Intellectual Property Law

Obama?s Supreme Court Pick Schooled in Cyberlaw

By David Kravets

If elevated to the U.S. Supreme Court, Judge Sonia Sotomayor would become the first justice to join the court with a history of precedent-setting rulings on cyberlaw issues, legal experts say.

On Tuesday, President Barack Obama nominated Sotomayor, a judge in the 2nd U.S. Circuit Court of Appeals, to the replace the retiring Justice David Souter. The former private IP lawyer’s cyberlaw decisions ranged from copyrights in a digitized world to warrantless computer searches, so-called click-wrap agreements and the Patriot Act .

In 2002, Sotomayor wrote a decision (.pdf) nullifying Netscape’s online click-wrap agreement, which demanded binding arbitration of disputes between Netscape and its customers. The “free download” button for Netscape’s browser software was high on the web page, with the user-agreement well below.

“We conclude that in circumstances such as these, where consumers are urged to download free software at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms,” Sotomayor wrote.

Consumers sued Netscape claiming browser “cookies” amounted to illegal eavesdropping. Netscape claimed the click-wrap agreement demanded out-of-court arbitration. As we all know, it turned out that “cookies” are lawful and mostly harmless.

In a December case, Sotomayor joined in a unanimous appellate decision on the 2001 Patriot Act. The ruling limited the application of the automatic gag orders that bind ISPs that receive an FBI “national security letter” — a type of self-issued subpoena demanding information on a customer.

“If confirmed, she will be the first justice who has written cyberlaw-related opinions before joining the court,” the TechLaw blog wrote.

As a New York District Court judge in 2007, the nominee ruled that The New York Times could digitize and sell freelancers’ work, despite the writers’ claims of copyright infringement. The Supreme Court reversed her decision. The court is current set to hear that case again, and Sotomayor would likely have to recuse herself from the rehearing.

In 2001, as an appellate judge, she upheld (.pdf) the warrantless search of a New York Department of Transportation computer. The accountant was suspected of neglecting his duties and the government searched his computer without a warrant, leading to his job loss. The authorities found unauthorized accounting software on Gary Leventhal’s computer, which was believed to be used for his private accounting practice.

“The searches,” Sotomayor wrote, “were reasonable in light of the DOT’s need to investigate the allegations of Levanthal’s misconduct as balanced against the modest intrusion caused by the searches.”

See Also:

• Free-Lancers Have Just Begun to Fight
• Court Narrows National Security Secrecy, Limits Oversight

Full post as published by Threat Level on May 26, 2009 (boomark / email).