I don't have a great deal more to add to what Eugene [and Larry Lessig] have already said about this; there's nothing here that impugns Kozinski's status as a judge (or should cause him to recuse himself from an obscenity trial), and I agree that we should let the private story and its private embarrassments die. But there's one interesting angle here, that I haven't heard anyone comment on. This past March, I spoke at a very interesting conference at UC Santa Clara Law School, on law and cyberspace and virtual worlds and the like, and Judge Kozinski was the keynote speaker. I was really looking forward to hearing him; we had never met, though I've always been something of an admirer of his, and think of him as certainly one of the more interesting, and capable, members of the federal judiciary. Plus, I knew enough about him to know that at least we'd be entertained, if not necessarily enlightened, by his talk. Judge Kozinski's talk centered on the increasing difficulty, these days, of finding and navigating the line between what is private and what is public. I don't have his text in front of me [I believe it will be published in the Santa Clara Computer and High Technology Law JOurnal, along with the other symposium stuff], but the examples I recall him focusing on included Google Earth [he described, vividly, Barbra Streisand's discomfort at discovering that her carefully hidden home was basically available for all to peer into through this little piece of software), and he also spent a fair bit of time decrying the habits of those who feel no compunction whatsoever about revealing, while talking on a cell phone at high volume in a public space, pretty intimate details of their lives to total strangers who happening to be, say, sitting in the airplane seat next to them. He also talked at some length about the fuss he made, as Chief Judge of the 9th circuit, when he found out that federal agents were routinely monitoring the Internet traffic into and out of the federal courthouse buildings, and about his role in getting that to stop. In truth, I found the talk a little disappointing -- a little on the whiny side about the cell phones, a little too much on the theme of "things were a lot better in the old days." But that's neither here nor there; the talk does look different in light of recent events. The story here, to the extent there is a story, is precisely "about" the difficulty of navigating between private and public spheres, and in particular about Judge Kozinski's confusion (which, I hasten to add, he shares with millions of people) about what, on this "internet" thing, is private, and what isn't. Had he done what millions of people do -- store photos, some salacious and some not, on their hard drives, or in hard-copy in a locked file cabinet -- then there is, of course, no story here at all. You wouldn't think it would matter that he chose a different storage medium -- a "private" (or is it "public"?) webpage -- for those photos, but in some ways it does matter, and I think Kozinski was, as he seemed to be indicating back in March, quite genuinely confused on the matter -
Related Posts (on one page):
- Mrs. K for the Defense:
- More on Kozinski:
- Kozinski:
- Lessig on the Kozinski Kerfuffle
Oh really?
If you read through the comments in the previous threads, you will see that there is at least one picture that appears to me to depict a minor engaging in self-fellation. Another poster indicated that _IF_ the person is a minor, such masturbatory activity would be, by definition, child pornography.
If that is so, do you think this is still just a private matter?
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.
Since the first VC post on the Kosinski affaire came on, I've been waiting for one of the Soviet emigres here to rip Larry Lessig for his comparison of what happened to Kosinski to Ceaucesceu's Romania. A little less professional courtesy and more intellectual honesty is needed here.
Judge Kozinski has long sought to make his personal quirkiness and verbal combativeness a feature of his public image and his jurisprudence. The result is that he has mixed his personal interests (e.g. looking at and downloading porn) with his job.
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.
What's worse, at least to Ralph Mecham, the former head of the Administrative Office of the Courts, and the late Justice Rehnquist, is that Kozinski converted his personal pastime into a long-running dispute within the courts over web-filtering. Rather than deal with the issue in an abstract fashion, he personally attacked Mecham in the pages of the Wall Street Journal in 2001, and did so again in the California Lawyer a couple of months ago.
The focus on the pornographic aspects of the case could be called overblown--but the other serious problems with what Judge Kozinski has done are only now receiving some attention, and in my view, they raise much more serious questions about him and the Ninth Circuit's attitudes toward the rule of law.
By the way, if the Conspiracy powers that be are interested, I'd be happy to set out the facts and what is at stake in a full post or posts. My contact details are in the calbar.org site.
Cyrus Sanai
Well, if it appears to you to depict a minor, that is something different.
[Alternate snark, rejected]: (music) "Dun-dun-DUNNN!!!"
You write:Can you tell us more about how you accessed the files on Judge Kozinski's site? As you have volunteered to provide the facts of what happened, I'd be really interested in hearing more about how you found the files that you then retrieved.
Tell Orin so that he can help Kozinski come after you for some legal violation. That's why we call it a conspiracy. :)
Orin: I accessed Judge Kozinski's /stuff/ directory by entering "alex.kozinski.com" into Google. Up came various pages, including a page of "FREE MP3s" that had a link to a Weird Al Yankovic MP3 on Judge Kozinksi's stuff directory. You can, if you act quickly, find a cache of a link from the same purveyor on Google, though since the link is now broken, Google is in the process of flushing things away.
For a month, Terry Carter of the ABA journal was invetigating and reporting Judge Kozinski's MP3 links, and you can read his story now on the abajournal.com website. Wired.com also has an article that discusses this.
It has always been my view that the file-sharing is Judge Kozinski's real problem. Bawdy judgery is a violation of the judicial appearance canons; it deserves reprimands. File sharing is flatly illegal, Judge Kozinski knows it, and on contributory infringement, he has taken the hard line (see Perfect 10 dissent). If what he does has been extensive, I could see removal as appropriate.
It would be just preposterous for Kozinski to contend that mp3s of weird Al Yankovic were uploaded using Apache server to store them on alex.kozinski.com. Therefore he has been completely silent on this point.
Cyrus Sanai
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."
How so? Or rather, why do you impute his behavior, with which you obviously find fault, to the entire Ninth Circuit? And for their "attitudes toward the rule of law," for that matter?
That seems more like a politically conservative talking point than an argument.
I contacted Prof. Lessig, but he state that this point does not change his opinion of my actions. I have to say I am very disappointed; I expect academics to investigate and alter their hypotheses as new facts emerge.
Obviously, Prof. Volokh is close to Judge Kozinski, so I don't expect him to look at what I did with any feelings of sympathy, but again I should hope that he would keep an open mind.
Alec, I would be happy to answer your questions in detail, but it involves a very long discussion of the facts, and I don't want to occupy that much space unless the Conspiracy is interested in providing me the forum. Prof. Volok has my details.
Cyrus Sanai
Do you really want to posit that sending a valid http request alone is morally wrong?
Do you really want to posit that sending a valid http request alone constitutes an invasion of privacy?
Do you really want to posit that sending a valid http request alone constitutes "circumvention" of a "security" device such that the sender is subject to criminal prosection?
It's a public site, David Post. I think even your average high-school graduate understands that if you allow no-password anonymous connections from any computer on the Internet to your files, they can't reasonably be described as "private."
Consider it an electronic easement, if you like, the equivalent of owning a piece of property and putting no fence around it for years, even though you know people have a habit of crossing because it's a useful and widely-known shortcut.
It has always been my view that the file-sharing is Judge Kozinski's real problem
Then, Mr. Sanai, you are either a cynical liar or completely clueless about how that sort of thing works. I've seen enough of the kozinski.com file structure to know it bears no resemblance to those of people who are deliberately sharing MP3s. If he was sharing MP3s, it was obviously inadvertently. Which, you know, any reasonable person would also realize from knowing how embarassing the other stuff in the same filesystem was. Did you suppose he expected college students coming for his MP3s to just politely refrain from snooping around? Ha ha.
It would be just preposterous for Kozinski to contend that mp3s of weird Al Yankovic were uploaded using Apache server to store them on alex.kozinski.com. Therefore he has been completely silent on this point.
On the other hand, it's possible he's been silent because you're wrong about the nature of the site, and it isn't "preposterous" at all. If he, like most people who run a big web site, had his site hosted professionally (e.g. on Yahoo.com), on a computer to which he had very limited access, then, yeah, it would be a bit weird to upload stuff that you weren't intending to share with the world.
But that seems not likely to be the case. kozinski.com has DNS service through joker.com, but joker.com does not host alex.kozinski.com, and if you are paying for professional hosting it would be odd to pay someone else to do your DNS service. Usually those two functions are part of a package deal.
Indeed, so far as a quick and dirty search can tell, alex.kozinski.com is a static IP address issued by Cox Communications in Orange County, California, which means it may well be just a computer sitting in the judge's son's den running Linux. In that case, one can "upload" a file to the "web site" just by copying it from one directory ("folder" for you Windoze users) to another.
So I think your dark suggestion that it's "preposterous" that he could have not meant to share those files with the whole world is not only unlikely from a psychological perspective, vide supra, but not supported by the technical facts we know.
I don't know if the law can touch you. I'm not a lawyer (thank God) but I doubt it. It's probably not quite the same as going into your ex-girlfriend's house when she carelessly leaves the door unlocked and taking pictures of her large collection of exotic dildos and gay smut, so you can mail the photos to her new boyfriend and mess things up for her.
But it sure seems the same, to us ordinary folks, unaccustomed to lawyerly hair-splitting. You're a peeping Tom, basically. That's disgusting.
I don't believe that will be necessary. I am not interested in personal hang-ups. Since that is all it appears to be, I prefer that this die a quiet death.
To Judge Kozinski, if he happens by (and I doubt he has reason to), my apologies for this unbecoming invasion into your personal and private affairs.
I am more than willing to believe, however, that he was taken by surprise that others could see the directory structure, instead of having to know an exact file name.
Ignorance is no excuse when it comes to the law, and in many ways technology is just as unforgiving.
However, beyond being a bit embrassing, I'm not sure how relevant it all is.
I have file stored on a no-password site which allows anonymous connections, and I consider it semi-private. I simply disabled directory listings. Then I can give out URLs when I want to, say, show someone a photo I took. Unless they know the name of another file there, they can't see it. It's possible to guess some file names (e.g. if they are in a sequence).
Once I upgraded apache, and suddenly directory listings were enabled! It's a good thing I checked, as I didn't change the configuration. There isn't anything embarrassing in there but I still don't want the list to be public, so I fixed it. I couldn't believe an upgrade would change the behavior like that. Perhaps something similar happened in this case?
Really? Have you been reading this thread? I would revise my considerations if I were you.
If accurate, and I hope it isn't, the link contained in Prof. V's post includes two files which seem to base their "humor" on the priestly child abuse scandals. I am not a Catholic, so I suppose it ill behooves me to be outraged on someone else's behalf, but I am at least a little troubled.
One of our repeated apologetics here seems to be a public/private distinction. Am I the only one to think this ironic on a blog whose very name recalls a spouse's reaction to a federal prosecutor asking questions about a presidential affair? Haven't we put behind us the notion that one's public duties bear no relation to one's private life?
If a neighbor inadvertently leave a window blind open and I catch sight of him/her in the nude, I avert my eyes--yes, even for that 19-y/o babe. I most certainly do not take pictures and send them to the newspaper and TV stations.
If, through open windows, I hear my neighbor boffing away mightily, I don't record the sounds and send them to the yocks-a-minute radio station.
Do I have the right to do these things? Well, the law's probably on my side, if I'm not encroaching on that neighbor's property. But I'd still be a slime to do it.
Being slime, apparently, is not dissuasive to some/many.
I consider the portion of a website to be public if I am invited to it, through advertising, links, published URLs, etc. I do not consider an invitation to visit a public page to be an invitation to root around the directories of the site. It's as though I invited you to my home and you took it upon yourself to dig through my office. I left the office door unlocked, after all, and I hadn't yet shredded (or felt the need to shred in my own home) my credit card receipts.
If my home is burgled, am I to be held to account because I did not have 3" steel doors, with vault locks securing it? In hindsight, that would have been good, nay appropriate protection. My landlord might not like it, might not even approve of it, but I guess it's my responsibility to ensure that burglars simply cannot get to my goodies. No blame accrues to them, right? I mean, I was asking for it, right?
Sanai is slime; Chapman, by the ethics he offers, is slime. Are they criminal slime? Not yet, but soon, I hope.
I am forced to conclude that the judge is 1) scarcely awake to a commonplace issue of modern life, 2) that he is careless -- and maybe vain -- about information that could cause him harm, 3) that he is imprudent in storing such information where public access was possible, 4) that he is unwilling to take acknowledge careless behavior as such.
Does this all impugn his "judicial temperament? Probably not.
Does this impugn his good sense and prudent judgment. Yes, not such a good thing for a Federal judge.
I'm going to posit a fifth possibility -- that the judge never considered that jokes forwarded and reforwarded to thousands and thousands of people could reflect poorly on him personally, or possibly need to be kept secret, any more than a make money fast or Nigerian bank account spam.
Further, I wish that the LA Times would investigate the remarkable coincidence that the judges' MP3 files were first indexed on music search engines the same month (Dec 2007) that Mr. Sanai made his amazing discoveries.
One would hope that all - 100% - of one's neighbors would avert their eyes and ears if any such indiscreet incident occurred, due to an accident or due to a lack of diligence on the part of the person being observed. Otoh, to positively or absolutely expect, or even demand such a 100% compliance is a different expectation entirely, is, bare minimum, an unrealistic expectation.
Likewise, one might have one or two dozen neighbors at the most, while having a server open, or even potentially open, to internet traffic effectively creates a scenario where one has prospects for literally tens of thousands or even millions of "neighbors." This renders the expectation or demand even more absurd, even more ludicrous, both from a practical pov and from the pov of the negligence (informally understood) of the person owning the server and material in question. In sum, the analogy is fitting, but only to a degree given the material realities involved.
Further, this obviously relates, in general terms, to public vs. private spheres, both as pertains to purely legal and technical interests - and as pertains to broader moral and philosophical arguments and concerns, which is to say more rigorous arguments, rationally/empirically understood, than are typically applied within purely legal/technical arenas. The purported truism is often advanced that "you can't legislate morality," but the more genuine truism is that morality is the only thing that ever is legislated. That's a summarized way of putting it - a far too summarized way of putting it since it merely serves to invoke the broader and more specific set of discussions - but it serves as an apposite and pivotal reminder nonetheless. Private vs. public spheres are not as discrete and separable as large "L" Libertarians would like to imagine. This is not said to open the door, much less the floodgates, to superficial moralists, whether in the "puritan" or PC mold or some other mold entirely, but it's a fact nonetheless, which fact is echoed in the underlying reality that the only "thing" that is legislated is that which has direct or indirect moral/ethical interests.
My sympathies, if I understand the situation rightly, are 90% or more with Kozinski in this particular instance, but a lack of judgement and a lack of diligence on his part are not the only issues that are germane and that are more widely invoked.
1. If you were on trial for unauthorized access to a protected computer, and I were on the jury, I would vote not guilty and actually innocent. Nobody accessing the server would have any way of knowing for certain whether permission to access that directory was accidental or intended by its owner.
2. Any copyrighted material in that directory was not intentionally made available for distribution. So, if Judge Kozinski were on trial for making available copyrighted material, I would vote likewise.
That said, my moral calculus apparently differs from yours. Had I discovered that directory was publicly accessible, I would have sent Judge Kozinski an email or letter:
Dear Judge Kazinski,
I recently discovered via a simple Google search that the /stuff/ directory on the domain alex.kozinski.com is accessible to the general web browsing public. I don't think you intended that, but only you know your intentions. You may want to check the permissions set for that directory and domain.
Sincerely, etc. etc.
I wish someone had done that before you found the server's vulnerability and ran to the press with your discovery. What is legally permissible to do is not always the morally right thing to do.
Calling Chapman slime is very inappropriate invective. We are talking about a very gray ethical area here and name calling in response to a well reasoned and politely worded argument does not add to the conversation.
Once again a nonpassword protected webpage is not a house. It is not a window. It is not skirt or an office or cabinet left on the street or any of those things since you can view it anywhere in the world without invitation if you just type in the right URL on your browser. And the owner of the page is the one who put it there and can stop your viewing if they really want to with very little effort.
I really hope it never becomes a crime to type in a URL, which is what some here are advocating. Make it a crime to break into into a computer: great. Make it a crime to look at a publically accessable webpage by typing a URL: very bad idea. It remains a bad idea even if you think it is unethical to do what this guy did.
Concerned: Are you more concerned that someone with access to Kizinski's server saved off-color email or that priests rape children?
Now that you know how Sanai accessed the site, I'd be really interested in your opinion of whether Kozinski really had a reasonable expectation of privacy in the site.
For instance, if he had had something illegal on there, and the cops had downloaded it -- by typing in an "http://" address in their address bar -- would that be an illegal search?!?!
Of course not.
Lessig's analogy to burglarizing a house is ridiculous and completely inapposite.
Chapman is exactly right.
Now that you know how Sanai accessed the files, care to weigh in?
Some of us might just pull back from the tiniest tech points about servers and urls and domains and locked car trunks and go for bigger contexts.
I'll look at it through this list of facts:
-- Kozinski is chief judge of the 9th Circuit
-- He and the 9th Circuit have in the past and surely will continue to pass judgment on copyright and file sharing cases, and on obscenity cases.
-- Copyright issues concerning availability and distribution are blazing in the courts right now.
-- Kozinski some years ago personally removed filters in the courthouse computer room so judges and their law clerks could resume visiting any web sites they chose and downloading whatever they wanted. His battle ultimately was successful for the entire federal judiciary to continue having this privilege, presumably for professional purposes only, though who's to know. It is possible that some of the porn and the mp3 files that ended up on alex.kozinski.com came through those "internet tubes."
-- Persons searching with Google for music files available on the Web were provided links to file sharing web sites for downloads. Some of those links went to alex.kozinski.com.
-- Following such links would take persons to a place on the web where they would find not only copyrighted music files available for download, but also, among funny stuff etc., some very raunchy, sexually explicit photos and videos. They might have surfed around on the site, losing themselves, link after link, as many of us have done at various sites.
-- Many looking at this Kozinski mess have now been able to peruse the photos and videos. I've seen blog posters using one or more of those as examples to make points either for or against what Kozinski did, whether he did so inadvertently or not.
-- So I'll pick one: he had a photo there of a man fellating himself. That, within the span of years that encompasses the span of Judge Kozinski's law license, would have been found obscene by juries in some communities. Perhaps it still would somewhere.(Somewhat relevant tangent: Recall that a few years ago the feds put in a phony order from a business in Beaver County, Pennsylvania to order some bongs from the comedian Tommy Chong? Why do you think they chose such a community? It's where they wanted to have the trial -- they carefully picked the community for the obvious reasons.
-- Now, you've got a higher-than-most-profile federal appeals court judge with notoriety in his past for battling to keep porn and music flowing into his workplace computer. Then later he's found having porn and copyrighted music on his own alex.kozinsky.com, to which he put out links publicly to disseminate other information such as articles. And this comes out just as he begins presiding over an obscenity case.
-- He is known for his facility with computers and the Web and now says he didn't know that his "stuff" could be seen by others than family and friends. His son takes the blame.
Tempest in a teapot? Not newsworthy?
Harrumph!
As for Sanai's motives: They're wonderfully useful for ad hominem attacks. But if he didn't exist, everything in my list above still would.
1) If a litigant or lawyer rummaged through and disclosed personal information about a judge in order to obtain a litigation advantage, they should be severely sanctioned (especially the lawyer), and possibly prosecuted.
2) If a member of the public disclosed (even nominally) embarrassing photos that a judge shared with others via a partially closed Internet link, that behavior was scummy and should be condemned, but should not be prosecuted.
3) A sitting judge should not electronically share off-color jokes or pictures. It's just too easy for the information to get into the hands of a scumbag, and it just doesn't look judicial. If you're going to be a judge, act like one.
4) Judge Kozinski is one of the most thoughtful judges on the bench. As a criminal defense lawyer, he's the kind of judge I'd want judging an obscenity case because I believe he could set aside his personal feelings and judge the case on the merits.
5) If the material disclosed was just off-color, this will blow over quickly, at least for Judge Kozinski. He will still be respected as both thoughtful and quirky.
No, Kozinski's only real problem is that he had the audacity to challenge vindictive scum like you for abusing the legal process. You're a small man, and your fifteen minutes are almost up.
Assumming you're concerned with the latter and that is the point of your ironic inflection, three things:
a) the percentage of homosexual and pedophiliac priests involved in the scandals has variously been estimated to be 1% to 3% of priests, and that takes into account estimates of unreported incidents. That, according to the responsible estimates I've read of. The full extent of the law should be marshalled against such offenders and nothing less than the full extent, but nothing beyond the full extent either.
b) The numbers and percentages of similar offenses committed by public school teachers is similar to the percentages noted above. These offenses often only make the local press and media outlets rather than national outlets and are more often (though not always) opposite sex/gender related, but the numbers and percentages are similar. Why no concern with these equally onerous and tragic situations?
c) The number of sex scandals perpetrated by U.N. and U.N. funded groupls around the globe is a growing occurarnce as well, if one that both the U.N. and most among the MSM tend to sweep under the rug. Once again, why no concern with these equally onerous and tragic situations?
If you want to become involved and as you appreciate ironic inflections, following are some things you can do:
1) Help to raise public awareness, again, public schools, the U.N. and the MSM in general, for various reasons, too often sweeps these latter incidents under the run.
2) One of the reasons for sweeping the latter incidents under the run is due to a prevailing anti-religious and pro-secularizing sentiment or zeitgeist, hence you can also work to raise awareness of this source of the bias since it tends to tacitly encourage the tragic consequences for the children involved.
3) Another of the reasons is the perception of deep and legally accessible "pockets" of the Catholic church relative to the "pockets" of public schools and the U.N. A different set of legal dynamics are involved. Hence in this case you can variously lobby for increased taxpayer funding and legal accessability of those funds in these cases, where appropriate, and can likewise lobby, protest, etc. for the U.N. to be made more legally and publically accountable for the actions of their agents around the globe who have been involved in these scandals.
Given your concern, for the children, keep us in touch with how you're doing in terms of 1, 2 and 3 directly above. Not that you're limited to 1, 2 and 3 only, given your profound concern "for the children," of course.
Sure, this lawyer is a vindictive nut and a vexatious and frivolous litigant. Some of his filings should have if anything, subjected him to more severe sanctions than he has gotten. That does not excuse the judge's lack of judicial bearing. He made a bad decision in letting all this be posted on his server, especially the copyrighted MP3s. He has offered shifting explanations for why all this stuff was there. Ultimately it is just one more in a string a sometimes-odd episodes in his career, which we can only call inappropriate for a judge.
Speaking of which, the judge's 2005 calling-out of Sanai was in one sense well-deserved. At the same time, I consider it inappropriate for a judge to assume the position almost of advocate, to the extent of discussing the merits of a petition he had considered as a judge filed by Sanai. I recall also, a recent feature piece following Kozinski around for a couple of days in which the judge was quoted discussing the internal deliberation processes of a particular case before his court. Regardless of whether you think he was right on the merits to support the removal of filters from 9th Circuit computers, it was not appropriate for him to barge in and personally remove the filters. To say nothing of his personal attacks on a court system employee.
Ultimately, the files on the judge's server may not be grounds for discipline. The copyright holders of the MP3s are unlikely to sue a federal judge, though I wonder what litigants in copyright-violation cases will think when they have a case before him.
Judge Kozinski is undoubtedly a great intellect who writes interesting opinions. I sometimes wonder to what extent his judicial activities, and his provocative acts as legal celebrity, are simply designed to gain attention for himself. If so, well, he has gotten it- again. The fact is that the judge has pursued a let-it-all-hang-out style very publicly for many years, and it is a joke that people are painting him as a victim.
All good suggestions, though I'm not quite sure why you put "for the children" in quotes. I never said anything about suing the catholic church or the absence of child abuse by other groups. I was responding to a comment explicitly about preists and tries to make the point that perhaps the actions of pedophiles (I don't really care whether they're gay or straight) might be of more concern to "concerned" than a halloween costume mocking those pedophiles. I'm not sure how you'd dress up as a "U.N." official," but I'd say the same thing if somebody complained about a "pedophile U.N." costume.
I think comments about the general cosmology of humanity are a bit beyond my capabilities, so I'll leave the blanket statements about attacks on religion and the secularization of our children to you. My sense is that "seculars" had some valid critiques of institutionalized religion, took their criticism too far, "religion" is now fighting back and we will find some relatively valuable balance in the near future.
And I think you mean "sweep under the rug."
That's fine, you responded to a specific comment, but your response was not qualified. Likewise, my own comment is not a personal attack, it is intended as general, societal commentary, even while it did "take off" from your own comment. To the extent you took it more personally, in this instance I'll extend my apologies if I failed to better clarify my intent.
A few emailed jokes and oddities are being characterized as porn because they include nudity. By that disingenuous standard, even this article in the UK's Sun newspaper is child pornography. The presence of a few humorous MP3s on the judge's family server is construed to mean he's an illegal file sharer. I and many other readers can recognize a railroad job when we see it.
Whether they are porn or not, Kozinski exercised poor judgment that is inappropriate for a member of the judiciary- and not for the first time. Hopefully you and many other readers can recognize that when you see it.
It is not illegal, may not even be unethical, at least by canon, but it is immoral and bad manners.
At the risk of another bad analogy, its the difference between looking at a woman's cleavage when she is wearing a low cut blouse in public, and following her around, and waiting for an opportunity to look down her blouse when when she is bending over and unawares. The first is unavoidable (I know can't control my eyes, they always seem to get away from me at least for a glance), and the second is just plain creepy (at least that is what my wife has told me on multiple occasions).
We assume, of course, that Judge Kozinski is responsible for all of the material there, and not just some of it. His precautions ougth to be examined in light of the material he put up online, not what someone else may have put up online.
My crystal ball says that Sanai will be likely to get out of this with his law license. First, he attacked AK in a Seattle editorial. Then, when Judge Kozinski responded (in quite a mild manner), Sanai attacked him. CS has been sanctioned numerous times. Then, he decided that the way he would get even is to hack the judge's personal site, put his mp3 files on google (in which case, CS would be doing the sharing, not AK), and embarrassed him. Intimidating a federal judge, and, by extension, anyone with the audacity to rule against him in the future? Good luck practising law, Mr. Sanai.
typing a URL is "hacking?"
On a somewhat related note, consider that there are many web sites which require one to be of a certain age to enter (Maker's Mark comes to mind). A person could very easily enter a birthday that is not his own to gain access; there is nothing prohibiting a dishonest underage person from accessing the site. Yet, we would all acknowledge that the site was designed to prohibit such access, and that reasonable people would understand that they don't belong there.
As for this whole idea that "guessing a URL is not hacking", actually one of the most basic forms of hacking is trying to predict what someone would use as a password. Let's say that instead of tracing back to a root directory, the sleazy lawyer finds a pop-up box that asks for a password and discovers by trial and error that the password is the name of Judge Kozinski's dog. It's still deliberately attempting to gain access to something that you know is not intended to be public.
And for that matter, it probably wouldn't be that big a deal if the sleazy lawyer just laughs at the jokes, perhaps shares them with some of his buddies. It's another thing entirely when the sleazy lawyer goes to the media in a deliberate attempt to smear the Judge. No one has really answered the question posed by many, doesn't this disgraceful behavior on the part of the sleazy lawyer raise legal ethical issues?
One correction:
You mean ferret or chicken, right? :)
I do a search on Google for "interesting.jpg". I find it at:
http://www.somewebsite.com/stuff/interesting.jpg
I think to myself, "Cool! I wonder what other interesting files he might have?" So I enter the url of:
http://www.somewebsite.com/stuff/
And get a directory listing of files. In my case, none of the files is obviously private (e.g., copies of tax returns).
Have I done anything wrong? Am I, indeed, slime?
Or consider that I search Google for "interesting1.jpg" I find it at:
http://www.somewebsite.com/stuff/interesting1.jpg
I think to myself, "Cool! I wonder if he has the other files in the "interesting" series?" So I enter the url of:
http://www.somewebsite.com/stuff/interesting2.jpg
And get interesting2.jpg. It is not a copy of a obviously private file (again, e.g., a tax return).
Have I done anything wrong? Am I "slime?"
Now I understand that while in my hypothetical I had an innocent motive, Cyrus Sanai did not. Does that make a difference?
Or does it make a difference that Cyrus Sanai, unlike me in my hypothetical, knew, or reasonably should have known, that Kozinski probably didn't intend for the files to be public?
[And exactly how did Cyrus Sanai know that? Because Kozinski didn't provide a link on his homepage? What if Cyrus Sanai didn't go to the homepage first? Was Cyrus Sanai obligated to go to the homepage first and, not finding a link, conclude that everything was "private" regardless of whether the contents turned up on Google, MP3.com, and every other search engine on earth?]
The point I've been trying to make is that in order to have an invasion of privacy, the alleged victim had to have a reasonable expectation of privacy. I have a hard time understanding how the "victim" in this case, Kozinski, could have a reasonable expectation of privacy when anyone in the world could type in a valid http request and get a directory listing.
I guess I'll have to have some t-shirts made:
"Typing in a web url is not a crime!"
"Typing in valid http request is not a crime!"
Orin, I continue to encourage you to comment further on the fact that Mr. Sanai merely typed in http:// commands.
- have a good laugh, forward to a few friends, maybe drop a note to the host sharing your appreciation = decent human being
- immediately notify the press to further a personal vendetta = sleazy slimebag
See? It's rather easy really...
But there's really no great harm in looking at the judge's personal files, if he left them on a public website. The real wrongdoer here is the LA Times. First, for writing a story at all -- there's just nothing newsworthy here. Second, for calling Kozinski's files "porn" where they obviously are not porn, and when the LA Times writer had to know they aren't porn. They've slandered Kozinski and he deserves and apology.
Yes, that does make a difference. But as I said, the real difference is that you did not forward your findings to the LA Times, and then the LA Times did not write a story embarassing the person whose website you were looking at.
Obviously, Kozinski did not have a "reasonable expectation of privacy" in the legal sense. But, in the colloquial sense, he obviously expected the stuff to be private. Otherwise, Mr. Sanai wouldn't have been so titilated as to alert the media.
But it's not the initial access of the URL, just like it's not the first glance out the window. It's the whole pattern of what you do afterward. Do you say "goodness!" and look away? Or do you get your binoculars and turn out your own light so she won't spot the reflection of the glass lens? Do you take photos and then post them on amateur porn websites? The initial glance -- or the initial access of the URL -- is morally ambiguous; it's what you do afterward that makes you innocent or guilty (legally or morally) of an invasion of privacy.
In the example Mr. Chapman gives, where one stumbles across a server run by no one you know with no obvious private content, then no, I doubt anyone would think him a slime.
On the other hand, what we have here is someone accessing the server of someone he knows, and someone with whom he is on bad terms, and who finds there stuff that he knows is private, because it's embarassing. So then he rummages all around the directory structure, and then either copies some juicy stuff to his own hard drive, or at least gives out how to access it to the wide world, so that zillions more people access it, expecting that doing so will embarass the person because he wanted and expected (perhaps foolishly) it to stay private.
That's a very different situation, and any ordinary jury would see it that way. The fact that some of the actions ("typing in a URL") are the same in the innocent and the far less innocent scenario is not going to make it difficult for ordinary folks to see the first as the actions of an innocent man and the second as the actions as a first-class creep.
Be quiet, woolye? aleways ding, dinging Dame Grundy into my ears -- what will Mrs. Grundy zay? What will Mrs. Grundy think -- Canst thee be quiet, let ur alone, and behave thyzel pratty?
The phrase "reasonable expectation of privacy" is a term used primarily in Fourth Amendment law, but the Fourth Amendment is not implicated here: Cyrus Sanai is not a state actor.
In my view, the interesting legal question is whether Sanai violated a federal criminal statute, 18 USC 1030(a)(2)(C), by intentionally accessing without authorization or exceeding authorized access to Kozinski's computer in an effort to obtain information (with potential felony liability),
I personally think Section 1030 should be interpreted so that the answer is no, and I have written about this issue at length in a 2003 article. At the same time, I have to concede that there are some federal court precedents that would say that he did violate the statute and therefore that his accessing Kozinski's site in the way he did was a federal crime.
To some extent, this raises similar issues (not exactly the same, but similar) to the issues raised by the prosecution of Lori Drew, who was recently indicted under what I think was a very troubling and incorrect theory of the statute. The fact that the Drew case was brought in Los Angeles is notable, as it suggests that there are some federal prosecutors in LA who are ready to take aggressive interpretations of Section 1030 in a sympathetic case.
I'll probably blog more about this next week; the legal issues here are pretty interesting. If nothing else, the fact pattern here is a provocative one that I plan to use in class to discuss the scope of the Computer Fraud and Abuse Act when I teach my computer crime law course this summer.
If I type in the url for an internet directory, such as:
http://www.somewebsite.com/stuff/
get a directory listing, click on a file in the directory, and am allowed to access or download the file, then
is there really an issue of whether I've intentionally accessed the directory or file without authorization, or exceeded authorization?
And would there really be such an issue if I discovered the directory through a Google search?
If so, then I guess the bright line test one must adopt to be safe is that if you can't find a link to it, you better not download it.
But that raises another question. What if you don't find a link on a website, but because of the failure to use a robots.txt file, the specific file you download showed up on a Google search? Still an issue re: "authorization?" Still an issue re: "intentionally?"
Say I search for "interesting.jpg" on Google, and get the result of:
http://www.somewebsite.com/stuff/interesting.jpg
I click on the link and download the file. It turns out that the owner of the file did not provide a link to the file on his website and did not subjectively intend to make it public. Is there now a possibility that I've committed a crime?
That there is even an issue whether simply typing in a url and downloading the result could lead to a criminal prosecution for intentional, unauthorized access makes me realize that I had a very poor and naive understanding of the law. I stand corrected.
The fact that these issues are murky and subject to debate is troublesome to me. Given all of the costs of defending a criminal case, I personally would prefer a bight line test; i.e., if you type a url and get a result (as opposed to a password page or a not authorized page), or click on a Google search link and get a result (as opposed to a password page or a not authorized page), you are "authorized." That really does seem to me to be more consistent with what the Internet is about, but perhaps that is just me.
Did you read the article I linked to? I think it will help answer your questions. My own normative take is similar to yours, but there are some precedents that have interpreted this statute very broadly.
I've downloaded the article but haven't read it yet. I will read it tonight (well, this morning now).
I don't doubt that your understanding of the precedents is correct, and that there is an issue. Indeed, that is what troubles me.
My last prior post just gave my normative and, to be frank, gut reaction.
Obviously, I don't think that simply typing in a url and downloading the result should be a crime. What trouble me is that it never occurred to me that it could be a crime. I mean, come on, this is the Internet. :)
But what has really troubled me is all of these analogies to breaking into one's home, or other building or car, etc. Again, this is the Internet, not one's home.
I thought I would mention that Microsoft may be aiding and abetting violations of 18 USC 1030(a)(2)(C).
If one does a image search for Halabjaee on Microsoft Live search, the second result from the top left is:
http://charlesrcblog.googlepages.com/HalabjaeeAtTable.jpg
http://charlesrcblog.googlepages.com/
is my website.
However, there is no link to HalabjaeeAtTable.jpg on the first and only page of my website, and the picture does not appear anywhere on my website. (I happened to remove the picture months ago to make room for a better picture, but never deleted the file HalabjaeeAtTable.jpg from the directory).
So, as I understand it, there is at least an issue whether anyone who clicks on the link:
http://charlesrcblog.googlepages.com/HalabjaeeAtTable.jpg
provided by the MS Live image search engine is violating 18 USC 1030(a)(2)(C). After all, the image does not appear on any of my web pages, and I didn't provide a link to it. So what is to say that I've authorized anyone to access the file? [Other than, you know, that I uploaded the file and left the file in an indexable and internet accessible server and directory.]
Then again, maybe there is an income opportunity in this. In Slashdot format:
1. Buy a dog.
2. Name dog: "Jessica-Alba-Nude"
3. Take photos of dog.
4. Upload photos of dog to web server, with appropriate names: (Jessica-Alba-Nude.jpg, Jessica-Alba-Nude-Licking-Bone.jpg, etc.)
5. Do NOT place photos on web page or link to them.
6. Wait for MS Live image indexing.
7. Wait for downloads.
8. Sue for copyright infringement, invasion of privacy, etc.
9. Profit!
Since I didn't link to the photos or actually place them on a web page, there was no implied permission or authority for anyone to download them.
And that is my last post for the night. Sorry to obsess on this, but I'm trying to understand how my understanding of the internet and the law regarding same could be so wrong.
Here's why I'm not guilty. Judge Kozinski himself handed out the directory address of alex.kozinski.com/articles/ and specific file names under alex.kozinski.com/stuff/xxx. He filed shared his mp3s, resulting in various files being identified in Russian file sharing sites. FThere was no password protection on anything on that site.
One more thing: interstate communication is written into the statute as an element of the crime. The route from my computer to Judge Kozinski's home computer does not cross state lines, let alone cross county lines. But you knew that didn't you Orin?
But hey, if someone wants to prosecute, my co-defendants will be various employees of the ABA Journal, Los Angeles Times, Wall Street Journal, and San Francisco Daily News, all of whom look at /stuff/ and, oh yeah, Yahoo and Google, which indexed the site. Should be quite a case.
Cyrus "Sleeping Well at Night" Sanai
Cyrus Sanai
You know, if he didn't invite the general public, with a link, then it was private.
In the same way, if I invite my friends to my house, that doesn't mean you are invited.
I hope you are indicted.
Yours, TDP, ml, msl, &pfpp
If he wasn't invited, he must be indicted!
If he typed the URL, you must put him in a cell!
If Google's URL fits, you must acquit!
Counselor, can you describe the chain of causation, from what the judge did to the time his MP3s appeared on an MP3 search engine? How do you know the filesharing sites were hosted in Russia? The presence of a Russian mail-order bride banner ad does not make a search engine Russian. And can you explain why the judge would want to fileshare the Mickey Katz version of Sixteen Tons (of Hard Salami)? Was he perhaps hoping to receive a file of Allan Sherman's "Hello Muddah, Hello Faddah" in exchange?
Sounds like you definately found this out later though. When you were snooping around you didn't know he had given the url out and would have assumed he didn't mean to share. It's later that you add in the after the fact info that someone found out he gave the address to a third party. Tricky and convoluted, but not convincing.
* Judge Kozinski himself provided links for general public consumption to files in the /stuff/ directory.
* The server is explicitly configured to return directory indexes in the absence of an index.html file. Other directories had index.html files. A visitor to the site must assume that getting a directory index for /stuff/ is the intended behavior.
* There are mechanisms in web servers to require passwords before the server will respond to requests. No such mechanisms were enabled on this directory.
* Judge Kozinski is apparently known for his sense of humor. Why would a visitor seeing "humourous" content publicly accessible think that such content is not intended to be public?
You can't get much more published for public consumption than putting a file on a webserver, enabling directory indexing, and sending people URLs referencing the directory. In fact it's a technique that some of the busiest websites on the planet use (see kernel.org and lots of other sites.)
Additionally, there isn't an IDS (intrusion detection system) on the planet that would recognize the requests needed to retrieve a file from his website as suspicious or malicious, because they weren't. Getting files required no buffer overflows, no cross site scripting, no password cracking, no address spoofing, no encryption breaking, nothing at all beyond normal requests that are submitted to millions of websites by millions of people every day.
What happened here is no different than leaving your home in the morning with your fly down and having someone take a picture and publish it. Embarrassing, sure. But criminal, no.
Clearly, if you can figure a way to see it in public, you are a paragon of virtue.
May odd looking guys with zoom lenses scope your daughters at the beach. After all, they can't possible have any expectations of reasonable privacy...
I have to say that I think the people advocated that this is automatically private unless you are specifically invited to view the page are setting a very dangerous precendent. Files put on the web are designed by the very nature of the web to be seen by and shared with other people. That is the whole point of the internet and webpages in general. To share information among as many people as possible. That is what makes websites different from all the analogies like skirts, houses, private letters, etc which by their very nature the vast majority of people assume by default to be private.
Now there are some websites and some parts of websites that the users want to keep private. However, it is simply not reasonable to expect someone to assume a webpage is private if you have made no reasonable effort to block them from seeing it when they type in a valid http request since typing in a http request is one of the main ways people share this information. A reasonable effort can be something as simple saying you are not authorized to view this page, requiring a password, etc. The vast majority of websites that most people think of as private have made this effort.
In this case you have a person who most people here seem to think has a history of doing scummy thinks to Kozinski. That he is a lawyer doing this to get revenge on a judge is a separate issue from whether it should be a crime for a person to look around a website where they have not been told in some way that it is private. I have no problem if the California bar wants to go after Cyrus Sanai because if lawyers think this is a vindictive or unethical act I think it is appropriate for them to police thier profession. But it is a really, really bad idea to make a crime out of this. The burden needs to be on the person running the website to make a reasonable effort to keep it private because reasonable people assume a website is public unless told otherwise. Reasonable people assume a skirt or house or letter is private unless told otherwise. If they make a reasonable effort towards a private website and the person still looks, then by all means treat that as a crime. If they fail to make that effort, it should not be a crime for someone to look at files that the owner wanted to keep private, but still left out for the world to see.
A brilliant judge's reputation is being tarnished as we type! I'm angry that no matter how much good someone does, we are still in a world that magnifies scandal! The Judge is a MAN with his own sense of humor-so what! He didn't say or do anything sexist, or biased in open court. I tried a 1983 case in front of Judge Kozinski a couple of years ago and marveled at his wit, thoughtfulness and brilliance. I am a Democratic Black female civil rights attorney, so I would NOT take time to defend a conservative Reagan appointee if I did not feel truly compelled to do so. We all know that we have ALL sinned and fallen short... And I don't care who you are-if anyone looks closely enough at you, Cyrus Sanai or I, there are skeletons in ALL OF OUR CLOSETS! Leave this Judge alone. He is a fair and brilliant man. Who cares if the server was password protected or not. The last time I checked the Penal Code or the rules on judicial conduct, not having a password protected server was not a violation. What he is really "guilty" of is not lieing to the LA Times reporter, right?? Because we want our judges and politicians, and Presidents to lie to us right? God forbid a judge have a sense of humor and be honest. So the judge has a life, and like a lot of guys he shares jokes with friends and family essentially in PRIVATE. The Judge did/does NOT have any offensive materials in his chambers or in his courtroom, nor does he allow anyone to be demeaned in his courtroom (unlike some other federal judges-male and female alike) Quite to the contrary, I witnessed Judge Kozinski call a male attorney on the carpet for the demeaning tone in which he used with his female co-counsel. He worked too hard to get to where he is to have this malicious act- this sneak and peek put this much negative light on him.
By the mechanism of posted hyperlinks which--in the case of links intended to be public--are made available to the public in generally accessible pages. There were no such links which Sanai made use of.
Toby is quite correct, just because you can figure out a way to see it from a public place it does not mean you aren't intruding into the private, non-public demesne.
Yours, TDP, ml, msl, &pfpp
I have nothing against Judge Kozinski.
I do NOT think Judge Kozinski did anything wrong, immoral, unethical or improper. I have NOT, do NOT, and will NOT criticize Judge Kozinski regarding any of the pictures, videos, etc.
I do NOT think that any of the pictures, videos, etc. discovered on Judge Kozinski's web site were illegal or obscene, or constituted child pornography or bestiaility.
I do NOT think that Judge Kozinski had to recuse himself from presiding over the pending criminal obscenity trial. (Though I understand why he did so, and think it was a wise and smart move on his part.)
I do NOT think that there is any reason for Judge Kozinski to be investigated. (Though, again, I understand why he asked for such an investigtion, and think it was a wise and smart move on his part.)
In fact, I DO think that the LA Times unfairly mischaracterized the pictures and video. Particularly the so-called "video of a half-dressed man cavorting with a sexually aroused farm animal," which, as Patterico has pointed out, did not involve "cavorting." Indeed, I DO think that the LA Times should make a retraction and apologize to Judge Kozinski.
I also DO think the San Francisco Chronicle has unfairly mischaracterized the video as one containing "images of bestiality" when, as Patterico has pointed out, it contains no such thing. I DO think that the San Francisco Chronicle should make a retraction and apologize to Judge Kozinski.
My only point all along, a point made far better by Guest12345 in this post and pete in this post, is that: (a) Judge Kozinski did not have a reasonable expectation of privacy; and (b) most importantly, that it is very, very dangerous, and an extremely bad idea, to hold that simply typing in a web url can subject a person to criminal liability or civil liability. As Guest12345 explained in this post, plenty of websites are deliberately and intentionally configured to enable directory indexing, and send people URLs referenced in the directory. (See, e.g., kernel.org and other sites). That is precisely how Judge Kozinski's site was configured.
On the narrow issues of invasion of privacy and whether the purported "victim" had a reasonable expectation of privacy, I really think this is a case where people like and respect Judge Kozinski (as do I) and dislike Cyrus Sanai (as do I, to the extent I am familiar with him based on his conduct in this case and the posting by him that I have seen), and then reason backward to reach the result that vindicates Judge Kozinski and condemns Cyrus Sanai.
You know what, I'm going to make some wild, unsupported, and entirely speculative guesses.
I think that if you asked Judge Kozinski if Cyrus Sanai was guilty of a criminal violation of federal or state law, he, being intellectually honest, would answer "No."
I think that if you asked Judge Kozinski if Cyrus Sanai should be prosecuted for a violation of federal or state law, he, being intellectually honest, would answer "No."
I think that if you asked Judge Kozinski if Cyrus Sanai had civil liability for invasion of privacy, he, being intellectually honest, would answer "No."
I think that if you asked Judge Kozinski if he had a reasonable expectation of privacy in the web directory he, being intellectually honest, would answer "No."
I think that you asked Judge Kozinski, he, being fair minded, would not advocate a rule where simply typing in a web url, and doing nothing more, could subject a person to criminal or civil liability.
Obviously, I could be wrong; I don't know him personally (only through his written opinions and other writings), and I'm not trying to put words in his mouth. If I am wrong, I'll stand corrected. I just think, having read his opinions and writings, that he would see the "big picture" better than some of his "defenders" on this thread.
http://charlesrcblog.googlepages.com/HalabjaeeAtTable.jpg
when they found it through a Microsoft Live image search for "Halabjaee" is potentially a felon.
The website http://charlesrcblog.googlepages.com/home is my website. However, I didn't provide the link to
http://charlesrcblog.googlepages.com/HalabjaeeAtTable.jpg
in a "generally accessible page." The photo HalabjaeeAtTable.jpg does NOT appear on my website, and there is no link to HalabjaeeAtTable.jpg on my website. The link was provided by the Microsoft Live image search engine when one does an image search for "Halabjaee."
Under your proposed rule Microsoft is subject to prosecution for a felony under federal law because a Microsoft Live image search for "Halabajee" in fact produces the picture HalabjaeeAtTable.jpg despite the fact that the picture HalabjaeeAtTable.jpg does NOT appear on my website, and there is NO link to HalabjaeeAtTable.jpg on my website.
Similarly, anyone doing this Google search cannot click on any of the links without fear of felony prosecution. After all, in each case it is possible that there is no posted hyperlink "made available to the public in [a] generally accessible page." Under your proposed rule of law, Google too is subject to prosecution for multiple felonies. Actually, far in excess of "about 2,690,000" felonies because Google provides a cached version of each listed directory and there is at least one file in each directory.
Do you think Google checks to make sure that each file in each of the "about 2,690,000" listed directories is in fact linked on a "generally accessible page?"
Do you think Google should be required to check whether each file in each of the "about 2,690,000" listed directories is in fact linked on a "generally accessible page" in order to avoid the possibility of a felony prosecution?
Or might it be less costly for the internet and the system as a whole to do what has always been done -- i.e., place the burden on the website owner to: (a) use a robots.txt file to prevent indexing; and (b) set up the directory to return an error page if someone requests a directory listing?
Just how is it that one can have a reasonable expectation of privacy in a directory listing when this Google search produces "about 2,690,000" results?
I'm not sure if you are misunderstanding the fundamentals of how the web and search robots work, or if you are being deliberately disingenuous about your blog page, but...
1) Microsoft Live search seems to indicate that the HalabjaeeAtTable.jpg picture was at one point in time linked to off your main page. That it is not currently at the moment linked to from your main page is utterly irrelevant for implications of publicity/privacy.
2) Even if Microsoft Live search is incorrect about the picture being linked to from your main page, it has been linked to from SOMEWHERE at SOME POINT in time. It is absolutely impossible for any search indexer be it google or yahoo or msft to find something with a non-predictable name like your file that is not linked to from somewhere. Again, whether YOU linked to the file, or somebody else did is utterly irrelevant--it was linked to, ergo, it is not private. I don't think your analogy stands.
In short, you can't put the cat back in the back...
Now having said that, I actually AGREE with the rest of your post--the only expectation of privacy I believe Kozinski had is that of ignorance.
If as they say, ignorance of the law is no excuse, is ignorance of publicity equally no excuse?
I've used the exact same directory name of "stuff" on my own site in the past to transfer files to friends, to access from work, the library, etc. I wanted it to be private, but nothing was stopping anybody from typing in "/stuff" and accessing my private files. Luckily I just didn't post anything embarrassing or have a vindictive lawyer attempt to blackmail / tank my career.
I miss the old days of the net.. I ran a private website for a company about a decade ago, and sometime in 97/98 I got an email saying "Hey, I stumbled across your page, you might want to password protect this!" Lesson learned, it's been password protected ever since.
A second interesting thing is the public/private web site debate. It is amazing to me that a person could hand out directory links and specific file links to a website, then have supposedly serious legal minds contend that the site is private and there was something wrong about pointing out what the person was doing with it.
As for the LA Times coverage, I did not write it. See the ABA Journal website for the coverage I think gets to the real issue with Kozinski's /stuff/ directory.
My objective in getting publicity about this matter was not to embarrass Judge Kozinski about the smut. My issues are quite different, and I will be linking to a piece going up that makes clear what the stakes are. I will say that they have nothing to do with ribald banter, tumescent donkeys, or handjobs. Once the piece is up, the peanut gallery can take its shots at it.
One thing is for sure. This story is not going away, as it presents the following very important issues:
A. What is or is not private on the web?
B. What should be done to fix the Ninth Circuit's broken judicial misconduct machinery (of which the most eloquent critic has been Judge Kozinski in the Manuel Real matter).
C. What is or is not acceptable for a judge to do in the public sphere? Can he have a servelist of dirty jokes? Can he have ripped mp3 files available for downloading, after having written a dissent arguing that contributory copyright infringement should be imposed on persons who unknowingly assist in the infringement? What about other hypothetical situations? Could a federal judge safely appear at the Improv, doing a judicial version of Bob Saget's "That Ain't Right" show? Could she moonlight as a porno actress?
D. Is it judicial misconduct to unilaterally disable a court's firewall because you don't want to allow filtering software?
E. Can a judge attack another member of the judicial establishment in the pages of a newspaper with verifiably false factual contentions without committing judicial misconduct?
F. What are the remedies for improperly derailing an appeal of a district court's order blocking relief from judicial corruption through becoming a public advocate?
This is just a partial list of the issues currently being debated and which will be debated and investigated.
Cyrus Sanai
I'm sure you were. Otherwise, the story may never have ran, or may have received much more fact-checking beforehand.
I believe this is the default configuration of at least some Apache installations. As I said earlier, I was bitten by this. I had explicitly *disabled* automatic indicies, then later after an upgrade they had been re-enabled and I had to go to some trouble to disable them again.
And I still think a directory which has indicies turned off, for the purpose of sharing single files with certain people, doesn't mean that all the files should be considered public. Obviously there's a risk someone can guess a file name, but if the file names are unpredictable, it's unlikely. But you have to be sure that auto-indexing is turned off. Otherwise this is what can happen.
My point was, it's either on or off. Additionally it's entirely deterministic and will always be whichever way it is (on or off) depending soley upon the configuration file.
I'm not going to get into theorizing about what you observed in your upgrade, but a default apache "make install" built from source will not replace an existing httpd.conf and as such if directory indexing is off ("Options -Index") it will remain off.
The lookup for Cyrus Sanai's bar number is here.
Another issue that will be discussed is whether Cyrus Sanai is the sleaziest lawyer in California, and whether he deserves to keep his law license after libeling a federal judge in retaliation for losing a case. His repeated statements about "porn" even in this thread (which have been repeated disproved) show that Mr. Sanai is stopping at nothing to get his revenge for the Ninth Circuit's refusal to intervene in his state divorce case, a case that had already led him to be sanctioned for improper conduct.
Is it really a surprise that his wife left, given how vindictive and low he has shown himself to be here?
It's likely that you're wrong about county and state lines, and quite impossible to prove (e.g. what nameserver resolved the domain?).
The conflict issue is such an old man thing. The rest of us can see the difference between obscenity, real pr0n, NSFW content and the rest of the PG-13 world. The judge's interweb pics - even if they started life as pr0n - are just (barely) "NSFW"-worthy cliches now.
Mr. Sanai - your Jitterbug is probably ringing - it's probably the LA Times editor (who could've texted you, but can't figure out which buttons to push).
First off: (And this is just my opinion...) The U.S. is not a Christian country. We should have no national religion nor national morality. It shouldn't matter what pictures are on a judge's server or being sold by some guy in California.
Second: People who can't even run their own computer should not be allowed to make laws or interpret laws regarding the usage of computers.
Allow me to explain (since no one else has) how a file is (generally) accessed via http request:
1. One party enters a text address.
2. That address is resolved by a nameserver into an ip address (like 192.168.1.1) for the 2nd party's server.
(That ip address is registered to a computer connected to a network of other computers, and, therefore, enables others to send requests to the server)
3. The request is sent from the 1st party's computer to the 2nd party's server.
4. The 2nd party's server now either can send the requested data to the 1st party or refuse to do so. (N.B.: The 2nd party (by using a machine/server) is choosing to send the information/files or not)
5. The first party either receives the requested information or not.
The person running a server is responsible for its operation. The only method for knowing whether you, the 1st party, (by way of your computer) have "permission" to access a file or folder (by way of a server) is by the configuration files and by the permissions for each individual file on the server. This is normally accomplished either in an .htaccess file or by setting permissions (e.g.: rwxr-xr-x) for the files themselves.
In other words, if you couldn't follow that, you should not be running a server. If you could, you understand that there is no ethical or moral or logical reason not to assume you have access to files and folders another has placed on a server and has set the server to send out to anybody who asks.
Third: All comparisons to "old" technology are inappropriate. Please stop. It's making me cringe.
Fourth: Thank you Charles for being one of few people here who are making sense.
I am just sorry that the Honorable Judge Kozinski, especially his wife, and family have to become victims, of something so patently wrong with society. Hope that one day you never find yourself in front of the Public, having to attend to such.
Is this issue the change in morality of society? When Thomas Jefferson penned the constitution, his belief was that most were moral, and the laws should address the same.
To be shunned by the members of your society was at that time, a punishment that most respected. There was a need for law &punishment(public flogging in the square stockade) to effectively deal with those who lacked morals, and respect of others properties.
In this day and age of Free-riding, society loses.
First I am not deluded in belief that morals equals manners or the vise versa. Nor do I believe that ones own morals should be the rule of others. My family http://studio413.blogspot.com were staunch abolitionist at the dawn of this great country. They had different ideas about many issues confronting society then, yet they only sought to empress their ideas around freedoms due all of man, certainly not implicating that all should live as they did, in all ways.
That being said , I believe as they did. Yet as Mr. Jefferson recognized you can't legislate your own morals, and that morals are not in fact just ones own, but are those that the benefit the greater society.
I feel that there is a growing disrespect for people and their properties, and the idealism that if you don't (opt-out of public domain) lock it away, that society at large is welcome to take as they please.
I believe in the Public Domain, and in fair use....I don't believe in stretching those in ways that congress never intended, in either direction.
For those whom advocate a free everything on the net...this may just be the issue that brings Judicial Notice, to why it's wrong for society.
Morals