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

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.

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:Cyberlaw

[frosty_tsm]

NO!

Correction: Cyber-NO!

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

First Judge That Has Made Any Sense

[Fantom42]

This is the first judge (featured on Slashdot) who I've read that has written opinions that made a lick of sense.

Wow.

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.

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: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.

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

[sexconker]

Cyber-Correction: Cyber-Correction: Cyber-NO!

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

[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.