Slashdot Mirror
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."
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.
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.
My blog
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."
Moderators: Before moderating a comment Insightful/Informative, check to see if a child post has already refuted it.
"...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."
"MIT betrayed all of its basic principles."
It's not whether or not it's available, it's whether an average person would scroll down, follow the link, read it, understand it, and consider it a legally binding contract. That's what a lot of contract law is about: defining what things mean so that both parties can reasonably be expected to understand and therefore be held to the meat of the contract. Right?
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".
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.
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
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.
This is the first judge (featured on Slashdot) who I've read that has written opinions that made a lick of sense.
Wow.
To be able to do that, you wouldn't be human.
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.
You are in a maze of twisty little relative jumps, all alike.
Hush! You're cluttering the emotional, reactionary and contrarian arguments with the facts!
I only post comments when someone on the internet is wrong.
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.
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.
As long as the lawyers can shop around as to which district they can sue in then the lawyers will still purposely find the stupidest judge for the case. So its kinda a weakest link sort of situation.
Don't know something? Look it up. Still don't know? Then ask.
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.
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.
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
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.
Not a typewriter
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.
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:
5. Horrified by #4? How about Justice Alito, during his confirmation:
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.
Simple Unexpected Concrete Credible Emotional Stories
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.
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.".
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.
Linux, you magnificent bastard, I read the fucking manual!
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).
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!