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