Obama nominee and cyber-privacy

Jeremy Phillips

Via Nikos Prentoulis comes this link to a piece in Wired that gives us a glimpse into the track record of Obama Supreme Court nominee Sonia Sotomayor. In Specht and others v Netscape Sotomayer was on of the three presiding Circuit Court judges. In this case the plaintffs sued a provider of computer software programs and its corporate parent, alleging that a “plug-in” software program, created in order to facilitate internet use and made available for free downloading, invaded the plaintiffs’ privacy by clandestinely transmitting personal information to the software provider when the plaintiffs employed the plug-in program to browse the internet. As Wired reports,

“In 2002, Sotomayor wrote a decision 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”.

Does this issue sound familiar?

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