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 he was not
responsible, 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.
CAMERA IS THE NEW SPEAK FOR GUN IN THE WILD, WILD WEST! - It's more about 'contempt of cop' than the violation of the wiretapping law.
Welcome to America Now step inside the jail cell - The audio exchange in this video was apparently recorded at the U.S. Canada border after a Canadian displayed contempt-of-cop towards the American law enforcement officer asking questions.
Contemptible police tactics - Cops raid the home of a licensed medical marijuana provider in Washington, handcuff the fourteen year old son and put a gun to his head, and search the nineteen year old daughter and take the contents of her mickey-mouse wallet.
How To Survive Traffic Stops in America, Submit, Instantly! - What the cops want is immediate obedience and submission. Many cops are ex-military and view the civilian motorists of America about like they viewed the hapless peasants of Iraq and Afghanistan, that is, with contempt, not as fellow citizens deserving of civility and respect. It is a possibly lethal mistake to do anything other than submit, instantly and obey! Or be ready to shoot first. But aim high.
My radio interview with Katherine Albrecht - Carlos Miller Photography is Not a Crime is interviewed by Katherine Albrecht, activist, radio host and privacy advocate, Tuesday afternoon where they discussed his blog, his arrests, the situation in the United Kingdom and the spread of contempt of cop cases that are popping up on the internet on a regular basis.
