After a recent L.A. Times story revealed that Judge Alex Kozinski maintained a bawdy Web site while he was presiding over a federal obscenity trial, law bloggers are still grappling with the ensuing scandal that forced Kozinski to recuse himself from U.S. v. Isaacs. The legal eagles have reduced to handy parables the actions of disgruntled lawyer Cyrus Sanai, who tipped off the Times in order to bring down Kozinski, and the debate over whether or not the judge had a reasonable expectation of privacy when his site could be accessed by the public. Some of the more vivid analogies appear below. They do not compare Kozinski or Sanai to a summer’s day.
Analogy: A Family Den
Source: Lawrence Lessig, Stanford University law professor
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.”
Analogy: Brief Case Left on a Bus
Source: “David desJardins” comment posted to above
[Y]ou should know better than to use an analogy that has such negative implications. At least, your analogy should be something like: Judge Kozinski inadvertently left his personal materials lying around in a public place.
Analogy: Keeping Out Robots
Source: “Aaron’s” comment posted to above
If you put your HTTP server on the internet without access controls, it's public. A robots.txt is an intent to keep out robots not people. To me it's the difference between putting a “No robots allowed” vs a “No trespassing” sign on your property.
Analogy: Parking Signs
“James Nightshade’s” comment posted to above
Robots.txt . . . is roughly analogous to a sign one might find beside a residential street: “No trucks except for deliveries.” The street is still a part of the road network, even if some vehicles are asked not to visit.
Analogy: Cheap Wine Bottles
Source: Eugene Volokh, UCLA law professor
Sanai's discoveries are similar to someone's finding that a judge who's presiding over a drunk driving trial has some screw-top bottles of rosé wine in his cupboard at home, shamelessly displayed in a way that the whole world can see them, if the whole world stands on its tiptoes and peers through a back window.
Analogy: Car Windows
Source: Eugene 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.
Analogy: Windows, Doors and Keys
Source: “Charles Chapman’s” comment posted to above
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.
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