Quote of the Day - REPORTER, n. A writer who guesses his way to the truth and dispels it with a tempest of words.
The heart of legal reasoning is set out in the IRAC mnemonic: Issue, Rule, Analysis and Conclusion, as evidenced by two well-presented reviews. Professor Lawrence Lessig's also gives us the facts and tags the whole dispute as nothing more than a "Kerfuffle," which I borrowed to use in the headline. Professor Eugene Volokh amplifies in his post Lessig's solid legal reasoning. Let me humbly add a practicing lawyer's perspective. While I'll focus on the practical aspects of the situation, I highly recommend reading those two posts first.
First a disclaimer. Like Professor Volokh, I count myself among one of Judge Kozinski's friends, although obviously not as close. Judge Kozinski graciously attended one of our firm's Fall Harvest Open Houses and wowed our guests with his intellect and legal reasoning. I've argued an appellate case in front of him, we occasionally correspond by email, go to lunch once or so each year and he wrote the foreword to my new book, How to Get Sued. I read his opinions with relish because I enjoy his writing - it's a refreshing change from the typically dry legal opinion we regularly see from our appellate courts. There are too few legal writers like Judge Kozinski.
That said, let's look at the central issue here: has Judge Kozinski done anything wrong, let alone illegal? The two professors look at all the options, and conclude no rule has been violated. Instead, they point to a disgruntled gadfly and the mainstream media as the culprits. I couldn't agree more. I couldn't come up with any breach of contract, breach of duty or violation of judicial canon of ethics. Perhaps some would argue that Canon 1 applies, which requires judges to "maintain high standards of conduct, among other things.
Let's see. Judge Kozinski's family maintained files on a home computer he thought was private, not available to or indexed by the internet search engines or the general public, where he and other family members kept files that are readily available elsewhere on the internet on his home computer.
Many who don't understand computers and the internet claim that Judge Kozinski's home computer is a website. It isn't, as we generally understand websites. If it was, then every computer that's connected to the internet is a website. If you have any doubt that your computer is "available" on the internet, then go to http://www.whatismyip.com/ and see what it reports (it will inspect your computer's URL). The number that you get is the internet address of your home computer. Send it to a hacker, and they'll get right in.
If you don't have a hardware or software firewall up, or if either has ports open, then anyone can access your computer and find out what files you have on it. Judge Kozinski opened up a port on his home computer and made it accessible to certain people through a more conventional URL address (alexkozinski.com), but not to the general public, since hypertext code on the computer specified it wasn't to be indexed. If you didn't know it existed, then you would likely never have found it. But some did, and found files stored on the computer.
Some would consider those files distasteful, but certainly everyone's entitled to their opinion. Lessig described the computer within Judge Kozinski's private home. What we keep in our private homes, is, to be sure, private.
On the other hand, let's look at the gadfly who poked around Judge Kozinski's family computer. He could be charged with invasion of privacy and trespass, at the very least. There's a big difference between the two behaviors. Judge Kozinski thought his material was private, and the gadfly went where he was not invited, not much better than the Keystone Kops.
The mainstream media pounced on the disgruntled gadfly's ill-gotten materials like a desperate beggar grabbing at change tossed by a passerby. As Don Henley said, "We can do the innuendo; We can dance and sing; When its said and done we haven't told you a thing; We all know that crap is king..." Sex sells newspapers, but that's about all it does.
There's a reason I don't by tabloids.
As Marci J. Tiffany, Esq. Judge Kozinski's wife of thirty years, points out, the original Los Angeles Times story "authored by Scott Glover, is riddled with half-truths, gross mischaracterizations and outright lies. One significant mischaracterization is that Alex was maintaining some kind of "website" to which he posted pornographic material ... The "server" is actually just another home computer that sits next to my desk in our home office, and that we use to store files, perform back-ups, and route the Internet to the family network. It has no graphical interface, but if you know the precise location of a file, you can access it either from one of the home computers or remotely." Even judges are entitled to have private lives and ask the rest of us to respect the sanctity of their homes.
One of our hallowed protections in the Constitution is our right to privacy, and here Judge Kozinski's privacy in his home was not only violated, but exploited by unprincipled hucksters. We recognize what it is, however, and can choose to disregard it, which this writer recommends.