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

Cyberlaw

[2names]

Can we please stop with the "Cyber-" every damn thing?

Re:Cyberlaw

[Itninja]

The nomination of a Chief Justice is not in any way News for Nerds

I disagree. There are many kinds of nerds. It's only presumed that /. is for computer nerds. But there are band nerds, civil war nerds, and even Supreme Court nerds. If you had ever met Nina Totenberg you would know I speak the truth.

Re:Cyberlaw

[Phoenixhawk]

/law

Wait, what?

[SatanicPuppy]

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.

That's what she said

[Bobb Sledd]

"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.

Re:That's what she said

[Anonymous Coward]

"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.

Actually, that quote seems to be refuting the idea that race/sex has anything to do with it. She is saying that wisdom+experience wins over non, regardless of sex+race affiliation...

Re:That's what she said

[whiledo]

The key part of the phrase here is who hasn't lived that life. That's the context.

Now there's an understandable difference of opinion on whether the statement about reaching a "better" conclusion based on experiences similar to the plaintiff/defendant is valid, but I don't think it's racially biased in the sense of "race X is better than race Y."

Re:That's what she said

[Naturalis Philosopho]

"...than a white male who hasn't lived that life"

It's called a dependent clause. Learn about it, says a white male (me). I've seen extreme poverty, I've lived around it, and therefore I have some understandings of it. But I don't know it the way someone who's lived it does. And I have no clue what it must be like to grow up as a female. Repeat after me, "I don't know everything."

Re:That's what she said

[MozeeToby]

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. Specifically, I think she's referring here to questions about those issues: poverty and discrimination.

It's equivalent to saying "I think an IT expert turned judge would be more likely to reach a fair decision in technology cases than an a judge that doesn't know how to send email would".

Re:That's what she said

[OverlyGenericUsernam]

To be able to do that, you wouldn't be human.

Re:That's what she said

[scubamage]

I agree with her statement. You expect a rich white man who lives in the Hamptons or Bel Air, and spends his days doing nothing but politicking and playing golf to be able to hand down a just sentence on someone who comes from a completely different part of society? You expect him to fairly judge someone who is starving, homeless, and steals a loaf of bread, and (I shudder at the thought) some baby formula? He has no context or even a remote claim to empathy with that person. He exists completely outside that part of the world and society.

You expect him to be suited for telling a young woman that she has to bear the child of a man who raped her, despite never being in a situation where someone he knew/loved was raped? This is a very real possibility for this judge to have to face.

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.

Re:That's what she said

[courtjester801]

On the inverse, would you expect someone starving, homeless, and bearing a child after being raped to fairly judge someone not in that circumstance? Life experiences don't mean squat when it comes to the bench. What experiences I have in life shouldn't matter if I'm called to make a judical call on someone else; it's based on law, not feelings.

Re:That's what she said

[Thyrsus]

The 60% figure is bogus. 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. That is similar to the outcome for most appeals court judge decisions: thousands are never taken up by the Supreme court, 70% of those which are taken up are reversed, and 30% of those which are taken up are affirmed. The Supreme Court only looks at cases it seems likely to reverse. Appeals court judges decide the vast majority of cases in the same way the Supreme Court would, so the Supreme Court doesn't say anything about them, letting them stand. The vast majority of the time, the system works.

Re:That's what she said

[courtjester801]

If we're going to spout off insults, the world you live in has way too many emotional nuances to even have reality.

The law 150 years ago wasn't changed due to some decisions of the SCOTUS to consider all humans, human. It was however changed by the will of the people and their legislative officials, as well as the executive branch.

The law 60 years ago wasn't changed due to the feelings of the SCOTUS either, to remove segregation. It was changed due to the unconstitutionality of the laws that were passed. The whole checks and balances thing in play.

SCOTUS in your example: conservative, progressive, liberal, are all political goals, aspirations or choices. I'd much rather have them doing their jobs, being a check in the system so the other cogs don't do stupid shit like enslave half of the country, or whatever comes next down the pike, then try to legislate on the bench (one political direction or the other, it's not their job).

Re:That's what she said

[swillden]

I'm more concerned with her competence than her politics. In particular, the four unanimous rejections of her reasoning, from a court that would split 5-4 on the color of the sky.

Re:Bigger question than her tech positions

[morgan_greywolf]

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.

Racist and sexist speech are politically incorrect, but only when the speaker is white and male. All others may proceed with their bigotted remarks; often these are deemed to be funny.

Re:Goodstart I suppose

[2short]

If you can get what you want from a web page, do you scroll down to see if there is a hyperlink going to some fine print? Before you posted, did you scroll to the bottom of this comment page to see if there was any such link?

On a paper document, the fine print comes before the place you sign. You might not read it, but you know it is there. If you want people bound by your terms, online or on paper, you don't have to make sure they read them, but it is up to you to make sure they know they are there.

In any case, there's no lack of knowledge here. She knew exactly how accessible the terms were, whether you disagree about the legal implications of that accessibility or not.

Re:Bigger question than her tech positions

[timeOday]

Probably because it's the majority group that generally has the power in society to enforce prejudices by denying housing, voting rights, employment, etc.

Anyways, I would like to know if she is actually racist, as evidenced by the rulings she has made? So far all I have heard is one or two statements from a talk (not a legal proceeding) a number of years ago. It's silly to base one's opinion on that, when she has gone "on the record" through her rulings countless times. If she has made racist rulings, then we don't need her on the bench.

Mod parent up

[Reality Master 201]

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.

Re:Bigger question than her tech positions

[hardburn]

She did not rule to deny the promotions regardless of the test results. She ruled that the city had the right to throw out the test results if they so choose.

Re:Bigger question than her tech positions

[syphax]

I explain:

1. It is logical that it is more egregious for a member of a historically dominant group (that previously denied other members of its society from voting, considered other members of its society as property, etc.) to make statements that appear to support reasons for that dominance.

2. Larry Summers is currently one of the most powerful people in the US; his comments didn't exactly torpedo his career (many people at Harvard hated him for reasons far beyond his gender comments; the latter were just the spark the kindling needed).

3. Sotomayor did not assert "there are fundamental differences between both the genders AND races[1] as if it were a settled fact." In the quote that everyone is hot and bothered about, she spoke about how her experiences that were due to her gender and ethnicity might shape her decisions. If you don't get why such experiences might matter, I ask you this- what would have happened if Frederick Douglass had been on the court for Dred Scott v. Sanford?

4. Here are some key excerpts from Sotomayor's speech:

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. Other 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.

5. Horrified by #4? How about Justice Alito, during his confirmation:

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

I know some white males (full disclosure: I am a white male) like to pretend that we live in a race- and gender-blind society, but we don't.

Re:Sotomayer is a nightmare

[Abreu]

You expect us to believe that your blogpost is well researched and accurate when you can't even spell the woman's last name?

Re:She has no respect for private property

[Todd Knarr]

I found Kelo v. New London to be eminently correct. All it said, after all, was "Yes, the local government does have the power of eminent domain. The law giving it to them doesn't place any restrictions on it. If the people want it limited, they need to change the law to add limits. It's not the court's place to rewrite the law.".

Re:Bigger question than her tech positions

[jmorris42]

> I know some white males (full disclosure: I am a white male) like to pretend that
> we live in a race- and gender-blind society, but we don't.

Oh I'll admit we aren't there yet. Now comes the harder (at least for progressives) question, How do we get there?

There are two broad camps out there.

The American camp says "All Men are created equal." We understand that people do differ in reality, but any variation among the races, geners, etc are not as important as random differences between people in general and that at any rate we are all Equal before the Law. No we haven't achieved utopia in practice but it is the goal we have been working toward for a couple hundred years and we were making pretty good progress until we lost power in the 20th Century.

Then there is the Progressive camp. They believe (but deny) that people are defined by their race, gender, sexual disorders, etc. and justice is only a term to be applied to groups. In their world you have Black Justice, Jewish Justice, Lesbian Justice, etc and they are actually different. Of course in that worldview it is a quick leap to figure that if you are Jewish you don't want Black Justice. In other words it leads to balkanizarion, not a stable Republic. Of course divide and conquer is a time tested power tactic. But the important takeaway is to note that the Progressive worldview rejects (while paying lip service to) the entire notion of justice being blind so they don't even agree with us what the goal is.

Re:Sotomayer is a nightmare

[fyngyrz]

I agree that's a pretty sad decision in terms of student first amendment rights, but...

No, sorry, I'm not going to give her first amendment credit because she sometimes gets some parts of it right. Not to mention the fact that she fails hard in several other constitutional areas (which the blog post also points out.) Her entire job is to get all of it right all the time. It's plain English, for crying out loud:

"...shall make no law... abridging the freedom of speech"

This applies within the states via the 14th amendment's incorporation doctrine. For a judge to misunderstand that they either have to have a major head injury or be an outright traitor to their oath. How is it that I, a common person, easily understand this, and this "wise latina" (her own characterization, not mine) does not???

She definitely doesn't deserve to serve as one of the nine final arbiters of 1st amendment rights if she thinks muzzling young people's speech and opinions outside of school by enforcement actions inside of school is an appropriate use of government power. She directly creates an environment here where a person's free speech outside of school will engender thoughts (and correct ones, at that) of government punishment and intervention. The woman is a constitutional nightmare.

Re:Yep, that's rasism.

[Captain Splendid]

How can you presume to know what experiences even someone who grew up around money had?

I can. I grew up around them, as that's who my dad worked for. In general, the most horrific bunch of hideous, unhinged zombies I'll ever have the pleasure to meet. No skills, no manners, no intelligence (no need, really, in this world, it's all about connections), and zero idea of how 99.99% of their fellow humans live.

Not that it should be a requirement for rich people to be cognizant of how everybody else gets along, but insularity breeds contempt, so it's on them.

In short, rich white people* are fucking clueless, and I've certainly don't want some freak oligarchy being the one that calls the shots, especially when they're so woefully unprepared.

*Plenty of non-white rich assholes too. Though, to be fair, there's a certain curiosity still present in most cultures that the anglo ones I've experienced just don't have as much.

Re:Sotomayer is a nightmare

[number11]

Her entire job is to get all of it right all the time. It's plain English, for crying out loud:
"...shall make no law... abridging the freedom of speech"

Agreed. But conventional wisdom is, that's a radical bomb-thrower nutcase position.

She's "mainstream" (i.e., "doesn't entirely get it") on the First Amendment. But none of the other 8 Justices gets it, so what is it that makes her so much of a "constitutional nightmare" in comparison? Can anyone say with a straight face that she'd be as bad as Scalia or Thomas?

There is no, repeat, no chance of getting a First Amendment absolutist appointed to the Supreme Court.

Re:Sotomayer is a nightmare

[fyngyrz]

But conventional wisdom is, that's a radical bomb-thrower nutcase position.

I don't buy it. Conventional wisdom among who? Almost no one I know - and that's quite a few people - subscribes to the idea that the US government -- at any level -- should repress speech and opinion. My impression is that is just propaganda we hear from the government itself. Who do you consider "conventional"? Old USSR expatriates? Saudi Shaikhs? Colonel Gaddafi? Sonia herself? Seriously, who can you point to that supports the government should suppress free speech and opinion position such that you characterize it as "conventional"? Do you think that because the government says so, it must be so? They lie, you know -- they lie a lot.

There is no, repeat, no chance of getting a First Amendment absolutist appointed to the Supreme Court.

Well, there certainly isn't if people are passive in the face of the appointment of known to be constitutionally destructive judges. Are you suggesting I just say "well, she's only confused on about half the amendments and the commerce clause, so, "Hurray Obama"? Or that I pimp her as a good idea because Scalia is a complete and utter idiot and she isn't? It isn't like she's going to replace him, you know. Why shouldn't I push for someone better than her, since she has such obvious and profound warts? I'm sorry, I just can't see your POV here.

what is it that makes her so much of a "constitutional nightmare" in comparison?

The fact that it isn't just the first amendment she screws up on. She screws up on the commerce clause; she screws up on the 2nd amendment (and badly, and even according to the most recent SCOTUS ruling); she screws up on the 4th amendment; she screws up on the 5th amendment.

That is why she's a constitutional nightmare. Add to that the fact that she thinks she's a "wise latina" (oh, brother) and that her POV is inherently better than that of a "white male." She doesn't even belong on the bench, never mind on the bench of the highest court in the land, as far as I'm concerned. Do you really want to get her in there and see how much of what remains of constitutional principles she completely misinterprets?

Re:Bigger question than her tech positions

[Kerrigann]

I understand what you're trying to say about equality being blind, and I agree with you, but... talking about a world without prejudice is like the scientist saying "imagine a spherical cow...".

You seem to have a chip on your shoulder when it comes to gay people (this post, and a few of your previous posts). Do you think this is influenced by your experience? Do you have any gay friends? No? Do you think that might influence your decision in regards to a court case on, say, "Don't Ask, Don't Tell"? I'm gay, and as much as I would try not to, my background would influence me.

So, what do you do? You can either balance the equation by ensuring diversity, or you can ensure perfect application of logic. I like your idea of Vulcans on the court btw... (the REAL vulcans, not the "I'm gonna get mad and hit people every 20 seconds vulcans" :)

So, is anyone who suggests diversity as a... say... first step, automatically an "evil progressive"? I don't doubt that there are people out there who fall into this category. But, like the Sotamayor said, there have been an awful lot of otherwise logical people who have made decisions that, in hindsight, look an awful lot like prejudice.

Can you go to far? Absolutely. I'm fairly liberal, but I'm no real fan of affirmative action (also female, so would benefit from it). Was it necessary at one point? Maybe...

Now back to Sotamayor's comment... After reading the whole piece, I think I understand what she was trying to say, but it wasn't a great way of saying it. Saying she's a no better than a white supremacist? maybe a little too far...

I guess I'm really just repeating the parent's arguments. You seem like an intelligent person, and I like hearing intelligent people with different views than mine... but after reading your posting history, I think I'm the sort of person you hate.

I'd like to think that I'm a member of camp A by your definition. I'd also like to think that our goals aren't really all that different, and that we don't have to be angry at each other. Maybe I'm dead wrong, and I'm just a progressive hippie lesbian liberal whacko?

Re:Sotomayer is a nightmare

[fyngyrz]

Most issues that come before the Court are not as clear cut as you seem to want them to be

I think most actually are, once you strip the illegal modifications that have been made to the legal system. Once the question is down to what the constitution actually says, the answer is pretty much staring us in the face, until we begin to pretend that "interstate" means "intrastate" and "reasonable" is undefined, and "make no law" means "make law", and "shall not be infringed" means "infringe all you want at every level", and "be secure in their persons, houses, papers and effects" means "unless we decide to look", and "shall not be deprived without due process" means "indefinite jailing on a whim", and "nor shall be compelled in any criminal case to be a witness against himself" means "waterboard 'em, fuck 'em with a lightbulb, rape 'em, stick electric prods on their gonads", and "the right to a speedy and public trial" means "half a decade in prison without even a bloody phone call", and "no cruel and unusual punishment inflicted" means "make our prisons the involuntary ass fuck center of the universe", not to mention "waterboard 'em, rape 'em, torture 'em, isolate 'em, deny them representation, trial, due process of ANY kind..."

No, I think these things are pretty damned clear, actually. I just think our justice system and large swaths of our government are comprised of evil and/or deluded people. If you'd like, throw me a court case you think isn't clear or that I would find difficult to determine the constitutionality of the issue at hand. I'll be happy to see if I agree, and tell you why.

By your standard there is no Supreme Court justice on this Court who isn't a "Constitutional nightmare." I'm not sure there ever was one.

Is that a reason not to seek them? In fact, I have to ask, why do you even think that's germane?

what decision did she make "without regard" to the Constitution

More than one. For instance, the constitution CLEARLY protects all speech, political or not, by unequivocally forbidding the government from interfering with it. Yet she supported the use of government power to repress that speech. If you think that decision was made with regard to what the constitution authorizes the government to do, then you're very confused. There is no such authorization; not anywhere in the main body, not in the first amendment, and not in any other amendment. I think what you may be trying to say is that she may be putting reliance on the existing body of unauthorized law which imposes unauthorized power, but that is not at all the same thing as doing what the constitution authorizes her to do, or refraining from doing what it forbids.

That's not all, either. One case pointed out (quite correctly) that the use of a telephone for a local, intrastate call did not fall under the authorization of the commerce clause, which ONLY authorizes regulation of commerce BETWEEN the states. She decided wrongly there, as well. She thinks the 2nd amendment doesn't apply to the states. Even the majority of the current SCOTUS don't agree with her there; that's just idiotic (and yes, there are a lot of similar idiots out there, but they're uniformly and without exception people who cannot support that position. No one can, because the 2nd is, in fact, crystal clear.) You want to try and argue for her position on the 2nd, I'll be happy to completely and utterly destroy your arguments, point by point, with references. :o) And so on.

"Constitutionally invalid" is nonsense

No sir, it is not. If the constitution says "the government can't do this", then it isn't authorized to, until or unless it has been changed via amendment. Doing said thing without authorization is unauthorized use of power, and is no different in character from the actions of any tin pot dictator you woul

Re:Sotomayer is a nightmare

[commodoresloat]

Oh no, I get your point loud and clear. My point is twofold: (1) you confuse disagreement with idiocy or with not understanding the constitution. That is itself idiotic; what you don't seem to understand is how common law works. The fact that the only good candidates you can think of for the Court position are yourself and some guy with an English degree but no law experience whatsoever speaks volumes. (2) you don't seem to realize that your view, as admirable as it may be, is a radical fringe view that bears no resemblance to anything in twentieth century jurisprudence. You think ideology trumps the facts of the case -- I'm sorry, but I don't. That makes every case easy for you to judge, perhaps, but that's one good reason we don't put people like you on the Court.

Re:Sotomayer is a nightmare

[nomadic]

The list of badly thought out rationalizations to prohibit free speech is indeed long, but the number of people who subscribe to them that I know is not large. Admittedly, I live in an area where even the state government has rejected the federal position on many of these issues -- we have laws *against* eminent domain, *against* federal firearms authority,

You think a state can outlaw a federal authority? Interesting...

The legal system is being driven by people in violation of the highest law in the land. Fact.

Actually, that's opinion. You can't make something fact by saying something is fact.

If the nation really wanted a really good SCOTUS justice, it should obviously pick me. I'd protect rights as written in the constitution

You presumably don't have legal training and your post evidences a fanaticism and paranoia that would not serve you as a justice. The Constitution is ambiguous, intentionally so, and interpreting takes more background than reading through a list of libertarian talking points.

I suppose if I had a choice in the matter, I'd probably pick a thinker like Nick Gillespie. But I don't.

Thinker? Reason Magazine is a bastion of shoddy thinking and dishonest analysis. Rather than honestly analyze issues, they start with an ideological position and then massage the facts to fit into that ideology. Most of them would make lousy Justices too.

counter racism

[sikanappikiisseli]

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.

Re:Sotomayer is a nightmare

[DigiShaman]

think a state can outlaw a federal authority? Interesting...

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. It started with FDR for sure. But honestly, power corrupts. If not for FDR, I'm sure someone else would have taken his place to forge a similar path ahead. Our nation was bound to fail as quickly as it was formed. The rise and fall of nations is part of what defines us as humanity at work.

Seriously, does anyone think China, Africa, Middle East, and Europe will still have the same national status and legal system in the next hundred to a thousand years? America is not immune to another revolution, (or two, or three etc) in the future.

Re:Sotomayer is a nightmare

[cayenne8]

"Talk about screwing things up -- you're just repeating right wing talking points here and they're not even close to true. Read the full speech [nytimes.com] in context."

If a white man had said the same thing she did, but, in reverse with a white man making better decisions that a latin woman, he would have been crucified at least 3x by now...and immediately disqualified.

Why the double standard with this woman?