It is hard to know how to feel when a court does the right thing for the wrong reasons. On April 2, in United States v. Russell, the D.C. Court of Appeals vacated an immutable 30-year computer and Internet ban as a condition for the supervised release of a sex offender. The court's main problems with the ban were that it was a smidge too long, it did not allow for probation officer approved waivers, and it would interfere with Russell's white-collar career. Each of these reasons is unsatisfying or downright worrisome.
I have previously noted that access to the Internet helps safeguard an individual’s rights (accessing government websites, contacting one's lawyer, alerting the media, conducting business, reading local newspapers, among other things). It is troubling that the D.C. Circuit appears willing to allow a ban on Internet use for any substantial period of time. Courts seem to feel that the appropriate duration of a digital prohibition is between 1 and 10 years. A decade! Ten years ago, there was no YouTube, Twitter, or social networking. It is impossible to predict how the Internet will evolve in the next few years, so I am uncomfortable with a decade-long digital exile.
The D.C. Circuit also stressed the importance of allowing a probation officer to approve specific Internet waivers. But this doesn't make an Internet ban any less problematic. The power to delimit special conditions is reserved to members of the judiciary. See United States v. Pruden, 398 F.3d 241, 250 (3d Cir. 2005) (“[A] probation officer may not decide the nature or extent of the punishment imposed on a probationer.”); United States v. Scott, 316 F.3d 733, 736 (7th Cir. 2003) (“Terms [of supervised release] should be established by judges ex ante, not probation officers acting under broad delegations and subject to loose judicial review ex post. . . .”). It is “especially worrisome when the subject [of a probation officer’s discretion] concerns what people may read.” Scott, 316 F.3d at 736. I understand that the court might want to punt on the question of what is a proper use of the Internet, but the judicial branch cannot pass the buck to an unelected bureaucrat. At the very least, the court should provide some classes of Internet use to guide the probation officer’s decisions. Besides, wouldn’t there be an enormous incentive to deny most Internet requests? There is no political cost to keeping an offender digitally gagged; the same cannot be said if the offender uses your waiver as a means to molest a child.
Worse still, the D.C. Circuit used Russell’s employment history to justify the decision to vacate. “Russell’s training and experience mark him not only as a white collar worker but as one at the most technically sophisticated end of the white collar distribution. [Accordingly,] [b]ecause the computer restriction prevents Russell from continuing in a field in which he has decades of accumulated academic and professional experience, it directly conflicts with the rehabilitative goal of sentencing.”
Now don’t get me wrong, the Internet is vital for employment, both as a tool to find a job and as an implement in the workplace. To its credit, the majority noted that even many blue-collar workers must use computers. (I have a feeling that this opinion will be remembered for Judge Henderson’s mind-boggling concurrence that a ban on computer use does not implicate a liberty interest. “We can judicially note that millions of Americans every day perform jobs without using (or even seeing) a computer. If Russell cannot find a job, it is more likely because of his criminal record than the computer ban.”) Do we really want the standard for computer bans to be: If your previous jobs involved computers, then you can continue to use them? The classist (and incidentally, racist) overtones of such a standard are frightening. See United States v. Granger, 117 Fed. Appx. 247 (4th Cir. 2004) (upholding a 3-year Internet ban in part because the offender’s “work history involves manual labor . . . as a pipe fitter, driller, and field hand” and therefore the ban will not hamper his ability to “return to similar gainful employment”).
As I have written elsewhere, there is another way to solve this problem:
Targeted prohibitions or monitoring programs that limit offenders’ ability to engage in offensive conduct could result in the same gains to public safety while preserving offenders’ rights. A condition prohibiting an offender from checking the weather report or reading the newspaper online clearly does not protect the public and is therefore a violation of the statutory standard. In contrast, a prohibition on joining social networks frequented by children would serve to guard against recidivism without unjustly constraining an individual’s liberty interests. The problem of overreliance on probation officer discretion could also be solved by these judicially imposed website- and activity-specific bans.
So, again, I ask why a total ban of one of the most important communication tools is acceptable or even desirable. We do not ban phone or mail access for decades, even though both of these media may be used to contact children. We would never allow such bans to turn on the offender's work history. “Your job as an plumber did not require you to use the phone often, so you may make one call a month.” Perhaps the district courts will tire of this absurdity and rely on monitoring rather than digital execution to ensure the public good.
(Andrew Moshirnia is a second-year law student at Harvard Law School and a CMLP blogger. He would like to take this moment to remind everyone, again, that he is not defending pedophiles, but rather is concerned that Internet bans are counter productive and unconstitutional. He asks you to please not send him threatening letters. However, even if you do send him threatening letters, he will argue you should still have the right to own a pen, paper, and stamps.)
Picture from Cyanide & Happiness @ Explosm.net, which invites users to post this image in their blogs.