The Digital Riddle: When Sex Laws Meet the Internet, Confusion Reigns

Predictability is important when it comes to the law. Citizens should know what sort of punishment they should expect for engaging in criminal behavior. If offends our notions of justice when wildly different sentences are handed down for similar crimes.

So its more than a little disturbing that courts cannot decide whether or not an individual’s criminal acts can justify a ban from the entire Internet. While Circuit splits on the interpretation of criminal statutes are par for course (see, e.g., disagreements as to what constitutes a "violent felony" under the ACCA), the debate over Internet bans rages within one Circuit Court of Appeals. The latest ruling by the Third Circuit appears to be its third change of course in the last decade, undermining our understanding of and confidence in Internet prohibitions.

Like its sister Circuits, the Third Circuit has been struggling with the idea of banning Internet access for sex offenders.  The logic goes something like this: because convicted sex offenders might use the Internet to exploit children, sentencing courts may simply outlaw their access to the Internet. Of course, an offender might also use a car or a telephone to exploit a child, but these tools haven’t come into the crosshairs just yet.

In United States v. Crandon, 173 F.3d 122 (3d Cir. 1999), the Court of Appeals imposed a three-year partial Internet ban as a condition of release for a convicted sex offender. After the offender had completed his prison sentence, he was “not [to] ‘possess, procure, purchase[,] or otherwise obtain access to any form of computer network, bulletin board, Internet, or exchange format involving computers unless specifically approved by the United States Probation Office.’” Id. at 125. The Third Circuit later rejected a lifetime, immutable Internet ban in United States v. Voelker, 489 F.3d 139 (3d Cir. 2007), and seemed to recognize that it's not a great idea to ban access to the greatest information gathering tool the world has ever seen. Then, another panel reversed course and decided that the Internet wasn't all that vital, upholding a ten-year Internet ban for a sex offender in United States v. Thielemann, 575 F.3d 265 (3d Cir. 2009). But then, just last Monday, the court vacated another immutable, lifetime Internet ban in United States v. Heckman, noting that even tempered Internet bans appear draconian.

So what is the take away? You can bar predatory users from using the Internet, so long as the length of the ban is quantified and the ban allows a probation officer to grant case-specific exceptions. But the court won’t say how long is too long. Perversely, the maximum amount of time marked for digital exile seems to be growing, just as the Internet is becoming more pervasive. For most users, a decade without Internet use seems like a death sentence. But so long as there is a hard number, there is light at the end of the digital tunnel, and the court won’t flinch. Further, the court has not provided any guidelines for the types of online activity that could prove acceptable, so probation officers can bar web access for any reason they choose, real or imagined. As I've noted previously, there is almost no incentive for a probation officer to grant access.

Now no doubt some of you are wondering why we should care about the release conditions for sex offenders. After all, these individuals have acted in such a bestial manner, why should we suffer their presence in our series of tubes? Recent developments give you plenty of reasons to care about the sentencing regimes applied to child molesters.

First off, several camps are pushing for a “three-strikes” policy for accused file-sharers. Indeed, our negotiators might be agreeing to just such a draconian measure during the secret drafting of ACTA. If you or any member of your household has ever illegally downloaded a file, be afraid. First they came for the child molesters . . .

Second, the sexting phenomenon means that a large number of adolescents might wind up being labeled sex offenders. Recently, a prosecutor sought to charge a group of high school students with the production and distribution of child pornography for taking pictures of themselves. Prosecutors are taking sexting cases very seriously. Even after a judge in a related civil suit issued an injunction barring the prosecutor from filing charges, he appealed (the Third Circuit recently heard oral argument in the case).

It is not absurd to worry that some sexters will receive partial Internet bans. I have written about one such case where a teenager lost Internet access for three years for maliciously posting nude photos of his teenage girlfriend. Furthermore, some states already have statutes that ban sex offenders from social networking sites. If the sex offender label is applied so liberally, we may electronically execute large numbers of the so-called “digital natives.”

Let’s avoid all these concerns and agree that we should not strip offenders of basic life tools. Ban predators from social sites, force them to use monitored computers, filter their content, hell throttle their bandwidth, but don't render them the digital undead. Child molesters are probably the least sympathetic defendants around. But we should all worry that these Internet executions will spread. 

(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 will spread to other offenses. 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.) 

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