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Supreme Court Nominee Sotomayor's Cyberlaw Record 384

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

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  • by gubers33 ( 1302099 ) on Friday May 29, 2009 @04:38PM (#28143457)
    Is she really that knowledgeable though? Some of the decisions make sense, but Specht v. Netscape Communications Corp. she ruled in favor of Specht just because the license terms were behind a hyperlink on the webpage. I feel like this is exactly like not reading the fine print on a paper document. Just because someone neglects to read the terms when they are readily available they aren't obligated to follow those terms. I'm just saying the two are very a like, but if she thinks the hyperlink is not readily available then she definitely is not that knowledgeable on technology.
  • by Naturalis Philosopho ( 1160697 ) on Friday May 29, 2009 @04:49PM (#28143599)
    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?
  • by Thyrsus ( 13292 ) on Friday May 29, 2009 @05:00PM (#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.

  • by gubers33 ( 1302099 ) on Friday May 29, 2009 @05:00PM (#28143767)
    Agreed. I mean I think that the Terms of Use on all websites are all complete and utter bull and could no way whatsoever be enforced(EXAMPLE Google's Terms of Use say you must be at least 18 years of age). Netscape Smart Download was not a site, but instead was software. I feel like if you download software than you should read the License and Support Agreements that go with it. Which stated the software had internet monitoring software built in which is why the case came about. However the main problem with these case was a bug where you could download the software before agreeing to the terms, even though the terms say that you can't download it until after the fact.
  • by Jeng ( 926980 ) on Friday May 29, 2009 @05:05PM (#28143837)

    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.

  • by MalleusEBHC ( 597600 ) on Friday May 29, 2009 @05:11PM (#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.

  • by Etrias ( 1121031 ) on Friday May 29, 2009 @05:12PM (#28143953)
    By "this bigot", I assume you are referring to Sotomayor? By calling her a bigot, I assume that you are referring to her comment about Latinos which has become the rallying cry of conservatives saying she's unqualified because she's "racist"?

    Here's the thing I don't understand about some people (I'm just going to use your comment because it so perfectly illustrates my thought). In one way, you get smug about your obvious conservative position (highly likely that you tell people that you're not really conservative, but rather libertarian) and say that you want the other side to define their position, then immediately dismiss it as being ridiculous.

    Internet society has allowed us to create our own echo-chambers, listening over and over again to "your side" and dismissing the other side as just wrong--never really hearing the other side, just straight dismissal. And it is easy in this day and age to do so. Instead of being in a society and a community where you every day experience and deal with opposing opinions, we voluntarily shut ourselves out. It's easier to dismiss people who you don't agree with. I don't understand how we can get past this where people like you who have made up your mind will listen to others of opposing views.

    Public figures face enormous scrutiny, expanding by leaps and bounds every year as recordings seem ubiquitous and YouTube makes it easy to post anything. How well would you do in today's society? I wouldn't likely do well. I would rather look at her opinions and judge from there. That, after all, is what is important in this case.

    Anyway, this is just a rant and I'll probably get modded down for off-topic or worse. I just don't see how we go forward in a society when we refuse to listen to someone you don't agree with.
  • Re:Cyberlaw (Score:3, Interesting)

    by AuMatar ( 183847 ) on Friday May 29, 2009 @05:48PM (#28144395)

    He's waiting for after 2010 to do that, when all current polling shows that the Democrats will have more than 60 votes and be able to break a fillibuster without republican crossovers.

  • by fm6 ( 162816 ) on Friday May 29, 2009 @06:58PM (#28145137) Homepage Journal

    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 schools with excellent academics. But they don't do that, because that would result in a student body with a very narrow cultural background. Even without Affirmative Action, they need to mix things up a little.

    (I'm reminded of Brandeis University, which has a primary goal of providing an education to observant Jews whose strict lifestyle would isolate them at most universities. Which wouldn't work very well if there weren't a big non-Jewish population on campus. I don't know the numbers, but they do have Catholic and Protestant churchs on campus. And how do you get enough non-Jews to enroll in such an institution if you don't give some of them a leg up?)

    Then there's the military. During the Vietnam war, enlisted military were disproportionally racial minorities. (Still true, but not so much, now that we no longer have a draft you could avoid just by going to college.) Officers were almost all white, and mostly from relatively privileged backgrounds. This was a bad situation, and it had bad results. So now the military is very pro Affirmative Action, especially when it comes to admission to colleges with ROTC programs.

    A more personal example: I'm a technical writer. In my opinion, a good technical writing team has a lot of technical expertise, but needs at least a few non-techies to ask the techies "stupid" questions. (Stupid questions are very important to good technical writing, if the person asking them is smart enough to ask the right ones!) Most tech writing teams have the opposite problem, but I've been on teams where all the writers had strong technical backgrounds, and the lack of stupid question asking did hurt us. In such a situation, suppose you have two potential hires, and the more qualified one is a techie, while the less qualified one (say, somebody who's smart and has good training, but not much experience) is technically naive. I'd vote to hire the non-techie.

    Not picking the most qualified person may not be "fair" but the effectiveness of an institution is more important than the fairness of how you select its members. And when you consider the cultural background of a potential new member, that may be unfair to those better qualified. But racism? No.

  • by Repossessed ( 1117929 ) on Friday May 29, 2009 @07:01PM (#28145161)

    Criticism of government employees (the targets of the douche bag comment) isn't political speech?

  • by number11 ( 129686 ) on Friday May 29, 2009 @07:45PM (#28145537)

    I don't buy it [that conventional wisdom is that it's a radical bomb-thrower nutcase position to hold that the government may not restrict any speech]. Conventional wisdom among who? Almost no one I know -

    You must not get out much. The "falsely yelling fire in a crowded theatre" opponents, the people who believe in laws against libel and slander, people who believe that there should be penalties for false claims in advertising, people who believe that threats of violence (and not just the acts themselves) should be against the law, that it should be prohibited to advocate the positions of Al Quaida or Hamas or Nazis or Communists or anarchists or whoever the bete de jour is, that it should be prohibited to write fiction that involves children in a sexual way... It's a long list. AFAIK speech in the US (and everywhere else) has always been regulated in one way or another, the 1st Amendment notwithstanding. So yes, the 1st Amendment, as written, is an extremist position. That doesn't make it bad, but it does make it unconventional.

    Why shouldn't I push for someone better than her, since she has such obvious and profound warts?

    No reason, it's just that you seemed to be pushing against her, not "for" anybody. So, assuming you do have a clue, who are you pushing for?

  • Re:Well, now! (Score:2, Interesting)

    by realnrh ( 1298639 ) on Saturday May 30, 2009 @12:33AM (#28147153) Journal
    Points repeatedly debunked already on this page. The paraphrase is inaccurate *and* taken out of context (since she was discussing a bad decision made by Oliver Wendell Holmes), and the 'overturn rate' is both factually inaccurate, a misquote of the original inaccurate claim of 60%, statistically insignificant, and actually represents a better success rate than the average of cases that reach the Supreme Court anyhow. Talk radio might let right-wing talking points go unchallenged, but it's a lot harder to make a claim stick without facts when you can't cut off the other guy's microphone.
  • by Monsuco ( 998964 ) on Saturday May 30, 2009 @02:07AM (#28147467) Homepage

    Just because you don't like that a bunch of white men lost their case does not mean the law said they should win or that she misinterpreted it.

    The 14th Amendment states that nobody can be denied "equal protection under the law". The fact that she ruled that it is legal for a city to decide to throw out a test on the basis of race is disturbing. Add to that her statements on how a "wise latina woman" would render a better verdict than a white male and her nomination appears troublesome. While this point has been brought up before, I think it bears repeating; imagine if someone like Scalia had said a white male would make a better justice than a latina woman, the Senate would have a cow at such a nomination.

    I hope the Senate can remain civil about the Sotomayor nomination but still leave it open to questioning. The Senate has occasionally gone into hissy fits over SCOTUS nominees. In particular the case of Reagan's failed nomination of Robert Bork (Reagan eventually successfully nominated Anthony Kennedy) and Bush41's successful nomination of Clarence Thomas Democratic Senators turned the process into a circus of personal attacks. Clarence Thomas, who is black, refered to the largely baseless series of bizzare allegations of sexual harrasment and personal attacks as being nothing more than a "high tech lynching". During the Bork nomination Ted Kennedy issued a series of very personal attacks, Bork's video rentals (of which there was nothing interesting) were spied on, and a large number of attack ads were run by various left wing special interest groups. At the end of either case, the public was left wondering if the Senate had been abusive of its "advice and consent" powers. Hopefully in the Sotomayor case, Republicans can get some answers without engaging in similar tactics.

    I do hope that we can get some answers, the current knowledge we have of Sotomayor makes me uneasy.

  • by TheoMurpse ( 729043 ) on Saturday May 30, 2009 @03:24PM (#28151355) Homepage

    Riddle me this:

    1. Do you believe nonverbal communication/expression is speech? If not, then diaries and handwritten letters are not protected, as they are neither verbal nor "the press" for First Amendment protection. We're done with the inquiry. If you believe they are, continue to number 2.

    2. Murder is nonverbal communication of the idea "I want you to die." Under your absolutist approach, illegalizing murder is unconstitutional. We're done.

    A better way to look at it is to look at historical practices that were constitutional as far as the Founding Fathers were concerned and treat those as persistently constitutional (laws against libel, slander, copyright infringement, etc.) unless they step beyond their historical bounds.

    In any case, you make an ill-informed argument about the Constitution. First of all, it's pretty obvious from history that libel/slander laws were intended to remain constitutional. The Founding Fathers endorsed such laws. If the guys who wrote the Constitution believed they were constitutional under the document they themselves created, does that not strike against your absolutist position? Unless, of course, you wish to claim that the Founding Fathers were terrible draftsmen and the Constitution itself is a poorly written document.

    Second of all, after drafting the Constitution, the Founding Fathers were tasked with convincing their individual states to ratify the Constitution. Each interpreted the Constitution a different way. Hamilton, Madison, and Jay argued for one interpretation of the Constitution in New York. For one thing, they argued the Bill of Rights were unnecessary because the Constitution didn't give the federal government the right to infringe, say, the freedom of speech, so the First Amendment was unnecessary.

    The Anti-Federalists, on the other hand, argued strenuously for a Bill of Rights. Some of its more illustrious members were S. Adams, Henry, and Mason. They argued that without a Bill of Rights, the government would be too powerful (i.e., the Constitution sans Bill of Rights did not protect certain liberties the Federalists believed it did). This argument was sold in particular to Massachusetts and even affected the way Massachusetts ratified the Constitution: by attaching to its ratification a recommendation that a Bill of Rights be added.

    So we see that the states ratified the Constitution under different understandings of what the Constitution actually means. How can we have one authoritative interpretation of the Constitution when the very basis for ratification is so wildly different?

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