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Supreme Court Nominee Sotomayor's Cyberlaw Record 384

Posted by ScuttleMonkey from the yes-but-does-she-know-what-she-is-talking-about dept.
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."
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Supreme Court Nominee Sotomayor's Cyberlaw Record More

Supreme Court Nominee Sotomayor's Cyberlaw Record

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  • Cyberlaw (Score:3, Insightful)

    by 2names ( 531755 ) on Friday May 29, 2009 @03:30PM (#28143337)
    Can we please stop with the "Cyber-" every damn thing?

    • Re:Cyberlaw (Score:4, Funny)

      by Itninja ( 937614 ) on Friday May 29, 2009 @03:47PM (#28143569) Homepage
      I grow tired of that too. But I think of no more concise way to define laws relating to IT principles. I am open to suggestions however. Maybe, "Elaw" or "Etherlaw"??

    • Be quite, you cyber-whiner.

    • Re: (Score:3, Funny)

      by bonch ( 38532 )

      What did you say? I was too busy surfing the information superhighway for info on the long tail using podcast-enabled Web 2.0 productivity enhancers while blogging and tweeting in the cloud. LOLWUT. THIS. FIXED. AMIRITE? ^_^

      Sometimes I wish the internet would disappear. Excuse me, I mean that it should DIE IN A FIRE.

  • Wait, what? (Score:5, Insightful)

    by SatanicPuppy ( 611928 ) * <Satanicpuppy@nosPAm.gmail.com> on Friday May 29, 2009 @03:33PM (#28143383) Journal

    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.

    • 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.Please note that this was not a settled issue at the time. There is some expectation of privacy for communications even on work systems -- even in the US (in Europe, IIRC, that expectation is law). Where the expectation of privacy is gone is when the employee is explicitly informed that communications are the property

    • Re: (Score:3, Informative)

      by fm6 ( 162816 )

      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 th

  • "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: (Score:2, Insightful)

      by 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 (Score:5, Insightful)

      by whiledo ( 1515553 ) * on Friday May 29, 2009 @03:44PM (#28143519)

      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 (Score:5, Insightful)

        by scubamage ( 727538 ) on Friday May 29, 2009 @04:01PM (#28143779)
        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: (Score:2, Insightful)

          by courtjester801 ( 1415457 )
          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 (Score:4, Insightful)

      by Naturalis Philosopho ( 1160697 ) on Friday May 29, 2009 @03:45PM (#28143539)

      "...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."

      • Correct, but if you read the whole speech she is saying that her experiences and culture will bias her judgement, whether she wants it to or not. I tend to disagree with this ideal; if you can't be impartial and disconnect yourself from your own experiences, then maybe you shouldn't be a Supreme Court Justice.

        • Re: (Score:3, Insightful)

          by OverlyGenericUsernam ( 1189255 )
          To be able to do that, you wouldn't be human.

        • I understand where you're coming from and it is a fair point. However, the Supreme Court often has to decide on constitutional issues that go back to equality and freedom. For someone who hasn't experienced racism or sexism, their opinion on how a given action affects the equality and freedom of a person is simply different than a person who has experienced those two things. It's a "soft" issue and one that you can't quantify impartially and objectively.

          Now, that doesn't mean you should look for racism a

          • I understand where you're coming from and it is a fair point. However, the Supreme Court often has to decide on constitutional issues that go back to equality and freedom. For someone who hasn't experienced racism or sexism, their opinion on how a given action affects the equality and freedom of a person is simply different than a person who has experienced those two things. It's a "soft" issue and one that you can't quantify impartially and objectively.

            Now, that doesn't mean you should look for racism and sexism where it doesn't exist. But I don't think that's the issue here.

            Constitutional issues aren't so hard. They boil down to this: what part of "shall not be infringed" is difficult to understand? The rest is pretty simple, too. The Founders talked about "papers and effects" and in the digital age, that also includes things like hard drives and e-mails and there is no honest reason to presume otherwise. I know that sounds facetious but I assure you, it can be that simple. It's just that there are multiple vested interests who need all of the unnecessary complexity in o

        • We're all biased by our experiences, it's called the human condition. The Supreme Court handles cases where justice cannot be objectively determined.

          For example is gun ownership a good thing for society or a bad thing for society? Abortion? Gay marriage? Torturing terrorists?

          Is the constitution a flexible, living document into which we can read much or is it literal, limited only to the context in which its authors lived?

          Intelligent people differ on the answer to all these questions (and many more). No

    • Re:That's what she said (Score:5, Informative)

      by sesshomaru ( 173381 ) on Friday May 29, 2009 @03:48PM (#28143577) Journal


      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 [brianmclaren.net]

    • Re:That's what she said (Score:5, Insightful)

      by MozeeToby ( 1163751 ) on Friday May 29, 2009 @03:51PM (#28143627)

      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".

      • 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.

        Indeed she was trying to say exactly that, and that is exactly bullshit.

        How can you presume to know what experiences even someone who grew up around money had? Perhaps they had parents who forced them to toil, or by other means still instilled an excellent value of fairness. Do you not think even people with money face many of the

        • 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:That's what she said (Score:5, Informative)

      by 0xdeadbeef ( 28836 ) on Friday May 29, 2009 @04:12PM (#28143937) Homepage Journal

      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.

    • There is a rather informative piece on CNN of all places that talks about this comment.

      http://www.cnn.com/2009/POLITICS/05/28/ifill.sotomayor/index.html [cnn.com]

      Her comments were part of a speech that discussed the ideal of impartiality and how it is an elusive goal. She was referring to a particularly bad decision made by Judge Oliver Wendell Holmes. In practice, judges from different walks of life will have different ways of seeing the world, which will, as much as they try for it not to, influence their judgmen

    • Re: (Score:3, Interesting)

      by fm6 ( 162816 )

      Excuse me? Did she say Latinas are smarter than other groups? More qualified? Or "better" in any way? No, she's saying that a Latina is likely to contribute life experience that makes for a better decision-making process than a court that's populated entirely by WASP Yale graduates.

      There are many times when the needs of an institution are not served by a simple merit-based approach. For example, the leading universities could fill every freshman class if they only admitted straight-A students from high scho

  • Claiming you shouldn't be expected to read the parts of a contract you need to scroll to see is about like claiming you shouldn't be expected to read anything other than page 1 when reviewing a paper document.

    • is about like claiming you shouldn't be expected to read anything other than page 1 when reviewing a paper document.

      Isn't that the standard in upper management?

    • Re:scroll down (Score:5, Informative)

      by _xeno_ ( 155264 ) on Friday May 29, 2009 @03:57PM (#28143725) Homepage Journal

      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 [bna.com], it seems pretty clear to me that Sotomayor did indeed know what she's talking about and came to the correct decision.

    • That depends on the context. In commercial law deals with retail consumers get treated differently than deals between businesses, for instance. In a B2B transaction both sides are expected to be experienced at this and have lawyers around to check the details, but a consumer's held to a lower standard and the onus is on the business to point out anything unusual about the deal. If the business doesn't bring something to the consumer's attention, then the standard is whether an ordinary consumer (not a lawye

    • Re: (Score:2)

      by 2short ( 466733 )
      There's a "terms of service" link at the bottom of this page. Did you click it and review the contents before making your post? If you look now and it says you've agreed to something objectionable, will you feel bound?

  • First Judge That Has Made Any Sense (Score:5, Funny)

    by Fantom42 ( 174630 ) on Friday May 29, 2009 @03:56PM (#28143707)

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

    Wow.

  • License, not Contract (Score:3, Interesting)

    by Thyrsus ( 13292 ) on Friday May 29, 2009 @04:00PM (#28143759) Homepage

    From a quick reading of the decision, this was a license *not* a contract. And instead of making people click an "I Agree" button, the license link was non-obviously tucked away. The defendants did not present sufficient reason to overturn the lower court ruling. In my non-lawyer opinion: ggod decision.

  • She has no respect for private property (Score:3, Interesting)

    by MalleusEBHC ( 597600 ) on Friday May 29, 2009 @04:11PM (#28143919)

    It's not tech related, but everyone should read up on her Didden v Port Chester case. I used to think Kelo v New London was the most disgusting eminent domain ruling, but Didden puts it to shame.

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