First, this is off topic for Groklaw. I know. But I have some information about the Kozinski story that I'm not seeing reported. I provided it to the LA Times yesterday. Seeing it not reported there today, and factoring in that the email might have been caught in a spam catcher, I will provide it here myself.
There is some evidence I found on Internet Archive that indicates to me that the judge was apparently truthful in saying that the site in question was intended to be private, which I will show you for your consideration.
Second, I think it's important to highlight that the person who "tipped off" the LA Times reporter has been, I gather, in a kind of feud with Kozinski for some time. According to the ABA Journal, he has been monitoring the Kozinski site:
AP spoke to Beverly Hills, Calif., attorney Cyrus Sanai, who said he had told the Los Angeles Times about the images on the Kozinski website. He said he found them while monitoring the site as part of a dispute with the 9th Circuit in connection with his parents’ divorce. He said he contacted reporters at various publications since January in an effort to expose them.
You can read about what they each, Kozinski and Sanai, wrote on a dispute between them here. It raises a question in my mind about whether or not this is just about the divorce. But my next question would be, if this was intended as a private site, would it be legal for an uninvited person to enter and monitor it? Exactly how would that work, given the Computer Fraud and Abuse Act, not to mention any local California laws regarding privacy and computer integrity? We know there are such laws in California, from the HP-reporters scandal.
Here's what I found on Internet Archive. If you search for the site, www.alex.kozinski.com , this is what you find:
Do you see how it ends in 2005? That would indicate that at that point, someone took steps to make sure that bots couldn't crawl the site, that it was intended to be a private site. So what happened? I don't know, but I have a possible theory. I suspect that they may not have realized that blocking a homepage doesn't necessarily block subdirectories. Let me show you why I think that could be it. If you click on any of the pages in the archive, you find this:
If you saw that message, would you assume that you were supposed to monitor the site? That it was OK to enter and look around? The only way to see anything on the site was to add a subdirectory, like /stuff. Incidentally, if you want to see what was behind the message to get lost back in 2005, here's the list of all the hidden pages, back when the Archive was collecting them, and there is nothing there at all untoward that I could find. Mr. Sanai might have found this PDF annoying, I gather from this entry in Patterico's Pontifications, a blog by a prosecutor in California, who is providing a lot of details about the feud. That PDF is a partial transcript of a motion hearing, revealing that Sinai sued a judge, not named in the transcript, who apparently recused himself from the divorce case, while complaining about the family's conduct:
Sanai told me that he filed a complaint alleging misconduct by Kozinski for commenting on a pending case — Sanai’s petition for rehearing en banc of a legal issue related to his parents’ divorce. Sanai also complained that Kozinski had put materials related to the case on Kozinski’s web site. This, Kozinski clearly did. Howard Bashman has preserved Kozinski’s piece about Sanai. It purports to link a .pdf critical of Sanai. You can see the link by right-clicking the hyperlink in Kozinski’s piece that says “(read the PDF)” and checking “properties.” It goes to this link: http://alex.kozinski.com/judge.thibodeau.pdf.
When the Ninth Circuit’s Judicial Council finally ruled on Sanai’s complaint, it was in this order [PDF]. It found no misconduct on the unnamed judge’s part, but noted that the judge had nevertheless apologized for any appearance of impropriety.
The PDF was in Kozinski's private collection.
I know. The story is mighty strange.
Regarding the site monitoring, I can't help but wonder what the prosecutor would say to doing this, written, he says, by Sanai in a comment on the blog:
While his son did register the site and set up its architecture–I found an outline of the code on his portion of kozinski.com–it was Judge Kozinski who had complete control of the sub-domain alex.kozinski.com.
We'll find out from the investigation if that part is so, but if it is, exactly who has the right to fumble through a private site's code, take data, and share it with others? Are there not laws about that?
Larry Lessig on the Kozinkski mess:
Here are the facts as I've been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski's son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.
Cyberspace is weird and obscure to many people. So let's translate all this a bit: Imagine the Kozinski's have a den in their house. In the den is a bunch of stuff deposited by anyone in the family -- pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family's stuff. He finds some stuff that he knows the local puritans won't like. He takes it, and then starts shopping it around to newspapers and the like: "Hey look," he says, "look at the sort of stuff the judge keeps in his house."...
This analogy, I submit, fits perfectly the alleged scandal around Kozinski. His son set up a server to make it easy for friends and family to share stuff -- family pictures, documents he wanted to share, videos, etc. Nothing alleged to have been on this server violates any law. (There's some ridiculous claim about "ibiblio.org." But the video is not ibiblio.org. It lives today on YouTube -- a funny (to some) short of a man defecating in a field, and then being chased by a donkey. If there was malicious intent in this video, it was the donkey's. And in any case, nothing sexual is shown in that video at all.) No one can know who uploaded what, or for whom. The site was not "on the web" in the sense of a site open and inviting anyone to come in. It had a robots.txt file to indicate its contents were not to be indexed. That someone got in is testimony to the fact that security -- everywhere -- is imperfect. But this was a private file server, like a private room, hacked by a litigant with a vendetta. Decent people -- and publications -- should say shame on the person violating the privacy here, and not feed the violation by forcing a judge to defend his humor to a nosy world.
I'm remembering the California laws that came up in the HP pretexting story. Remember this?
Specifically, Lockyer said, the HP case runs afoul of California Penal Code Section 502, which prohibits "tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems."
Here's California Penal Code Section 502, for your reading pleasure. I wrote about it before, in the HP connection, editing out the bits that didn't seem relevant. The part that seems to me, at least, and my non-lawyer brain to perhaps be relevant is this:
(a) It is the intent of the Legislature in enacting this section to expand the degree of protection afforded to individuals, businesses, and governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems. The Legislature finds and declares that the proliferation of computer technology has resulted in a concomitant proliferation of computer crime and other forms of unauthorized access to computers, computer systems, and computer data.
The Legislature further finds and declares that protection of the integrity of all types and forms of lawfully created computers, computer systems, and computer data is vital to the protection of the privacy of individuals as well as to the well-being of financial institutions, business concerns, governmental agencies, and others within this state that lawfully utilize those computers, computer systems, and data....
(c) Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense:
(1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.
(2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.
(3) Knowingly and without permission uses or causes to be used computer services.
As I say, I'm no lawyer, but if that doesn't apply, could someone please explain to me why it doesn't? I suppose you could defend by saying you thought it was public, and that's just the flip side of what Kozinski is saying, that he thought it wasn't. Plenty of ickiness to go around, to my eyes. But the Internet Archive material rebuts any attempt to claim, as apparently has been claimed, that the site was taken down and then restored after the dispute regarding the divorce. Apparently, the intent was to take it private forever. And without implying anything, if it were me, I'd want to investigate who uploaded content. After all, someone who can read someone's code can probably do a great deal more than that, so hopefully the investigation will include such things. Now, I'm no fan of porn, and I don't find it funny, but there seems to be more to this story than immediately meets the eye. I've been smeared, and I know how it feels. And fair is fair. It's what Groklaw is about, fairness, and to tell you the rest of the story when the mainstream media doesn't.
Update: Mrs. Kozinski speaks, and the LA Times responds to criticism. There is a rather speedy committee of judges from the 3rd Circuit set up to investigate the matter:
And now, in a statement on the U.S. Courts website for the federal judiciary, the chairman of the 3rd Circuit's judicial council names the members of the special committee who will investigate In Re Complaint of Judicial Misconduct, No. 08-90035.
They are: 3rd Circuit Chief Judge Scirica, who chairs the circuit's judicial council; Judge Marjorie Rendell and Judge Walter Stapleton, both of the 3rd Circuit; Chief District Judge Harvey Bartle III, of the Eastern District of Pennsylvania; and Chief District Judge Garrett Brown Jr. of the District of New Jersey.