She may likewise brag about how much attention she gets from her appearance. While there is certainly an implied permission to look at the public face she is presenting, there is no such permission to look up her skirt despite her being in an area where her general appearance is available for public viewing. Nor is there any requirement that she take steps such as wearing trousers to prevent people from looking up her skirt although some women do, so much like password protection - the distinction between what is private and what is available for public viewing is not dictated by the amount of effort spent to keep it from public view, but by the fact that it is not readily in public view. The points are 1) that all privacy does not disappear merely because one is in public and 2) that the right to privacy is not dependent on ease of access. (italics indicate that I had to insert a phrase which may seem inconsistent, and might have to applied elsewhere. once the right to privacy has been breached, the amount of protection is dependent on the amount of security.)

All websites are not created equal. Some are intended for public view and some are not, and I suspect almost everyone knows this. Certainly the IRS websites contain areas which are intended to be kept private, financial institutions have websites which contain information which they certainly do not intend to make publicly browsable (and if they did so intend they would be violating many laws), and while the Paypal website contains credit card numbers it is doubtful anyone but the most ardent anarchist believes this information is up for grabs merely because it is on a website. The web is awash with websites are not intended for public viewing, so much so that an overriding assumption of public access merely because something is connected to the web seems artificial. Overriding is a word I chose to indicate that this assumption overrides our normal concept of what is private even when conducted in a public place - we don't on the street assume an intent of public display when we see something normally kept private, we instead assume the skirt wearing woman did not intend to flash us when she stumbled on a stair even though it occurs in a public place. Nor do we assume a public intent when inadequate steps are taken to ensure privacy in normal public areas, certainly it is not the default assumption that the loud cell phone user lets forth his monosyllabic grunts with the intent of entertaining the public who have to misfortune to be sharing an elevator with him. Why would it not be that the standards for off-line public areas should be applicable to on-line public areas?

When Sanai discovered what files he had access to, he downloaded and stored all he could until the server crashed, and when it was restored he downloaded and stored more. He then shopped the information around for a month before the LATImes ran a story on it. Seems to me he had a pretty good idea that Judge K. didn't intend for this stuff to be publicly available.
6.14.2008 12:51am
Guest12345:
Wow. I don't usually have much to contribute to the legal discussion here, but this thread has a lot of bad information regarding the web.

First, please stop trying to make analogies. A web server is nothing like a house. It's nothing like anything. If you wanted to describe it to someone who isn't technical you might try this:

Someone sets up a booth on a public thoroughfare. It has a bunch of drawers with stuff in them. You hire someone who is capable of understanding requests when the public comes along and asks for the contents of a file in a drawer or the contents of a drawer. But they are entirely incapable of making any judgment call as to whether someone who asks should be given any particular item from the drawers. If they ask for it, give it to them. If they ask for the contents of a drawer, look at the first folder and give them whatever is in that. If it is empty then just tell them what the labels on all the other folders in that drawer say. If a photocopier comes along and it asks for anything on a specific list tell it no, but otherwise go ahead and give it whatever it asks for. But that list is only for photocopiers, if people ask then just go ahead and follow the previous rules and ignore this list.


Second, putting a file on a website and not widely advertising the URL does not make that file private. Putting in place some controls is making it private. Encrypting it is making it private. Making it available to anyone who happens to know the URL is not private.

Third, typing in a URL is not hacking. Even if you had to guess the URL.

On non technical topics....

Fourth, if the judge finds it embarrassing that people know he peddles in porn (a whole directory for camel-toes? gosh), mp3s, and racist propaganda, it's not the fault of the person who catches him at it. It's his own for engaging in that behavior.

Fifth, if people are not to look at his personal life to determine his qualities as a judge, then it would certainly be appropriate to not look at his rulings to determine his quality as a human being.

Sixth, barring the content that he produced himself (or otherwise received permission from the rights holder), putting them on his website for distributing to his buddies violates copyright. Not just the MP3s, but the pictures, the videos, and cartoons as well.
6.14.2008 1:18am
Guest12345:
I'll run with woman wearing a skirt because it at least implies the public nature - a woman in public wearing a skirt is indeed opening herself to public inspection. She may likewise brag about how much attention she gets from her appearance. While there is certainly an implied permission to look at the public face she is presenting, there is no such permission to look up her skirt despite her being in an area where her general appearance is available for public viewing.


At least one court disagrees with you. A Google search suggests that such behavior is not criminal in other states as well. Hopefully the age of the latter two links indicate that things have changed.
6.14.2008 1:52am
unhyphenatedconservative (mail):
Guest,

Interesting points. You neglect the obvious, though, in that one cannot criticize the robed masters without drawing the ire of authors of this blog. That goes especially for judges they have man crushes for.
6.14.2008 1:54am
one of many:
Guest, sorta right. The OK court actually said that the specific statute charged applied, as part of it's language, only to violations which occurred in private locations. There not being specific laws in some jurisdictions which make this violation of privacy a crime does not mean there was not a violation of privacy, it just means there was not a criminal violation of privacy. Unless you believe that rights only exist if specifically granted by the state and that all violations of rights must be punished as crimes?
6.14.2008 2:39am
LM (mail):

[...] one cannot criticize the robed masters without drawing the ire of authors of this blog.

Are you DangerMouse, or is that just the mandatory jargon du jour?
6.14.2008 2:55am
Charles Chapman (mail) (www):
I disagree with those who think that Cyrus Sanai violated Judge Kozinski's privacy.

At 8:58 p.m., Cyrus Sanai said:
Seth Finkelstein has discovered that Judge Kozinski himself handed out the URL to the directory with his porn and mp3's in a letter nominating himself for Judicial Hottie of the Year (I got in through the URLs for the filesharing site that listed his uploaded MP3s.) Judge Kozinski thus made his private interests public.
Cyrus Sanai explained how he discovered the directory structure in the italicized portion of the quotation above.

Because I don't have the url or output of the mp3 filing sharing site, I'll give a link to and use the Finklestein method. In principal, the methods are really the same. You simple need the url for one file, and then truncate the file name to get to either the web page linking to the file (and perhaps other interesting files) or a directory structure.

The Finklestein method is here.

To paraphrase the Finklestein method, you simply need the url for one file, say:
http://alex.kozinski.com/stuff/jump.avi

Then delete "jump.avi" to get:
http://alex.kozinski.com/stuff/

Then paste http://alex.kozinski.com/stuff/ into your browser and hit enter. If you do that, you will get one of three things. Either the default webpage at http://alex.kozinski.com/stuff/ or the directory listing for http://alex.kozinski.com/stuff/ or an error page stating you are not authorized to access that directory.

As I understand Cyrus Sanai, he used an mp3 search engine or web directly to get the name of an mp3 file in the http://alex.kozinski.com/stuff/ directory (something like http://alex.kozinski.com/stuff/sample.mp3) and followed the same procedure.

For what it is worth, I do this all of the time, it never occurred to me that I was doing something wrong, I still don't think that I did anything wrong, and I will continue to do it. Any minimally knowledgeable web user knows that if you find an interesting file through Google (say http://alex.kozinski.com/stuff/interesting.jpg) you can back track the directory structure (say to http://alex.kozinski.com/stuff/).

On the web I believe the norm is that if you put up an accessible web page or directory, there is a rebuttable presumption that it is public. If it is not open to the public, you should get a password page or, more likely, a page saying you are not authorized to access that particular directory.

If I got a password page or a page stating that I was not authorized to see that directory, I would never try to gain access or circumvent the restriction.

If, however, I get a director listing, it would never occur to me that I wasn't supposed to get that listing, or that I was somehow invading someone's "privacy." How am I supposed to know that I'm not supposed to look at the directory structure? How am I supposed to know that I'm "invading" somebody's privacy if I paste in a url and get a directory listing instead of an "you are not authorized to access" page?

Cutting, pasting and truncating web urls is just another way of navigating the web. I've often found clearly and intentionally public web sites that, due to the lack of backward links, poor design, or the fact that you first find a media file name through a Google search, are initially navigable only through that method.

For that reason, I think the analogies to homes with open windows, keys in the door, unlocked doors, or even open doors are unpersuasive, at best. The presumption is that one does not enter another's home (and particularly a stranger's home) without permission, even if the door is unlocked. In contrast, the rebutable presumption on the web is that if you type in a url and get a page or directory listing, you are not prohibited from entering. Even if you are a stranger.

I think part of the difference in opinion on this subject may be due to differing degrees of experience in, and knowledge about, the web. I suspect that people with a lot of experience with and knowledge of the web, and how it works: (a) rely on the customs, practices and presumptions of the web; and (b) don't think to analogize to the "real" world. They see the web and the internet as its own thing. Its own think with its own customs, practices, and presumptions.

In contrast, I suspect those with less experience and knowledge: (a) aren't aware of the existence of web customs, practices and presumptions, much less know what they are; and therefore (b) naturally tend to analogize to the "real world."
6.14.2008 2:58am
Perseus (mail):
Unhyphenatedconservative,

I wasn't aware that sneering at one's quite tolerant hosts constituted good form for a conservative (unhyphenated or otherwise).
6.14.2008 3:26am
one of many:
I don't know about the last part, maybe there was some major change with the coming about of the web, I really didn't pay that much attention in the early 1990s but we used to do that sort of thing all the time in the 1980s. My views are shaped by the status.

Although we did things just like this (and worse), there was no question that we knew we could be violating people's privacy when we did this sort of digging. The major reason for doing it was in seeing things we were not supposed to, seeing what people wanted to keep hidden. It was the reason we dug through files this way, it's awkward and clumsy and time consuming to enter in meaningless filename after meaningless filename (http://volokh.com/posts/1213378597.shtml is the url to this thread, does that url name tell you much about what's inside?) to find files which if public you can no doubt find much easier through a regular menu. Maybe people have changed, and now people don't going poking around to see if there's something private they can get to, but I have to wonder, why go to the effort in hopes of finding something interesting if not hoping for something hidden?

We used to rationalize that it was OK because "they" failed to protect whatever well enough. It is important to realize that this was a rationalization, not a true justification. We knew we shouldn't be doing it, but we wanted to do it, so we invented reasons to tell ourselves it was OK. Perhaps it's exposure to criminals who can rationalize the worst things (one man came close to convincing himself he was justified in beating his date's brain in and dumping her corpse in a lake after he couldn't get an erection, because it was her 'fault' she wasn't sexy enough to arouse him, by now he may actually have managed to convince himself of it) but I'm sensitive to rationalizations and things that seem like rationalizations. The argument that it was really public because if he wanted to keep it private he would have password protected it sounds just like one of our rationalizations except we used the "'they' deserve it if 'they' don't know enough to..." rationalization more often.


***Do not expect me to ever mention another case/person I am personally involved in/with ever again, even in as little detail as I gave with regards to the man who killed his date. I dislike going as far as I did even though there is no specific information to violate any law or professional ethic, I consider it a slippery slope and I am in no hurry see the bottom.
6.14.2008 4:26am
one of many:
3rd sentence: "status" should be "status quo then"
6.14.2008 4:27am
David M. Nieporent (www):
For what it is worth, I do this all of the time, it never occurred to me that I was doing something wrong, I still don't think that I did anything wrong, and I will continue to do it. Any minimally knowledgeable web user knows that if you find an interesting file through Google (say http://alex.kozinski.com/stuff/interesting.jpg) you can back track the directory structure (say to http://alex.kozinski.com/stuff/).
You may well not have been doing anything wrong simply by typing in that URL to see what's in the directory.

But if, after browsing the directory, it's obvious that it was not intended to be public, you continue to do that, you are doing something wrong (*). And if, after you realize that, you then go tell all your friends, "Hey, look what private information is on this site!", you're doing something even wronger. And if you escalate by calling the newspaper and informing them about this stuff, you're way beyond the line.


(*) And by "doing something wrong" I don't mean "violating the law." I mean "doing something wrong."
6.14.2008 4:51am
Charles Chapman (mail) (www):
But if, after browsing the directory, it's obvious that it was not intended to be public, you continue to do that, you are doing something wrong (*). And if, after you realize that, you then go tell all your friends, "Hey, look what private information is on this site!", you're doing something even wronger. And if you escalate by calling the newspaper and informing them about this stuff, you're way beyond the line.
After giving this some thought, I pretty much agree with this.

If I searched Google for "interesting.jpg", a picture of a particular motorcycle, found it at:
http://alex.kozinski.com/stuff/interesting.jpg
backtracked to:
http://alex.kozinski.com/stuff/
got a directory listing, and then found obviously personal files (e.g., copies of tax returns, personal letters, etc.) I would realize that the directory wasn't intended to be public, would not proceed further, would not copy any files, and would send e-mail to the webmaster informing him of problem.

While I said above that there is a presumption on the web that websites and directories are public, I've always said that presumption is rebutable.

However, I'm not sure that the mere presence of porn, and particularly the presence of porn that the owner has now construed as funny or jokes, alone is enough to rebut the presumption. Lord knows there is plenty of porn on the net, and some of it is in open directory structures just like the one at issue.

Now, if I had accidentally found "porn" on Judge Kozinski's site, and I knew it was *his* site, and I who he was, I would have figured out that he couldn't possibly have intended it to be public. I, personally, would have respected his "privacy."

In the present case, it appears that Cyrus Sanai was trying to access files that he knew Judge Kozinski did not intend to make public, and that is "wrong" -- but I don't think illegal or tortious.

Still, I think the general point is important. Generally I don't think people can put files on a web server, have those files accessible in response to a valid http request, make no effort to block or limit access, and then claim they had a reasonable expectation of privacy. What do you think a web server is for?

Since everyone wants to make "real world" analogies, let me try one. Assume in a given jurisdiction the custom, practice, presumption and law is that if you put personal property in a trash bag, and put the trash bag on the curb (which you don't have exclusive control over), you have abandoned that property, and anyone can take it. Further assume Mr. Green accidentally puts a diamond ring in a trash bag, and puts the bag on the curb. Mr. Blue, a homeless person, searches the bag and finds and takes the ring.

Is Mr. Blue guilty of theft? No. If Mr. Green sues to get the ring back, should he win? Probably not.

And these propositions would probably be true even if:
(a) Mr. Green didn't intend to put the ring in the bag, but did so accidentally; and (b) Mr. Green testified that he didn't know about the custom, practice, presumption and law regarding placing the trash on the curb.

Now, is Mr. Blue nonetheless a scumbag? Perhaps. My only point is that at some point one has to be responsible for knowing the rules of the society one is living in. And guess what, on the internet if a valid http request returns a web page, directory listing or file, that web page, directory listing or file is public.
6.14.2008 5:37am
Smokey:
LM:
Smokey,

As long as you stand by your comment, I stand by my response, but I wasn't targeting you personally. If I seemed more unpleasant than usual, that wasn't intentional either, and I apologize. If we could use emoticons, I'd put one here with a big smoochy kiss.
Thanx for that, LM. You've always been a real gentleman around here. It's easy to tell, because not everyone is.
6.14.2008 7:12am
LM (mail):
Thanks, Smokey, and back at you.
6.14.2008 1:12pm
one of many:
M. Chapman, unfortunately you attempt at a "real world" analogy is poor also. In the real world (English Common Law) while Mr. Blue was not guilty of theft, Mr. Green should win a suit since abandonment theory isn't as you describe it.

With regards to your actual point (which needs no analogy), I question whether the rule that "any information you can get your hands on is public" is an actual rule of internet society. Aside from the questions of how it could be so at variance with general society's rules on privacy and how much it resembles rationalizations, there is the bigger question of does internet society actually have the asserted rule? Judging from the responses I've seen (admittedly a limited sample) it would appear that the rule is only considered valid by a minority of the members of the internet society. If a majority of the internet society feels some other rule is appropriate, are they allowed to change the rule, or are the rules of internet society etched in silicon and immutable? How much of internet society does actually agree with the rule?
6.14.2008 1:16pm
Daniel T:
I know that I am late to this party but I wish to throw my hat in with those who think that what the Judge did was wrong. Reading the comments as well as the OP, the most astonishing thing is the belief that these images were not a problem: as someone put it: "run of the mill". I believe that statement to be true; that is exactly the problem. The predicament that Judge K. find himself in is less an individual subjective problem and more a social and cultural problem. Because what is "run of the mill" to a certain social and economic class is not run of the mill to other such groups; it's disgusting, filthy, and out of line. It is just this social and class bias that leads to the mistaken belief that the Judge could be impartial in his legal dealing on this case or any other similar case. Merely doing what is acceptable to one's social class does not make one impartial. It makes one exactly the opposite. That is why recursion was a manifest necessity.
6.14.2008 1:57pm
SenatorX (mail):
Is there anyone non-religious that thinks Judge K's taste is a "problem"?

If we follow Daniel's method can we start recusing believer judges from things like divorce cases where one parent is an atheist? Clearly they cannot be impartial.
6.14.2008 2:16pm
Curious (mail):
I wonder when Kathryn Lopez and Rick Garnett are going to speak up about the anti-Catholic nature of the pictures (one of them, a Halloween costume) depicting priests getting sexual favors from little children...
6.14.2008 3:00pm
unhyphenatedconservative (mail):
LM,

It's quite possible for multiple people to share the opinion that judges as a class, individual exceptions always existing, view themselves as something above the rabble. Further, lawyers tend to buy into it more because 1) we and our clients tend to be at the mercy of these folks 2) lawyers hope to become judges and enter that exalted realm. It's also quite possible that folks, lawyers and non-lawyers alike, to be quite sick of it. And for the record, I am not now, nor have I ever been, Dangermouse.

Perseus,

I had no sneer. I don't sneer. I rarely ever smirk. I was simply pointing out that like most lawyers the hosts here are judiciophiles and that questioning that reflexive defense of judicial supremacy. That's especially so when the judicial officer in question is one whose political views the authors favor or they have personal amity for.
6.14.2008 3:12pm
Smokey:
Upthread, Cyrus Sinai specifically labels what he dug up fishing in Kozinsky's personal files as "porn." By that definition, probably 98% of everyone with a computer has "porn" on it -- including Sinai's.

Before we go any farther, perhaps Sinai should explain to everyone here his definition of "porn."

It appears that theobromophile was spot on:

While your smear job was top-notch - you've made one of the most respected jurists in America the laughingstock (at best) of the nation - that does not support your legal position in regards to a divorce case. It only underscores the fact that this is about revenge - revenge for failing to knuckle under to your ridiculous wish that a federal court intrude upon state sovereignty by hearing a divorce case, revenge for not bowing to your wishes when you attempted to demean him in an editorial, and revenge for not treating you with kid gloves. That your reaction was to humiliate an eminent judge shows more about you than it ever will show about Alex Kozinski.
Revenge, pure and simple. Sinai is exactly the kind of lawyer that causes public disrepute of the legal profession. He wouldn't know ethical behavior if it bit him on the ankle.
6.14.2008 3:22pm
Smokey:
It's quite possible for multiple people to share the opinion that judges as a class, individual exceptions always existing, view themselves as something above the rabble.
As opposed to, say, a vice-president of General Motors? Or an NBA star? Or a law firm partner?

Judges, more than anyone else in society, should be held to the exact letter of the law, no?
6.14.2008 3:29pm
methodact:
I can remember when the First Amendment meant what it says.
6.14.2008 4:12pm
theobromophile (www):
Thanks, Smokey. Glad to know I'm not barking mad (or, if I am, that I'm not alone in it).
6.14.2008 6:17pm
Edward A. Hoffman (mail):
After reading the posts others have added since last night, I agree that my earlier analyses (here and here) of what Sanai did were flawed. David M. Nieporent's is much better. He reaches the same result I did -- that Sanai is the wrongdoer here -- but for better reasons. And I still believe Sanai violated Cal. Penal Code section 502(c).
6.14.2008 6:45pm
USLaw.com (www):
Are the images discovered on the Kozinski website truly "not remotely in the same league" as the material indicted as criminally obscene in the Isaac's case? Judge for yourself. Several images from Isaac's videos are posted at:

USA vs Ira Isaacs ("Justice Cowed")
6.14.2008 7:18pm
Downside of Revenge (mail):

While your smear job was top-notch - you've made one of the most respected jurists in America the laughingstock (at best) of the nation - that does not support your legal position in regards to a divorce case. It only underscores the fact that this is about revenge . .

This is true, but Kozinski is not blameless here.

The chronology of this mess started when Sanai penned an editorial in the Recorder questioning why the 9th circuit was refusing to straighten out what he saw as an inconsistent Rooker-Feldman jurisprudence.

Then Kozinski wrote a response to the editorial in which he went out of his way to publicly question Sanai's ethics in writing the editorial. That is when the pissing match started.

The two letters are here.

Sanai responded by filing an ethics complaint against Kozinski. The complaint was dismissed, but Kozinski apologized to Sanai (I don't know whether he was required to do this or not).

I'm not sure what happened in the interim, but then you have the events at issue here.

So what you seem to have is a back-and-forth game of revenge, in which Kozinski fired the first shot by trying to publicly humiliate Sanai. Now Sanai, unhinged, is looking to destroy Kozinski, or at least damage him as much as possible.

The whole thing reminds me of the movie Changing Lanes. Sanai appears to be more to blame here, but Kozinski is not without fault. Had he not gone out of his way to try and humiliate Sanai, I wonder if Sanai would have tried to return the favor.

The moral of the story, I suppose, is that judges should think twice about trying to humiliate litigants - even if deserved - because those litigants may someday decide to return the favor.
6.14.2008 9:45pm
wm2007:
Does anyone else find it curious that Kozinski volunteered to sit on this District Court case? Given its lengthy delays in issuing opinions, I was under the impression that the Ninth Circuit was overworked.

Also, if case assignment procedures for Circuit judges sitting at the District level are anything like those for senior status District judges, it would seem that Kozinski opted to take the case knowing its subject matter from the outset.

It seems to me highly problematic that a jurist with a
collection of images involving animals and children in sexual situations (whether you find them "humorous" or not) would select this obscenity case for hearing.

Perhaps Professor Volokh can shed some light on these procedural aspects of the matter.

wm
6.14.2008 10:01pm
Guest12345:
USLaw.com:

It's interesting that the linked site shows a picture of a woman painted as a cow. A picture no different than Sports Illustrated publishes on an annual basis. Unfortunately for matters of comparison, it's not the picture that Judge Kozinski had on his site. The picture the judge had wasn't a frontal picture of a completely painted woman. It was a picture of two women on all fours, both presented from behind. Two women whose body paint is much less covering than in the photo you presented.

Some of the pictures from the Judge's site, I can see the humor even if I don't find them particularly funny. In the cow photo however, I have a hard time seeing anything that makes it humorous. Regardless, images can be both funny and pornographic.

The other thing you must remember is that it's not an A or B situation. Even if you're not Charles Manson, the fact that you're on Jerry Springer is still reason to think you're a bit of a loser.

For those who are trying to determine the propriety of typing in a URL, give up. It's been decided in court no less.
6.14.2008 10:03pm
theobromophile (www):
Downside of Revenge - oddly, your recitation of the facts does not support this conclusion:
So what you seem to have is a back-and-forth game of revenge, in which Kozinski fired the first shot by trying to publicly humiliate Sanai.

Nope. Sanai fired the first shot by questioning Judge Kozinski's ethics, committment to precedent, and judicial integrity. He never mentioned that he was a litigant in a relevant case. Inexplicably, he mentioned the jurist, specifically, at least a half dozen times.

Only after Judge Kozinski was named and criticised did he respond. In fact, Sanai's article had the jurist's name in the title. To call his response the "first shot" is ridiculous and disingenuous.

Consider this excerpt from Judge Kozinski's response:
Mr. Sanai's article urges us to "grant en banc rehearing of the next decision, published or unpublished, which asks the court to resolve the split among H.C., Napolitano and Mothershed." A petition for en banc rehearing raising this very issue crossed my desk just as Mr. Sanai's article appeared in print. The name of the case? Sanai v. Sanai. A mere coincidence of names? Not hardly. The petition, signed by Mr. Sanai, cites the same cases and makes the same arguments as his article -- including the reference to "Catch-22."

First shot? I think not. Mr. Sanai obviously wrote an article with an agenda - to make it look like a denial of his motion would be a repudiation of judicial ethics. Judge Kozinski may - and ought to - ensure that the judiciary can rule on the merits of a case, rather than by public opinion, especially when that public opinion is manipulated by a litigant.
6.14.2008 11:05pm
Dave N (mail):
I was under the impression that the Ninth Circuit was overworked.
I have had a 9th Circuit death penalty case pending for over a year (since oral argument) so I understand that frustration. However, the Ninth Circuit actually has only one vacancy at this juncture--the seat of now Senior Judige Stephen Trott.
6.14.2008 11:35pm
wm2007:
Thanks to Dave N for the reply.

Perhaps I should clarify my question about case assignment procedures. My understanding is that District Court Judges usually do not choose the cases over which they will preside. Instead, cases are assigned in some random fashion (e.g., "put on the wheel"). However, it used to be the case that senior status District Judges could select the types of cases they would take, and in some jurisdictions, could select the particular cases they would handle. I would expect that Ninth Circuit Judges who volunteer to sit at the District Court level would have the same power to select their cases. Is this true?

wm
6.15.2008 12:00am
Cyrus Sanai (mail):
This site certainly has a lot of commentators who can't read.

My 2005 article is still up on How Appealing, and I welcome readers to it. The subject was whether unpublished opinions should be citeable in federal court. I compared California unpublished opinions, which are created with the same degree of logic and reason as published opinions, with federal unpublished opinions, which could be written on a big post card in many cases.

I addressed Judge Kozinski's views on citing published opinions, where he was a hard-liner against, with his opinion in the 6-5 decision in Barapind v. Nemoto, where he criticized the minority's view of fidelity to precedent. Read the opinion; it has received no attention, but is a really remarkable debate.

I took the view that Judge Kozinski's views concerning the importance of fidelity to precedent would best be served if unpublished decisions were citeable. I discussed the Rooker-Feldman issue, which I was intimately familiar with BECAUSE I WAS LITIGATING IT. If I had not litigated or was not litigating an issue or regularly dealing with it, I would not bother to learn about it.

I did not disclose my "interest" in the issue because my "interest" in the published/unpublished issue was no greater or lesser than any other lawyer litigating cases. Should I have disclosed my "interest" in the Rooker-Feldman issue? I don't understand why. I'm not a judge or a scholar, I'm a working lawyer. Nothing I do or say in a professional capacity has any goal but to advance someone's interests. I'm always advocating for somebody.

However, Judge Kozinski was absolutely, positively barred from commenting on a case before the Ninth Circuit. He heedlessly violated that ethical rule. He also posted case related materials on his website which was...wait for it...alex.kozinski.com and linked to the materials on the on-line version of the piece. That was a double ethical violation.

Judge Kozinski conceded the first violation, grudgingly, but apparently denied the existence of the alex.kozinski.com site according to the order issues FOURTEEN MONTHS after I filed it. Months later, he put the same article on the /articles/ directory, links to which could be found in, among other places, his Wikipedia entry. I filed a second complaint in November of last year, which states, inter alia, (a) here is the site that Judge Schroeder supposedly couldn't find, and (b) if Judge Kozinski admits he should not have written the article, it is misconduct to further distribute it.

A month later, I googled alex.kozinski.com to see what else he might be doing with the site, and found the information.

Was alex.kozinski.com private? Ridiculous. Judge Kozinski put all of his journalism and law review articles in the /articles/ directory, and regularly referred people to it. His claim that he thought the website was private is, quite simply, a lie.

What about the /stuff/ directory? A closer question that, but Judge Kozinski himself passed out links to content on that directory. I found it a different way, by the links from the mp3 sites to mp3 files. I simply don't believe Kozinski is that big a moron.

Is this going to go away? The answer is no, due, among other things, to Judge Kozinski's failure to recognize something I advise my clients: when it comes to scandals, the cover-up is ALWAYS worse than the crime.

Judge Kozinski initially admitted what he did. He is now arguing, directly and through this pals, that (a) my son did it,, and/or (b) the site or perhaps the directory was private. The first contention is contemptible; the second contention asks one to believe that Kozinski is a moron.


Judge Kozinski is not an idiot. He is a gregarious, brilliant, self-obsessed egomaniac who has mastered much over his life. Nothing necesarily wrong with that. However I believe that over 20+ years on the bench he has lost sight of some of the values to which he originally adhered, due to the Ninth Circuit's corrosive culture of quietly white-washing judicial corruption and misconduct in certain federal benches and certain states, of which Washington State and Nevada are the out and out worst. His efforts to oust Manuel Real are an example of his positive side. His involvement in my case, and his reprehensible conduct toward former head of the Administrative Office of the Courts Ralph Mecham, are Kozinski's other side.

As for my own case, I am preparing a statement through Google News. Suffice to say for now I got Seattle's version of Manuel Real as a district court judge.


Cyrus Sanai
6.15.2008 1:06am
Downside of Revenge (mail):
theobromophile:

By "first shot" I didn't mean one criticizing the other; I meant one getting personal with the other.

I re-read Sanai's original piece and there is nothing in there that attacks Kozinski personally. He does try and show an inconsistency between what Kozinski was saying the Ninth Circuit was doing and what it was actually doing, but regardless of whether you think he made a good case for inconsistency, he does not get personal. Naming Kozinski in the title is not getting personal, nor is it "inexplicable." Kozinski is the Chief Judge of the circuit at issue and apparently had issued the challenge to which Sanai was responding.

I also don't see how Sanai's piece can be fairly read to impugn Kozinski's integrity unless you think criticism of any judicial decision (or refusal to hear a case) impugns the judge's integrity.

In any event, when you compare the tone of Sanai's piece to the second half of Kozinski's piece, there is an obvious difference in tone. Kozinski took it from a substantive dispute to a public smackdown, and I guess I just don't have much sympathy for him when his target decides to try a little smacking of his own.
6.15.2008 1:16am
theobromophile (www):
You did your best, then, to put Judge Kozinski in the position of either allowing your challenge to go unanswered - and allowing you to dictate the court's jurisprudence via public opinion - or answering it and triggering your wrath.

As an attorney, you ought to know that the proper place for such opinions as those expressed in the Seattle article are in briefs. Your arguments ought to be addressed to your opponents. When you argue not to the Court, but to the public, and make the judiciary, not opposing counsel, the subject of your complaints, you have left the realm of "pending litigation."

As much as you discussed Catch-22s in your complaints, it must have occurred to you that you created a Catch-22 for Judge Kozinski: either let your complaint go unanswered (and affirm it by silence), or risk committing an ethical violation by responding to it and pointing out your biases.

Again, I think you'll be lucky to escape this with your law license intact. You seem to enjoy exercising power over the members of the judiciary.

Mr. Sanai, if you do not want the judiciary to comment upon pending litigation, you should refrain from publicly commenting on how the judges in question ought to rule on the litigation. Your actions are much like those of a child who pinches his sister in church, then tries to get her in trouble when she yells at him to stop it.
6.15.2008 1:18am
wm2007:
I can only assume theobromophile is not a lawyer.

In my area of practice, it is not at all unusual for an attorney to debate, lecture and publish on a topic involved in a case that he is litigating. Most often, this occurs on local bar association MCLE panels. Of course, everyone expects that the position presented by the lawyer on the panel will reflect the position he has taken in court.

So far as I know, there is no legal or ethical bar against an attorney speaking about issues in the law, including those that are the subject of current litigation.

On the other hand, judges are subject to material restrictions on their speach and conduct with respect to issues in litigation before them. In the federal context, check out the Code of Conduct for United States Judges. These ethical restrictions on the ability to comment on ongoing matters, even in the face of public criticism, is one of the constraints under which federal judges operate. Many people will recall such constraints coming into play again and agin in the confirmation hearings of Justices Alito and Roberts.

It's worth noting that Article III judges receive lifetime tenure, subject only to impeachment by Congress. This serves to insulate them against consequences of negative public opinion.

wm
6.15.2008 2:18am
theobromophile (www):
In any event, when you compare the tone of Sanai's piece to the second half of Kozinski's piece, there is an obvious difference in tone. Kozinski took it from a substantive dispute to a public smackdown, and I guess I just don't have much sympathy for him when his target decides to try a little smacking of his own.

"Tone" might be an acceptable means of analysing this dispute if it were, for example, on an internet forum - a forum devoid of any context, with an intellectual dispute in a vacuum. As it stands, however, Mr. Sanai singled out Judge Kozinski for his piece, seemingly for intellectual and jurisprudential reasons, when, in fact, he had pending litigation on Judge Kozinski's desk. Mr. Sanai referenced "the next possible case" (or similar), which was, in fact, his own case. In a vacuum, Sanai's tone was dry and academic; in context - i.e. in reality, not the make-believe world that he would have us inhabit - it was an attempt to pressure Judge Kozinski into ruling in his favour.

As for Sanai's revenge... Judge Kozinski limited himself to the fact that Sanai was hardly the impartial observer he made himself out to be; rather, he had a very personal stake in what he espoused. Sanai' actions were aimed at obtaining a certain judicial result that he seemed unable to obtain through the normal judicial processes. Pointing that out is not "getting personal;" it is simply the facts. I find it amazing that one could defend Sanai on the fact that Alex Kozinski ought not have "gotten personal," when the whole dispute only arose because of Sanai's very personal interest in the doctrine and judge in question.

Sanai's response - to drag the judge's name through the mud - was, in contrast, very personal and very unrelated to the Rooker-Feldman doctrine.

A final thought. Atlas Shrugged, "Miracle Metal":
There is was: the punishment that required the victim's own virtue as the fuel to make it work - his invention of Rearden Metal being used as the cause of his expropriation - Dagny's honor and the depth of their feeling for each other being used as a tool of blackmail, a blackmail from which the depraved would be immune ... men held enslaved by means of whatever living power they possessed and whatever joy they found in life. Such was the code that the world had accepted and such was the key to the code: that it hooked man's love of existence to a circuit of torture, so that only the man who had nothing to offer would have nothing to fear, so that the virtues which made life possible and the values which gave it meaning became the agents of its destruction....


If Judge Kozinski were not the jurist that he is, or if his ethics and committment to judicial integrity were not what they were, Mr. Sanai's editorial would not have hit its mark. A judge who cares not about the integrity of the justice system - both in operation and in perception - would have either ignored the attack on the Ninth Circuit or would have ruled against his better judgment. Likewise, if Judge Kozinski were not a highly respected and respectable member of the judiciary - one who is principled in his personal and public life - the news that he possesses adult humour would not be news at all, nor would it function to humiliate a great man. Mr. Sanai's actions are not designed to expose those who lack ethics and morals; they are designed to humiliate just those persons, while having little effect upon anyone else.
6.15.2008 2:39am
theobromophile (www):
wm - I've seen quite a few legal debates during my time (although I'm fairly young). I have never seen any that resemble the actions taken by Mr. Sanai - those which implicate the ethics of the judiciary in question, purport to be entirely disinterested, and urge the court to rule on the case in question without actually mentioning that one has the most personal of stakes in that case.

Read what Mr. Sanai wrote; read Judge Kozinski's response; then cut down on the snark towards me. I'll let others answer the question of whether or not I'm a lawyer or affiliated with the legal profession - or ought to be, for that matter.
6.15.2008 2:46am
theobromophile (www):
On the other hand, judges are subject to material restrictions on their speach and conduct with respect to issues in litigation before them. In the federal context, check out the Code of Conduct for United States Judges. These ethical restrictions on the ability to comment on ongoing matters, even in the face of public criticism, is one of the constraints under which federal judges operate. Many people will recall such constraints coming into play again and agin in the confirmation hearings of Justices Alito and Roberts.

On second thought, I'll fight you on this.

You simply CANNOT compare the confirmation hearings of Alito and Roberts - or any judge or justice, for that matter - with this issue. Those who are up before the Senate for confirmation hearings are not commenting about a particular case (often) and asked how they would rule on it; they are refusing to comment upon hypothetical cases (such as a challenge law to Roe v. Wade) and how they would rule on those. There are different principles at play in each instance. In the latter, the nominees are simply refusing to speculate about hypothetical cases, which would be irresponsible, as it implies that the judge would not examine the actual facts in a similar case before it - it implies prejudice and bias. (I will also note that the judges who are up for Supreme Court appointments often exercise this restraint out of duty to judicial integrity, not out of professional ethics.)

Furthermore, "comment on ongoing matters" is a very vague term. Kozinski did not comment on anything that was not public record. He did not opine about the validity of Mr. Sanai's claim that had just crossed his desk. He did not disclose a personal bias or prejudice. He did, however, point out that the claim was on his desk.

Now, when I go to legal conferences, I'm used to seeing judges who will - horror of horrors - mention the title of a case on their docket! That is really what Kozinski did - to state a matter that is already public record, has nothing to do with how he will rule on a case, and nothing to do with his view of the facts of the case. I fail to see how saying, "A case called Sanai v. Sanai came across my desk this morning," is tantamount to discussing the intricacies of a case. In your view, then, prohibitions on "comment[ing] on a case" would extend to even mentioning its existence. I highly doubt that such is the meaning of the judicial code of ethics.
6.15.2008 2:58am
Visitor Again:
Is anyone giving him any serious grief, and, if so, who?

I'm disappointed that Judge Kozinski has felt it necessary to recuse himself from the case and to call for an investigation into his own conduct, although I certainly understand why he has done so.

Anyone who think serious harm has not been done ought to read the hundreds on hundreds of reader comments appearing in connection with the Los Angeles Times' original story, which was a hatchet job. The yahoos have had a field day portraying the judge as a sexual deviate and, indeed, a perverted monster loose on the bench. They are out for his blood.

I've waded through most of those comments--more than was good for me--and I've seen the materials the judge posted on his personal website. One thing is clear to me; he did not keep the materials for reasons of sexual gratification, but merely because he found them humorous. For example, the defecation photo turned out to be of a skydiver who messed himself after jumping from a plane. (Kozinski has been skydiving himself.) And the "man cavorting with a donkey" video turned out to be of an aroused donkey chasing a man who had pulled down his trousers to take a crap in a field, leaving his behind exposed, and who desperately tried to evade the donkey's attentions, repeatedly tripping as he ran while trying to pull up his pants.
6.15.2008 8:34am
Downside of Revenge (mail):

As it stands, however, Mr. Sanai singled out Judge Kozinski for his piece, seemingly for intellectual and jurisprudential reasons, when, in fact, he had pending litigation on Judge Kozinski's desk.

Again, I don't read Sanai's piece as singling out Kozinski except as the chief judge and the man who had issued the challenge to which he was responding. Look at it this waY; if Sanai was right on the merits, it was not Kozinski who was wrong, it was the whole Ninth Circuit. So I don't think an objective observer can view this as an attack on Kozinski. Kozinski was obviously named as the challenger and chief judge.


Mr. Sanai referenced "the next possible case" (or similar), which was, in fact, his own case. In a vacuum, Sanai's tone was dry and academic; in context - i.e. in reality, not the make-believe world that he would have us inhabit - it was an attempt to pressure Judge Kozinski into ruling in his favour.

People advocate all the time outside of briefs for discretionary appellate review. I am not even a litigator and I occasionally see people recruiting me to join them in encouraging the California Supreme Court to grant leave for appeal. (En banc review is essentially the same thing.) Those advocating for review almost always have an interest in the case: their client benefits from a reversal. The difference here is that Sanai was also a party, but I don't think pro se litigants should have less rights than represented litigants in this context.
If Judge Kozinski were not the jurist that he is, or if his ethics and committment to judicial integrity were not what they were, Mr. Sanai's editorial would not have hit its mark. A judge who cares not about the integrity of the justice system - both in operation and in perception - would have either ignored the attack on the Ninth Circuit or would have ruled against his better judgment. Likewise, if Judge Kozinski were not a highly respected and respectable member of the judiciary - one who is principled in his personal and public life - the news that he possesses adult humour would not be news at all, nor would it function to humiliate a great man.

I think Kozinski is better than the average judge, but your hagiography is actually becoming funny. Are you trying to get a clerkship with him? It would probably be easier if you just wrote him a letter, or asked EV for a reference. My guess is that he is not reading this thread.
6.15.2008 12:32pm
Smokey:
I've got no dog in this fight, but I just read the letters linked above, and this jumped out:
Nothing alerts the reader to the fact that Mr. Sanai has been trying for years to get the federal courts to intervene in his family's state-court dispute, an effort referred to by a highly respected district judge as "an indescribable abuse of the legal process, ... the most abusive and obstructive litigation tactics this court has ever encountered. ..." Nor would the reader -- unless he happened to enter Mr. Sanai's name in the Westlaw CTA9-ALL database -- realize that, as part of the same imbroglio, he and certain members of his family have hounded a state trial judge off their case (read the PDF); been held in contempt and sanctioned under 28 U.S.C. §1927 and had their ninth sortie to our court in the same case designated as "frivolous" and "an improper dilatory tactic" by the district court.
Sinai's current tactics -- which included a long, personal attack on Kozinsky on Michael Savage's talk radio show last week -- seem to fit the same disreputable pattern.


[And for the record, information on one's computer is intended to be private, unless it is accessed with permission. "Public" files are public when they are intended to be public, such as Yahoo!'s publicly accessible files, ABC's files, or the VC's files; these entities are deliberately open to the public. The files of private individuals are not to be accessed without permission, even if a means can be found to do so -- no more than if someone were to access your bank records in your house, if you happen to leave home and forget to lock your door.]
6.15.2008 12:53pm
Amy Peikoff (mail):
I agree with you, Eugene.

I've been acquainted with Kozinski for years (most of it by e-mail) and don't recall him ever sharing with me files on the site in question. To me this means it must have been a select group of family and friends with whom he shared them.
6.15.2008 5:21pm
Mary Blasy (mail) (www):
Prof - the line of argument is stellar - as usual - but the facts appear to be off in a crucial way: Kozinski is said to have intentionally directed the public to the website on more than one occasion in the past, i.e. he is said to have linked a piece he published in the NY Times a couple of years ago to the website to direct the public to a video clip of him. My understanding is he did this a number of times. I think he admitted as much to the LA Times, though he said there it was invitation only. He may not have intended that the particular materials be accessed by anybody but those he invited - in fact he placed them in a sub file he thought was not readily accessible to anybody unless they knew the secret spidey handshake - but it seems to me your arguments above would work a whole a lot better if Koz had just left the stuff on his C drive. According to what I’m reading on blogs (latimes.com wsj.com, et al), he didn't.
6.15.2008 5:39pm
LM (mail):
It's pretty evident most VC commenters have a favorable view of Eugene, who has a favorable view of Judge Kozinsky, so, considering that "the friend of my friend...", and "the enemy of my friend...", I give Mr. Sanai credit for coming here to argue his position. He couldn't have exactly expected a chorus of "atta boy"s. But I'll bet he's going to find that lonely feeling extends well beyond the uncongenial confines of the VC. Judge Kozinsky's popularity isn't limited to former clerks and ideological cohorts. Having met him socially many years ago, I can echo what just about everyone else who's known him says: He's a great guy. People like him, at least within the legal community, where they have reason to know of him and about him. So invading his privacy to obtain personal information for an attack on his professional standing isn't likely to win many friends.
6.15.2008 5:40pm
Mary Blasy (mail):
By my earlier post I did not mean to imply I have personal knowledge that the public was invited to the website - and I guess the better part of valor is not to spread rumor as "unverfied fact" - Again, I agree with the Prof's position 100% if the facts are as presented by him.
6.15.2008 6:39pm
Dave N (mail):
Downside of Revenge,

I would note that Judge Kozinski WAS NOT Chief Judge at the time he and Mr. Sanai had their public dustup. Judge Kozinski became Chief Judge this year. The public sparring match occurred in 2005.
6.15.2008 6:42pm
Dave N (mail):
Oh, and I think Mr. Sanai should have noted his conflict of interest in his original article rather than disingenuously suggest that the Ninth Circuit take the very next Rooker-Feldman case to resolve the conflict Mr. Sanai perceives without mentioning such a case was his own. Eugene mentioned his own bias in the first sentence of his post.
6.15.2008 6:47pm
CDR D (mail):
Tsk.

Those two "cows" sure do have what an old sailor would call a "peacoat sleeve".

They could do deep-knee bends over fire hydrants.
6.15.2008 7:42pm
theobromophile (www):
Agree with Dave N., who said it much more succienctly than I.

Downside of Revenge - the first clause of the penultimate sentence is amusing (for myself and a handful of other readers). Moving onwards...

It is not hero worship to point out that Mr. Sanai's tactics are those used against a moral and honourable opponent. A dishonourable man would simply say, "So what? Life tenure and it's not illegal, so shove it." A jurist who does not care about the ethics of his job would not be bothered by Sanai's disingenous hissy fit; only a jurist who takes the public and academic aspects of his job seriously would be caught in the Catch-22 that Sanai created.

It's a personal thing, but I get incensed when people try to use their opponents virtues against them. I also get incensed when the judiciary - that branch of government which ensures that we may live in a just, ordered, and free society - is threatened in any way. Intimidating judges - "rule my way or pay the price" - falls into that category.
6.15.2008 11:39pm
Xrlq (mail) (www):
Edward A. Hoffman:

After reading the posts others have added since last night ... I still believe Sanai violated Cal. Penal Code section 502(c).


It's a free country, and you have just as much of a right to believe what you want as the Raelians do. You've also made just as strong a case to support your belief as the Raelians have to support theirs.
6.16.2008 8:44am
NotAVolokh:
FYI, the state bar ethics complaint website is here.


The lookup for Cyrus Sanai's bar number is here.
6.16.2008 3:59pm
Sigivald (mail):
Pete: Note the statute says 2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.

Nothing in there about, say, "circumventing security" or anything else. Just knowingly accessing without permission copying or using.

He accessed, he didn't have permission, and he seems to have copied.

(I believe in normal use it's considered implicit permission if there's public access links to content, but when you have to manually enter a path into the browser that you figured out or guess from other means, there's no implicit permission, and thus the statute would presumably apply.

I agree with One Of Many - "I could get to it and there was no password or whitelist or firewall and stuff" is not the same as "public". Kozinski isn't a network security expert, and unlike the disproportionately geeky blog readers and commenters here, is even less likely to have any idea about how easy a motivated bastard would find it to poke around a website.)
6.16.2008 4:17pm
Xrlq (mail) (www):
Sigivald, by that logic, anyone who finds this page by Googling "Cyrus Sinai" and then truncates the URL to see what's at volokh.com is a criminal, too. Get real.
6.16.2008 8:35pm
Charles Seiverd (mail) (www):
I think the major issue here is not the porn but the mp3's the judge had on his server which WERE publicly accessible (and by his own admission, distributed without consent).

Inasmuch as the layperson might engage in this practice on a nightly basis (and deem it appropriate because it is fair use), it is a far different story when a judge who decides these issues (and his collegues in the 9th Circuit HAVE on the side of the recording industry, not the user) attempts to do so.

In this instance, Chief Judge Kozinski broke his own court's interpretation of the law and should be removed from his post.
6.17.2008 1:12am