Patterico's Pontifications

6/14/2008

Did Kozinski Have a Reasonable Expectation of Privacy in Items Uploaded to His Public Web Site?

Filed under: General,Kozinski — Patterico @ 10:41 am

Prominent law professors coming to the defense of Judge Kozinski are comparing Cyrus Sanai to a computer hacker, or even a criminal. These analogies, however well-intentioned, badly miss the mark. Sanai did what you and I do every day: he accessed a public web site through a Google search.

Whatever you think of Sanai, he ought not be branded as a criminal for that.

[UPDATE: Please make sure to read the UPDATE at the end of the post for the contrary perspective from someone close to Kozinski.]

In a post linked by Instapundit, Prof. Lawrence Lessig compares Sanai to a home burglar who “jiggers the lock, climbs into the window, and starts going through the family’s stuff” in a den in the Kozinski family home.

That analogy bears no resemblance to the actual facts. It would be an appropriate analogy if Sanai had hacked Kozinski’s private computer. But that’s not what happened. Sanai used a standard search engine to access materials uploaded to a public web site.

That’s not hacking, and it’s nothing like burglary.

I have already explained how Sanai says he found Kozinski’s “stuff” subdirectory: he ran a Google search.

Sanai concluded that Kozinski had been trying to hide something from the Judicial Council by taking down the site [during the pendency of a misconduct complaint against him], and decided he wanted to find out what that was. When Sanai ran a Google search plugging the name of Kozinski’s site into the search engine, hits came back to .mp3 sharing sites, saying that songs like Monty Python’s “Lumberjack” song could be downloaded at URLs located in a subdirectory of Kozinski’s site: http://alex.kozinski.com/stuff. This is the subdirectory that had the porn.

Sanai says he typed “http://alex.kozinski.com/stuff” into his address bar, and the contents of that subdirectory were all listed, with hyperlinks. He clicked on them and downloaded them.

Sanai was not a hacker, diving into private files in someone’s private computer, as the professors’ analogies suggest. He simply accessed a public site through a Google search, typing standard “http://” commands, and clicking on hyperlinks.

Prof. Lessig does not explain that Sanai accessed Kozinski’s site through standard Web surfing and use of search engines. Instead, Lessig makes Sanai’s actions sound mysterious and akin to computer hacking. According to Lessig, Sanai “determine[d] the directory structure for the server” and used that to find “likely interesting places to peer.” Lessig then says: “Cyberspace is weird and obscure to many people” and then explains Sanai’s “weird and obscure” actions by drawing an analogy to home burglary.

For Lessig to compare Sanai to a home burglar is terribly inappropriate. Sanai simply used the Internet to access a public Web site, just as you and I do every day.

You don’t have to like Cyrus Sanai to be fair to him. Sanai is a serial litigant who had a personal grudge against Judge Kozinski. He has obviously gone to great lengths to exact revenge. Many people find his behavior with respect to Judge Kozinski to be unsettling, creepy, or worse. They believe, based on published reports, that he has abused the courts with his numerous actions in state and federal court. Criticize him, if you like, for being obsessive and driven by vengeance.

But don’t compare him to a criminal, for accessing a public web site.

Former Kozinski clerk Eugene Volokh also sees an egregious invasion of privacy here, comparing this to “your parking your car on the street, locking it, but forgetting to close a back window” whereupon “someone who has a grudge against you comes by and starts using the open window to rummage around in the stuff.”

To support this argument, Volokh says: “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.”

I’m sure Volokh didn’t know this when he wrote his post, but the controversial files most certainly were indexed on search engines. You can see a long list of the files in Kozinski’s subdirectory, pulled off a Yahoo cache, here. There is an even more complete listing of files from Yahoo here.

What’s more, Google also has links to Kozinski’s .mp3 files. An ABA Journal article focusing on Kozinski’s possession of .mp3 files says:

The ABA Journal searched in Google for “alex.kozinski.com” and “mp3” several weeks ago and found file-sharing websites with links to music on Kozinski’s website.

You can still find such links. Here is a screenshot of one:

kozinski-site-on-google-2.JPG

A screenshot of the link in question shows that a user reported the link worked in December 2007. On June 14, 2008 (that’s today), another user reported that the link was no longer working.

kozinski-file-on-mp3-site-works.JPG

My point is that Kozinski’s site, and his “stuff” subdirectory in particular, were most definitely on Google. People were accessing his site through searches of search engines.

One more point: Seth Finkelstein has shown that Kozinski knew that any member of the public could access his site — including his “stuff” subdirectory — as long as they knew the URL. In 2004, Kozinski nominated himself as part of a “Judicial Hottie Contest” on the Internet, and included a file of himself bungee jumping at http://alex.kozinski.com/stuff/jump.avi. Note that the file is located in the “stuff” subdirectory — the same one with the porn — and Kozinski knew that he was inviting members of the general public to view that file.

So what? Finkelstein explains the significance of this: “Judge Kozinski knew the general public could retrieve specific material from that directory, and in at least one case, invited the public to do so.” Finkelstein goes on to observe: “I speculate that he did not know that his server was configured with a feature which lists all files in that directory when the directory name was given. That is, he may have thought that the only way to know what files were there, was if one was given filenames.”

I have sent an e-mail to Judge Kozinski to ask him whether this is true, as both Finkelstein and I speculate. I’ll let you know if I get a response.

Since the law professors are using analogies, I’ll use one of my own.

Let’s say police want to look for child pornography.

Can they legally jigger the lock on your house, go in through an open window, and start going through your family’s stuff? (That’s Lessig’s analogy.) Can they use the open window of your car to start rummaging around through the stuff in your back seat? (That’s Volokh’s analogy.)

Not without a warrant or a valid exception to the warrant requirement. Because you have a reasonable expectation of privacy in the contents of your house and your car.

Can police legally direct their browser to your public web site, accessed through a search engine?

You bet they can. The reason is simple: you have no reasonable expectation of privacy in items that you have chosen to upload to the Internet, on a web site that you know can be accessed by the public.

I think the law professors could easily see that — if it had been Joe Blow who did the uploading, rather than Judge Alex Kozinski.

UPDATE: I have received an e-mail from someone close to Kozinski who strongly disputes the characterization of the site as a “public web site.” I believe the e-mail was sent for publication, but I am in the process of confirming that. When I do, I’ll let you know.

51 Responses to “Did Kozinski Have a Reasonable Expectation of Privacy in Items Uploaded to His Public Web Site?”

  1. Yup. But it doesn’t matter. Kozinski is liked. He has the right politics and he writes colorful opinions which somebody might even call “ass rippings”. He was appointed by Reagan for crying out loud.

    nk (4bb2be)

  2. Here’s another analogy…

    If Mr. Smith leaves his car parked and locked with child p_rn on the front seat, the policeman who walks by the car is not legally obligated to avert his eyes.

    Darleen (187edc)

  3. Or:

    A couple is entitled to have sex in their home: but not on the dining table near the open, front picture window within clear view of anyone walking or driving by.

    Darleen (187edc)

  4. A couple is entitled to have sex in their home: but not on the dining table near the open, front picture window within clear view of anyone walking or driving by.

    Well, I don’t know about that. 😉 Stopping to close the curtains can ruin the whole mood.

    nk (4bb2be)

  5. Seriously, if what Kozinski had on his site were as wholesome as a couple having sex I would be the first to defend him. What he had was a perversion of nature.

    nk (4bb2be)

  6. Perhaps there’s a better term to utilize here, in deference to the subject matter, rather than Joe Blow. Might I suggest ‘the average Joe’.

    allan (048c67)

  7. Does anyone know how you can get a replay of Cyrus the Virus discussing this on Michael Savage’s program I believe last night?

    daleyrocks (d9ec17)

  8. NO!

    Sue (f9a0a4)

  9. Er…
    Haven’t various people, over the last few years, gotten in serious trouble for taking published URLs and typing unpublished variations on them into their browser address bars? Hasn’t this been held to be “hacking” and “unauthorized access”?
    Yeah, I know: I do that sort of thing all the time, and so, probably, do you. Still, I seem to recall that it’s been held to be unauthorized access and thus a crime, at least in some cases.
    Meanwhile, there’s a lesson for anyone with a web site: either configure the server to disallow directory listing, or make sure every subdirectory has an index.html (which can just announce that the directory contents are non-public and non-browsable). It makes rummaging around much more difficult.

    Eric Wilner (3936fd)

  10. if it were a private website, the judge’s adversaries wouldn’t be able to get in and spill the contents to the media, now, would they?

    assistant devil's advocate (c9943a)

  11. I think it is stuff that the judge intended to keep private… the word “private” used here in the broadest possible sense…. but he put his “private” stuff in a place the public could easily access it.
    Is internet ignorance a defense?
    I don’t think so. There are a lot of young teachers out there that have had their careers derailed due to ignorance about public access to MySpace and Facebook content they thought was private.

    I had a friend whose office was on the ground floor of a mirrored window building at a community college. His office was around a corner and sort of out of the way. The first month he worked there he taped up a sign on the outside of the window that said there was someone inside who could see out… he said that stopped the students from having sex outside his window, but not the kids from using his window as a mirror to pop zits and check for boogers. So he turned the desk around…
    My point is that expectations of privacy on the internet are illusory unless strict security measures are implemented and the responsibility for proper care of private material falls on the website owner.

    The judge learned this internet lesson through the school of hard knocks.

    I personally wouldn’t keep stuff like that on my computer, but I don’t think the judge needs to be embarrassed by any of the photos and videos… he should be embarrassed by his naive approach to internet security and should respond by securing his website and then move on.

    SteveG (71dc6f)

  12. THIS JUDGE SHOULD BE TRIED AND CONVICTED FOR HIS CRIMES ON OFFENSIVE PORNOGRAPHY. WE DO NOT NEED POLITICAL FIGURES, WHO IS TO BE A ROLE MODEL FOR SOCIETY.

    I DO NOT CARE WHO YOU ARE, DO THE CRIME AND PAY TO DO HARD CORE TIME. HE IS A DISGRACE AND NEEDS TO GO.

    Eloise (cea667)

  13. FWIW:

    I got a recipe off of Judge Kozinski’s site while wandering through it after he linked to the site regarding Sanai. I don’t recall exactly how I got to it. It was some time ago.

    The kind, and I think mostly accurate, view is that Judge Kozinski screwed up.

    As to the criticisms of Sanai as to his outing Kozinski’s site, I don’t get that at all. Let’s stipulate that Cyrus Sanai is Satan incarnate, hell-bent on destroying Kozinski for completely evil reasons. (I’m not saying that’s true. Let’s just see where this flows.)

    So then, Sanai points out to the press what a federal judge has on his publicly accessible website. And this is wrong how? He was supposed to send a little note to the judge instead?

    I mean, I might have handled that way if I had found porn instead of a cookie recipe. But Sanai had absolutely no obligation to do that. The judge is a public actor, and his actions are subject to scrutiny. If this stuff were found on a president’s publicly available website, it wouldn’t matter who outed him for it; it would be far more likely to be an unsympathetic person than a sympathizer. That’s not surprising.

    I have no beef with Volokh’s coverage of this; Professor Volokh acknowledges his rather substantial bias. Lessig seems confused.

    I think Patterico’s is the best coverage I’ve seen of this.

    –JRM

    JRM (de6363)

  14. who hosted this website? if it was a 3rd party then he had to upload the file to another server somewhere. does that negate any privacy issues. also why didnt he password the “private” parts of it?

    and while what he had may not be illegal it certainly is enough that he should recuse himself in a porn case.

    chas (12a229)

  15. Eric: I do think there has been at least one specific case where URL truncation was considered hacking. I think the Harvard Business School scandal was a case of that, but that wasn’t a criminal act. But if there is such a case, it’s wrong, in my view, just as it was when a Danish court ruled deep linking was illegal. Both decisions ignore the public reality of the Web, and ignore the fact that it’s quite possible and reasonable to block both types of activities on the server side.

    mcg (5f0e75)

  16. FWIW, my analysis copied from my comment on the Volokh Conspiracy:

    I disagree with those who think that Cyrus Sanai violated Judge Kozinski’s privacy.

    At 8:58 p.m., Cyrus Sanai said:

    Seth Finkelstein has discovered that Judge Kozinski himself handed out the URL to the directory with his porn and mp3’s in a letter nominating himself for Judicial Hottie of the Year (I got in through the URLs for the filesharing site that listed his uploaded MP3s.) Judge Kozinski thus made his private interests public.

    Cyrus Sanai explained how he discovered the directory structure in the italicized portion of the quotation above.

    Because I don’t have the url or output of the mp3 filing sharing site, I’ll give a link to and use the Finklestein method. In principal, the methods are really the same. You simple need the url for one file, and then truncate the file name to get to either the web page linking to the file (and perhaps other interesting files) or a directory structure.

    The Finklestein method is here.

    To paraphrase the Finklestein method, you simply need the url for one file, say:
    http://alex.kozinski.com/stuff/jump.avi

    Then delete “jump.avi” to get:
    http://alex.kozinski.com/stuff/

    Then paste http://alex.kozinski.com/stuff/ into your browser and hit enter. If you do that, you will get one of three things. Either the default webpage at http://alex.kozinski.com/stuff/ or the directory listing for http://alex.kozinski.com/stuff/ or an error page stating you are not authorized to access that directory.

    As I understand Cyrus Sanai, he used an mp3 search engine or web directly to get the name of an mp3 file in the http://alex.kozinski.com/stuff/ directory (something like http://alex.kozinski.com/stuff/sample.mp3) and followed the same procedure.

    For what it is worth, I do this all of the time, it never occurred to me that I was doing something wrong, I still don’t think that I did anything wrong, and I will continue to do it. Any minimally knowledgeable web user knows that if you find an interesting file through Google (say http://alex.kozinski.com/stuff/interesting.jpg) you can back track the directory structure (say to http://alex.kozinski.com/stuff/).

    On the web I believe the norm is that if you put up an accessible web page or directory, there is a rebuttable presumption that it is public. If it is not open to the public, you should get a password page or, more likely, a page saying you are not authorized to access that particular directory.

    If I got a password page or a page stating that I was not authorized to see that directory, I would never try to gain access or circumvent the restriction.

    If, however, I get a director listing, it would never occur to me that I wasn’t supposed to get that listing, or that I was somehow invading someone’s “privacy.” How am I supposed to know that I’m not supposed to look at the directory structure? How am I supposed to know that I’m “invading” somebody’s privacy if I paste in a url and get a directory listing instead of an “you are not authorized to access” page?

    Cutting, pasting and truncating web urls is just another way of navigating the web. I’ve often found clearly and intentionally public web sites that, due to the lack of backward links, poor design, or the fact that you first find a media file name through a Google search, are initially navigable only through that method.

    For that reason, I think the analogies to homes with open windows, keys in the door, unlocked doors, or even open doors are unpersuasive, at best. The presumption is that one does not enter another’s home (and particularly a stranger’s home) without permission, even if the door is unlocked. In contrast, the rebutable presumption on the web is that if you type in a url and get a page or directory listing, you are not prohibited from entering. Even if you are a stranger.

    I think part of the difference in opinion on this subject may be due to differing degrees of experience in, and knowledge about, the web. I suspect that people with a lot of experience with and knowledge of the web, and how it works: (a) rely on the customs, practices and presumptions of the web; and (b) don’t think to analogize to the “real” world. They see the web and the internet as its own thing. Its own think with its own customs, practices, and presumptions.

    In contrast, I suspect those with less experience and knowledge: (a) aren’t aware of the existence of web customs, practices and presumptions, much less know what they are; and therefore (b) naturally tend to analogize to the “real world.”

    Charles Chapman (a405cf)

  17. Patterico – Do you want Cyrus representing your views of the Kozinski matter around the net? From overlawyered.com:

    “Mr. Frank,

    It would be nice if you would do some research before characterizing my initial disciplinary complaint against Kozinski as frivolous; in fact it terminated in my favor. He acknowledged part of my complaint had merit, and issued a very grudging apology. However, he apparently denied that alex.kozinski.com existed, and so the portion of my complaint concerning that was dismissed on grounds of lack of evidence.

    Second, you should more carefully read Patterico’s posts. He too was initially hostile, but now agrees with me that Kozinski has a very serious problem with file-sharing and copyright violations. It was Kozinski’s file sharing that led me to his site.

    Third, the stuff posted on Patterico is the mild content.

    Cyrus Sanai

    Cyrus Sanai on June 12th, 2008″

    daleyrocks (d9ec17)

  18. FWIW, my additional comment copied from the thread on the Volokh Conspiracy:

    For those who disagree with me, and particularly for the person who was kind enough to call me “slime,” let me describe what I’ve done in the past, and let you pass judgment.

    I do a search on Google for “interesting.jpg”. I find it at:
    http://www.somewebsite.com/stuff/interesting.jpg

    I think to myself, “Cool! I wonder what other interesting files he might have?” So I enter the url of:
    http://www.somewebsite.com/stuff/

    And get a directory listing of files. In my case, none of the files is obviously private (e.g., copies of tax returns).

    Have I done anything wrong? Am I, indeed, slime?

    Or consider that I search Google for “interesting1.jpg” I find it at:
    http://www.somewebsite.com/stuff/interesting1.jpg

    I think to myself, “Cool! I wonder if he has the other files in the “interesting” series?” So I enter the url of:
    http://www.somewebsite.com/stuff/interesting2.jpg

    And get interesting2.jpg. It is not a copy of a obviously private file (again, e.g., a tax return).

    Have I done anything wrong? Am I “slime?”

    Now I understand that while in my hypothetical I had an innocent motive, Cyrus Sanai did not. Does that make a difference?

    Or does it make a difference that Cyrus Sanai, unlike me in my hypothetical, knew, or reasonably should have known, that Kozinski probably didn’t intend for the files to be public?

    [And exactly how did Cyrus Sanai know that? Because Kozinski didn’t provide a link on his homepage? What if Cyrus Sanai didn’t go to the homepage first? Was Cyrus Sanai obligated to go to the homepage first and, not finding a link, conclude that everything was “private” regardless of whether the contents turned up on Google, MP3.com, and every other search engine on earth?]

    The point I’ve been trying to make is that in order to have an invasion of privacy, the alleged victim had to have a reasonable expectation of privacy. I have a hard time understanding how the “victim” in this case, Kozinski, could have a reasonable expectation of privacy when anyone in the world could type in a valid http request and get the directory listing.

    I guess I’ll have to have some t-shirts made:
    “Typing in a web url is not a crime!”
    “Typing in valid http request is not a crime!”

    Charles Chapman (a405cf)

  19. That’s not quite right.

    Kozinski’s .mp3 issue could be a hypocrisy problem for him, IF he deliberately set his site up for the files to be shared, and IF (as appears to be the case in at least one dissent I have linked), he took a hardline anti-sharing/pro-copyright position in a case. Then again, Xrlq points out that issuing an inaccurate but self-serving opinion would hardly be better.

    I don’t know whether sharing files is illegal, and I’m not looking to be a scold on that point.

    To me, the relevance of the .mp3 files is relatively minor, BASED ON WHAT WE CURRENTLY KNOW. Namely, they help show that his site was indexed in Google, contrary to what Volokh represented in his post.

    Patterico (6d098c)

  20. Patterico – I agree. The accessability issue is separate from the sharing issue, which may or may not be a problem.

    Cyrus is busy backfilling.

    daleyrocks (d9ec17)

  21. Here’s the Overlawyered comment thread.

    DRJ (721b95)

  22. I left my comment there.

    Mr. Sanai isn’t far off the mark, but he doesn’t quite capture my feelings. In truth, my opinion has changed a touch as well, due to the debate on the issue.

    I guess I would prefer that he let me speak for myself, as I don’t want to have to chase around issuing corrective comments. He is welcome to cite to anything I have written, though, if he thinks it will be helpful in his defense. The same goes for Judge Kozinski and his supprters — many of whom are glad that I published the actual images, by the way.

    Patterico (f0c8af)

  23. Patterico–You’ve probably guessed that I’m not too concerned about the images (except maybe the auto-fellating juvenile; even there, my concern would be that it can be prosecuted as child porn, not that Judge Kozinski used it as such). And, I agree that the mp3’s are potentially a bigger problem.

    But, isn’t the explosive charge here that the judge deceived the committee investigating Sanai’s complaint by hiding and possibly denying the existence of his website? I say this as someone who admires Kozinski as a breath of sanity on the 9th, : If Sanai’s allegation is true haven’t we entered Bill Clinton territory?

    fat tony (fbd633)

  24. Thanks for providing the link to the overlawyered thread DRJ. I have not been providing links to a lot of items since they tend to get hung up in the filter if no one is paying attention the way you (sniff) used to.

    daleyrocks (d9ec17)

  25. I think I characterized Patterico’s change in view accurately. If not, I apologize.

    What does serial litigant mean? I was plaintiff in exactly three lawsuits in federal court. Two were filed separately for jurisdictional reasons (I split some state court causes of actions off into a diversity only lawsuit) which were combined into one; the third was filed only because the judge would not allow newly discovered causes of action to be added, which is the judge’s issue, not mine.

    Finally, I have no desire for “revenge” on Judge Kozinski. I have a litigation goal to accomplish, which coincides with demonstrating the Judge Kozinski committed serious judicial misconduct in 2005. Had that been dealt with properly then, I would have had no reason to be seeking to determine what was so important about alex.kozinski.com that Judge Schroeder thought sitting on the complaint for 14 months until evidence had disappeared was a smart idea.

    The reality is the only people who can accurately recognize judicial misconduct are lawyers, and the only reasons to even subject oneself to this misery is to correct a judicial wrong suffered by onesel or a client. Identifying judicial misconduct has no upside, given that you have deal with the judge’s friends, lawyers who want to curry favor with the judge, and juvenile trolls like daleyrocks.

    Cyrus Sanai

    Cyrus Sanai (4df861)

  26. I still want to know if anyone else had write access to that subdirectory.

    htom (412a17)

  27. Cyrus – Does your litigation goal still involve the divorce of your parents or have you moved on finally?

    Was Judge Kozinski’s serious judicial misconduct replying to the hit piece you wrote on him and the ninth circuit’s alleged lack of consistency in applying the Rooker-Feldman doctrine in advance of hearing your appeal in an attempt to sway the appeal?

    What was your motivation for writing that piece? Was it to force Kozinski to recuse himself, piss off the circuit, or did you really view it as an attempt to persuade?

    Why did you hide your interest in the subject from readers? Is the subsequent embarrassment caused by Kozinski your real issue?

    He recused himself from the appeal and Schroeder found no misconduct. Where do you still see unrecognized misconduct from that date? Fill everybody in please?

    daleyrocks (d9ec17)

  28. Stop attacking daleyrocks, Cyrus. You may have noticed that Kozinski has a lot of friends here. Well, daleyrocks has more.

    nk (4bb2be)

  29. Thanks nk. I’m fine. I’m interested in what he has to say and the more he has to say the better.

    daleyrocks (d9ec17)

  30. The reality is the only people who can accurately recognize judicial misconduct are lawyers, and the only reasons to even subject oneself to this misery is to correct a judicial wrong suffered by onesel or a client.

    Uh, no. And there are plenty of lawyers who can’t recognize it.

    Pablo (99243e)

  31. My personal philosophy is that I don’t put on any of the websites I have any access to anything I wouldn’t want to see in the paper some morning.

    As far as the legality of the access goes, Kozinski did the equivalent of putting a sign on his living room door, saying “come in, read through the magazines on the table.” Buried in the stack are his copies of “Stocks and Bonds”, which has nothing to do with the securities market. Has this person waived any expectation of privacy with regard to this magazine?

    Karl Lembke (ab8c3e)

  32. “What does serial litigant mean?”

    I was referring to Judge Kozinski’s claim that

    he and certain members of his family have hounded a state trial judge off their case (read the PDF); been held in contempt and sanctioned under 28 U.S.C. §1927 and had their ninth sortie to our court in the same case designated as “frivolous” and “an improper dilatory tactic” by the district court.

    That sounds like a serial litigant, but I want to be fair to you. Maybe what the judge said is inaccurate or misleading. I’ll give you a chance to tell us why you think so (just like I would give the judge a chance to have his say).

    I think this thread would be a good forum for you to elaborate on the divorce case and why you did what you did.

    I have told people that, if what you say is true re the appointment of your dad’s accountant to some sort of special master position in your dad’s divorce case, you have good grounds to be mad. Why not elaborate on that? I’ll give you all the space you like here in the comments to do so.

    And if I improperly characterized you as wanting revenge on Kozinski, then I apologize — but I would be interested in hearing why you did what you did. I understood you to say that you did this as a way of bringing attention to your case, but I don’t want to put words in your mouth.

    I told daleyrocks I’m not interested in researching the divorce case. But, I’m happy to have you tell us about it. Again, these comments are as good a place as any.

    Patterico (a7a78e)

  33. The reality is the only people who can accurately recognize judicial misconduct are lawyers, and the only reasons to even subject oneself to this misery is to correct a judicial wrong suffered by onesel or a client.

    Uh, no. And there are plenty of lawyers who can’t recognize it.

    Comment by Pablo — 6/14/2008 @ 10:08 pm

    Pablo – There are also plenty of lawyers who are convinced they see it when they lose cases.

    daleyrocks (d9ec17)

  34. Absolutely not. Were Kozinski storing sealed court records on his site, he’d be guilty of negligence. Given that he’s tech-savvy and a libertarian no less, he should have had no illusions about the Internet being a public forum.

    Regardless of whether it’s been harvested by a search engine, the very act of uploading files onto The Internet should waive any reasonable expectation of privacy.

    There’s even been a federal case that has addressed this issue (in accord with the OP):

    The Court is convinced that placing information on the information superhighway necessarily makes said matter accessible to the public, no matter how many protectionist measures may be taken, or even when a web page is “under construction.” While it is true that there is no case law on point regarding this issue, it strikes the Court as obvious that a claim to privacy is unavailable to someone who places information on an indisputably, public medium, such as the Internet, without taking any measures to protect the information.

    United States v. Gines-Perez, 214 F. Supp. 2d 205, 225 (D.P.R. 2002), vacated on other grounds by, 14 F. Supp. 2d 205, 2002 U.S. Dist. LEXIS 20472 (D.P.R., 2002).

    SCLAW (ae4526)

  35. Patterico,

    I am going to address the underlying judicial corruption issue, but I want to make scans of the the original documents available if you don’t mind. You then can do what you did in the other posts, which is show what my claims are and attach .pdfs.

    The reason I want to do this is that no one ever believes what I say about the judicial corruption issue until I show them the documents, just as none of the reporters ever believed what I said about the contents of the mp3 links and porn until they saw it. Some, like Lessig, don’t believe the mp3 and access issue even when they do see it, but that’s a different story.

    However, I’ve got to spend Father’s Day with my kids, so expect material Monday or so. You will also get the CD around that time. Check out “bestwomandriver” and “chinesemassproduction” first. You won’t be disappointed. Good luck getting it on your ISP though. And you will see your bandwith go out of control if you post it. You have been warned.

    Cyrus

    Cyrus Sanai (4df861)

  36. I think Judge Zilly’s order sanctioning Sanai gives a good description of a serial litigant and abuser of the legal process. It can be found here:
    http://www.fileden.com/files/2008/5/16/1914169/zilly-order-sanctioning-sanai.pdf

    It is excerpted at overlawyered today as follows:

    Plaintiffs’ conduct in this litigation has been an indescribable abuse of the legal process, unlike anything this Judge has experienced in more than 17 years on the bench and 26 years in private practice: outrageous, disrespectful, and in bad faith. Plaintiffs have employed the most abusive and obstructive litigation tactics this Court has ever encountered, all of which are directed at events and persons surrounding the divorce of Sassan and Viveca Sanai, including parties, lawyers, and even judges. Plaintiffs have filed scores of frivolous pleadings, forcing baseless and expensive litigation. The docket in this case approaches 700 filings, a testament to Plaintiffs’ dogged pursuit of a divorce long past.

    Plaintiffs have flatly refused to obey Orders of this Court, to cooperate with discovery, and to comply with their obligations under the Federal Rules. They have refused to appear for depositions and respond to discovery. When deposing opposing parties, their conduct has been abusive and disrespectful. They have intercepted and wiretapped the phone calls of other represented parties in this litigation. They have actively and improperly interfered with discovery, and required this Court to intervene all too frequently.

    Plaintiffs have also disobeyed Orders of this Court relating to property owned by Sassan and Viveca during their marriage, including a vacant lot and the family home. In disregard of a direct Order from this Court, Plaintiff Fredric Sanai and Viveca Sanai effected lis pendens filings with the Snohomish County Auditor that were contrary to the Orders of this Court. See Transcript of Proceedings, docket no. 272; see also Order on Motion for Contempt, Sanctions, and Attorneys’ Fees, docket no. 262. The sanctions imposed by the Court for those actions are currently on appeal, but Plaintiffs’ disregard for the Orders of the Court is relevant to the Court’s consideration of Plaintiffs’ continued course of misconduct.

    Sanai v. Sanai, Case No. C02-2165Z (W.D. Wash. Jul. 1, 2005). As a Los Angeles Superior Court judge found:

    [Sanai] has proliferated needless, baseless pleadings that now occupy about 15 volumes of Superior Court files, not to mention the numerous briefs submitted in the course of the forays into the Court of Appeal and attempts to get before the Supreme Court, and not one pleading appears to have had substantial merit. The genesis of this lawsuit, and the unwarranted grief and expense it has spawned, are an outrage.

    Sanai v. The U.D. Registry, Inc., 2005 Cal. App. Unpub. LEXIS 1366, at *60 n. 3 (2005). Where are the disciplinary authorities? Why hasn’t Judge Zilly referred a complaint for criminal contempt to the U.S. Attorney?

    http://overlawyered.com/2008/06/kozinski-recuses-himself-judge-zillys-sanctions-order-against-cyrus-sanai/

    Kozinski obviously embarrassed Sanai by responding to what Sanai thought would be a free at bat prior to his case being heard by the Ninth Circuit in 2005 and revealing Sanai’s sordid undisclosed contemporaneous interest in the Rooker-Feldman doctrine. Sanai alleges that Kozinski sporadically put case materials up on his web site relating to his case, constituting judicial misconduct. I am probably missing something, but has anybody proved Sanai’s allegations or described the contents of the case materials?

    daleyrocks (d9ec17)

  37. “I am probably missing something, but has anybody proved Sanai’s allegations or described the contents of the case materials?”

    There is that document that Kozinski linked in his Recorder article. That was to portions of a transcript from the divorce case, where a judge complained that he had been driven off the case by the actions of the mom, Cyrus Sanai, and others. Kozinski had a link to that on his site.

    Beyond that, I don’t know.

    Patterico (555463)

  38. As for the rest of that, it sounds bad. I hope Mr. Sanai will respond when he gets a chance.

    Patterico (555463)

  39. And I still would like to know whether the judge hid and/or denied the existence of his website to the committee. Is there any way to find out, or do we just have to await the outcome of the new investigation?

    fat tony (601b8d)

  40. Kozinski had a link to that on his site.

    Patterico – All those Kozinski site links are down because the Judge took his site off line. Judge Thibodeau eventually recused himself from the case as you can see from the cut and paste I did and he has retired from the bench.

    I don’t understand the issue of putting case materials up on a web site if the other members of the Ninth Circuit reviewing the case already have “case materials” from which to decide the outcome. It’s not holding together. Is Kozinski putting back up a previously published article about Sanai after the decision misconduct? Isn’t it sort of hard to take back public speech that is not under your control? The article is in the public domain at that point.

    daleyrocks (d9ec17)

  41. Patterico – I know you said you were not going to dip into this stuff. I find it useful background to Sanai’s actions and with Cyrus visiting the blog hopefully he will answer some of the questions I raised.

    Please let me know if you want me to drop the subject or stop pasting material into the comments as I find it.

    daleyrocks (d9ec17)

  42. I’m happy to have you folks debate it in the comments.

    I think the complaint against Kozinski was that, while a petition for en banc review was pending, he commented on (and disparaged) the merits of the petition. Part of how he did that was linking a document on his site.

    I express no opinion as to whether that was improper, given that he had recused himself. But that was the complaint. Apparently he apologized (to someone) for creating an appearance of impropriety, although they found no actual misconduct. (However, they also found no evidence of any documents on his site. Yet it had been. I have the document.)

    Patterico (1309fa)

  43. Patterico – What is the document and can you post it? Is that one of the ones you already described that is no longer accessible due to Judge K. taking down his site?

    daleyrocks (d9ec17)

  44. What document is it? Read comment 37.

    I can maybe post it later. I’m out and about now.

    Patterico (68722f)

  45. FYI, I just confirmed that the Yahoo search engine will search a directory from a file path (i.e truncate a URL). Google won’t. This is very relevant to the contention that such actions are an improper practice.

    Seth Finkelstein (8c4429)

  46. “What document is it? Read comment 37.”

    So it was already part of the public record for anyone who wanted to print it out or save it and it was part of the original response to Sanai.

    Thanks

    daleyrocks (d9ec17)

  47. FWIW, the Weird Al song “You’re Pitiful” (pictured above) was actually released online by Weird Al for free download. So it’s possible that the copyright rules governing this particular track are different than, say, one purchased from iTunes.

    Tom (145aa5)

  48. Many hosting services turn directory listing off by default, but Apache leaves it them on by default. For sites where I don’t want people poking around I turn it off. No reputable search engine will crawl your site if you’ve told them not to in your robots.txt file.

    And here’s 4 lines, with a comment, from the first Google result on a quick search. Add this to your httpd.conf in the appropriate place. If you don’t know where your httpd.conf is, turn your web server off while you look it up.

    # Deny directory listing

    Options -Indexes

    Michael Llaneza (18449a)

  49. Wasn’t watching the preview, I’ll drop in curly braces to make the code show up, they should be angle brackets in httpd.conf.

    # Deny directory listing
    {Directory “/opt/lampp/htdocs/”>
    Options -Indexes
    {/Directory>

    Michael Llaneza (18449a)

  50. I am eagerly awaiting Sore Loserman’s, a.k.a. Cyrus Sanai, next visit to this blog to further explain himself. There appears to be a growing consensus on the intertubes that there is not much there there to the Kozinski porn and mp3 stories that Sanai was hyping.

    I’m more interested in what appears to be a pattern of Sore Loserman behavior, which Cyrus will no doubt claim is part of a grand legal strategy. That grand legal strategy eventually led to Judge Zilly dismissing his mother’s case with prejudice due to the abusive and delaying tactics employed by the plaintiffs, even requiring them to pay expenses of the defense. Judge Zilly’s order cited another Judge who had similar experience with Sanai litigation style.
    His first judicial misconduct claim against Kozinski found none. He filed another. Presumably nothing has come of that one because he has informed people he intends to file another one.

    For an uninformed observer such as myself, at a minimum, reading through the court filings might serve as a cautionary tale before contemplating hiring Sanai on an hourly basis to carefully consider the fee arrangements.

    daleyrocks (d9ec17)

  51. Sanai isn’t going to explain his horrible record of dishonesty. He’s only here to attack.

    He wiretapped the other party in a case. The document the court was unable to find miraculously appeared (and Patterico found it). I find this very suspicious, and noting that Cyrus is apparently an expert on each item on the server, and gleeful about it, I am seriously wondering if Cyrus found a way to plant the porn and the documents from the initial conduct complaint.

    If Cyrus is going to wiretap people and ignore judges, why wouldn’t he plant files on Kozinski’s server?

    Jem (4cdfb7)


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