ERIC GOLDMAN: Terrific. What I'd like to do now is just bounce a couple of topics off of you, things that we've been running into in class, and then see if you want to talk about them, and if you don't, I understand. Need some help with that, by the way? These chairs are a little bit wacky. Are you uncomfortable? JUDGE ALEX KOZINSKI: No, it's fine. ERIC GOLDMAN: Okay, wacky is fine. And then I'll reserve the balance of my time for the Kremen versus Cohen case, which I do want to explore with you. JUDGE ALEX KOZINSKI: Not the movie Kramer versus Kramer? ERIC GOLDMAN: No, we can explore that if you want, but that one's a little less interesting from an Internet standpoint. JUDGE ALEX KOZINSKI: Okay. ERIC GOLDMAN: So one of the topics that we've discussed in class so far is what I'm going to call cyber trespass. This is the property rights that a computer server owner has in precluding others from using that. Have you given any thought to that topic? Do you have any perspectives on the rights of a property owner versus the rights of others? JUDGE ALEX KOZINSKI: You'll have to tell me a little more, the right of property owner -- which property owner? ERIC GOLDMAN: The person who owns the computer servers that are either being made available to the public for, say, sending emails to the computer server owner's users or that are being used to provide data, say, on eBay, that people might come and try and collect and repackage for their own uses. JUDGE ALEX KOZINSKI: But these are sort of intermediate servers; these are not the end-user workstations? ERIC GOLDMAN: No, we're talking about someone who is making available computer a server to the public. It could be a publisher or they could be a service provider who's making it available to others as a business. JUDGE ALEX KOZINSKI: Yes, and the question is? ERIC GOLDMAN: Your perspectives on it. I don't know if you've given any thought to it. I remember we talked about it at breakfast. You wanted me to broach subjects cold. This is one of them. Didn't know if you had any thoughts about the boundaries of cyber trespass. JUDGE ALEX KOZINSKI: Well, I mean, it seems to me much of that can be governed by contract. I mean, if you contract with somebody and I realize nobody reads those contracts. That's part of the problem. But at least in a theoretical matter, whether or not when you send a message to a server, how private that information is kept or what use the server owner can make of the information should be a matter of contract. I realize people don't read contracts so I think generally I would -- I mean, what we find in cyber law is that we're forever trying to analogize to brick and mortar, and we're always looking for brick-and-mortar analogies. So the way I would think about the server is the way I would think about FedEx. If I send a package by FedEx, I don't expect the people at FedEx will say, you know, We'll open up the package. It has some pretty nice documents here; we'll make some copies. And we'll be free to sell the documents or use them or give them away. And we'll package it up nicely and deliver it, but in the meantime we can use what's in it. I think the assumption that we've had in our society is that people who are couriers, people who are not the ultimate recipients of information but merely provide the means for taking information from one place to another, do not own the information and do not have access to the information and do not have a right to use the information. Now, I don't know what the answer is if you get a package to FedEx and, after they receive it, somebody from the FBI comes and says, I want to inspect that package. I probably should know this because I've had cases, but I never try to remember them off the top of my head. It's always very dangerous. But I think the rule there would apply as a normal Fourth Amendment rules about getting a warrant or, if it's an exigency, having probable cause. It would not be a situation where, because you've handed the package to the courier, the police says, Okay, now you been handed the package, we can just look into it. I think that's quite different from, for example, providing information to a bank, a bank account and actually give the balance. And so the bank is required to know how much money is in your bank account. At that point you haven't just delivered a package, you've actually used the bank as a part in the transaction. So you have to figure out what is the right analogy for the Internet. Are they more like the FedEx courier or are they more like the bank? Since I tend to err on the side of privacy, I would say it's more like a FedEx courier, but I could be persuaded otherwise. I mean, it depends on the case. But we're forever bound -- we're in this world that didn't exist 20 years ago or 25. By the time you kids were born, this world did not exist. And maybe it would be better to have a wholly new legal regime, one that doesn't have concepts like trespass. I mean, trespass brings to mind somebody actually sort of setting foot on somebody's physical property. Maybe having concepts that don't partake of any of those ideas that are bound to the physical world, maybe that kind of system would work better. But that's not how the law develops. The way the law develops is we have certain expectations about how we deal with certain things, and then when new things come along we'll try to find an analogy. The telephone and the email is actually a pretty good example where that has not happened. The telephone, I don't know if anybody here even knows, but there used to be party lines. Does anybody know what a party line is? Has anybody ever used a party line? Nobody has used a party line? UNIDENTIFIED COMMENT: (Inaudible). JUDGE ALEX KOZINSKI: Well, no, of course, we can see a lot of things in movies, but actually use it. It's actually very interesting. You pick up your telephone in your house and there are two people talking. And you say, Oh, it's a party line. So your neighbor has the same telephone number as you and only one of you can be calling out. So there was a sense developed that you don't listen, that you avert your ear, avert your eye. So there's some sense of privacy developed because party lines existed. There was a sense developed that when somebody's talking on the phone that's private and you could pick up the phone, obviously, to check to see whether somebody's on the line, but it is improper and an invasion to listen in. And so they expected they'd immediately hear the click that you've hung up and are not continuing to listen in. So that's how the telephone developed, with a very strong sense that when you were on the phone, this other person -- and that then was generalized to the government or other entities -- didn't have a right to listen to it. Now you could have had a different sense develop. You are not talking in the same room; you are talking across wires. If I can find the wire and plug into it and listen into it, well, it's too bad. We could have had that sense develop. But I think because of the party line, that people developed a very different idea about the telephone. And it carries over to today, where we have very strong restrictions. And if the government wants to get wire tapping -- Or let's say you are in an office and you've got your office phone and you were to pick up the phone and you call your doctor or you call home or you call your bank or whatever, but it's your employer's phone. But let's say your employer said, Well, I'm going to listen in to all these conversations. People get the sense that it is the employer's phone but it's my private conversation. And even though if I'm on a break or whatever, the physical thing I'm using is not as important as the nature of the conversation. Now take that to email or web access. And the question is, well, if your employer gives you a computer for work and you use it to send out an email to your doctor or you check your web page for your bank information or if you look at AIM to see how your kids are doing, whether they're online, are those things are private? Well, we ran into this business in the federal courts because somebody in Washington started monitoring web access by all the people in the judiciary. Whenever somebody would write in sex.com or something like that, it would be generated out, spit out, and somebody in Washington would send a letter saying somebody using this computer has been looking at naughty websites. And I found out about it and some of my colleagues found out about it, Edith Jones, very conservative judge, but she was really upset about it. And we finally got it stopped, but I can't tell you how many of my colleagues -- and I wrote a piece in the Wall Street Journal about it. I got 300 emails back, most of them supportive, but a lot of them saying, What are you talking about? It's the company's computer. If they want to check every email message on there, it's their computer. So I said, Well, it's also their telephone. Can they listen in when you call home and find out how Grandma's doing, whether she's having a heart attack or when you pick up the phone and you talk to your husband and have a fight or something like that, is that? No, because those are telephones. We tend to try to find analogies to sort of past technology, and sometimes things carry over and sometimes they don't. I think with respect to email and the like, the telephone analogy has not carried over.