Judicial Double-Standards?

Selective Prosecutions?

InUnited States v. Hill, Judge Alex Kozinski stated, “As everyone who has accidentally erased a computer file knows, it is fairly easy to make mistakes when operating computer equipment.” 322 F. Supp. 2d 1081, 1089 (C.D. Cal. 2004)

What is he infering?

And why was he bragging in an open public courtroom on public record about his "personal" and so-called "private" server.





Judicial Double-Standards Ought Bind Judges Too.

For years, advocates of free speech have complained that the U.S. government has repeatedly overstepped its authority to regulate the internet and prosecute individuals for suspect communications made electronically.

Now, one of the judges who helped form the current law on internet regulation is alleged to have violated some of those very laws, and civil rights watchdogs are insistent that he be held to the same standard to which he has held criminal defendants.

Alex Kozinski, an appellate judge for the 9th Circuit Court of Appeals, is alleged to have posted objectionable material to a website for which he was responsible, and which he admitted was used for the active trading of materials with other individuals via the internet. Because part of the objectionable material was pornographic in nature, the scandal forced Kolinsky to suspend an obscenity trial over which he was coincidentally presiding at the time, according to the full story provided by the LA Times (LA Times, June 12, 2008).

In addition to the pornographic material were a number of copyrighted audio files in their entirety, a violation of copyright law and an act for which numerous citizens have been prosecuted criminally.

According to the Times article, legal experts believe that Kolinsky is arguably in violation of one or more laws and that this scandal has the possibility to seriously hurt his career. We argue that the implications of this situation are far greater than Judge Kozinski's career, as we shall explore.

While first admitting his culpability, Kozinski quickly attempted to shift blame for some of the objectionable content to his adult son, Yale, who has admitted to uploading some material to the server. Enter the double standard: in US v. Killercop, Kozinski said on record that there needs be no proof of who uploaded the material, the person in control of the account is presumed to be responsible for all materials on the server.

In the Killercop case, Killercop argued that several other individuals besides himself had access to the server and could have uploaded the objectionable material.(Fn1)

Killercop argued that the prosecution had failed to show any proof that Killercop was actually responsible for the uploading of the objectionable content, and that therefore they had failed to meet their burden of proof. The Kozinski court denied that argument during oral argument but failed to document this argument or their holding on it in the courts written opinion.

A substantial defense argument during Killercop's trial surrounded the fact that the prosecution offered no communication logs to establish that Killercop was responsible for uploading the information. Killercop vehemently denied responsibility for uploading the information at every opportunity and demanded numerous times, to no avail, that the prosecution produce such logs for his inspection.

Killercop further established in court that it is standard operation for servers that communication protocols, identifying addresses and upload activities are recorded by all servers and are kept in logs maintained by those servers.

Through these logs conclusive proof can be generated showing that a particular computer uploaded a particular file on a certain date and time. Law enforcement is well aware of these logs (referred to as FTP logs, MAC logs, etc.), and in other cases has clearly made the connection between the such logs and successful demonstration of culpability. If the computer uniquely-identified by the logs is then found in possession of the defendant (or if can be proven that he reasonably had access to it) then, Killercop argues, the connection is made sufficient for prosecution.

One such noteworthy case was the ZACARIAS MOUSSAOUI case ruled on by the 9th Circuit. In that case the various server-maintained logs were used to clearly link the uniquely-identified computer of ZACARIAS MOUSSAOUI to the transmission of the data. Using this evidence was established as important to connecting the defendant to the crime.

However, in the Killercop case, the prosecution had no such logs or any hard evidence demonstrating that Killercop uploaded the content. Kozinski ruled orally during the hearing that circumstantial evidence was sufficient to establish that Killercop was culpable. Kozinski explained that the prosecution need not prove who specifically uploaded the information, and that a presumption of responsibility exists over the material by virtue of circumstantial evidence relating to the relationship of the individual to the server. In Killercop's case, Killercop was the registered / legal owner of the server account (a rental of assigned space of a public server), and that regardless of who else had access to that account Kozinski said that Killercop was responsible by circumstance and the prosecution had no burden of proof to establish that he actually uploaded the content. Although the court failed to address this important point in its written decision, this finding was a key defeat for Killercop and a key finding that enabled the government to extend its jurisdiction to internet activities through this case.

Judge Kozinski can be heard, in the audio recording of the oral argument for the appeal, clearly stating that he finds circumstantial evidence sufficient for presuming that the defendant was responsible for transmitting the information. You can listen to a highlighted excerpt of the audio file here or you can listen to the entire appeals oral arguments here.

Had the 9th held otherwise on this matter Killercop's conviction would have been overturned.

Now, Kozinski is going to attempt to argue the same defense that he denied to Killercop: that others had access to the server and that therefore he should not be held responsible.

According to his reasoning in the Killercop case, circumstantial evidence is sufficient to establish that Kozinski transmitted the information. The government need present no proof that Kolinsky uploaded the files himself.

This case brings exemplifies the idea that judges are not perfect. Like the rest of mankind, not only do they make mistakes in their personal judgment, they also make mistakes in their professional judgment.

As a result of this case, the issue of what standard should be used to connect a defendant to a transmission of electronic information needs to be clearly defined and removed from the ambiguities of judicial interpretation. I agree with those who argue that either Judge Kozinski ought to be held to the same standard to which he held Mr. Killercop, or the conviction against Mr. Killercop ought to be overturned.

There can be only two possibilities: 1) the law REQUIRES the prosecutor to prove the defendant made the transmission; or,2) the law does NOT require the prosecutor to prove the defendant made the transmission.

If the law DOES require proof of the transmission, then two levels of courts (trial and appellate) violated Mr. Killercop's rights and prosecuted him without sufficient evidence to connect him to the crime. On the other hand, if the law does NOT require proof of transmission be made (as Judge Kozinski stated during the Killercop appeal), then the Judge himself cannot raise as a defense the argument that someone else uploaded that content to his server.

A larger and perhaps more significant question raised here is the extent to which judges at both trial and appellate levels ignore or circumvent required procedure or law. Whether by ignorance, mistake or intent, when judges fail to uphold the law the people suffer.

Bad rulings not consistent with the law harm society. Judicial double standards reduce public confidence in the judicial system and create discontent in society on many levels. Lack of public confidence in the judicial system leads to increased vigilantism, anti-government sentiment and anarchy.

It is up to us, the People, to keep an eye on things and point out when double standards are occurring so that we can remedy it. Here is one such situation. In this instance, the standard has been set by Judge Kozinski, and now he needs to be held to it.

(fn1) In the Killercop case the nature of the objectionable content was different, but this point is irrelevant. The salient point is the standard of proof required to establish that an individual is responsible for the transmission of content.

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UPDATE: Wizard Admonished for his private" and not "public" server. How powerful is that! He must have helped Al Gore create the Internet. And whatever happened to the famous quote of the Wizard, wherein he stated: “close cases... must be resolved in favor of immunity lest we cut the heart out...by forcing websites to face death by ten thousand duck bites.”








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