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.
More from Wired.
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