The Judge Kozinski and the porn / non-porn / (?) mess has been all over blawgosphere. It appears that an attorney who has been widely reported to be disgruntled accessed the Judge’s family server and got the L A Times to print a story about some of its contents which were supposedly pornographic. There were also some mp3s on the server.

If this were India, there little doubt that the material would be perceived as being obscene both legally and otherwise and that there would be a massive outcry. Although, that being said, it’s somehow doubtful whether the average Indian judge would ordinarily maintain a server and, if he did, whether he would have anything worth mentioning on it.

However, considering that the content seems to have been legal in the US, the episode has raised some interesting questions about privacy. In particular, whether, if you have a server which you use for your own personal use, whether you have a reasonable expectation of privacy. Some scholars like Prof. Lessig weighed in in favour of Judge Kozinski inter alia saying that privacy is not determined technology. One can’t help but suspect that it’d probably be more accurate to say that privacy should not be determined by technology although, in reality, it is — the virtual equivalent of having someone go through what’s on your desk. If your desk is locked, it is evidently private. If it isn’t, in theory, it should ordinarily be private but there are a number of people who won’t respect that privacy.

Which brings one to whether it matters if privacy is determined by technology in that sense that if you consider something online to be private and someone, possibly by because of a superior knowledge of technology, accesses that material, has your privacy been violated? What would you need to do in order to ensure that your material was in fact private? Would you need to restrict search engine access to it or would you have to password protect it.

Some professionals do not use much (or any) technology worth mentioning to protect documents they transmit online rely instead on merely having a notice which clearly says that the contents of the document are private. In some jurisdictions, that is enough to ensure that the document is acknowledged to be private and (with some luck) respected as such. And although such notices do not prevent persons from accessing documents, they do limit liability and other similar issues.

In this case, the Judge seems to have placed material on a personal server which he seemed to have assumed was private. At first glance, his actions don’t seem to have been illegal but they do seem to have been naive. Personal material is not the same as private material and a personal server certainly isn’t the same as a private server.

However, if you have something online which you consider to be personal and someone accesses it, can any consequences follow from that person’s having accessed the material if you didn’t authorise him to access it? Presumably not.

Had this played out in India, in terms of privacy, the consequences would have been spectacularly unclear since the law on privacy is undeveloped. In terms of obscenity, however, there would have been little debate.

Indian law on the subject of obscenity is Victorian and under the Constitution, the right to free speech is not unqualified. Article 19 (1)(a) of the Constitution says that ‘all citizens shall have the right to freedom of speech and expression’. This right is then limited by Article 19 (2) lists several exceptions to the right by saying that the right can be limited by reasonable restrictions imposed by any law (either existing or in futuro) enacted in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.