Judge Alex Kozinski speaks... (UPDATED)

... at UM Law in the Robert B. Cole Lecture Series.  And it was very entertaining.

Using a huge screen powerpoint presentation (see the picture below with the screen shot from Cheers), Kozinski spoke about IP law, persuasive lawyering, and when it's best not to file suit.  Examples included: the old Nintendo system and Mario Bros 3; Johnny Mathis's song When Sunny Gets Blue v. Rick Dees' song When Sunny Sniffs Glue; Barbie v. Bratz; the I'm a Barbie Girl song; Vanna White; Platoon; Cheers; Gay Olympic games; New Kids on the Block; and the Streisand effect... just to name a few.

Here are a few pictures from the extremely engaging talk, including yours truly with the good judge and Professor Ricardo Bascuas. 

And just in case you wanted to see the I'm A Barbie Girl video:




UPDATE -- Judge Kozinski issued this en banc opinion yesterday (while he was in Miami) concerning the computer fraud and abuse act, holding that the act did not criminalize violating a computer use policy:

Computers have become an indispensable part of our daily lives. We use them for work; we use them for play. Some- times we use them for play at work. Many employers have adopted policies prohibiting the use of work computers for nonbusiness purposes. Does an employee who violates such a policy commit a federal crime? How about someone who violates the terms of service of a social networking website? This depends on how broadly we read the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030.

I'm back

Thanks to my guest bloggers -- SFL, Rumpole, and Rick B.

Now back to work.... I hope everyone enjoys the last good week of traffic because school starts in one week and then US1 and I-95 turn back into parking lots.

A couple of quick hits to start your week:

1. Blago jury still out.

2. Justice Sotomayor jokingly compares herself to J.Lo.

3. Blogger convicted after three tries for threatening comments about federal judges.

4. Justice Ginsburg wants the good ol' days back in the Senate.

5. Justice Scalia OK after tripping.

6. Neal Katyal likely to become 10th Justice.

7. A must read dissent by Judge Kozinski on GPS tracking and the 4th Amendment. The intro:

Having previously decimated the protections the Fourth
Amendment accords to the home itself, United States v.
Lemus, 596 F.3d 512 (9th Cir. 2010) (Kozinski, C.J., dissenting
from the denial of rehearing en banc); United States v.
Black, 482 F.3d 1044 (9th Cir. 2007) (Kozinski, J., dissenting
from the denial of rehearing en banc), our court now proceeds
to dismantle the zone of privacy we enjoy in the home’s curtilage
and in public. The needs of law enforcement, to which
my colleagues seem inclined to refuse nothing, are quickly
making personal privacy a distant memory. 1984 may have
come a bit later than predicted, but it’s here at last.

And the conclusion:

I don’t think that most people in the United States would
agree with the panel that someone who leaves his car parked
in his driveway outside the door of his home invites people
to crawl under it and attach a device that will track the vehicle’s
every movement and transmit that information to total
strangers. There is something creepy and un-American about
such clandestine and underhanded behavior. To those of us
who have lived under a totalitarian regime, there is an eerie
feeling of déjà vu. This case, if any, deserves the comprehensive,
mature and diverse consideration that an en banc panel
can provide. We are taking a giant leap into the unknown, and
the consequences for ourselves and our children may be dire
and irreversible. Some day, soon, we may wake up and find
we’re living in Oceania.

Judge Kozinski says we need cameras in the courtroom

And I wholeheartedly agree. From the Above the Law post on his comments:

Kozinski started his talk by going over some of the arguments he has made before [PDF] in support of cameras (e.g., studies show cameras don’t affect the proceedings, quoting his “old boss” Warren Burger — “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”).
It wouldn’t be like the O.J. trial, which decidedly set the cameras-in-the-courtroom movement back. Kozinski advocates stationary cameras that would not zoom in, zoom out, or otherwise overly dramatize the courtroom events. Kozinski acknowledged that if you were to choose between a O.J. media circus or reports from informed journalists like Nina Totenberg or Linda Greenhouse, one might be happy to live without cameras.
But that’s not usually the choice one has. Kozinski pointed to the “long, slow decline of the newspaper industry” and the “rise of a much more diffuse style of coverage” as a major reason why cameras should be brought into courtrooms. Increasingly, the public is relying on “pseudo-journalists” (aka bloggers) for their instantaneous legal news.
“On the Internet, the loudest voice gets the most attention,” said Kozinski, who said that tends to lead to a distortion of the coverage of a case. He also raised the risks of relying on unknown bloggers, pointing to the case of “Dr. Flea.”

Someone explain to me why our federal courtrooms should be closed to the public.

Judge Kozinski champions right to privacy in computers

The Fourth Amendment is not dead... at least in the Ninth Circuit. Judge Alex Kozinksi,* writing for an en banc Ninth Circuit, ruled that many additional safeguards must be put in place before a computer search can go forward. See United States v. Comprehensive Drug Testing. Here's the summary of the holding by Kozinski:

When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.

2. Segregation and redaction must be either done by specialized personnel or an independent third party. See pp. 11880-81 supra. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. See pp. 11877-78, 11886-87 supra.

4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. See pp. 11878, 11880-81 supra.

5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. See p. 11881-82 supra.

My former law-school classmate, Professor Orin Kerr, has been railing on the decision over at the Volokh Conspiracy. Professor Kerr calls the opinion "breathtaking"** and says that it is light on citations to authority. He goes so far as to say: "This is the most free-wheeling, 'look ma no hands' legal decision I've read in a long time."

I think Kerr has got it all wrong here and that the en banc 9th Circuit has got it right. Computer searches are inherently different than any other type of search. And by the very nature of the search, a search warrant for any type of digital information -- no matter how discreet -- will lead to a search of the entire computer. Nowadays, there is nothing more private than a computer, not even your home. The old 4th Amendment analysis plainly hasn't been working with searching computers. And finally, one court had the courage to say so.

I know this isn't Scalia-Dershowitz, but I challenge my old friend Orin to a debate on whether this case was correctly decided. We can do it in blog posts or email or whatever. I hope he accepts. My first question to the good professor is whether he would agree that computer searches are inherently different than any other kind of search.

*Isn't it interesting that Kozinski wrote this opinion. Remember that he's the guy who had the contents of his computer publicly disclosed.

**Interestingly, the same word was used to describe the government's position: "Judge Thomas, too, in his panel dissent, expressed frustration withthe government’s conduct and position, calling it a 'breath-taking expansion of the ‘plain view’ doctrine, which clearly has no application to intermingled private electronic data.' Comprehensive Drug Testing, 513 F.3d at 1117."

Alex Kozinski and Porn

We've posted about the whole dust-up with Ninth Circuit Judge Alex Kozinski and his personal website featuring sexually explicit photos and videos.

Well, the Third Circuit's judicial council, tasked with investigating the case, wrote a 41 page opinion admonishing Kozinski, but clearing him of any wrongdoing. It's just about the holiday weekend, so I haven't slogged through the whole opinion yet. But here's the bottom line:

We find that the Judge's possession of sexually explicit offensive material combined with his carelessness in failing to safeguard his sphere of privacy was judicially imprudent. Moreover, once the Judge became aware in 2007 that offensive material could be accessed by members of the public, his inattention to the need for prompt corrective action amounted to a disregard of a serious risk of public embarrassment. We join with the Special Committee in admonishing the Judge that his conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary. We determine that the Judge's acknowledgment of responsibility together with other corrective action, his apology, and our admonishment, combined with the public dissemination of this opinion, properly conclude this proceeding.
***
The Judge explained and admitted his error; apologized for it, recognizing its impact on the judiciary; and committed to changing his conduct to avoid any recurrence of the error. The offending material has been removed and will be destroyed. The Judge’s acknowledgment of responsibility combined with the corrective actions he has already completed or has committed to pursue and his apology, along with our admonishment, made public in this opinion, properly “remed[y] the problems raised by the complaint.” Rule 11(d)(2). Accordingly, this proceeding is properly concluded. We find that “all of the purposes of the judicial misconduct provisions are fully served” by this result.

In my opinion, this has been a huge waste of time. Kozinski issued the following statement to the WSJ Law Blog:

I asked the Third Circuit Court of Appeals to thoroughly review this matter, and I am pleased that today’s unanimous decision reaffirms what I have said all along about my private files: They were kept on a private server and were not intended to be shared publicly. Our Ninth Circuit Court of Appeals has much important work to do, and I look forward to continuing to work with my colleagues to accomplish our goals.

Anyway, I hope you all have a wonderful Fourth.

The Onion covers Kozinski

Here.

I haven't covered all the latest twists and turns in the Kozinski case (if you want all of that, see AboveTheLaw).

From the Onion:

"That's nothing. Have you ever seen the stuff on Justice Scalia's website?"

And here's The Daily Pulp's coverage of the Carlos Miller trial.

In Defense of Kozinski

Even though the LA Times broke the Alex Kozinski story, it now runs an op-ed defending him. I agree that he should respond by saying "So what." This has been way way way overblown. Here's the op-ed in its entirety:

Judge Alex Kozinski's statements about the stash of sexually explicit images he collected and that the public (until this week) could view on his website have been varied, although not necessarily inconsistent: He thought the site was for private storage and offered no public access (although he shared some of the material on the site with friends). People have been sending him this stuff for years (implying that it just accumulates, like junk mail). He might accidentally have uploaded the photos and videos when intending to upload something else. His son did it. There's a different statement we'd like to hear from him, and no, it's not an apology, an expression of regret or even an explanation. It's this: "So what?"Not everyone may like it, but pornography is freely available on the Internet, whether it be from a commercial site dedicated to adults-only material or from the personal site of the chief judge of the U.S. 9th Circuit Court of Appeals. Any adult has, and ought to have, the right to view those sites and to download those photos and videos -- subject, of course, to the strictures of copyright law. People who don't want to see such images can, and should, avoid them. Scolds who argue that judges should uphold a higher standard of decorumthan the common citizen and should somehow be prevented from engaging in such private activity as gathering subjectively amusing or even appalling smut should recall that the 1st Amendment is not limited to high-minded endeavors. 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 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. It is also true that judges are charged with administering justice and instilling public confidence in the law. Under the circumstances, it makes sense for Kozinski to recuse himself from the obscenity trial he was assigned to hear -- not because there is any readily apparent conflict but because the website controversy has become a distraction and will undermine public trust in the verdict.

Update on Kozinski

Above the Law has all the details here, including that Judge Alex Kozinski has suspended the trial for 48 hours to figure out what to do, and an email from Kozinski himself:

David [Lat]: I can't comment on the trial.
As for the other matter, the server was maintained by my son, Yale, for the entire family. Pictures, documents, music, audio and other items of personal and family interest are stored there so various family members can reach them from wherever they happen to be. Everyone in the family stores stuff there, and I had no idea what some of the stuff is or was -- I was surprised that it was there. I assumed I must have put it there by accident, but when the story broke, Yale called and said he's pretty sure he uploaded a bunch of it. I had no idea, but that sounds right, because I sure don't remember putting some of that stuff there.
I consider the server a private storage device, not meant for public access. I'd have been more careful about its contents if I had known that others could access it.

Here's the latest from the LA Times.

UPDATE -- There are a number of sites that have collected the images from Kozinski's website. See here, for example. Ann Althouse discusses those images and the controversy at this link.

Should a federal judge....

...post porn pictures on his personal website (when he is about to start an obscenity trial)? That's the debate after Judge Alex Kozinski did so in United States v. Ira Isaacs, a trial starting this morning. According to the LA Times:

One of the highest-ranking federal judges in the United States, who is currently presiding over an obscenity trial in Los Angeles, has maintained a publicly accessible website featuring sexually explicit photos and videos.Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he defended other sexually explicit content as "funny."

Other stuff found on the site:

The sexually explicit material on Kozinski's site earlier this week was extensive, including images of masturbation, public sex and contortionist sex. There was a slide show striptease featuring a transsexual, and a folder that contained a series of photos of women's crotches as seen through snug fitting clothing or underwear. There were also themes of defecation and urination, though they are not presented in a sexual context.

How did Kozinski end up doing a trial (he's the Chief Judge on the 9th Circuit):

The judge said it was strictly by chance that he wound up presiding over the Issacs trial in U.S. District Court in Los Angeles. Appeals court judges occasionally hear criminal cases when they have free time on their calendars and the Isaacs case was one of two he was given, the judge said.

The money quotes:

Kozinski said he didn't think any of the material he posted on his website would qualify as obscene."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."Before the site was taken down, visitors to http://alex.kozinski.com were greeted with the message: "Ain't nothin' here. Y'all best be movin' on, compadre."Only those who knew to type in the name of a subdirectory could see the content on the site, which also included some of Kozinski's essays and legal writings as well as music files and personal photos.The judge said he began saving the sexually explicit materials and other items of interest years ago."People send me stuff like this all the time," he said.He keeps the things he finds interesting or funny with the thought that he might later pass them on to friends, he said.