Via Randy Barnett on Volokh: Larry Lessig has a passionate defense of 9th Circuit Judge Alex Kozinski, whose family’s file server had some edgy and ribald files on it, which files could be accessed over the Internet. A lawyer with a grudge against Kozinski is apparently seeking to discredit the judge for the appearance of these files on his server, and there has been some discussion of whether Judge Kozinski should recuse himself from trying an obscenity case. (Though he is a circuit judge, he is sitting by designation as a trial judge.) Eugene Volokh has a similar post.
Kudos to Professor Lessig for his defense of Judge Kozinski, with whom he likely has some ideological differences. He didn’t have to say anything, and it’s to his credit that he did. Volokh is good to his long-time professional colleague.
On the merits, I share the views of both – what I’ve seen of the files are risque and sometimes boorish or gross, but they’re well within the mainstream of naughty Web humor. Were he not a respected judge sitting at an obscenity trial, the presence of these files on a family server would mean less than nothing.
The pair of comments intrigues me, though, because both draw real-world analogies to illustrate the privacy issues at play. Here’s Lessig:
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.”
Now here’s Volokh:
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.
Though I agree with Professor Lessig’s conclusion equally, I think Professor Volokh’s analogy is the better one. A person who rifles and photographs material left out as trash or sitting in a car violates nobody’s rights (though things done later with the information collected may do so), where entering someone’s house without permission is at least a trespass, and with wrongful intention a burglary.
I don’t think it would be wise to analogize accessing material made available on the public Internet (in whatever file structure) to burglarizing a home. If a person can access the material using ordinary methods, programs, and protocols, the original possessor of it does not have a claim to violation for the accessing (though, again, what is done with it may violate his or her rights, such as under the invasion of privacy tort). Any other rule about accessing information would be incredibly difficult to administer.
A second distinction between the two analogies is that in Lessig’s the grudgeful lawyer “takes” the material, while in Volokh’s he “takes pictures of all the pages.” It’s a casual analogy, so there is no blaming Lessig, but I think it’s important to recognize the distinction between taking something from someone, which deprives the rightful possessor of it and violates his or her rights, and copying something from someone which does neither absent a copyright.
As to Judge Kozinski, nothing to see here; move along. But it’s an episode that illustrates some interesting details about how privacy works in digital media. I’d be interested to know, of course, if Professor Lessig thinks that accessing material made available on the Internet by mistake is a violation of the errant publisher’s rights. But whatever the case, he gets a “good job” from me for weighing in as he did.