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

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: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: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: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.

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: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.