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Supreme Court Nominee Sotomayor's Cyberlaw Record
Hugh Pickens writes "Thomas O'Toole writes that President Obama's choice for Associate Supreme Court Justice, Sonia Sotomayor, authored several cyberlaw opinions regarding online contracting law, domain names, and computer privacy while on the Second Circuit. Judge Sotomayor wrote the court's 2002 opinion in Specht v. Netscape Communications Corp., an important online contracting case. In Specht, the Second Circuit declined to enforce contract terms (PDF) that were available behind a hyperlink that could only be seen by scrolling down on a Web page. 'We are not persuaded that a reasonably prudent offeree in these circumstances would have known of the existence of license terms,' wrote Sotomayor. Judge Sotomayor wrote an opinion in a domain name case, Storey v. Cello Holdings LLC in 2003 that held that an adverse outcome in an administrative proceeding under the Uniform Domain Name Dispute Resolution Policy did not preclude a later-initiated federal suit (PDF) brought under the Anticybersquatting Consumer Protection Act (ACPA). In Leventhal v. Knapek, a privacy case, Judge Sotomayor wrote for the Second Circuit that New York state agency officials and investigators did not violate a state employee's Fourth Amendment rights when they searched the contents of his office computer (PDF) for evidence of unauthorized use of state equipment. While none of these cases may mean much as far as what Judge Sotomayor will do as an Associate Supreme Court Justice 'if confirmed, she will be the first justice who has written cyberlaw-related opinions before joining the court,' writes O'Toole."
Can we please stop with the "Cyber-" every damn thing?
"I'm just here to regulate funkiness."
is nothing like the guy getting a felony hacking charge for going to a dating site. Who here feels like their work computers are private?
Perhaps judges will become more knowledgeable about technology and we'll get less misinformed decisions, or things could stay the same.
How could he cry unreasonable search on a computer that didn't belong to him? It's the property of his employer, and, unlike a case where he would be leasing it, and thereby be able to claim some contractual ownership rights, in this case it is clearly their property.
I think if there is anything resembling a reasonable search, that's it. You have no reasonable expectation of privacy on a work computer.
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
Larry Summers was driven from polite society for a couple of years for the crime of asking whether it was desirable to broach the subject of whether there were basic differences between men and women. This bigot stands up and asserts there are fundamental differences between both the genders AND races[1] as if it were a settled fact and is on a fast track to the Supreme Court.
Just proves I really don't understand the progressive mind. I really wish you guys could settle what the rules are in such a way you could actually enumerate them in public. Which of course is exactly what will never happen because to speak them would give up the game as any sane person could only laugh.
[1] As a member of La Raza (The Race) and a good ivy league educated feminist she of course asserted that a latina is inherently superior to a white male.
Democrat delenda est
"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life."
-Judge Sonia Sotomayor
I'm no expert, and usually the last to cry "racist!", but that sounds pretty racially-biased to me.
"They said I probly shouldn't fly with just one eye," "I am Bender. Please insert girder."
Claiming you shouldn't be expected to read the parts of a contract you need to scroll to see is about like claiming you shouldn't be expected to read anything other than page 1 when reviewing a paper document.
A slashdotter who didn't build his own computer is like a Jedi who didn't build his own lightsaber.
I hope she understands "cyberlaw" better than I understood anything but the last line of that summary...
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60% of her decisions that were appealed to the Supreme court were overturned. Was this one of them?
Sig Battery depleted. Reverting to safe mode.
Not only is she the first hispanic justice, she's the first hispanic cyber-justice. And with all of her self-described Puerto Rican female intuition, it will be cyber hell for those cyber litigants who appear before her.
This is the first judge (featured on Slashdot) who I've read that has written opinions that made a lick of sense.
Wow.
From a quick reading of the decision, this was a license *not* a contract. And instead of making people click an "I Agree" button, the license link was non-obviously tucked away. The defendants did not present sufficient reason to overturn the lower court ruling. In my non-lawyer opinion: ggod decision.
Context matters, and if you pay attention to everything she said, it's not really racist at all.
Sadly, complex thoughts and context don't seem to fare well in the minds of many people these days - maybe it's because they don't make for quick, easy to digest sound bites.
You will ignore (not reply to) this message because you don't understand that the Singularity is coming.
If she gave a take where she said "The jews control the media and the banks", I can guarantee that you and other pavlovian dogs would have had her skinned alive whether it was a legal proceeding or not.
I want a judge who follows and respects the law, I want a neutral interpretation of it.
I think that whites often come to better conclusions when they are faced with difficult questions of ethics than either blacks or latinos.
How do you feel about that comment?
Would you allow me to hold high office?
it depends on who says what and their sex and race, NOT WHAT you say.
It's not tech related, but everyone should read up on her Didden v Port Chester case. I used to think Kelo v New London was the most disgusting eminent domain ruling, but Didden puts it to shame.
This statistic is a big lie, in that it fails to put the number in a correct context; see this article.
So yes, 60% of her decisions that the Supreme Court reviewed were overturned. The problems are:
Are you adequate?
Does she have any other qualifications besides having a vagina and being a minority?
Well, 60% of her decisions have been overturned... some by the Supreme Court Justices she will join... so...
That figure is dramatically incorrect - read Powerline's take on this, certainly no friend of hers. An excerpt:
"It relates only to Sotomayor's decisions as to which a petition for a writ of certiorari was granted by the Supreme Court--a total of only five. (The overwhelming majority of such petitions are denied.) Of the five cases in which the Supreme Court granted the writ of certiorari, it reversed three. Not only is this a ridiculously small sample, the overall rate of reversal of cases in which the Supreme Court grants cert appears to be around 70 percent."
Even if you do not approve of her (I myself am neutral) that's not a good figure to quote.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
I believe what she's trying to put across here is that a person who grew up as a poor minority woman is more likely to reach a fair conclusion than an old money white male would.
Indeed she was trying to say exactly that, and that is exactly bullshit.
How can you presume to know what experiences even someone who grew up around money had? Perhaps they had parents who forced them to toil, or by other means still instilled an excellent value of fairness. Do you not think even people with money face many of the same life challenges that all humans face over the course of growing up?
Anytime you start saying "old white rich guys are all like X" you are a racist stereotyper and no better than the KKK claiming all non Aryans are inferior. It's just that you are proclaiming poor people are the master race because they are theonly ones with the ability to be "fair" which in itself is a bullshit unmeasurable quantity. Absurd.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging
Except there is, it's called the law, and often it's very clear. If you choose to toss objectivity out you may as well toss out all the laws as well.
Sometimes things are not clear, but to say "there is no objective stance" is very scary coming from someone presuming to be a judge upholding the constitution as written and amended.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
Please, I'd love to see where she asserted this - provide the quote along with it's context, just so we can see if you're distorting stuff for political reasons.
She's an outright constitutional nightmare, chief or associate position notwithstanding. Exactly the kind of thinker who erodes the constitution at a terrifying pace. Her history as a judge contains an amazing number of constitutional misinterpretations, misrepresentations, and outright bewilderment.
Odds are excellent that's she's going to be confirmed, though; get ready to bend over for "enhanced legislation." The light in this tunnel is definitely a train.
I've fallen off your lawn, and I can't get up.
Why do you hate America so much?
Oh wait, it's a Democratic nominee... my mistake. Please carry on.
The first decision reveals some sorely needed common sense regarding online contracts. Too many websites are defrauding people with hidden costs and secret terms of service - it may seem obvious to us not to sign up for "FREE*" services that require our real name and address, but I know otherwise intelligent people who have fallen for this multiple times.
There's a more fundamental point to be made here. The idea that the law can be applied "objectively," according to its "plain meaning," assumes that there is such a thing as the "plain meaning" of a text. You bring up the point that a text can be written in a confusing or unclear manner, but that point can be driven a lot further: there is no way to write a text so that it carries its meaning intrinsically within it. Text is something that's used by people; without people who read it and appeal to it to justify concrete choices, text is just stains on paper.
What Judge Sotomayor is saying there is that what the law achieves is not an "objective stance," but rather a compromise between a "series of perspectives." Another way of putting this is that the point of the law is not to state truths, but rather, to resolve disputes between people, by appealing to disinterested third parties (judges, the elders of a neighboring clan, etc.) to decide the issue. But this disinterest is imperfect, because of the third parties' biases and sympathies.
Are you adequate?
"I'm not supposed to say this but guess what? We legislate from the bench. Oops, I'm being recorded, I shouldn't say that."
This is another lie being spread in right-wing talking points. She's not my favorite pick either but this is a false justification for criticizing her. She never said this. What she actually said, in context, is far less controversial, and has been supported by conservatives as well as liberals. Read the details here.
Sotomayor did not live her entire childhood in a housing project in the South Bronx -- she spent most of her teenage years in a middle-class neighborhood, attending private school and winning scholarships to Princeton and then Yale.
From the AP.
How is that significantly different from the "old money white male" you so malign?
Just another elitist ivy leaguer, with a different spin on who is elite.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
But they won't be white male cyberlaw opinions!
I don't understand how the comment has been construed as "racist" or even "racially biased" beyond mentioning "latina" and "white male" in the same sentence.
Let's say we leave race out of it... If I were to say "I would hope that a wise person with the richness of their experiences would more often than not reach a better conclusion than another person who hasn't lived that life.", would you not agree? Why does this suddenly become racist by specifying that the experienced person in this scenario is a latina and the inexperienced person is white? Are inexperienced people not allowed to be white? Are wise, experienced people not allowed to be hispanic?
Maybe she's not modest by implying she's wise and rich with experience, but she in no way said its because she's hispanic. Also, if you believe she was being racist, then she is most certainly sexist - latina is specifically female and she compares that specifically against out 'white male'... I guess no one cares about that though, eh?
I feel sorry that our officials have to walk on egg shells throughout their entire careers, instead of focusing on their jobs.
Fact: Everything I say is fiction.
We no longer say "yes", we say "Affirmative!" Unless we know the other robot really well.
Your mind is squeezed by a blast of pain!
> Well, 60% of her decisions have been overturned... some by the Supreme Court Justices she will join... so...
No. The vast majority of her decisions were tacitly affirmed because the Supreme Court decided she did things right and therefore ignored the case, which is what they do almost all the time for all the random nuts who appeal things all the way to the Supreme Court. Otherwise, they'd waste a lot of time.
The Supreme Court only grants a petition for a writ of certiorari when it actually wants to hear a case. Most of the time it wants to hear a case, it's because the matter is really important and needs to be decided, or because there's a circuit split, where one federal circuit says one thing and another one says another thing. So, in all but five cases, the Supreme Court agreed with her. And in the five measly cases it thought there was something wrong, it still agreed with her on two of them. I mean, just how many decisions do you think she made? They only overturned her three times.
That said, I'm not really a big fan of her. At least she seems competent enough, but I don't like the fact that they "had" to find a Latina. And some still don't think she's "diverse" enough because she's not actually from Mexico... Frankly, I don't like that at all. I don't like hiring (or firing) anyone because of their skin color or national heritage. I'm pretty sure that's exactly what people were trying to put a stop to. Discrimination is discrimination. There's no such thing as a "reverse" for it, only an absence.
Reason has happily put the proper amount of time into laying out just why identity politics and judical choice do not mix.
And for the record, a number of my friends are lawyers so I'm very aware the law can be ambiguous. But you must be careful when saying that because a lawyer has a very different and highly specialized notion of what is "ambiguous", and again just because some things are does not mean ALL things are.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
How dare you question her Superior Latina Experience and the Will of the Chosen One?!?! Are you Mad?!?!
Strike 1. Didden v Port Chester
Strike 2. Ricci v. DeStefano
Strike 3. Kelo v. City of New London
Please don't tell me this has nothing to do with tech, THIS GOES TO CHARACTER AND CREDIBILITY, YOUR HONOR!!!!
The white rich guy is MORE suited to take the case. He has less of a chance letting his emotions get in the way of his decisions. Empathy comes from your jury, your group of peers to which everyone in a criminal trial has a right. If the lawyer of the thief in your example is good, chances are they will get off light. If not they go to a prison with square meals and if they were stealing baby formula guess what happens to the baby? It goes in to foster care (not the best alternative but it will get a roof and square meals too).
To think that, "oh he was forced to break the law, that makes breaking the law ok then" is stupid.
On topic:
"I would hope that a wise Caucasian man with the richness of his experiences would more often than not reach a better conclusion [as a judge] than a Latina female who hasn't lived that life."
-Any White Guy
This would have resulted in an almost instant action from the hundreds of minority activist groups.
The first justice to write cyber-crime law before landing on the bench. Another pioneer.
Almost makes up for her being a racist ("My background as a latina will permit me to make better decisions than a white man") and an incompetent judge (80% overturn rate).
No actually...it doesn't.
Once again, we're getting railroaded. This is *exactly as bad* as Bush trying to put Harriett Myers on the bench. I was against it then, too.
--- For a good time mail uce@ftc.gov
Maybe. But just stop and consider for a second growing up, never lacking for anything.
I don't have to imagine. Because we are all people. We always lack for something.
Yes I was poor. I had to help pay my families electric bill at times in high school. But I at least was living in a house.
I've visited Africa and seen real poverty, or at least deeper than what I had known. Who is to say I was truly poor? Yet I felt I lacked for things growing up. Why should it not be the same for a child who "lacks for nothing" according to your view... children are children, people are people, that is what I am saying. Money doesn't really change people, experiences and interactions do. And those don't really change fundamentally with money because people are people and the richest man on earth can be sad and as joyful as myself.
Nope, I certainly don't despite [sic] them, I just consider them alien, for reasons I already described.
So sue me for spelling "despise" wrong...
That's a fucked up way to live. People are people. You just drip with bitterness that you try to push off, but it is hurting you and limiting you "despite" what you say. When your outlook on life is to consider successful people "alien" then you will always be removed from them, by choice...
"There is more worth loving than we have strength to love." - Brian Jay Stanley
You do not think it odd the summary of choices was tailored to what people on SLashdot would find most appealing? Read deeper and you might find something else that the composer of the summary wished to obsfucate.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
it's the idea that people designated as "suffering" or "oppressed" are somehow made wiser by their "experiences" (and that this is supposedly relevant to their ability of interpreting and upholding the US Constitution).
Precisely this theory was a part of Soviet ideology. Under the Soviets, one had to "come from a family of workers or peasants" to occupy positions of power, like judges. The courts consisted of a judge and two assistant "judges" who were "distinguished workers" or "distinguished peasants".
Sounds familiar?
I'm laying off the CLI for a while. I just read your comment and wondered what the hell a "misty ping" was.
"I'm just here to regulate funkiness."
Yeah, those darn elitists with their moving from lower to middle class and getting scholarships so they can attend better colleges consequently thinking they might have a better understanding of issues revolving around discrimination and poverty.
You're an idiot.
> He'd be fine for passing sentences on white collar offenders, but for those who live in the ghettos, someone from the ghettos will be better suited.
Let's turn that around, shall we? Doesn't this also mean that a ghetto person has no right to judge a white collar criminal, because that person has never known the pressures faced by a CEO who has to answer to stockholders? Our jury system seems to think otherwise. You can be judged by either, depending on who is drawn into the jury pool.
Frankly, I don't buy it in either case. People are capable of understanding things they haven't experienced personally, or communication would be pointless. People are capable of having empathy for their fellow human beings, even if they don't come from the slums. Yes, different life experiences do give you different perspectives. But I don't buy the notion that it's impossible for us to understand each other. Difficult, maybe, but not impossible.
Saying that we can't understand each other implies that we should stick with our "own kind" (as if there was a "kind" other than humankind). I don't like that at all.
That's always the answer - carry two of everything. That ignores my point: that one of the things that makes me a very effective information worker is my willingness to completely intertwine my personal and work life. I believe that if I'm a M-F 8-5 worker, I will NOT be as effective. To those who can turn it on and off according to the timeclock - good for you - but I have worked with waaaaay too many excellent IT professionals who work the same way I do to believe I'm the odd duck. I just wish there was a way for the company to get whatever warm fuzzies they think they need AND also a way for me to read about the latest celebrity skank 'ho antics while another insurmountable problem is noodling around in the back of my brain at 1 AM while sitting in another hotel room on company business.
Yeah, those darn elitists with their moving from lower to middle class and getting scholarships so they can attend better colleges consequently thinking they might have a better understanding of issues revolving around discrimination and poverty.
Nice spin, but she's saying she understands issues revolving around discrimination and the "poor" better than some "rich white male" - who went to the same schools and thus had the same experiences she did in her formative years. I mean, she didn't even go to public school but private schools instead... you tell me how someone who has not attended public junior and senior high is supposed to have an amazing grasp on what it's like to be poor that someone else did not.
In reality the whole argument is bullshit, I'm sure she has a fine grasp on the issues of the poor just as many other "rich white male scum" do.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
...Can't seem to find an authentic/full copy of the decision itself, only news stories that relate to it.
I listen to both RIAA and non-RIAA stuff if I like the music, tangential business/politics nonwithstanding.
To figure out, if her comments were racist, just think about the reverse situation: a white male giving a similar statement.
This would have blocked the nomination of this person right there.
The US needs to get rid of reverse racism, which shows up in many places. For example, scholarships only to certain races etc. Again, think if one would be offering a scholarship to only white people or something similar but somehow it is OK to offer there to hispanics or african americans (and before you bring in poor economic background etc., one should make such scholarships dependent on their income NOT race). I grew up in Europe where these sort of things would be highly illegal.
Everyone must be treated equally regardless of their race! If things were messed up in the US in the past, the solution is not to go to the other extreme.
Is the law, so why don't you leave your emotional reactions and comments out of it?
Ooops, suddenly the shoe is on the other foot.
DailyKos pointing out that this is another Republican argument of convenience (I apologize for the redundancy of that statement):
Alito during his confirmation hearings. Identity politics is wonderful - if the nominee is an arch-conservative.
She moved when she was 15 or 16 - hardly "most" of her teenage years. And that's pretending her childhood didn't exist....
You know, Texas just might leave the union (with other states not far behind) in the next eight years if our nation's situation doesn't improve at the federal level.
I suppose you're one of the teabaggers that was out protesting the Obama administration - right after he signed the biggest middle class tax cut in history. Where the fuck were you guys when Bush was doubling the national debt to $10 trillion? Where the fuck was Chuck Norris when Bush was spying on Americans without warrants and getting more Americans killed in his bogus Iraq war than Bin Laddin did on 911?
You need to work on that humor. Your sarcasm wasn' funny.
What sarcasm? Is your head shoved so far up your ass that you don't know what state George W. Bush is from? How about Alberto Gonzalez? Karl Rove?
And don't forget that wingnuts mocked the "Hollywood liberal elite" for saying they'd leave the country if Bush was re-elected. Yet Obama's in office for three months and the Anti-American wingnuts are talking about states seceding from the country.