Nominee Sotomayor on Privacy and Civil Liberties

By , May 27, 2009 11:53 am

There have been a few references to Supreme Court nominee Sonia Sotomayor’s judicial records on privacy-related issues in the blogosphere and mainstream media today, and I thought I might take a more detailed look at her record.  Here are some cases she ruled on, with summaries from lexisONE, where you can read the cases in more detail by signing up for a free account. In chronological order:

United States of America v. Gori. 230 F.3d 44; 2000

Where officers saw apartment occupants after occupants opened door for delivery woman and occupants were detained outside the apartment, suppression of evidence was reversed because occupants lacked reasonable expectation of privacy.

Note: Judge Sotomayor dissented. In her dissenting opinion, she wrote, in part:

Today the majority takes the unprecedented step of holding that police officers do not violate the Fourth Amendment’s protection of the home when they seize an individual standing inside his or her home without a warrant or applicable warrant exception and based only on reasonable suspicion that a crime is being committed therein. The majority reaches this extraordinary result by holding that the expectation of privacy of an individual standing dozens of feet inside his or her home with an open door is the same as that of an individual standing on a public street. See ante at [24-25]. It purports to base this endorsement of police intrusion into the home on the Supreme Court’s decision in Santana v. United States, 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406 (1976), which it claims stands for the proposition that once the door of a home is opened, a home is no longer a home for constitutional purposes, i.e., the special protections for homes set forth in [*40] Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), do not apply. See ante at [22]. The majority’s reading of Santana is not only incorrect but is irreconcilable with decades of Supreme Court Fourth Amendment jurisprudence. Because I believe that the warrant and probable cause requirements for entry into a home set forth in Payton apply in this case, and that the officers had neither, I would affirm the district court. I therefore respectfully dissent.


The majority’s authorization of intrusions into the home without a warrant or warrant exception and based only on reasonable suspicion is predicated on two fundamental errors. First, the majority treats the occupants’ expectations of privacy [*42] in Apartment 1M as an all-or-nothing proposition. According to the majority, voluntarily making yourself visible to a person standing in a public area is the same as making yourself available to be physically touched or otherwise seized. However, the Supreme Court has made clear that individuals do not forfeit all privacy rights simply by placing themselves in public view.

In the seminal case of Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), for example, the Supreme Court rejected the government’s argument that a defendant had no expectation of privacy with respect to a telephone conversation he had in a glass-enclosed public telephone booth, holding that “what [defendant] sought to exclude when he entered the booth was not the intruding eye-it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen.” 389 U.S. at 352. In distinguishing between the acceptable visual monitoring of the individual and his right to be free from invasions of the privacy that otherwise protected him while standing in the telephone booth, the Court explained that what an individual [*43] “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Id. Thus, I disagree with the majority that an open door translates into an “open season” on the individual inside.

Bechhoefer v. U.S. Department of Justice Drug Enforcement Administration. 209 F.3d 57; 2000

Summary judgment for defendants in Privacy Act (Act) suit was vacated and remanded where letter that was disclosed without plaintiff’s permission was record under Act; letter contained personal information about plaintiff.

Leventhal v. Knapek.  266 F.3d 64; 2001

State employer had not violated Fourth Amendment when it searched a work-place computer as search was reasonable in light of need to investigate employee’s alleged misconduct. Employee had no liberty or property interest in salary increase.

Note: Judge Sotomayor wrote the opinion for the Court which found, in part:

Even though, based on the particular [*3] facts of this case, Leventhal had some expectation of privacy in the contents of his computer, the searches were reasonable in light of the DOT’s need to investigate the allegations of Leventhal’s misconduct as balanced against the modest intrusion caused by the searches.


A public employer’s search of an area in which an employee had a reasonable expectation of privacy is “reasonable” when “the measures [*21] adopted are reasonably related to the objectives of the search and not excessively intrusive in light of” its purpose. O’Connor, 480 U.S. at 726 (plurality opinion) (internal quotation marks omitted).

We begin by inquiring whether “the conduct . . . at issue . . . infringed an expectation of privacy that society is prepared to consider reasonable.” Id. at 715 (plurality opinion) (internal quotation marks omitted). Without a reasonable expectation of privacy, a workplace search by a public employer will not violate the Fourth Amendment, regardless of the search’s nature and scope. The workplace conditions can be such that an employee’s expectation of privacy in a certain area is diminished. See id. at 717-18 (plurality opinion) (recognizing that offices that are “continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits,” can be “so open to fellow employees or the public that no expectation of privacy is reasonable.”); id. at 737 (Blackman, J., dissenting) (“In certain situations, the ‘operational realities’ of the workplace may remove [*22] some expectation of privacy on the part of the employee.”). On the facts of O’Connor, the entire Court found a reasonable expectation of privacy with respect to the office desk and file cabinets in which the plaintiff had maintained his personal correspondence, medical files, correspondence from private patients unconnected with his employment, personal financial records, teaching aids and notes, and personal gifts and mementos. Id. at 718 (plurality opinion); id. at 731 (Scalia, J., concurring); id. at 732 (Blackmun, J., dissenting). In finding that the plaintiff had a reasonable expectation of privacy, the plurality noted that there was no evidence that the employer had “established a[] reasonable regulation or policy discouraging employees . . . from storing personal papers and effects in their desks or file cabinets.” Id. at 719 (plurality opinion).

Even though Leventhal had some expectation of privacy in the contents of his office computer, the investigatory searches by the DOT did not violate his Fourth Amendment rights. An investigatory search for evidence of suspected work-related employee misfeasance will be constitutionally “reasonable” if it is “justified at its inception” and of appropriate scope. Id. at 726 (plurality opinion); see also T.L.O. 469 U.S. at 342 (finding search permissible in its scope when “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of . . . the nature of the [misconduct]”). We agree with the district court that both of these requirements are satisfied here.

Specht v. Netscape Communications Corporation. 306 F.3d 17; 2002

Internet users did not manifest assent to license agreement’s arbitration clause by downloading free software from website where the agreement was located on a submerged screen that user would have had to scroll through to read full agreement.

Note: Judge Sotomayor wrote the opinion which begins:

This is an appeal from a judgment of the Southern [*3] District of New York denying a motion by defendants-appellants Netscape Communications Corporation and its corporate parent, America Online, Inc. (collectively, “defendants” or “Netscape”), to compel arbitration and to stay court proceedings. In order to resolve the central question of arbitrability presented here, we must address issues of contract formation in cyberspace. Principally, we are asked to determine whether plaintiffs-appellees (“plaintiffs”), by acting upon defendants’ invitation to download free software made available on defendants’ webpage, agreed to be bound by the software’s license terms (which included the arbitration clause at issue), even though plaintiffs could not have learned of the existence of those terms unless, prior to executing the download, they had scrolled down the webpage to a screen located below the download button. We agree with the district court that a reasonably prudent Internet user in circumstances such as these would not have known or learned of the existence of the license terms before responding to defendants’ invitation to download the free software, and that defendants therefore did not provide reasonable notice of the license terms. [*4] In consequence, plaintiffs’ bare act of downloading the software did not unambiguously manifest assent to the arbitration provision contained in the license terms.

N.G. ex rel. S.C. v. Connecticut. 382 F.3d 225; 2004

Searches conducted upon each entry into custody of juvenile authorities were lawful, but repetitive searches, conducted while girls remained in custody, violated Fourth Amendment in absence of reasonable suspicion that contraband was possessed.

Note: Judge Sotomayor concurred in part and dissented in part. From her opinion:

I concur with the majority’s holding that [*39] the second, third, and fifth searches of S.C. and the second search of T.W. were unlawful. Absent an individualized basis to believe that the plaintiffs had acquired contraband while in custody of the authorities, these re-entry searches violated Fourth Amendment standards of reasonableness. With respect to the sixth and seventh searches of S.C., I concur with the majority’s decision to remand to the district court to make factual findings as to the existence of reasonable suspicion. I also agree that the denial of class certification was well within the district court’s discretion.

I dissent, however, from the Court’s decision to uphold the first, fourth, and eighth strip searches of S.C. and the first strip search of T.W. Our caselaw consistently has recognized the severely intrusive nature of strip searches and has placed strict limits on their use. The concerns animating our prior rulings in this area should be only heightened when the privacy interests of emotionally troubled children are at stake. Here, the government has failed to demonstrate that its special needs should overcome these concerns and allow for strip searches, in the absence of individualized suspicion, of adolescents [*40] who have never been charged with a crime. Accordingly, I would find that, regardless of whether the suspicionless strip searches occurred upon entry or re-entry, they were unlawful.


We should be especially wary of strip searches of children, since youth “is a time and condition of life when a person may be most susceptible to influence and to psychological damage.” Eddings v. Oklahoma, 455 U.S. 104, 115, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982); see also Flores, 681 F. Supp. at 667 (“Children are especially susceptible to possible traumas from strip searches.”). When officials are dealing with children who may be victims of sexual abuse, the concerns are even greater. See ante, at [16 n. 10].

The case before us presents facts that provoke all of our typical concerns about strip searches. The detention facility officers on numerous occasions ordered appellants – troubled adolescent girls facing no criminal charges – to remove all [*43] of their clothes and underwear. The officials inspected the girls’ naked bodies front and back, and had them lift their breasts and spread out folds of fat. The young girls described the process as embarrassing and humiliating. Indeed, T.W. cried throughout one of her searches. During one of S.C.’s searches, two other detainees were present. The juvenile detention facilities perform similar searches on every girl who enters, n1 notwithstanding the fact that many of them – indeed, most of them – have been victims of abuse or neglect, and may be more vulnerable mentally and emotionally than other youths their age. n2

Church of the American Knights of the Ku Klux Klan v. Kerik. 356 F.3d 197; 2004

While the wearing of the robe, mask, and hood traditionally associated with the Ku Klux Klan was expressive, the mask did not convey a message independently of the robe and hood so a statute banning masks did not implicate the First Amendment.

Hunnicutt v. J Armstrong. 152 Fed. Appx. 34; 2005

District court’s decision dismissing a prisoner’s civil rights action for failing to comply with Fed. R. Civ. P. 8 was reversed on appeal, where the prisoner adequately alleged a right to privacy claim, even through he did not identify the Ninth Amendment or any other amendment as the source of his claim.

Cassidy v. Chertoff. 471 F.3d 67; 2006

Dismissal of passengers’ claims that searches made pursuant to Maritime Transportation Security Act of 2002 violated Fourth Amendment was affirmed. Intrusions on passengers’ privacy interests were minimal and measures adopted were reasonably efficacious in serving government’s undisputedly important special need to protect against terrorist acts.

Note: Judge Sotomayor wrote the opinion.

Port Washington Teachers’ Association v. Board of Education of the Port Washington Union Free School District. 478 F.3d 494; 2007

A teacher’s union and a social worker did not have standing to challenge a school district superintendent’s policy memorandum regarding the reporting of student pregnancies because there was not an imminent danger that staff would disclose student’s confidential communications and there was no risk of discipline where the policy was not mandatory.

United States of America v. Howard. 489 F.3d 484; 2007

Warrantless vehicle searches conducted by officers who employed a ruse to lure defendants away from vehicles did not violate Fourth Amendment because automobile exception applied where there was probable cause to believe that vehicles contained cocaine, vehicles were inherently mobile, and there was a diminished expectation of privacy in vehicles.

Note: Judge Sotomayor wrote the opinion for the Court.

John Doe, Inc.  v.  Mukasey.  549 F.3d 861; 2008

18 U.S.C.S. §§ 2709(c) and 3511(b) were unconstitutional to extent they imposed nondisclosure requirement on National Security Letter recipients without placing on government burden of initiating judicial review because, in absence of government-initiated judicial review, § 3511(b) was not narrowly tailored to conform to First Amendment standards.

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