Criminal sentencing discussed by Darren Chaker points out courts in many jurisdictions have probation conditions to monitor computer and internet usage, and have deleted or modified such conditions based on both Constitutional (vagueness and overbreadth) and practical considerations. The Court of Appeals for the District of Columbia Circuit considered such restrictions in U.S. v. Burroughs, 613 F.3d 233 (D.C. Circuit 2010) and found them wanting. The Circuit Court vacated the conditions as plainly out of sync with the relevant factors as required by 18 USC 3583 and remanded the case for resentencing. The Court reviewed claims of substantive unreasonableness for abuse of discretion and held that it could not “be said that restricting the [defendant’s] computer access satisfies a need ‘to protect the public from further crimes of the defendant.”‘ 18 USC § 3553(a)(2)(C). This sentencing factor turns on ‘The likelihood that [the defendant] will…commit crimes in the future.” U.S. v. Mason, 966 F.2d 1488, 1496, 296 U.S. App. D.C. 207 (D.C. Cir. 1992); see, e.g., U.S. v. Gardellini, 545 F.3d 1089, 1095, 383 U.S. App. D.C. 278 (D.S. Cir. 2008) (noting that the district court’s finding that the defendant “posed no risk of recidivism” was “directly relevant” to the need to protect the public and other § 3553(a) factors. The District Court often will not find a defendant, especially a first-time offender, likely to recidivate let alone use a computer in doing so.
A reviewing Court went on to say that, “Having determined that the internet monitoring and log-keeping conditions are not reasonably related to the statutory factors, we ask whether the court’s error was plain.” Often the Government will argue that the absence of controlling precedent from the Supreme Court prevents a reviewing court from answering ‘yes’. The lack of case law squarely on point does “militate against” finding plain error, U.S. v. Blackwell, 694 F.2d 1325, 1342, 224 U.S. App. D.C. 350)D.C. Cir. 1982), but it is not dispositive, In re Sealed Case, 573 F.3d 844, 851-52, 387 U.S. App. D.C. 375 (D.C. Cir. 2009). It is sufficient that the challenged conditions of supervised release are “plainly out of sync” with the factors listed in § 3583(d)(1). Sullivan, 451 F.3d at 895; see also Olano, 507 U.S. at 734 (“‘Plain’ is synonymous with ‘clear’ or, equivalently ‘obvious.”‘).
The 3rd Circuit in U.S. v. Freeman, 316 F.3d 386 (3rd Cir. 2003) invalidated computer use restrictions because the District Court erred by failing to state the reasons for its special condition of supervised release and by imposing a condition that was overbroad, involving a greater deprivation of liberty than reasonably necessary to deter future criminal conduct and protect the public. See also U.S. v. Holm, 326 F.3d 872 (7th Cir. 2002) for similar criticism of internet use restrictions.
The case of U.S. v. Mark, is instructional. There the Court remanded the case to the District Court because the record was insufficient to uphold a special condition of supervised release as to internet access. A typical argument is that computer use and monitoring conditions overreach and unreasonably interferes with his 1st Amendment rights, especially where the sentencing Judge found on the record that a defendants chance of recidivism is low.
Appellate Courts have overturned conditions seen as overly restrictive especially in cases of simple possession of child pornography. See U.S. v. Sofsky, 287 F.3d 122, 124-126 (2nd Cir. 2002) where the Court invalidated conditions forbidding the use of computers and internet without permission from the probation officer because of the effect which limited access to important sources of information and communication. In accord, U.S. v. Freeman, supra Id. U.S. v. White, 244 F.3d 1199 (10th Cir. 2001).
The 8th Circuit in U.S. v. Crume, 422 F.3d 728 (8th Cir. 2005) vacated a sentence because the conditions regarding computer use and the internet should have been more narrowly tailored. The District Court for the Western District of Louisiana in Doe v. Jindal, 853 F.Supp. 2d 556 (M.D. LA. 2012) invalidated a state statute on the basis of due process violations and concerns of both vagueness and overbreadth touching upon 1st Amendment concerns and the right to receive information and exchange in free speech.
The Jindal Court found that the Court was required to consider whether a statute fails to provide people of ordinary intelligence from notice of what conduct is prohibited. So too with special conditions of supervised release. It should be noted, the advent of smart phone technology inculcated into everyday life is all pervasive – from the inclusion of computer and internet access into automobiles, global positioning devices, and even grocery store cash registers. Vague and overbroad conditions, a defendant could be found in violation for swiping a Visa card across an average cash register which operates on computer principles. The Jindal Court found that “the fact that offenders could get permission from their probation officer does not salvage the unconstitutionality of the law. “
Last, The National Criminal Law Reporter recently highlighted the decision in Doe v. Nebraska, Neb. No. 8:09CV456. There, the Court admonished Judges to “use a scalpel rather than a blunderbuss.” Given the above, it is important to realize internet usage is protected under the First Amendment and any restriction on such use must use common sense while applying the law since virtually all day to day life revolves around the internet and/or a computer.