“Sex on the Internet?,” they all said. “That’ll never make any money.” But computer-geek-turned-entrepreneur Gary Kremen knew an opportunity when he saw it. The year was 1994; domain names were free for the asking, and it would be several years yet before Henry Blodget and hordes of eager NASDAQ day traders would turn the Internet into the Dutch tulip craze of our times. With a quick e-mail to the domain name registrar Network Solutions, Kremen became the proud owner of sex.com. He registered the name to his business, Online Classifieds, and listed himself as the contact.

Kremen v. Cohen, 337 F.3d 1024, 1026 (9th Cir. 2003).

The above is the opening paragraph of a Ninth Circuit opinion authored by now-Chief Judge Alex Kozinski; a favorite among libertarians and good-humored legal scholars alike.

As part of a rotation where appeals court judges are occasionally assigned to criminal trials, Kozinski was slated to preside over the federal obscenity trial of “shock-porn” filmmaker Ira Isaacs. The charges brought are for distributing pornography depicting bestiality, defecation, and probably a myriad other forms of kink (the case was brought after pressure was put on the DoJ by the Fundies).

Before the trial could even get underway, however, a disgruntled lawyer discovered an otherwise-unpublicized website, that happened to belong to the Chief Judge.

Here are the facts as I’ve been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski’s son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.

On that website, Kozinski had posted a number of “questionable” items. These were the sort of things that have landed in many of our inboxes, I am sure. The judge decided to store them on what he thought was a private server. It wasn’t. To top it off, some of the material on the server was sexual in nature, which of course is a tad scandalous considering the nature of the case he was presiding over (though as Eugene Volokh notes: the materials were not really similar to those in the trial)

Nonetheless, in a somewhat unusual move, Kozinski suspended the case and called for an investigation of himself after the news broke. He has since recused himself from the case.

While the lapse in judgment that allowed this to happen is certainly a black mark against the Chief Judge, it is only one tiny black mark in a lengthy career that is otherwise filled with principled judgments, and well-formed opinions.

Alex Kozinski was never the man the government wanted presiding over a trial of this nature. Now, they will not have to worry about that.

Update:

I would like to address some issues that came up in a comment.

The first thing to note, and this was a server that was owned and operated (or at least rented and administered) by Kozinski’s son, Yale. Therefore, it is somewhat of a logical-leap to assume that Kozinski was aware of uninvited visitors downloading from his site when Sanai used up (apparently) the last of his bandwidth. Yale certainly would have noticed the incident, but we have no reason to believe that he had informed his father of the situation.

The Chief Judge was obviously aware that there was no password or other protections on the website, however. We know this because he has reportedly emailed people links to files on that server before. However, while he knew the items were accessible, what he may not have known, was that someone could find them without his assistance.

The main page at alex.kozinski.com gave a short message informing the visitor that the site was empty. One had to type in a specific URL that was not linked to on the site (or anywhere else, as far as he knew), in order to see any of those files. Was it negligent to operate a “private” server in this fashion? Probably. Is it plausible, however, that Kozinski had not considered those files public? Yes.

The key point in all of this, however, is that ultimately, there was a lack of any truly incriminating material on the site, regardless of Kozinski’s intentions. 

Sanai wrote a lengthy criticism of Kozinki’s court. The criticism, although it does not mention it, was targeted at forcing the Ninth Circuit to rehear a particular case en banc, that he had filed (a family dispute). Sanai has irreparably harmed his own reputation, and has maintained an unsuccessful vendetta against Kozinski since that time.

Let us remember, people, that it is your money. Why let the government take it and then tell you how and when you can have it?