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New Professor at Columbia: Olati Johnson (and Electronic Trespass)

As my fellow Columbia blogger notes, our university faculty is soon to be graced with ex-Kennedy staffer Olati Johnson. PG notes that the new prof was involved in Memogate, one of the first topics on this blog that ever received wider attention. (Indeed, it's one of the two entries for which this blog has been cited in law reviews, albeit in an article by another one of the principals in the scandal. (PDF)

As you might recall, Memogate involved some confidential memoranda that were taken by a Republican staffer off unsecured drives on the Senate Judiciary computers. (For more information see here.) My interest in the case involved the meaning of "unauthorized access" under the Computer Fraud and Abuse Act, but a memo supposedly by Prof. Johnson generated more heat among conservatives. (Source: CFIF. The memo itself is redacted.) After discussing the nomination of Julia Scott Gibbons for a seat on the 6th circuit with the NAACP Legal Defense Fund, Ms. Johnson wrote:

Elaine [Jones of the Legal Defense Fund] would like the Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in higher education is decided by the en banc 6th Circuit. This case is considered the most likely to go to the Supreme Court. [ed.--good call.] The thinking is that the current 6th Circuit will sustain the affirmative action program, but if a new judge with conservative views is confirmed before the case is decided, that new judge will be able, under 6th Circuit rules, to review the case and vote on it.

[Redacted] and I are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case. . . . Nevertheless we recommend that Gibbons be scheduled for a later hearing: the Michigan case is important, and there is little damage that we can foresee in moving Clifton first.


Interestingly, however, this wasn't why I mentioned Prof. Johnson on my blog all those years ago. Rather, it was comparing the electronic "trespass" in Memogate with her own behavior with Republican email (sourced from here):
Late last year, [Ms. Johnson] opened her mailbox to find an email from a staffer in Senator Hatch's office. Attached to this email was a memo that was clearly misdirected. Nonetheless, she sent it on to several colleagues. Senator Kennedy's talking points on this matter include the line: "There was no impropriety, as the information sent to [Olati Johnson] was not confidential or privileged information." Kennedy had no problem with an aide handing on a document that clearly didn't belong to her when it had been misappropriated through the fault of a user. But when it was misdirected through the fault of an administrator, a standard which should be higher, he's talking of the next Watergate.

Suffice it to say, the literature on inadvertent disclosure is complex, lengthy and difficult, and given that I have seen no suggestion that the letter was a privileged legal document, the legal ethics rules probably aren't on point. (One discussion from New York is here.) I'll leave the nettiquette-level propriety of the act as a debate for my readers.

For the record, I think the "Johnson/Bollinger" collusion claptrap being muttered elsewhere is utter nonsense, and no credit at all to the conservatives spouting it. In other news, it seems Prof. Johnson has done at least some blogging, always a good thing.

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