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."

Comments

Overturned?

[icebike]

60% of her decisions that were appealed to the Supreme court were overturned. Was this one of them?

Re:Overturned?

[staeiou]

60% of her decisions that were appealed to the Supreme court were overturned. Was this one of them?

The Supreme Court overturned 68% of all cases it decided to hear last year (and 74% the year before that!), so she actually is below average in terms of reversals. But you're confusing appealed with heard - every decision gets appealed to the Supreme Court, if the client still has money to pay for the lawyer. She only had 1.2% of her decisions overturned, which is a far lower figure.

Source: Newsweek http://www.newsweek.com/id/199955

Re:Overturned?

[Todd Knarr]

Just remember this though: the Supreme Court (and in fact the Appeals Courts) generally only agree to hear cases where they think from the filings that they're going to want to overturn the ruling. If they agree with the ruling, they generally simply refuse to hear the appeal. So just on that alone you have to expect the SC to overturn more often than not.

More interesting are two other statistics: how many of the cases she ruled on were appealed, and how many of those did the Court agree to hear? She made 232 appellate rulings, of which the Supreme Court reviewed 5 and overturned 3. Turning that into percentages, in 97.8% of her cases either the losing party couldn't find anything to justify an appeal or the Court agreed with her ruling. The Court only found reason to look at 2.2% of her rulings, and disagreed with only 1.3% of them. That's a pretty solid record.

Re:That's what she said

[sesshomaru]

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Others simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
http://www.brianmclaren.net

Re:scroll down

[_xeno_]

Read the linked decision - this didn't say that you don't have to read past Page 1, it said that only informing the user of the existence of licensing terms if they scroll to the very bottom of the page doesn't make the terms binding.

Essentially, if the plugin installer used a "clickwrap" license - as explicitly stated by Sotomayor in a footnote - it could have been binding.

But instead, there was a single sentence at the bottom of the page: "Please review and agree to the terms of the Netscape SmartDownload software license agreement before downloading and using the software." Installing the plugin didn't show the license, and if you didn't scroll down past the download button, you wouldn't see anything about the license.

You should read the ruling, it seems pretty clear to me that Sotomayor did indeed know what she's talking about and came to the correct decision.

Re:Cyberlaw

[eln]

There are already like 10 threads dedicated to that exact quote. It's been talked to death, and like most things in politics, no one is going to change their minds and everyone is being driven by their own ideology. It's pointless to start a new discussion of it here.

Big Lie

[Estanislao Mart�nez]

60% of her decisions that were appealed to the Supreme court were overturned.

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:

1. that 60% comes out to 3 out of 5, literally;
2. 60% is actually a below average rate of overturns of reviewed cases;
3. the 60% figure doesn't count decisions of hers that the SCOTUS declined to review (and thus allowed to stand);
4. the statistic used would count a 9-0 overturn the same way as a 5-4 overturn, when they just don't mean the same thing.

Re:That's what she said

[0xdeadbeef]

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 presiding over cases on the violation of civil rights by discrimination based on race or sex] than a white male who hasn't lived that life.

If you're going to insert your own words into a quotation, insert the proper context.

Wrong, 60% figure totally meaningless

[SuperKendall]

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.

Re:Cyberlaw

[RepelHistory]

Besides, it would take a Supreme Court Nerd to remind you that she's up for the position of Associate Justice, not Chief Justice as grandparent says. That position was filled by Bush's appointee John Roberts. The Chief Justice serves as the chief administrator and spokesperson for the Judicial branch, presides over the impeachment of presidents, gets automatic seniority over his or her colleagues, and has a few additional administrative responsibilities. Associate Justices just vote on cases and write opinions.

Sotomayer is a nightmare

[fyngyrz]

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.

Re:Sotomayer is a nightmare

[commodoresloat]

That's a very one-sided view of Sotomayor's record on constitutional issues. I share your concerns but I think she's very much a case-by-case jurist and concluding from these cases that she's a "constitutional nightmare" is a bit extreme. Here's a much more detailed and careful rundown of her first amendment rulings than the link you gave, which only mentions the infamous "douchebag" decision. I agree that's a pretty sad decision in terms of student first amendment rights, but she's also got the Guiles v. Marineau case to her credit on the same issue (the difference being the latter more obviously dealt with clearly political speech). I agree Sotomayor raises cause for concern, but calling her a "constitutional nightmare" is a bit hysterical.

Re:Sotomayer is a nightmare

[Uberbah]

There is no "double standard", only wingnuts focusing on glittering trivialities. Sotomayor was speaking in the context of racial and sexual discrimination - something that white men have never had to deal with in this country. So your "what if I white man said the same thing" wouldn't have the same context, and thus a completely irrelevant comparison.

Re:Cyberlaw

[PopeRatzo]

It's pointless to start a new discussion of it here.

It was pointless to begin with, and was only a straw for people who wish their party hadn't lost the election quite so badly and are going to piss and moan no matter what the President does. When they can point to a half-dozen important cases during Judge Sotomayer's 18-year appellate career that didn't follow established precedent, then we can talk. Until then, they're just whistling in the dark.

They ought to get down on their well-worn knees and thank their imaginary deity that President Obama decided to pick the most conservative judge on his short list of possible nominees. Can you imagine if he'd picked one of the openly gay judges that were on his short list? Every right-winger in American would have shit on the floor, crying uncontrollably and demanding a do-over of the 2008 election.

Wait, they're doing that already. Never mind.

Re:Cyberlaw

[Dragonslicer]

We can't. The nomination of a Chief Justice is not in any way News for Nerds and would not fit anywhere on Slashdot except maybe the Politics section.

Just to make sure that this is directly pointed out, Sotomayor is not being nominated for Chief Justice. That would be John Roberts, who was appointed only a couple years ago, and will likely remain Chief Justice for somewhere around 20 years.

Re:Cyberlaw

[shaneFalco]

As a Supreme Court nerd.... she is nominated for Associate Justice. John Roberts is the Chief Justice and will likely remain so for the next 30 years or so.

Re:Wait, what?

[fm6]

I'm not going to pretend to have the legal expertise, but I can think of situations where a person's legally protected privacy extends to spaces they don't own.

Student locker: The school can search it, but not arbitrarily. The standard is "reliably believe" based on actual information that the locker needs to be searched. Not as stiff a requirement as the "probably cause" the police need to get a search warrant, but still something.

Employee locker: Employer can search it if the employee has been notified through an employee handbook or some such. I got this from the Nolo book "Dealing with Problem Employees: A Legal Guide". This book advises consulting a lawyer before a search of a locker if you haven't made it clear that you reserve the right to do so. This same books says something similar about an employee's right to privacy of communication in their work space: the employer is entitled to spy on employees if they've been warned that spying might happen. Come to think of it, that's awfully similar to the case we're talking about, since workplace computers are primarily instruments of communication.

Rental housing: I'm a renter, and not even my landlord is allowed to enter my apartment without advance notice, except in an emergency. And no, "I wanted to see if he was keeping the place clean" is not an emergency.

Yet another legal principle that's more complicated than people assume it is.

Re:She has no respect for private property

[Anonymous Coward]

No, they ruled that public benefit is the same as public use. Until Kelo V New London it was not legal to use eminent domain to acquire land for a private developer.

Re:Bigger question than her tech positions

[jmorris42]

> You assume she's a member of "La Raza" (a supremacist group) just because she's latina?

No, I am taking the American Bar Association's word for it. Being published in the Berkley La Raza Law Journal isn't final proof, but if ya can't trust the ABA to know basic facts about a sitting Federal Judge could somebody explain why we take their opinion on appointments seriously?

> So you also assume that all white males are members of the KKK?

Again, no. Ones that open their chowhole in public to spout nonsense about white supremancy? Yup.

Re:That's what she said

[Estanislao Mart�nez]

It's not quite as blatant as most people are assuming from the one sentence at the end. However, she clearly pits a "Latina woman" against a "white male." That's a very interesting choice. To me, it demonstrates that she has a bit of a bone to pick with "white males." Why couldn't she have chosen, I dunno, an female Arab and a male Indian? Why did she choose her race/gender and the white male.

Because she's talking about the SCOTUS' actual record in deciding cases about gender and race issues when the court was all white male. She's not talking about hypotheticals, she's talking about history. It's right there in the next paragraph:

"Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case."

Secondly, she seems to think that "inherent physiological or cultural differences" come to play in decisions.

Um, no, you're reading that completely backwards. I'll quote that bit again:

"Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging."

The key word there is "whether." That sentence is not endorsing either inherent physiological or cultural differences"; it's disclaiming the assumption of either, for the sake of the point that she's making.

Re:Bigger question than her tech positions

[ptbarnett]

You assume she's a member of "La Raza" (a supremacist group) just because she's latina?

In addition to her work on the bench, Judge Sotomayor is an adjunct professor at New York University School of Law and a lecturer-in-law at Columbia Law School. She is a member of the American Bar Association, the New York Women's Bar Association, the Puerto Rican Bar Association, the Hispanic National Bar Association, the Association of Judges of Hispanic Heritage, and the National Council of La Raza.

Well, now!

[WheelDweller]

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.

Re:That's what she said

[swillden]

Of the thousands of decisions she's made, only 5 have been taken up by the Supreme Court, and of those 3 were reversed, one affirmed and one has not yet been decided

According to CNN's list she's had eleven cases decided by the Supreme Court. Of those, eight were reversed, and of the three upheld two of them were upheld in spite of unanimous rejection of her reasoning. I'd put "got it right by accident" in the "got it wrong" category, myself, so the Supreme Court said she got it wrong 10 out of 11 times.

And it seems very likely that the Ricci case will soon make it 11 out of 12.