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.
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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.
Nick
Kudos to Judge Kozinski for inviting an investigation of himself yesterday.
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
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.
Sounds like someone hasn't seen the most widely circulated and famous video on the internet.
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
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
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.
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?
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...
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...
*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.
Well, at least three highly distinguished lawyers thought there wasn't room back in the 20th century (Black, Douglas and Brennan, to my understanding)
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.
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.
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.
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!)
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.
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.
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.
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.
That's not a quirky sense of humor, its a terrible one.
That said, this whole thing really is a non-story.
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")
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.
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.
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.
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.
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.
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.
[Full disclosure: I'm an ex clerk as well.]
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.
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.
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).
He has long been a defender of free speach. He is no hypocryte. The people attacking him are.
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!!
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.
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.
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.
Or does that reflect an immature sense of humor?
Someone help me out here.
After reading the whole thread, I concur most with Erick:
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.
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.
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.
On the legal front, didn't Sanai commit a crime in accessing these files without authorization?
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.
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?
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.
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.
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.
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.
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:
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.
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...
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.
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.
You lawyers are the last to learn, it seems.
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
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.
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.
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.
if it's not criminal, it is an embarassment. however, with this judge, it doesn't appear that shame exists.
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.
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
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.
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.
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.
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.
insert "porn" between "child" and "or"
TDP, ml, msl, &pfpp
One quibble.
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?
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.
Richard W. Painter
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.
EV wrote:
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.)
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.
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.
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?
He wasn't.
Yours, TDP, ml, msl, &pfpp
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.
I can just imagine the things you've done. Please recuse yourself from the remainder of this thread.
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.
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.
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).
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. . ..
You would also be doing your client an enormous disservice. Read Kozinski's dissent in the Harrah's case.
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.
But LM still wins the thread.
Nick
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.
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.
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.
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.
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?
See this link.
The bottom of that posts notes that:
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.
Not indexed???
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.
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
Disallow: /MySecretStuff/Porn
Disallow: /MySecretStuff/FirearmsFantasies
See this: proof
See also this
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.
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.
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
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.
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:
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.
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.)
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.
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: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: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?
Please disregard the italicized language at the top. Thanx.
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.
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.
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:
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.
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.
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.
Are you DangerMouse, or is that just the mandatory jargon du jour?
At 8:58 p.m., Cyrus Sanai said: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."
I wasn't aware that sneering at one's quite tolerant hosts constituted good form for a conservative (unhyphenated or otherwise).
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.
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."
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.
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?
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.
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.
Before we go any farther, perhaps Sinai should explain to everyone here his definition of "porn."
It appears that theobromophile was spot on: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.
Judges, more than anyone else in society, should be held to the exact letter of the law, no?
USA vs Ira Isaacs ("Justice Cowed")
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.
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
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.
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:
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.
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
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
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.
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.
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
"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":
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.
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.
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.
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.
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.
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.
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.
[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.]
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.
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.
Those two "cows" sure do have what an old sailor would call a "peacoat sleeve".
They could do deep-knee bends over fire hydrants.
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.
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.
The lookup for Cyrus Sanai's bar number is here.
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.)
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.