Focusing public attention on emerging privacy and civil liberties issues

Sotomayor and Privacy

Sotomayor

Top News

  • Senate Confirms Sotomayor for Supreme Court: The United States Senate voted 68-31 to confirm Judge Sonia Sotomayor to be an Associate Justice of the United States Supreme Court. The full Senate vote was held after the Senate Judiciary Committee approved her nomination, 13-6, at an executive business meeting on July 28, 2009. As a judge on the Second Circuit, Judge Sotomayor has ruled on various cases affecting privacy. EPIC has an extensive page on Judge Sotomayor's view on privacy and other related issues. For more information, see EPIC Sotomayor and Privacy. (Aug. 6, 2009)
  • EPIC LiveTweeting Sotomayor Hearing: EPIC Executive Director Marc Rotenberg, a former counsel to the Senate Judiciary Committee, is tweeting the Sotomayor nomination hearing this week. The tweets cover #privacy #sotomayor and #scotus. Recap and updates available at @privacy140. EPIC has prepared an extensive background page on Judge Sotomayor. See EPIC Nomination of Judge Sotomayor. (Jul. 16, 2009)
  • Sotomayor Hearings Begin: The Senate Judiciary Committee hearings begin this week for Judge Sonia Sotomayor, who has been nominated for the United States Supreme Court. EPIC has prepared an extensive page on the nomination process and the notable cases of Judge Sotomayor on privacy, open government, and the First Amendment. See EPIC Nomination of Judge Sotomayor. (Jul. 13, 2009)

Background

On May 26, 2009, President Obama nominated Judge Sonia Sotomayor to replace Justice David H. Souter on the Supreme Court. Judge Sotomayor graduated summa cum laude from Princeton University where she also was elected to Phi Beta Kappa and won the Pyne Prize, the top prize for undergraduates. She attended Yale Law School where she was an editor of the Yale Law Journal. She joined the New York District Attorney's Office immediately upon graduating. Judge Sotomayor then entered private practice, eventually becoming a partner at Pavia & Harcourt. She specialized in intellectual property litigation, international law, and arbitration. President George H. W. Bush nominated Judge Sotomayor to the U.S. District Court for the Southern District of New York in 1991. In 1997, President Bill Clinton nominated her to the U.S. Court of Appeals for the Second Circuit. If Sotomayor is successfully confirmed by the Senate, she may encounter Constitutional and statutory issues in the area of privacy law during her tenure on the Court. In the contemporary environment, Constitutional and statutory protections of privacy are more vital than ever.

Judge Sotomayor's previous opinions on Fourth Amendment, First Amendment, and open government issues provide some indication of how she might rule when similar issues reach the Supreme Court in the future. This web page highlights important rulings by Judge Sotomayor in these areas.

The Nomination Process

Reports of Special Interest

General Commentary

News

Legal Commentary

Speeches

Commentary on Privacy Related Issues

Biographical Information

Notable Cases

  • Search and Seizure- Daumutef v. Hollins, 297 F.3d 108 (2d Cir. 2002)(regarding the opening and reading of a prisoner's mail).

In Daumutef v. Hollins, Duamutef, an inmate, filed a 42 U.S.C § 1983 action, pro se, which alleged that a defendant, an administrator of his correctional facility, had violated the First Amendment of the U.S. Constitution by instituting a "mail watch," authorizing the opening and reading of all of Daumutef's non-privileged incoming and outgoing correspondence for thirty days. The initiation of this "watch" was partially spurred by Daumutef's history as a leader of boisterous demonstrations and as a disseminator of inflammatory reading materials in his correctional facility, and for allegedly misaddressing mail containing correspondence advocating the overthrow of the government. Finally, his receipt of a book titled Blood in the Streets: Investment Profits in a World Gone Mad provided the last straw. The "provocative tone" of the first four words of the title compelled administrators to open and read Daumutef's mail for thirty days.

Sotomayor, writing for the majority, dispatched the issue of the administrators' liability by raising the doctrine of qualified immunity. The doctrine shields government officials from liability for civil damages when their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." In prison settings, she acknowledged, prisoners have a diminished expectation of privacy. This enables officials to forestall violence by anticipating the probable consequences of certain speech.

The Second Circuit Court had previously ruled in U.S. v. Workman, that, pursuant to safety considerations, administrators were permitted to open and read a prisoner's mail when there was a "rational connection between the decision to impose a watch on [a prisoner's] mail and the desire to ensure the good order of the prison…" In Turner v. Safley, the Supreme Court ruled that any restriction on a prisoner's privacy is permitted insofar as the restriction is reasonably related to legitimate penological objectives. Sotomayor extended these principles to Daumutef, reversing the district court's denial of the defendant's motion for summary judgment. Conceding that the administrator adopted a course of action partially on the basis of mistaking Blood in the Streets, a harmless economics book, for something inflammatory, Sotomayor reasoned that no rational jury could have found for Daumutef because the "mail watch" was inextricably tied to legitimate penological interests. She wrote:

[W]e find that it is generally sufficient for a prison official to base a security decision on the title alone. Considering the limited resources of prison systems and the intense pressure to prevent security problems, we cannot expect more of corrections personnel in most circumstances.

Thus, she concluded that the administrator's failure to peruse the contents of the book had no effect on the legitimacy of his "watch."

  • Search and Seizure- N.G. v. Connecticut, 382 F.3d 225 (2d Cir. 2004)(Sotomayor, J., concurring and dissenting in part)(regarding strip searches of young girls at juvenile facilities).

In N.G. v. Connecticut, two young girls were strip searched on more than one occasion, and as a result of these searches, their families filed a lawsuit under 42 U.S.C. § 1983 for damages and injunctive relief against the State of Connecticut. They alleged that the strip search policies of various juvenile detention centers violated the Fourth Amendment. Although the Second Circuit held that most of the repeated strip searches were constitutionally prohibited, it ultimately found that the Fourth Amendment did not prohibit the initial strip searches due to the "special needs" of children and based upon overarching concerns about institutional safety. The court found that the fourth and eighth strip searches for one of the girls was also constitutionally permissible.

Sotomayor concurred with the majority that the Fourth Amendment prohibited the repetitious strip searching in this case. She dissented in part, however, concluding that the Fourth Amendment prohibited all of the strip searches at issue. Sotomayor rejected the application of the "special needs" doctrine which gave the detention centers broad authority to search children. Although she approved the majority's refusal to apply the penological interest test applied above in Daumutef, Sotomayor regarded the application of the "special needs" test as being overly harsh in this case, particularly because the two girls were already emotionally troubled before the administration of the strip searches and because neither one had ever been charged with a crime. She wrote:

The question instead is whether the government's concerns are sufficiently credible and sufficiently weighty to justify a highly degrading, intrusive strip search absent any individualized suspicion that the particular young adolescents ordered by the state to disrobe possess contraband. To that question, I would respond in the negative.

  • Search and Seizure- Kelsey v. County of Schoharie, No. 07 Civ. 1782 (2d Cir. May 22, 2009)(Sotomayor, J., dissenting)(involving strip searches of adult males in jail on misdemeanor charges).

In Kelsey v. County of Schoharie, the court dealt with separate strip searches of two adult males in jail on misdemeanor charges. The prisoners were required to strip for prison administrators, exposing themselves to them as well as to inmates in nearby cells. The majority found that the searches were not unconstitutional. In fact, they determined that the incidental observation of the arrestees' bodies did not render the searches unreasonable due to an institutional interest in preserving law and order. Moreover, the majority accorded "substantial deference" to prison administrators, who, as in Daumutef, were better equipped and experienced to make case by case determinations about the reasonableness of a search, particularly when inmates held a limited expectation of privacy and freedom of movement in general.

Sotomayor, presented a different view of the case in her dissent. Arguing that the strip search violated the Fourth Amendment, she departed from the deference rationale she had previously articulated in Daumutef. Sotomayor, found the strip searches to be unconstitutional despite the significant penological interests at issue. She argued that those interests could be effectively carried out by less intrusive search methods, particularly when the arrestee is charged with a misdemeanor. This is especially true when the government concedes that penological interests are satisfied by a less invasive search than a strip search. She wrote:

[W]here defendants, themselves, have conceded that penological interests are satisfied in a manner that does not require the forced exposure of private parts, we should not condone an alleged infringement upon constitutionally protected privacy interests merely because we can imagine an alternative procedure that we might consider to be more effective.

  • Search and Seizure- U.S. v. Santa, 180 F.3d 20 (2d Cir. 1999)(concerning errors in a police computer database).

In U.S. v. Santa, police officers arrested Anthony Santa and seized a jacket from him which contained several vials of cocaine. He was charged with several offences that were filed on the same day in a local criminal court. Due to technological error and miscommunication between various police departments and courthouses, two of his charges were refiled and a warrant for his arrest was issued. Santa was later arrested pursuant to the outstanding arrest warrant. His arresting officers discovered that he had been traveling with bags filled with crack cocaine. The warrant, however, had been vacated seventeen months earlier, without their knowledge. The issue was whether the arrest had violated Santa's Fourth Amendment rights because the warrant had been vacated seventeen months earlier, and accordingly whether evidence of the discovered cocaine should have been suppressed at trial.

In 1995, the Supreme Court had answered this question in the negative in Arizona v. Evans. Focusing on the deterrence rationale of the exclusionary rule, Justice William Rehnquist found that incriminating evidence acquired due to an error in a computer database should not be suppressed because the suppression of the evidence would not prevent or deter such errors from occurring in the future. Nevertheless, Justice Sandra Day O'Conner, in a separate concurring opinion, expressed concern that privacy rights may be much more diminished because of an officer's ability to rely on error-prone record keeping systems without being held accountable through the suppression of evidence. Justice John Paul Stevens, in a dissent joined by Justice Ruth Bader Ginsburg, wrote that the suppression of evidence based on computer errors would have some impact on the number of errors made in the future.

Bound by Justice Rehnquist's holding in Arizona v. Evans, Judge Sotomayor ruled against suppressing evidence in Santa. Yet, Sotomayor also wrote:

Of course, the Evans exception, while categorical, is not absolute. As noted above, it would not apply if the arresting officers' reliance on the erroneous computer record was not objectively reasonable because the recordkeeping system itself was unreliable[.]

  • Search and Seizure- U.S. v. Castellano, 820 F.Supp. 80 (S.D.N.Y. 1993)(addressing the validity of a warrant based upon lies or questionable facts).

Nelson Castellano was arrested pursuant to an arrest warrant and charged with conspiracy to distribute cocaine. The arresting officers found he was carrying $10,000 in cash in mostly one and twenty dollar bills. The officers took custody of the cash and his keys. They went into his building, matched his keys to the door of an apartment and entered the apartment to conduct a security sweep after hearing noise coming from within. A detective in the arresting group then prepared an affidavit for a search warrant to search the apartment. A magistrate initially would not issue the warrant, but finally did so after the detective inserted additional facts into the affidavit. Based upon the new facts, the warrant was issued and the search was conducted. Castellano moved to suppress the evidence based on the validity of the warrant because of the questionable truth of the facts inserted into the affidavit.

Judge Sotomayor heard the case while a District Court Judge for the Southern District of New York. First, having decided that, based on discrepancies in the detective's testimony, the additional facts were false or were made with reckless disregard for their truth, Sotomayor considered whether the magistrate had determined if the original affidavit established probable cause. She did not, however, examine whether the original affidavit established probable cause to issue a valid warrant. Rather, she concluded that the magistrate's first refusal indicated there was no probable cause. She reasoned:

To reject the magistrate's original determination in a case such as this would reward and encourage deception by giving the government and police multiple bites at the apple. Where a magistrate determined that there was not probable cause, or questioned the sufficiency of facts proffered during a warrant hearing, the applicant would be encouraged to supplement the affidavit with false information that would guarantee the issuance of a warrant. Then, the search will have occurred and the police and government would still have a de novo review of the affidavit. This result would be contrary to the basic tenets expressed by the constitutional requirements for a search warrant.

  • Search and Seizure-U.S. v. Howard, 489 F.3d 484 (2d Cir. 2007)(regarding automobile searches).

The case of U.S. v. Howard, a fairly recent decision, involved the suppression of evidence from automobile searches in two separate cases. The issues that arose in both cases were whether there was probable cause to execute the searches and whether police needed a search warrant in order to do so. In both instances, the police officers devised a ruse to lure the defendants away from their respective cars. Then, while the defendants were away, the police officers executed a search of both cars. In the course of both searches, police officers discovered drugs and large quantities of cash. The police officers did not have a warrant to search either car and subsequently tried to make it appear that neither car was searched. As a result, both defendants sought to suppress evidence the police found while searching their respective cars.

The district court ruled that although probable cause existed, a warrant was still required, and thus ordered that the evidence, in both cases, be suppressed. Judge Sotomayor, who wrote the Second Circuit opinion, disagreed. Although she agreed with the district court that probable cause was present, she found that the warrant was unnecessary. Sotomayor held that the searches qualified for the automobile search exception. The automobile search exception exempts police searches based on probable cause from the warrant requirement during a car search "if [the vehicle] is readily mobile…" Here, the district court determined that the two cars were not readily mobile because (1) the defendants had been taken away from their vehicles; (2) they were not given notice of the search; and (3) and could not move their cars even if they wanted to. Sotomayor found the district court erred in its analysis. She reasoned that "readily mobile" meant that a vehicle was inherently mobile, regardless of whether its owner had been informed that a search would take place or was even in the vicinity of the vehicle when the search occurred. According to Sotomayor, the mere fact that a vehicle was capable of being moved was enough to dispense with the warrant requirement for a search of that vehicle. Following the Supreme Court's reasoning in California v. Carney, Sotomayor noted that the defendants in Howard had a diminished expectation of privacy in their cars and that, accordingly, their inability to immediately access their cars was no bar to the application of the automobile exception to the warrant requirement in this case. Sotomayor vacated the order of the district court to suppress the evidence of the two warrantless searches.

  • Search and Seizure-U.S. v. Falso, 544 F.3d 110 (2nd Cir. 2008)(concerning child pornography on the internet).

In U.S. v. Falso, David Falso was indicted for several crimes which included the production, receipt, and transportation of child pornography. Much of the evidence that had been used against him was obtained when police officers searched and seized his computer pursuant to a search warrant. The Federal Bureau of Investigation ("FBI") had submitted an application for the warrant to search for and seize evidence of child pornography in Falso's home. The affidavit provided information about the use of computers and the internet to view and collect child pornography, the characteristics of child-pornography collectors, and the investigation that implicated Falso. In providing generalized information about use of the internet to acquire child pornography, the affidavit explained that the majority of individuals who collect child pornography are persons who have sexual attraction to children, and that those who collect images of child pornography store their collections at home. The affidavit also explained that individuals who exploit children, such as collectors of child pornography, use computers to access, view, share, and organize child pornography. Moreover, the affidavit provided evidence that it had appeared that Falso either gained access or attempted to gain access to a pornographic website, cpfreedom.com. Finally, eighteen years earlier he had been convicted of sexually abusing a seven year old girl. Having considered the content of the affidavit, a judge concluded that probable cause existed to issue a search warrant, permitting the FBI to search Falso's home for evidence of child-pornography related crimes. After the search was executed, and Falso was indicted for various crimes, he moved to suppress the evidence seized from his home and computer on the ground that probable cause for the search was lacking. He also motioned for a hearing to determine whether certain information in the affidavit was designed to mislead the court into believing Falso was actually a member or subscriber to cpfreedom.com. A district court denied both motions. Falso pleaded guilty to all 242 counts in the indictment, and appealed from the district court's denial of his motions to suppress.

Judge Sotomayor, writing for the Second Circuit, first considered whether there was probable cause to issue the warrant to search Falso's home. In doing so, she acknowledged that the court had a limited amount of discretion on review, writing that the court's duty was "simply to ensure that the district court had a substantial basis for concluding that probable cause existed." She noted, however, that the court could conclude that a warrant was invalid if the district court improperly analyzed the facts of the case in its probable cause determination. Sotomayor first considered the district court's reliance on two cases: United States v. Martin and United States v. Coreas. "The common thread among these cases [was] the defendants' membership in or subscription to websites whose principal purpose was ...[to] collect and/or shar[e] ... child pornography." Sotomayor observed that Falso, by contrast, was not alleged to have actually accessed or subscribed to any child-pornographic website. In fact, he was only alleged to be one of several hundred possible subscribers of cpfreedom.com, who merely "appeared either to have gained or attempted to gain access to the site."

As a result of the marked differences between the circumstances of Falso and Martin or Coreas, Judge Sotomayor found that neither Martin nor Coreas were controlling in this case. Instead, she determined that the search warrant in Falso did not have probable cause for two reasons: (1) Falso was not a member of a child-pornography website; and (2) the affidavit submitted to the judge for determining probable cause did not explain whether the illegal pornographic images featured on the non-member site were "prominently displayed," downloadable, or required an additional click of the mouse to access them. Sotomayor found "the inconclusive statements about whether Falso even accessed the cpfreedom.com website, coupled with the absence of details about the features and nature of the non-member site [fell] short of establishing probable cause."

Next, Sotomayor considered whether other allegations in the affidavit furnished a basis to support the district's finding of probable cause. She viewed the district court's finding that Falso's conviction for sexually abusing a child was highly relevant to the probable cause determination as fundamentally flawed. She explained: "although offenses relating to child pornography and sexual abuse of minors both involve the exploitation of children, that does not compel, or even suggest, the correlation drawn by the district court." Moreover, she reasoned that even if all or most people "who are attracted to minors collect child pornography the association [between the two] was nowhere stated or supported in the affidavit." Similarly, she found the government's statement that "computers are utilized by individuals who exploit children to locate, view, download, collect and organize images of child pornography found through the internet" unhelpful. She wrote:

There is simply nothing in this statement indicating that it is more (or less) likely that Falso's computer might contain images of child pornography. That is, the affidavit's sweeping representation that computers are used by those who exploit children to ... view and download child pornography, would be equally true if 1% or 100% of those who exploit children used computers to do those things.

Sotomayor concluded that the factors that "ultimately undermine the probity of Falso's prior conviction," are the fact that he was convicted for his past crime eighteen years before the warrant to search his house was issued, and that the crime did not relate to child pornography." First, Sotomayor found Falso's past conviction for a sex crime only "marginally relevant" to a probable cause analysis because so much time had elapsed, and there was no evidence of any wrongdoing following his conviction "to bridge the temporal gap between his two offenses." Second, there was nothing in the affidavit associating the sexual abuse of children with the possession of child pornography. Finally, Sotomayor concluded that nothing alleged in the affidavit would support a finding of probable cause. Thus, she concluded that there was no substantial basis for probable cause in Falso.

Nonetheless, Sotomayor also found that the exclusionary rule would not apply to suppress the evidence obtained during the search of Falso's home and computer. Although the search had been illegally obtained, Sotomayor found that the good faith exception applied to the facts in Falso. The good faith exception, propounded in United States v. Leon, permits the use of illegally obtained evidence seized "in objectively reasonable reliance on a warrant issued by a neutral and detached magistrate judge, even where the warrant is subsequently deemed invalid." Judge Sotomayor rejected Falso's claim that the good faith exception did not apply here, because she determined that there had been no indication that a deliberate falsehood or statement made with reckless disregard for the truth was included in the warrant affidavit." Moreover, she rejected his other contention that the affidavit was "so lacking in indicia of probable cause" so as to render reliance upon it unreasonable. Thus, Sotomayor concluded that although the district court's finding of probable cause was unsupported by a substantial basis, the court properly applied the good-faith exception in denying Falso's suppression motion.

  • Special Needs Searches -Cassidy v. Chertoff, 471 F.3d 67 (2d Cir. 2006)(involving a ferry business that searched its passengers pursuant to a federal statute enacted to prevent acts of terrorism).

In Cassidy v. Chertoff, a recent Second Circuit decision, the Lake Champlain Transportation Company ("LCT"), a ferry business, had engaged in the practice of conducting random screenings of persons, cargo, vehicles, and carry-on luggage pursuant to the Maritime Transportation Security Act of 2002 ("MTSA"). The act requires vessels of a certain class size to plan and implement policies that will deter the "unauthorized introduction of dangerous substances and devices, including any device intended to damage or destroy persons, vessels, facilities, or ports." LCT planned and implemented policies for its vessels that were subject to federal government approval. The policies provided that foot and bicycle passengers would be required to open their carry-on items and present them for visual inspection. In addition, car passengers were required "to open their trunks or tailgates and [to] present them for visual inspection" and to occasionally open their windows to permit a visual inspection of their cars' interior. In general, however, attendants would refrain from searching containers contained within car trunks or tailgates. LCT also placed large plastic signs near its ticket booth and ferry boarding areas stating that:

All vehicles, baggage, and personal items were subject to screening at any time; and that failure to observe [the] requirements could result in immediate removal from the ferry or detention by law enforcement authorities.

In this case, LCT screened two passengers: They asked one passenger to open his bike pack for inspection and the other to open his car several times. Both passengers acquiesced to the respective requests to search because, otherwise, they would not have been allowed on any ferry. As a result of these incidents, the two passengers sued LCT and others for violating their Fourth Amendment Rights.

Sotomayor found that the searches fell within the ambit of Fourth Amendment protection because even though they were carried out by a private party, they were executed at the instigation of the government. She determined that the plaintiffs' had a full expectation of privacy in their carry-on bags. Presuming that they had a full expectation of privacy in the trunk of their car, Sotomayor employed a "special needs" test. She assessed the constitutionality of the challenged conduct by weighing "the government conduct-in light of [a] special need and against the privacy interest advanced through the examination of three factors: (1) the nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government's needs, and the efficacy of its policy in addressing those needs." Having already determined the nature of the plaintiffs' privacy, Sotomayor looked to three factors to determine the character and degree of government intrusion on privacy rights: (1) The duration of the search; (2) the manner in which government agents decide which individuals to search; and finally, (3) the notice given to individuals that they are subject to a search. Sotomayor concluded that the character and degree of the intrusion was minimal. She found that the duration of the search was cursory, and there was no unbridled discretion delegated to LCT employees to execute a search. Moreover, there was ample notice provided to individuals, informing them that although they were subject to searches, they could avoid a search altogether by exiting the premises. Finally, she ruled that preventing terrorism was a special need. Although she conceded that government's special need of preventing terrorism can be problematic when there is no clear limit to the government' s power to conduct suspicionless searches, this was not the case in Chertoff. Here, the government imposed security requirements on the nation's largest ferries only after extensive research about the threat of terrorism on such vessels. Thus, the government's conduct limited the scope of its power, and consequently warranted the validation of its special need in this case. Last, Sotomayor found that the searches were suited for the "special need" of preventing terrorism because they served as a reasonable method of deterring terrorism. Accordingly, she granted the defendant's motion to dismiss. She wrote:

While plaintiffs enjoy undiminished privacy expectations in their carry-on baggage and we presume such undiminished expectation in the trunks of their vehicles, we find that...given that both the intrusions on plaintiffs' privacy interests are minimal and the measures adopted by LCT are reasonably efficacious in serving the government's undisputedly important special need to protect ferry passengers and crew from terrorist acts, we find no constitutional violation. Accordingly, we affirm the district court's judgment granting defendants' motion to dismiss.

  • Special Needs Searches -Leventhal v. Knapek, 266 F.3d 64 (2d Cir. 2001)(involving the search of a state employee's computer).

In this next case, Leventhal v. Knapek, Gary Leventhal, an employee for the Accounting Bureau of the New York State Department of Transportation ("DOT"), filed suit against his employers for violating his Fourth Amendment rights. The DOT discovered that Leventhal had been using his work computer for non-work related purposes. The employers initiated a search, without Leventhal's consent, after receiving a letter alerting them to Leventhal's activities.

Sotomayor decided that Leventhal was entitled to a reasonable expectation of privacy with respect to his workplace computer. First, she indicated that the issue of whether an expectation of privacy was reasonable was to be determined by its circumstances. She noted that DOT had never instituted a practice of routinely conducting searches of employee workstations or computers. Moreover, when supervisors did conduct computer searches, they were performed in a cursory manner (indicating that "one unannounced visit to Leventhal's computer was [made] only to change the name of the server"). Although Sotomayor decided that Leventhal had a reasonable expectation of privacy to his computer, she determined that DOT had not violated Leventhal's Fourth Amendment rights. She first reasoned that the search had not been intrusive because it was limited in scope. Since the search related to Leventhal's "alleged penchant" for being inattentive to his duties, the investigators focused the search on the viewing and printing of file names. Second, she decided the search satisfied the "special need" of ensuring that prohibitions against misuse of computer equipment were enforced. Third, Sotomayor determined that the search was reasonably related to knowing whether Leventhal was misusing his computer. Sotomayor affirmed the district court's grant of summary judgment for the defendants.

  • Special Needs Searches -N.G. v. Connecticut, 382 F.3d 225 (2d Cir. 2004)(Sotomayor, J., concurring and dissenting in part)(regarding strip searches of young girls at juvenile facilities).

In N.G. v. Connecticut, the Second Circuit found that out of a number of strip searches administered to two girls detained in juvenile correction facilities, most of the searches were unconstitutional under the Fourth Amendment. The court explained that the state had a "special need" in taking "reasonable action to protect youths from the hazards resulting from the presence of contraband." Strip searching, the court determined, was well suited to accomplish that goal. Moreover, the court decided that while there was a reasonable basis to strip search youths as they entered a juvenile facility, there was no reason for searching them again after the initial search, unless there was a reasonable basis to believe they had acquired and secreted contraband while inside the juvenile facility. Sotomayor, concurring and dissenting in part, concluded, however, that the majority erred in finding that some of the strip searches were not constitutionally prohibited. She explained that the highly invasive character of strip searches, taken in conjunction with their inherently embarrassing and dehumanizing impact on minors, called for some degree of individualized suspicion before such searches were performed. Sotomayor found that the majority's decision to permit the state to execute strip searches of the two girls was unreasonable. The girls had never been charged with any crime. She wrote:

To hold that the strip searches of the two girls in the instant appeal were reasonable is equivalent to saying that these girls are entitled to the same level of Fourth Amendment protection as prison inmates held on felony charges, and to decidedly less protection than people crossing the border, [or] jail inmates detained on misdemeanor charge.

In essence, she found that the majority's unwillingness to demand individualized suspicion for strip searching juveniles was akin to permitting administrators to treat persons not alleged to have committed a crime as if they were already proven guilty of one. Therefore, she concluded that reasonable suspicion of misconduct was required before the plaintiffs in N.G. v. Connecticut were strip searched. Second, Sotomayor addressed the efficacy of the strip search policy. She contended that the strip searches at issue did not bear a "close and substantial relationship" to the government's "special need" in the case. She examined thirty-four event reports from juvenile facilities during the period of 1995 through 2000 when contraband was found in the possession of detainees. She wrote:

Of the thirty-four reports of contraband violations, thirty-two describe contraband that either (1) was discovered through a search that was less intrusive than a full strip search; (2) could have been discovered through a search that was less intrusive than a full strip search; or (3) could have been discovered through a policy that allowed strip searches only in cases of individualized suspicion. With regard to the remaining two reports, it is unclear whether a strip search was necessary for discovery of the contraband; it is also unclear if individualized suspicion existed. Thus, the detention centers' own documentation of contraband discoveries provides absolutely no evidence that suspicionless strip searches were necessary, or even helpful, in any case.

Moreover, Sotomayor contended that the government's second "special need" rationale was even weaker. The government argued they had a special need to prevent child abuse. Sotomayor noted that there was no evidence on the record to suggest a "close and substantial" relationship between preventing child abuse and conducting strip searches. Sotomayor, however, would permit the strip search of a juvenile when the administrators in the case had gathered information concerning the criminal and medical history of the detainee. Such information would have furnished the requisite reasonable suspicion to conduct a strip search. This, however, was not the case in N.G. v. Connecticut. Accordingly, Sotomayor found that all of the strip searches at issue violated the Fourth Amendment.

  • Expectation of Privacy- U.S. v. Gori, 230 F.3d 44 (2d Cir. 2000)(Sotomayor, J., dissenting)(involving the search of an apartment without a warrant).

In U.S. v. Gori, the Second Circuit reversed a district court decision that held that police officers had made constructive entry into a private residence in violation of the Fourth Amendment. In Gori, police officers arrested an individual, Mora, for possessing cocaine, and used him to locate and identify the individual who supplied him with the drug. In addition to learning the identity of Gori, Mora's source, police officers saw Gori leaving an apartment in a building where Gori and Mora had planned to meet up. The police arrested Gori after listening in on a conversation he had with Mora, and found that Gori was carrying two kilograms of cocaine. After he was arrested, Gori informed the officers that someone in the building had given him the drugs. A short while later, a woman entered the apartment lobby with a delivery of hot food for the apartment that Gori had exited. Two officers accompanied the woman to the apartment with their guns drawn and the delivery woman knocked on the door. When the door was opened wide, one of the officers shouted to the six occupants to "Step out into the hallway!" The officers then reholstered their weapons and brought a handcuffed Gori into the apartment area. Upon learning the identity of the apartment's owner, the officers asked him if he recognized Gori. The owner nodded and led the officers into his apartment where he consented to its search which revealed five kilograms of cocaine and other evidence. The owner was then arrested and sought to suppress evidence.

Although the lower court determined that the owner consented to a search of his apartment, it nonetheless concluded that the officers violated the Fourth Amendment by unlawfully seizing the owner when they directed him to step outside his apartment. They arrived at their conclusion pursuant to the ruling in Payton v. New York, which required that officers obtain a warrant before entering a home to make a felony arrest. Although the court found that the officers did not cross the threshold of the apartment, the officer's "oral directive from outside constituted an 'entry' into the apartment sufficient for implicating the Payton requirement."

The Second Circuit, found that Payton had not been implicated because there was no expectation of privacy to what could be seen from the hall, once the door of the apartment had been opened. The court found that the officers did not need a warrant to "temporarily seize the occupants and conduct a limited investigation" because by voluntarily opening the door, the occupants extinguished their expectation of privacy with respect to the apartment. Consequently, the court determined that because the apartment door was open, the defendants enjoyed the same expectations of privacy in the apartment as one could expect in any public place. In addition, the court found that the investigation was "constitutional so long as it was reasonable in all the circumstances." The court found that the police conduct in Gori was reasonable.

In her dissent, Sotomayor found that the majority erred in its decision to authorize intrusions into the home "without a warrant or warrant exception and based only on reasonable suspicion." First, Sotomayor determined that there was an expectation of privacy in the home, regardless of whether the front door had been opened to the officers. She noted that individuals do not forfeit all privacy rights by simply placing themselves in public view, pointing out that probable cause or a warrant is still required to enter a home, even if what one sees in plain view may furnish the basis for obtaining a warrant to seize evidence or to make an arrest. Moreover, Sotomayor contended that the majority misapplied the findings of U.S. v. Santana because the determinative factor in that case was the fact that the defendant had partially positioned herself outside the front door of her home. Sotomayor argued that the defendants' expectations of privacy in Gori were preserved because they did not step outside the apartment until the police ordered them to do so, unlike the defendant in Santana, whose expectation of privacy, Sotomayor claimed, was diminished because by placing one foot outside her front door she deserved the same Fourth Amendment protections as any individual in a public place. Thus, Sotomayor concluded that the officers either should have had a warrant or an exception to the warrant requirement in order to enter the apartment to make a felony arrest. Second, Sotomayor agreed with the district court that the police, in Gori, made a warrantless constructive entry into the apartment because the defendants were forced out of the apartment. In deciding so, she reasoned that the Payton rule would be meaningless if police could simply force occupants out of their home in order to obviate the warrant requirement. Third, Sotomayor found that there were no circumstances in the case that would allow the police to seize the occupants of the apartment without obtaining warrant. Accordingly, she found that the defendants' Fourth Amendment rights had been violated, and that the evidence seized from the apartment should have been suppressed.

Judge Sotomayor agreed with the majority that the question presented was whether the heightened protection of Payton was triggered by the police officers' search of the apartment. She noted that a fundamental principle of Fourth Amendment protections was the sanctity of the home-that "searches and seizures inside a home without a warrant and probable cause to support it are presumptively unreasonable. She premised her analysis on the reasoning in Katz v. the United States, which held that what an individual "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." This rationale suggested to Judge Sotomayor that the plaintiffs had some expectation of privacy in their home even though they had only opened the door to receive a restaurant delivery order. She also thought that the majority was flawed in its reasoning because it confused "situations in which the police obtain a warrant or gain probable cause to search or seize based on their observation of someone or something in public view and their simple right to do the observing." Judge Sotomayor noted that the police could not use the plain view doctrine to bypass probable cause or warrant requirements to enter a home. And, she explained, the Supreme Court has ruled that police officers "cannot search or seize objects in plain view that are unrelated to the suspected crime that is the subject of the warrant without separate probable cause as to those items."

Judge Sotomayor thought the majority erred in its application of Santana to this case. In Santana, the defendant stood in her threshold in such a way that one step to the front would have placed her in the hallway and one step back would place her back in the apartment. This "firm line at the entrance to the house" is key to the Santana decision. Once the police officers, who had probable cause but no warrant, followed the defendant over her threshold, they were in "hot pursuit." The Judge Sotomayor read the Court as saying that "the exigent circumstances of "hot pursuit" excused the warrant requirement."

According to Judge Sotomayor, there is no reasonable way to describe this case as one of consent. The defendants did not know the officers were outside the door and responding to the knock of a delivery person did not provide consent to a warrantless search. She drew attention to United States v. Berkowitz, which held that "Answering a knock at the door is not an invitation to come in the house. We think society would recognize a person's right to choose to close his door on and exclude people he does not want within his home." Judge Sotomayor did agree with the majority that the police officers had made a constructive warrantless entry into the apartment when they, shields raised and guns drawn, ordered the occupants to exit into the hallway. She thought that this circumvented Payton because the police could force people out of their homes simply by ordering them to do so. This would in turn render Payton's warrant and probable cause requirements meaningless. Because the defendants were inside the boundaries of their house, Judge Sotomayor would have ruled that they had a reasonable expectation of privacy and that their Fourth Amendment rights had been violated.

Judge Sotomayor thought that the fatal flaw in the case was that the police had no probable cause to believe a crime was being committed in the apartment. The majority's reliance on Terry v. Ohio was misplaced and effectively broadened Terry beyond recognition. The Supreme Court held that street encounters between the police and citizens constituted an exception to typical search requirements. These encounters involve "an entire rubric of police conduct-necessarily swift action predicated upon the on-the-spot observations of the officers on the beat-which historically has not been, and as a practical matter could not be, subjected to warrant procedure." Terry also relies on the reasoning that a frisk involves a lesser intrusion than an arrest. Judge Sotomayor concluded that neither of these rationales applied to searches and seizures within the home. "The concerns facing officers on the beat are different than those facing officers observing a home." Officers surveilling a home have the "luxury" of time to establish probable cause of a crime being committed. She notes as well that "no matter how limited the search or seizure within a home, the sanctity of the home is still invaded by the entry into the home itself." Judge Sotomayor agreed with Justice Scalia who wrote in Arizona v. Hicks, that although "[i]t may well be that, in such circumstances, no effective means short of a search exist. But there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all."

  • Open Government- Wood v. FBI, 432 F.3d 78 (2d Cir. 2005)(regarding investigations into FBI misconduct).

In Wood v. FBI, Alexander Wood, a reporter for the Journal Inquirer of Manchester, Connecticut, brought a claim against the Federal Bureau of Investigation ("FBI") and the Department of Justice ("DOJ"), alleging that the departments violated the Freedom of Information Act ("FOIA") by failing to disclose information from a closed investigation. Before the suit was filed, Wood had filed a FOIA request, seeking to have the two departments disclose all documents concerning an investigation of FBI agents for misconduct. In response, the DOJ withheld a memorandum that was prepared by two trial attorneys in that department, pursuant to FOIA Exemptions 5, 6, 7(C), and 7(D). For its part, the FBI discovered and released 447 pages of documents, some of which, however, were redacted pursuant to FOIA Exemption 6 and 7(C) to prevent the release of information identifying certain employees of the FBI and the DOJ who were involved in the investigation. These documents consisted of "interviews undertaken in the course of investigation, reports of factual findings by the investigators, analyses of relevant law, personal information about the subjects of the investigation, and correspondence of various officials within the FBI and DOJ regarding the status of the investigation."

At issue in the case was whether the aforementioned exceptions to the FOIA excused the DOJ and the FBI from having to disclose information about the investigation. The District Court for the Southern District of New York ruled that while FOIA's Exemption 5 permitted the DOJ to withhold the memorandum in question from being released to the public, the act required the FBI to disclose the names and identifying information of FBI agents who were involved the investigation. Both parties appealed from the district court's decision on these issues.

Judge Sotomayor, writing for the Second Circuit, first agreed with the district court that Exemption 5 permitted the DOJ to withhold the memorandum that Wood sought to obtain. Exemption 5, she noted, protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." She also considered its protection of "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions policies are formulated," and the attorney work-product privilege. Judge Sotomayor, recognized, however, that Exemption 5 "is based upon the "realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.' She further noted that not every document that meets the requirements of Exemption 5 may be withheld. An agency must disclose a pre-decisional memorandum "if the agency has chosen 'expressly to adopt or incorporate by reference ... [a] memorandum previously covered by Exemption 5 in what would otherwise be a final opinion.' " Because the DOJ did not make any public references to the memorandum or expressly incorporate its reasoning into the final decision on the investigation, Sotomayor found that Exemption 5 applied to permit the DOJ to withhold the memorandum from public disclosure.

Next, Sotomayor disagreed with the district court that FOIA required the FBI to avoid disclosing the identities of its agents to the public. She determined, rather, that Exemption 6 to FOIA, which exempts "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," allowed the FBI to refuse disclosure. She arrived at her conclusion by applying a two-part test. First, she considered whether the FBI's documents contained personal information that would likely be found in a medical or personnel file. She wrote:

Personnel and medical files generally contain a variety of information about a person, such as "place of birth, date of birth, date of marriage, employment history, and comparable data." Although these details are not considered intimate, the disclosure of this information is subject to the balancing analysis under Exemption 6. Similarly, administrative investigative files will likely contain information about both the subject of the investigation and third parties such as witnesses. Although the files may not contain personal information about a particular witness beyond his or her name and identifying information such as a job title, the disclosure of a witness's identity would be subject to the Exemption 6 balancing test.

Judge Sotomayor found the FBI records to be highly detailed with personal information that was similar in character to personnel or medical files. Thus, she concluded that there was enough evidence to proceed to the second inquiry. Second, she "balance[d] the public's need for the information against [an] individual's privacy interest to determine whether the disclosure of the names would constitute a 'clearly unwarranted invasion of personal privacy.'" She wrote:

Significantly, the employees here are of relatively low rank and the identities of the decision-makers have already been disclosed. Moreover, revealing the identities of the investigators assigned to the case would add little to the public's understanding of how the FBI performed its duties given that the existence of the internal investigation and its outcome has been disclosed.

As a result, she concluded:

[T]he public's interest in knowing the identities of the employees assigned to investigate the agents for purposes of administrative discipline is minimal at best and is insufficient to overcome the employees' interest in preventing the public disclosure of their names.

Before she reached her conclusion, however, Judge Sotomayor dispatched Wood's argument that the release of the records was warranted in Woods because the case concerned an internal government investigation. In such cases, Wood argued that government records should be subject to public scrutiny in order to prevent institutional bias and public cynicism from influencing investigative work. Judge Sotomayor, however, rejected Wood's assertion because there was no case law to support it. Accordingly, Sotomayor found that requiring the FBI to disclose the identities of government agents, in this case, would be a "'clearly unwarranted invasion of privacy.' Thus, names were properly withheld by the FBI pursuant to Exemption 6 to FOIA."

In Tigue v. U.S. Dep't. of Justice, John Tigue, a tax attorney, filed suit against the Department of Justice and the Internal Revenue Service, alleging that the departments violated FOIA when they refused to grant him access to a government produced memorandum. The memorandum in question was produced by Shirah Neiman, a former Deputy U.S. Attorney, to further the goals of the Webster Commission, a task force established to conduct an independent review of the IRS's Criminal Investigations Department ("CID") for effectiveness in accomplishing its mission. After conducting research over a nine month period, the Webster Commission compiled its findings into a report comprised of both a factual inquiry into the practices of the CID, and a set of recommendations about how the CID should be improved. Nieman's memorandum is mentioned twice in the report. It is first cited in a footnote as "representing an opposing view to the position held by the leadership of the Department," and is then "quoted as criticizing the use of administrative investigations and IRS summons because they are slower than grand jury subpoenas." The case began when the DOJ refused Tigue and his law firm access to Nieman's memorandum. At trial in the United States District Court for the Southern District of New York, both parties cross-moved for summary judgment. The district court ruled that the memorandum met the requirements of Exemption 5 of FOIA, and was, therefore, exempt from production. In a separate ruling, the court concluded that there was no factual material in the memorandum that could be produced separately from the exempted material, and thus, also denied the plaintiff's request for partial production of the Neiman memorandum. Tigue appealed from both decisions.

In her opinion, Judge Sotomayor affirmed the holding of the district court. She determined that the DOJ did not have to release the memorandum to the public because the memorandum satisfied Exemption 5 of FOIA, which protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Specifically, the government invoked the deliberative process privilege, a "work-product privilege that covers 'documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formed.'" For the deliberative process privilege to protect a document from disclosure, under Exemption 5 of FOIA, the document must be: (1) an inter-agency or intra-agency document; (2) predecisional; and (3) deliberative. Applying this analytical framework to Tigue, Judge Sotomayor found that although the Webster Commission was not an "agency," the Neiman memorandum nonetheless constituted an inter-agency document because the Commission was "acting as a consultant to the IRS when it solicited the memorandum," and because it was "prepared by the Southern District, an agency, to assist the IRS with determining how best to reform the CID" Sotomayor concluded that the fact the Webster Commission was acting on behalf of the IRS, an agency, by requesting the Neiman memorandum, qualified the memorandum as an inter-agency document. She reasoned:

To conclude that the deliberative process privilege does not apply when an outside consultant to an agency receives information from an other agency effectively would condition the use of consultants on both agencies' willingness to disclose any information the consultant reviews in the process of its work and would unreasonably hamper agencies in their decision-making process. The Neiman Memorandum is properly considered an interagency document because it was prepared by one governmental agency for use by another agency. The interposition of the Webster Commission between the two agencies does not alter the result.

Next, Sotomayor considered whether the memorandum qualified as a predecisional document. "A document is predecisional when it is prepared in order to assist an agency decision-maker in arriving at his decision." Despite the plaintiff's contention that the IRS had not carried out any specific decision in connection with the memorandum, Sotomayor adopted a broad interpretation of "specific decision," requiring the government to merely show that the memorandum "was prepared in order assist the agency in the formulation of some specific decision." Judge Sotomayor wrote:

[T]he fact that the government does not point to a specific decision made by the IRS in reliance on the Neiman Memorandum does not alter the fact that the Memorandum was prepared to assist IRS decision-making on a specific issue.

According to her reasoning, the memorandum also satisfied the deliberative component of the test. Thus, she held that the district court did not err in holding that the Neiman Memorandum falls within the Exemption 5 privilege.

Last, Judge Sotomayor considered whether the DOJ waived the protections of Exemption 5 when it twice mentioned the Neiman memorandum in the Webster report, and whether the exemption's protections did not apply to any portion of the document so as to merit the release of such portions to the public. Sotomayor answered both questions in the negative. First, she found that neither the minor references to the memorandum in the commission report, nor the fact that Neiman likely had knowledge that the Webster Commission would issue a report based upon her memorandum constituted a waiver. Second, upon reviewing the document, Sotomayor agreed with the district court that the "limited factual material in the memorandum was too intertwined with privileged material to require disclosure."

  • Open Government- Dow Jones & Co., Inc. v. U.S. Dep't. of Justice, 880 F.Supp 145 (S.D.N.Y. 1995)(concerning requests for information about Vincent Foster's death).

Dow Jones & Co., Inc. v. U.S. Dep't. of Justice concerned evidence surrounding the death of former White House Deputy Counsel, Vincent Foster. Here, the Wall Street Journal ("WSJ") made FOIA requests to the DOJ, seeking to obtain copies of reports of the respective investigations of the Deputy Attorney General and the Park Police into the circumstances of Foster's death. In addition, the WSJ also requested copies of a note found within Foster's briefcase at the crime scene. When the WSJ did not receive any response to their FOIA request, it filed suit against the DOJ. Fiske, the Independent Counsel investigating the case, informed the DOJ that public disclosure would substantially prejudice his investigation and he claimed the reports were exempt under FOIA Exemption 7(A), which excludes records or information compiled for law enforcement purposes from mandatory disclosure if disclosure could reasonably be expected to interfere with law enforcement proceedings. Although Fiske advised the DOJ that public release of the note would not be detrimental to his investigation, the DOJ sought to prevent it from being disclosed under FOIA Exemption 7(C). The DOJ did, however, make the note available for viewing in its Washington, D.C. office. Both the plaintiffs and the DOJ moved for summary judgment in the case. The plaintiffs sought partial summary judgment on the grounds that partial disclosures made by the DOJ waived Exemption 7(A) to the extent it applied to the reports. In addition, the plaintiffs sought to have the court view the reports to determine which segments should be released under the waiver. The DOJ, on the other hand, sought summary judgment dismissing the plaintiffs' complaint.

In her opinion for the United States District Court for the Southern District of New York, Judge Sotomayor first determined that the DOJ met its burden in demonstrating that the reports fell within Exemption 7(A). She then addressed whether there was any merit to the plaintiffs assertion that the DOJ's disclosure of various portions of the report effectively waived its entitlement to the 7(A) Exemption. She found the DOJ had not waived its protection. Next, Sotomayor considered whether FOIA Exemption 7(C), "an exemption which protects records or information compiled for law enforcement purposes to the extent that production could reasonably constitute an unwarranted invasion of privacy," applied to allow the DOJ to withhold the note found within Foster's briefcase. Thus, Sotomayor was required to weigh the interest of Foster's family in keeping the information private against the public's interest in viewing the note. She wrote:

I disagree with the DOJ's assertion that it has fulfilled its duty to the public by making the [n]ote available for viewing in its Washington, D.C. office. Interested persons should not be required to make a time-consuming and costly trip to the capitol in order to view the Note.

In addition, she addressed the privacy concerns of the Foster family. She wrote:

I do not doubt that making photocopies of the note available on a wider scale may spark a new round of media attention toward the Foster family, and I sympathize with them for the pain they will bear as a result of any renewed scrutiny. I am not convinced, however, that any such renewed interest will be so substantial as to outweigh the important public interest in viewing the note.

Judge Sotomayor justified her reasoning by distinguishing Dow Jones from New York Times v. NASA, a case that the DOJ relied upon in its contention that the note fell within Exemption 7(C). In New York Times v. NASA, the court held that "the audiotape of Challenger astronauts recorded immediately before their death was exempt from disclosure, though NASA had published a transcript of the tape, since exposure to the voice of a beloved family member immediately prior to that family member's death, would cause Challenger families great pain and would not contribute to the public understanding of government operation." Sotomayor distinguished the two cases on the basis that the Foster family's privacy interest in the note was weaker than the Challenger astronauts' families interest in the audiotape. She wrote:

Although Mr. Foster's suicide note may have been intensely personal, the written word is qualitatively different from an audio recording of the last words of the astronauts. As for the public interest in disclosure, the New York Times court found the background noises and voice inflections contained in the tape would not "contribute significantly to public understanding of the operations or activities of government," the purpose underlying FOIA. In the present case, however, the missing pieces of the Note, and therefore the physical look of the Note, are an integral part of the public interest.

Sotomayor, thus, concluded that the DOJ did not meet its burden in demonstrating that Exemption 7(C) applied to the note. Therefore, she denied its motion for summary judgment on this issue and granted the plaintiffs cross-motion for summary judgment to enjoin the DOJ from withholding the Foster's note.

  • First Amendment- Kraham v. Lippman, 478 F.3d 502 (2d Cir. 2007)(concerning restrictions on receiving fiduciary appointments).

In Kraham v. Lippman, Judge Sotomayor affirmed a district court ruling that section 36.2(c)(4)(i) of the Rules of the Chief Judge of the State of New York ("the Rule"), which prohibits certain high-ranking political party officials, their families, and the members, associates, counsel, and employees of their law firms from receiving New York State court fiduciary appointments did not violate Bonnie Kraham's First Amendment right to freedom of political association. The appeal is based on the issue of whether or not the district court should have applied strict scrutiny rather than rational basis review of the First Amendment claim. Judge Sotomayor affirmed the district court's ruling.

The Rule emerged from the fact that "judges historically have had unregulated discretion to make [fiduciary] appointments [and] the process has been susceptible to abuse." Chief Judge Judith S. Kaye established a Commission on Fiduciary Appointments (the "Commission") and an Office of the Special Inspector General for Fiduciary Matters (the "Special Inspector General") to investigate data about the appointment process and to make recommendations. The Commission found that there were significant problems in the process when appointments were based on political party connections. The Commission recommended that political party leaders, legal associates, their immediate relatives, and the partners, legal associates, and other employees of their law firms be prohibited from receiving judicial appointments while the leaders served and for two years after resigning their positions. Judge Kaye adopted the following rule which was to become effective on June 30, 2003 but also included a "grandfather clause" allowing incumbent party chairs a reprieve if they resigned by January 1, 2003. N.Y. Comp. Codes R. & Regs. tit. 22 § 36.2(c)(4)(I)(2006) reads:

No person who is the chair or executive director, or their equivalent, of a State or county political party, or the spouse, sibling, parent or child of that official, shall be appointed while that official serves in that position and for a period of two years after that official no longer holds that position. This prohibition shall apply to the members, associates, counsel and employees of any law firms or entities while the official is associated with that firm or entity.

Bonnie Kraham claimed that the rule prevented her gaining any legal employment. She was co-chair of the Orange County Democratic Committee when the rule became effective. She argued that the rule limited her employment opportunities because of her party leadership. Judge Sotomayor explains:

When evaluating a First Amendment challenge to a limitation on associational freedom, courts apply either strict scrutiny, in which case the restriction survives only if it is narrowly drawn to advance a compelling state interest ... or rational basis review, in which case the restriction need only be rationally related to a legitimate government interest. When a challenged regulation imposes "severe burdens" on the right to associate into political parties, it must survive strict scrutiny. Statutes analyzed under strict scrutiny typically involve restrictions on "the internal workings of political parties," as well as "restrictions on voters' access to the polls, [and] candidates' access to the ballot." If, however, to ensure fairness in government or in the party system, the regulation affects political party participation only in a limited and incidental fashion, the restriction should be reviewed only for a rational basis ... [W]hen regulations impose lesser burdens, a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.

Judge Sotomayor focused her analysis on the fact that the rule imposed only an "incidental limitation" on employment prospects in its goal to advance the state's interest in ensuring that there was neither corruption nor favoritism in the fiduciary appointment process. Therefore, rational basis review was the appropriate standard for the case. She wrote:

[T]he Rule does force individuals like Kraham to choose between serving as a high-ranking political party leader and receiving (or associating with those who receive) court appointments. Choosing the former may have an economic consequence. This incidental effect on individual decision-making, however, furthers the rational and legitimate goal of eliminating corrupt court appointments. It does not render the Rule a direct infringement on associational rights. Though at a certain point a disincentive to party office-holding might become so severe that it effectively bars that activity altogether, the Rule's effect ... falls far short of doing so.

The Rule is designed to reduce judicial discretion in the appointment process. She distinguishes the court's rulings on strict scrutiny as warranted in cases where regulations controlled "how the parties operated and how the parties' candidates' were chosen by the people." "Given that the Rule serves such a critical purpose, and was developed carefully to respond to a comprehensively documented problem, we reject Kraham's argument that the Rule imposes a greater burden than the state's interests justify."

  • First Amendment- Pappas v. Guiliani, 290 F.3d 143 (2d Cir. 2002)(Sotomayor, J., dissenting)(involving state employee speech and anonymity).

In Pappas v. Guiliani, Judge Sotomayor dissented from the majority decision which held that a police officer could be dismissed for anonymously sending racist and anti-Semitic material through the mails. Whereas the majority, written by Judge Leval, argued that the government interest in maintaining its effectiveness in policing its community outweighed the First Amendment rights of its employee, Judge Sotomayor's dissent focused on the anonymous nature of Pappas's speech and the fact that the speech took place when he was off duty.

Thomas Pappas was a New York City Police officer who worked maintaining computer systems in the Police Department's Management Information Systems Division ("MISD"). He brought a 42 U.S.C. § 1983 action against the mayor and the police commissioner, alleging that they terminated his employment in violation of his First Amendment rights. Pappas had received mail soliciting charitable contributions. The mail included reply envelopes which Pappas used to return to the organizations printed fliers with racist and anti-Semitic messages. He sent the material anonymously. On receipt of the fliers, the charity, the Mineola Auxiliary Police Department ("MAPD") contacted the local police-the Nassau County Police Department-which then undertook an investigation. They were able to connect Pappas to the mailings. When they discovered he was a police officer, they contacted the New York City Police Department's Internal Affairs Bureau ("IAB") which then conducted another investigation. Pappas was charged with violation of a Departmental regulation. After a disciplinary trial and on recommendation by Josefina Martinez, the Assistant Deputy Commissioner of Trials, Pappas was fired by the Police Commissioner, Howard Safir.

Judge Leval applied the government employee speech balancing test of Pickering v. Board of Education:

Where a government employee suing for violation of the First Amendment establishes that he was terminated by reason of his speech "upon a matter of public concern," the Supreme Court has instructed that the court's task is to arrive at a balance between the interests of the citizen in commenting on matters of public concern and the interest of the State, as an employer, in the efficiency of the public services it performs through its employees.

Since, Judge Leval noted, Pappas was fired undisputedly because of his speech, the question is whether that speech focused on a matter of public concern. "The First Amendment concerns itself less with speech relating to an individual's private concerns than with speech relating to matters of public concern; accordingly a public employer has greater latitude to discipline an employee over speech expressing private concerns." The Supreme Court has found that "When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy a wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement as revealed by the whole record."

Judge Sotomayor began her dissent by noting that the majority decision had "entered uncharted territory in our First Amendment jurisprudence." Concluding from the Pickering factors, she notes:

The Court holds that the government does not violate the First Amendment when it fires a police department employee for racially inflammatory speech-where the speech consists of mailings in which the employee does not identify himself, let alone connect himself to the police department; where the speech occurred away from the office and on the employee's own time; where the employee's position involved no policymaking authority or public contact; where there is virtually no evidence of workplace disruption resulting from the speech; and where it ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community.

Judge Sotomayor relied upon Givhan v. Western Line Consolidated School District which rejected the notion "that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly."

Although the majority recognized that the citizen's right to speak his mind is "carefully and thoroughly protected" under the Constitution, the right is not absolute. In instances where the rights of the individual conflict with the rights of the government, there are times when the court must give the rights of the government precedence. "The effective functioning of entities of government could be seriously undermined by its employees' unrestrained declarations of their views. For this reason, the employee's right of free speech is sometimes subordinated to the interest of the effective functioning of the governmental employer." The Police Department had argued that Pappas' speech would hinder its effective functioning because it would lead communities to think that the police force was biased in its enforcement of the law. The majority agreed with the defendants.

However, Judge Sotomayor argued that applying the Pickering factors would suggest that as Pappas's position working in the maintenance of computer systems did not put him into contact with the public, his speech would have little impact on the public's conception of whether or not the police were biased. Judge Sotomayor finds that the Pickering balancing test requires consideration not only of "the agency's mission in relation to the nature of the speech, but also the employee's responsibilities in relation to that mission" A highly placed public official's racist speech would be more detrimental to the agency's mission than that of a lower ranked employee without a supervisory, confidential, or policymaking role. She emphasizes the Supreme Court's decision in Rankin v. McPherson, which held that "where an employee serves no confidential, policymaking, or public contact role, the danger to the agency's successful functioning from that employee's private speech is minimal."

Additionally, Judge Sotomayor reasoned that though his speech was distasteful and abhorrent, Pappas was speaking to issues of public concern. Matters of public concern must satisfy two criteria. An employee's speech must relate to a matter of political, social, or other concern to the community. And the employee must speak "as a citizen upon matters of public concern, rather than as "an employee upon matters only of personal interest." The panel of judges did agree that race relations were the matter of public concern in this case. Judge McMahon wrote in concurrence that "Context as well as content matters."

"Manner, time, and place" are important factors in the fact specific analysis of the Pickering balancing test. Citing the court's own precedence, Judge Sotomayor wrote that in conducting the Pickering test, "a court must consider whether the statement sought to be protected 'impairs discipline or harmony among co-workers, has a detrimental impact on close working relationships or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise.'" This is important in Pappas because the speech was anonymous and did not purport to speak for the government. She writes, "The fact that speech takes place in private and away from the workplace favors the employee on both sides of the balancing test: First, it reduces the likelihood of disruption. Second it enhances the free speech interests at stake because the employee is speaking in his capacity 'as the member of the general public' he seeks to be."

She agreed with the majority that negative publicity affecting "the community's faith in government can be a significant factor" in the Pickering analysis. However, Judge Sotomayor explains that Pappas's identity would not have been revealed but for the police department's investigation and publicity surrounding the issue. The disclosure of his identity in this fashion should not detract from Pappas's right to speak anonymously. Typically, the government reacts to employee speech rather than seeks it out and publicizes it as was done in Pappas. "Ultimately, the governmental interest that the majority seeks to protect in this case is publicity. The majority's core concern seems to be that, even though Pappas was a low-level employee with no public contact who was speaking privately and anonymously, the possibility remained that the news would get 'out into the world' that the NYPD was employing a racist. I agree this is a significant issue, and I do not take it lightly."

Judge Sotomayor reasoned further that "the danger of the majority's decision is that it allows a government employer to launch an investigation, ferret out an "employee's views anonymously expressed away from the workplace and unrelated to the employee's job, bring the speech to the attention of the media and the community, hold a public disciplinary hearing, and then terminate the employee because, at that point, the government 'reasonably believed that the speech would potentially ... disrupt the government's activities.' This is a perversion of our "reasonable belief" standard, and does not give due respect to the First Amendment interests at stake."

In N.Y. Civil Liberties Union v. Grandeau, Judge Sotomayor granted summary judgment to the defendant, the director of a state lobbying commission against the plaintiff-appellant, the New York Civil Liberties Union ("NYCLU") which claimed that the commissions' demand for additional information for reporting expenses regarding a certain billboard violated its First Amendment rights. The billboard promoted awareness of free speech issues in private shopping malls in New York State. Judge Sotomayor affirmed the district court's grant of summary judgment. She applied the prudential ripeness doctrine rather than the mootness doctrine as the district court had. She held that the NYCLU's First Amendment claim was not ripe for adjudication. She reasoned that while the NYCLU had standing, the issue itself ("whether the alleged policy at this stage is sufficiently definite and clear to permit sound review by this Court of the NYCLU's First Amendment challenge") was not fit for judicial review at this time. "[W]hen a court declares that a case is not prudentially ripe, it means that the case will be better decided later and that the parties will not have constitutional rights undermined by the delay. Prudential ripeness is, then, a tool that courts may use to enhance the accuracy of their decisions and to avoid becoming embroiled in adjudications that may later turn out to be unnecessary or may require premature examination of, especially, constitutional issues that time may make easier or less controversial."

New York's Lobbying Act ("the Act"), N.Y. Legis. Law §1-a, imposes certain restrictions and reporting requirements for individuals and entities engaging in lobbying activities. The Act requires lobbyists to register with the New York Temporary State Commission on Lobbying and to file regular reports detailing its expenses and activities related to lobbying. "These reports must also list 'any expenses expended, received or incurred by the lobbyist for the purpose of lobbying,' and except for expenses under seventy-five dollars, detail those expenses as to amount, to whom paid, and for what purpose." The NYCLU defended an individual who wore a t-shirt saying "Give Peace a Chance" in reference to the impending Iraq war in the Crossgates Mall. A security officer told him to take it off. While the case was being litigated, the NYCLU collaborated with a third party to place a billboard near the mall promoting free speech rights. Independently and subsequent to the agreement between the NYCLU and the third party to collaborate, a New York State Assembly Member prepared a bill proposing to entitle New Yorkers the exercise of certain free-speech rights in shopping malls in the state. In its annual report to the Commission, the NYCLU reported its work with the Assembly member but did not include information about the billboard or any non-lobbying work related to free speech in shopping malls. The Commission requested additional information about the expenses related to the billboard which it considered lobbying activity. Two days after the NYCLU filed a complaint that the Commission was investigating non-lobbying activities, the Commission sent the NYCLU a letter stating that it did not need to respond to the request for additional information about the billboard as the Commission learned that the NYCLU did not pay for the billboard and the billboard would not be considered part of its lobbying activities. The NYCLU decided to continue pursuing the issue, arguing that the Commission nonetheless considered the billboard to be a lobbying activity when it decided the matter. The parties did not agree as to whether the billboard should be considered lobbying activity and this disagreement forms one of the bases for the NYCLU complaint which argued that the Commission had a policy of targeting non-lobbying advocacy activities for reporting and investigation.

Judge Sotomayor applied a two-step analysis in which the court must "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Fitness is determined by whether or not the disputed issues are contingent on future events or may never occur. Judge Sotomayor also noted that in First Amendment cases, the "hardship standard is relaxed somewhat 'to avoid the chilling of protected speech,' but 'some credible fear of enforcement must exist.' She found that the NYCLU had not exhausted its administrative options-it could still seek an advisory opinion from the Commission which was empowered to issue advisory opinions. Judge Sotomayor found that "the NYCLU has not demonstrated that it will suffer hardship by our withholding judicial review. Although the NYCLU must grapple with some ambiguity in preparing its regular reports, it has not shown that this lack of clarity is the cause of 'present detriment,' rather than a 'mere possibility of future injury' if the Commission initiates another inquiry or enforcement action." Finally because the NYCLU did not allege that its lobbying efforts would be hindered by the lack of a judicial review, their First Amendment activities would not be chilled.

Judge Sotomayor explained that the NYCLU could not rely on deposition statements made by the Lobbying Commission as evidence for its claim that the Commission had a policy of targeting non-lobbying advocacy efforts for reporting and investigation.

First, an opposing party's failure to controvert a fact in a Rule 56.1 statement "does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record." In this case, the summary judgment record itself must support the existence of the Commission policy the NYCLU alleges. Grandeau's deposition responses to hypothetical questions about whether certain expenses would be reportable, which form the basis of the NYCLU's assertion in its Rule 56.1 statement, adopt a view of the Commission's reach that is troublingly broad, but those deposition statements do not amount to an established Commission policy.

Judge Sotomayor then distinguished the First Amendment claims in NYCLU's case from those of another case involving the co-founders of Hip-Hop Summit Action Network. The Hip-Hop Summit Action Network v. N.Y. Temp. State Comm'n on Lobbying case concerned the issue of who must register as a lobbyist. In contrast, "the NYCLU's challenge concerns the extent to which non-lobbying activities may constitute a reportable expense for registered lobbyists when those activities are in support of a lobbying effort. While these two issues overlap to some extent, the NYCLU cannot establish the existence of a policy regarding when a lobbyist's non-lobbying activities are reportable based on the Commission's investigation into whether certain parties were lobbyists."

In Rivera-Powell v. N.Y. City Bd. of Elections, the question presented was whether a prospective judicial candidate was improperly removed from the ballot by the city board of elections. To be placed on a primary ballot, New York law requires a designating petition meeting certain formal requirements such as "petition volumes" (bound groupings of sheets bearing the signatures of registered voters), each with an identification number, and a "cover sheet," which contains a variety of information including the identification numbers of the petition volumes the candidate is claiming. There must be no fewer than 1,500 signatures. During the filing process, there arose a dispute as to whether Rivera-Powell had filed by the deadline and whether the file was complete with the appropriate number of signatures. Judge Sotomayor held that the appellant, a candidate to be a judge of the Civil Court of New York and the voters supporting her candidacy, did not exhaust the administrative remedies (a pre-deprivation hearing and an adequate judicial procedure by which to challenge any alleged illegalities in the New York City Board of Election's action), Rivera-Powell and her co-plaintiffs failed to state violations of their procedural due process and First Amendment rights.

Judge Sotomayor first explained that Rivera-Powell's due process claim failed. She noted that the "Due Process Clause does not protect against all deprivations of constitutionally protected interests in life, liberty, or property, only against deprivations without due process of law." In fact, the key to determining "whether a constitutional violation has occurred is to ask what process the State provided, and whether it was constitutionally adequate." Here the Board of Elections provided a pre-deprivation hearing which Rivera-Powell did not take advantage of in resolving her claim. Judge Sotomayor considered whether Rivera-Powell's removal from the ballot resulted from random and unauthorized conduct or established state procedures. She concluded that for the instant case, classifying the Board's action was immaterial and as such was not decided. The court held that the process provided to Rivera-Powell was adequate. The co-plaintiffs' claims failed as well because they alleged no deprivation independent of Rivera-Powell's.

Judge Sotomayor then considered Rivera-Powell and the voter-plaintiffs' First Amendment claim alleging that the Board's actions infringed their rights to organize, access the ballot, and vote for the candidate of their choice. "Unlike her due process claim, Rivera-Powell's First Amendment claim is not automatically defeated by a finding that the state provided adequate process." Judge Sotomayor explained that

The general rule is that § 1983 claims, including First Amendment claims, do not require exhaustion of state remedies. When § 1983 claims allege procedural due process violations, we nonetheless evaluate whether state remedies exist because that inquiry goes to whether a constitutional violation has occurred at all. "'Exhaustion simpliciter is analytically distinct from the requirement that the harm alleged has occurred. Under the jurisprudence, a procedural due process violation cannot have occurred when the governmental actor provides apparently adequate procedural remedies and the plaintiff has not availed himself of those remedies.'"

Judge Sotomayor reasoned further that the claim failed because

her First Amendment claim is inextricably intertwined with the question of whether the state afforded her procedurally adequate process. As we discussed above, New York provided Rivera-Powell appropriate opportunities to challenge the Board's allegedly improper conduct in the form of an initial hearing and full judicial review. When, as here, a plaintiff challenges a Board of Election decision not as stemming from a constitutionally or statutorily invalid law or regulation, but rather as contravening a law or regulation whose validity the plaintiff does not contest, there is no independent burden on First Amendment rights when the state provides adequate procedures by which to remedy the alleged illegality.

A significant concern for Judge Sotomayor was that "a contrary holding would permit any plaintiff to obtain federal court review of even the most mundane election dispute merely by adding a First Amendment claim to his or her due process claim. We would thereby undermine our holding-one which we share with many other circuits-that federal court intervention in 'garden variety' election disputes is inappropriate."

Rivera-Powell also raised an equal protection challenge, arguing that the Board's conduct denied her access to the ballot because of her race. To prevail on an equal protection claim, Rivera-Powell needed to show that the Board "intentionally discriminated against her, either by adopting out of racial animus policies which are facially neutral but have a racially discriminatory effect or by applying a facially neutral policy in a racially discriminatory manner." Judge Sotomayor found that the Board had instituted its policies well before Rivera-Powell's candidacy and Rivera-Powell did not provide any evidence that the policies had been applied in a racially discriminatory manner. Judge Sotomayor dismissed the claim.

  • First Amendment - United States v. Quattrone, 402 F.3d 304 (2d Cir. 2005)(concerning a judge's ban on media publication of jurors' names).

United States v. Quattrone held that a judge's ban on media publication of jurors' names during trial was unauthorized prior restraint. Frank Quattrone, a former executive of Credit Suisse First Boston ("CSFB") who was accused, and later convicted, of obstructing the federal government's investigation of CSFB's initial public offerings of certain technology companies. U.S. v. Quattrone was an appeal from the retrial of his first case which ended in a hung jury. In a separate but similarly high profile case, a judge ordered a mistrial because it was reported in the media that a juror had signaled support to the defendant in open court. The juror's identifying information was published. The juror was subsequently harassed at home. Less than a week after this reported mistrial, the judge in Quattrone's case rejected a motion to empanel an anonymous jury (a jury whose members' names would not be revealed to the parties, to counsel or to the public) but did grant an order barring the press from publicly revealing any juror's name. During court, the judge gave the full names of the jurors for the record and then issued the gag order.

Judge Sotomayor began her analysis by noting that "[a] judicial order forbidding the publication of information disclosed in a public judicial proceeding collides with two basic First Amendment protections: the right against prior restraints on speech and the right to report freely on events that transpire in an open courtroom." Nothing in the record justified the judge's ruling according to the majority. Judge Sotomayor held "that the court's order violated the Free Speech and Free Press Clauses of the First Amendment." Judge Sotomayor also ruled that the case remained justiciable because the "underlying dispute is capable of repetition, yet evading review," an exception to the mootness doctrine permitting a federal court to hear a case where "(1) the challenged action was in duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again."

She then examined the doctrine of prior restraint which is a law, regulation, or judicial order that suppresses speech or allows it to be suppressed based on its content and through government discretion before the speech is expressed. Judge Sotomayor noted that prior restraints are considered among the most significant infringements of First Amendment rights. Further, there is a "heavy presumption against [the] constitutional validity" of any prior restraint. She found this to be particularly true in the case of criminal reporting where the press has "been regarded as the handmaiden of efficient judicial administration." Judge Sotomayor then explained that "[t]hough we define prior restraints as content-based restrictions for purposes of this decision, we recognize that the caselaw has not clearly articulated whether prior restraints are always, by definition, content-based." "The district court's order barring publication of jurors' names not only subjected appellants to a prior restraint on speech, but also infringed their freedom to publish information disclosed in open court. This imposed an independent constitutional harm on appellants and rendered the district court's violation of the First Amendment even more plain." "While we appreciate the district court's efforts to avoid an unfair or disorderly trial, the freedoms of speech and press invariably must inform a court's choice of remedy."

Courts must employ an "exacting review" of prior restraints on speech. Sotomayor applied the following test:

In cases where, as here a trial court seeks to restrict news coverage in order to ensure a fair trial, the court must consider: (1) whether the nature and extent of news coverage in question would impair the defendant's right to a fair trial; (2) whether measures other than a prior restraint on publication exist to mitigate the effects of unrestricted publicity; and (3) the likely efficacy of a prior restraint to prevent the threatened danger.

Application of this Nebraska Press test shows that the judge impermissibly restrained speech and "imposed on appellants and rendered the district court's violation of the First Amendment even more plain."

  • Internet- Specht v. Netscape, 306 F.3d 17 (2d Cir. 2002)(regarding contract formation in cyberspace).

In Specht v. Netscape Communications Corp., the Court of Appeals for the Second Circuit affirmed the district court's denial of defendant's motion to compel arbitration and to stay court proceedings. The primary issue under consideration was whether or not individual internet users invited to download free software could be bound by the software's license terms even though they would not have learned of the existence of the terms unless, prior to executing the download, they had scrolled down the webpage to a screen located below the download button. A second issue concerned whether, by downloading the free software and being unaware of the license terms, the plaintiffs were nevertheless bound by that arbitration clause. The court held that "[r]easonably conspicuous notice of the existence of contract terms unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility."

Judge Sotomayor reasoned that "a consumer's clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms." Having concluded that no contract had been formed, Judge Sotomayor moved on to the question of whether the scope of Netscape's license terms (particularly the arbitration clause) included SmartDownload even though SmartDownload had a separate license agreement. If Netscape Communicator's license agreement extended to SmartDownload then the plaintiffs would be bound by the arbitration clause. The plaintiffs who downloaded Netscape's free software intentionally upgraded their Netscape Navigator Internet browser program to Communicator, a software suite during the same period in question. The defendants argued that the arbitration clause in the Communicator license included in its scope the SmartDownload software even though the license did not expressly mention SmartDownload. Judge Sotomayor found that because the Netscape Communicator license did not expressly include reference to plug-in programs like SmartDownload, the merger clause foreclosed the extension of the arbitration requirement to SmartDownload disputes.

Judge Sotomayor pointed out that the plaintiffs both consistently distinguished between the Communicator and SmartDownload agreements and emphasized that the SmartDownload program violated their privacy by "eavesdropping" on the plaintiffs "by clandestinely transmitting personal information to the software provider when plaintiffs employed the plug-in program to browse the Internet." When downloaded, Netscape Communicator installs cookies on the user's computer. Users who then separately used the SmartDownload found that SmartDownload put a "key" or "UserID" on their computers. "Each time a Web user downloads any file from any site on the Internet using SmartDownload, SmartDownload automatically transmits to defendants the name and Internet address of the file and the Web site from which it is being sent. Within the same transmission, SmartDownload also includes the contents of the Netscape cookie previously created by Communicator and the "Key" previously created by SmartDownload." Judge Sotomayor held that this claim did not involve either questions of contract construction or the rights and obligations of the parties under the contract. She did not examine the question of whether there was an invasion of privacy. Her main focus was determining whether a contract had been formed and if so, whether the arbitration clause was binding.

Judge Sotomayor noted that the issues under consideration did not include any related to intellectual property law. The Communicator license required arbitration of all claims except those pertaining to intellectual property. She acknowledged that Netscape used its intellectual property "to plant cookies and, as plaintiffs allege, harvest users' personal information." She continues:

But do plaintiffs have IP rights in their personal information? Certain cases have recognized, mostly under a trespass-to-chattels theory, that computer and database owners enjoy possessory interests in their computer equipment, bandwidth, and server capacity, but these interests are analyzed in terms of traditional personal property, not IP. Moreover, plaintiffs' personal information, stored in cookies, is the sort of factual data that are expressly excluded from federal copyright protection. Thus, copyrights are not implicated here. Nor are trade secrets, good will, or other valuable intangibles. In consequence, plaintiffs' claims would not appear to be shielded from arbitration on the ground that this is a "dispute relating to intellectual property rights." This is not an issue that we decide today, however.

  • Wiretapping/Vagueness-U.S. v. Spy Factory, Inc., 951 F.Supp. 450 (S.D.N.Y. 1997) (regarding a business that sold illegal spy equipment).

U.S. v. Spy Factory concerns a company indicted for conspiracy to smuggle and sell illegal bugging and wiretapping devices and money laundering. Judge Sotomayor denied defendants', the Spy Factory, motions for a change of venue and dismissal of charges within the indictment because of an unconstitutionally vague statute. The Spy Factor sold "personal protection devices and personal security items to the general public and law enforcement agencies." The U.S. Customs Service became interested in the Spy Factory during an investigation of illegal bugging and wiretapping devices imported into the United States and sold in various "spy stores." Headquartered in Texas, the Spy Factory operated 16 stores throughout the U.S. The Government focused its investigation on the New York store. "[T]he Government used undercover agents and confidential informants to gather evidence to prosecute the Spy Factory and the individually-named defendants for violations of customs laws, Section 2512 of Title III, and the Communications Act of 1934."

In her rationale for denying the defendants' motion for a change of venue to Texas, which would alleviate the financial burdens on them during the course of the trial, Judge Sotomayor explained that there are factors used to determine the merits of such a motion. In Platt v. Minnesota Mining & Mfg. Co., the Supreme Court announced ten factors judges (in addition to Federal Rules of Criminal Procedure 21(b) and 22 regarding transfer of proceedings) rely upon for their determinations: 1) location of defendants; 2) location of the witnesses; 3) location of the events in issue; 4) location of documents and records; 5) disruption of the defendants' business(es); 6) expense to the parties; 7) location of counsel; 8) relative accessibility of the place of trial; 9) docket condition of each district; (10) other special elements.

A Court should weigh the ten Platt factors against one another and against the backdrop of doing what is in the overarching interest of justice. A Court should not give any one factor preeminent weight nor should it assume the quantity of factors favoring one party outweighs the quality of factors in opposition. Rather, a Court should look to all of the factors and determine whether the interests of justice would be better served by changing the trial venue.

Allowing change of venue is a heavily fact specific determination. Judge Sotomayor ruled that though there were merits on both sides of the motion, the case would remain in the Southern District of New York. There is a "general presumption that a criminal prosecution should be retained in the original district. Hence, because the burden is on the moving defendant to justify a transfer under Rule 21(b) and defendants here have not persuasively proven why the interests of justice require a transfer," no transfer ordered. The Government's decision to provide the defendants with travel money and subsistence expenses for the defendant and their witness during the proceedings was an acceptable solution to the defendants concerns.

Judge Sotomayor then turned to the defendants' motion to dismiss for vagueness. "Under due process, a statute may be challenged for vagueness on its face or vagueness as applied to the defendants' specific conduct." The court must first decide whether "the enactment reaches a substantial amount of constitutionally protected conduct;" if it does not, the challenge must fail. "The court must then apply the statute to the particular conduct charged to determine whether it is impermissibly vague." "A statute that does not involve constitutionally protected conduct can only be struck down for facial vagueness if it is vague in all of its applications." The defendant bears the burden of proving the statute meets this requirement.

The defendants argued that the statute infringed First Amendment rights because "2512 in many respects goes to speech. It talks about people talking. It talks about expression of speech, interceptions of speech." Judge Sotomayor denied this claim, finding it "unpersuasive. Although there may be a constitutional right to hear there has never been articulated nor implied any constitutional right to hear the private speech of others or to be provided with a specific means to record one's own speech." Judge Sotomayor draws attention to Red Lion Broadcasting Co. v. FCC and Kleindienst v. Mandel to illuminate the point.

Judge Sotomayor then examined the question of whether the statute was impermissibly vague when applied to the facts of the case. The as-applied vagueness challenge undergoes a two-part test: does the statute provide fair notice to persons of ordinary intelligence that "the conduct in which they are engaged has the potential for civil or criminal liability" and is there sufficient guidance for "prosecutors and police officers to enforce the law in a non-arbitrary and non-discriminatory fashion?" Judge Sotomayor notes that assessing the vagueness of a statute is specific to the facts of a defendant in a particular case and "not according to the facial vagueness of the terms of the statute itself." Nevertheless, the analysis "must first look to the plain meaning of the terms of the statute in order to discern whether those terms impart sufficient clarity to a person of ordinary intelligence."

In her analysis, Judge Sotomayor found that "[i]t is troubling that Section 2512 does not provide a list of prohibited devices, nor does it provide 'objective criteria' from which citizens and law enforcement officers could discern what devices are prohibited." However, because the defendants were made aware of a Senate Report regarding the statute, they had notice of the types of devices which were prohibited by the statute. Judge Sotomayor recognized that although the Senate Report was not endorsed by the full Congress and most citizens would not likely be aware of the report, because evidence was found in the possession of the defendants indicating knowledge of the report, they had fair notice and constructive knowledge.

Judge Sotomayor then considers the defendants' concern that the plain meaning of "surreptitious" in the statute is unconstitutionally vague. § 2512 prohibits any person who intentionally "manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications." She examined an Eleventh Circuit decision, United States v. Herring, and concluded that surreptitious "has a clear meaning to the average person. It is not a term of degree; it does not even require one to distinguish between different levels of secrecy. In fact, it is not even possible to be partially 'surreptitious.' Reduced to a single synonym, surreptitious merely means secret or clandestine." Judge Sotomayor then turned her attention to the meaning of authorized in the definition. She explains:

Clearly, it would be illogical if the authority concept in surreptitious referred to authority under the law. First, it does not make sense for a word in common parlance to require familiarity with the law to invoke. Second, such a construction of authority does not comport with the common understanding of the term. Then, if the authority in surreptitious does not refer to authority under the law, to what authority does it refer? The answer must be that it refers to the authority of all persons involved in the communication. What does this tell us, then, about the plain meaning of the term "surreptitious" under the act? From this, we can discern that surreptitious as used in Section 2512 can only reasonably mean an interception that is accomplished without the consent, i.e.., authority, of all persons to the communication.

She then found that the legislative history of the act supported her reasoning. "The fact that these devices are included within the intended purview of the act supports the conclusion that the act was intended to cover any device whose design renders it primarily useful for the interception of communications without the consent or 'authority' of all parties to that communication."

§ 2511 includes a "consent exception" for use of surveillance devices under authority of law-police investigations for example. Judge Sotomayor ruled that the exception was permissible and did not lead to an excessive broadening of § 2512, an "absurd result," nor did it lead to arbitrary and discriminatory enforcement as the defendants were arguing. "There is a perfectly understandable reason why officers and prosecutors seek convictions of defendants like the Spy Factory and not institutions like Radio Schack and Hammacher Schlemmer: because the Spy Factory, by its very name, and in countless other ways evidenced in the Government's papers, sets itself out as a place where one might be more likely to locate devices that can be used for illegal, rather than legal, purposes." She relied in part on a footnote in Poster 'N' Things, Ltd. V. United States, where she understood the Supreme Court to say that "the 'primary' use of an item may be discernable in part from where it is sold and how it is marketed." The Government reasonably directed its efforts at the Spy Factory because the defendants were "not only most likely to be convicted, but also [were] most likely to serve a clientele bent on illegal practices." Further, the intent requirement in § 2512 saves the statute from being overbroad. "As previously noted, it is well established that 'the constitutionality' of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea. In fact, the inclusion of an intent provision will often save an otherwise vague statute. "Additionally, as applied, the Government established through "a great deal of evidence that the defendants were aware that they were treading perilously close to the line of lawful conduct."