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Update: Internet Restrictions, Facebook, and the Courts

November 16th, 2012

Well readers it has been a very busy past few weeks in the cyberspace world and corrections. Where do I begin?  Lets start with the Corn-huskers state, ie,  Nebraska. On October 17, 2012, a federal judge  struck down parts of Nebraska’s new sex offender law, which criminalized the use of social networking sites by sex offenders and also required them to notify the state when they posted material online. The judge also struck down provisions that required registered sex offenders, who were no longer on supervision, to submit to computer monitoring/searches by law enforcement. One issue the judge did not rule on, determining the issue not “ripe”, was a challenge of  the provision requiring a parolees consent to computer searches and use of monitoring software. The decision was very detailed and based upon a hearing in which numerous witnesses testified. Part of the decision noted that much of the language of the statute was “over-broad and unduly burdensome.”  It can be found here.

Now lets go to the sunshine state, California. First off, last week state’s electorate approved Proposition 35, which in part required registered sex offenders provide all their Internet identifiers and the names of their  Internet service providers to law enforcement. The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) promptly filed suit to block the law and an injunction was granted by a federal court pending a decision on the law. Then on  November 8, 2012, it was reported that a California appellate court held a 15-year-old juvenile sex offender can’t be completely prohibited from using Facebook, Twitter, or other social-media sites because his offense didn’t involve the Internet. The court noted he had a First Amendment right to use social media and chat rooms. However, in the same ruling the appellate court  found that prohibitions for him from visiting porn Web sites or using software or tools that could hamper probation efforts to manage his computer use were okay.

Finally, let us go across the seas to the United Kingdom.  A court there ordered an Internet ban on a sex offender and the appellate court found the order  “unreasonable”, overturned it, and ordered the offender to provide Internet history to police instead.  It is being seen as indicating that Internet access is a “fundamental human” right there.

Interesting huh? Now just this week there was another development, not a court ruling but important none the less. It was an announcement that Facebook, with the government’s aid,  developed a job listing resource. Per the  the site:

Facebook, the U.S. Department of Labor, the National Association of Colleges and Employers (NACE), DirectEmployers Association (DE), and the National Association of State Workforce Agencies (NASWA) created the ‘Social Jobs Partnership.’ The partnership’s goal will be to facilitate employment for America’s jobless through the use of social networks.

Cool uh? Something to help the unemployed, including ex-offenders, find jobs is a good thing.  But wait, Facebook has a user policy that prohibits  convicted sex offenders from accessing their site. So does that mean that at least 747,408 citizens can’t use a job search resource that was developed with government assistance? By the way the number is likely to be higher than that as Facebook’s policy prohibits “convicted sex offenders”, not just those required to register. Additionally, there are states that have legal statutes that bar sex offenders from social networking sites. How will they be able to use this government partnership program?

Now in fairness, Facebook isn’t actually hosting the job listings.  It is just providing the search feature. But still, it would seem likely that one would need access to Facebook’s site somewhere along the line to use this new service. If a sex offender accesses the service, will they be violating Facebook’s user agreement? Would they be violating a state law somewhere? Who knows? The government has been pushing for employment for offenders because studies reflect it reduces  recidivism, including among sex offenders. Yet, this new government partnership is being run with the aid of a Internet Service Provider that excludes sex offenders from using its site. We want to do all we can to reduce recidivism among sex offenders right? I think this is going to give the ACLU another argument against laws that provide wholesale Internet restrictions for sex offenders. How do you bar all sex offenders access to a government sponsored resource that helps them get a job, make a living, support their family, etc.? But yet how do you keep high risk “predators” from abusing this legitimate access to get at victims? Lot of questions ah?

Here is my suggestion, quit the wholesale legislative restrictions on Internet access. Stop the shotgun approach to managing risk.  Instead provide legal authority for courts and parole authorities to tailor these restrictions based upon the individual needs/risks of a particular case.  This would apply to only supervised offenders and not those whose served their sentences long ago. For what is worth, I don’t see an issue with requiring Internet identifiers being provided as part of sex offender registration. I note that neither did the 10th Circuit Court of Appeals in Doe v. Shurtleff, as long as they were not made public, which is also okay by me. The Supreme Court declined to hear an appeal of that decision by the way. I also don’t have a problem with sentencing enhancements for repeat offenders again using computers and Internet to commit crimes.

It is clear courts on both sides of the Atlantic are starting to get a bit more critical of total Internet use restrictions.  I don’t know if we have reached the point where Internet access has become a fundamental right yet.  With regard to offenders, we are either going to have a more tailored-focused approach or nothing at all.  A tailored approach will require corrections to learn how to manage the risk posed by an offender’s computer use. But for now, I left a cigar burning somewhere. Be safe out there and those in the U.S. have a happy turkey day!

Art Legal Updates, Supervision

Updates on Sex Offender Restrictions for SNS

June 25th, 2012

This just in readers.

Indiana: Federal judge upholds IN law barring sex offenders from SNS. The case will be appealed.

Louisiana: LA has passed law that requires sex offender post on ”in his profile for the networking website an indication that he is a sex offender or child predator and shall include notice of the crime for which he was convicted, the jurisdiction of conviction, a description of his physical characteristics and his residential address.”

I will probably be doing a status update very soon. Looks like things are “heating up” as it were.

Art Legal Updates

Three Intriguing Cyber-Offender Questions

June 15th, 2012

I get too few comments on the Three C’s to gauge whether I am accomplishing anything beyond irritating a few sex offenders who follow and accordingly voice their opinion. I wish more probation and parole officers would shoot a comment now and than, even if it is to point out I am off base. I guess they are a wee bit shy to tell me I don’t know what I am talking about. But anyone who runs a website or writes a blog knows there are tools out there that provide insights into what folks are thinking when they visit site and how they got there in the first place. What? You really thought when you visited a website no one knew about it?  Depending upon the tools used a lot can be learned about who visits a website or for that matter a blog. But for those super paranoid,  fear not. For the most part I am not privy to the glandular identification of users . The sole exception is when one posts to the blog their originating Internet Service Provider number and e-mail used is captured.  (Click on the privacy policy of Corrections.com for further details)

This information collection is so a website or blog writer like myself can get an idea of what folks might be interested in or what drives them to the website. It provides us input into what interests our customers or readers. Let me give you an example. Someone does an Internet search on a term, “cigars,” and they are provided a websites listing of sites containing that word or term. From that listing they click on a particular website. Depending upon the tools used the website or blog will be provided information on the search terms used to get to a particular website. So if someone got to the Three C’s with the search term “cigars” I would likely know about it (no it hasn’t happen yet). I have had some interesting search terms for the Three C’s as well as my personal site, which I am going  share and discuss, with a non-lawyer’s expertise (I am not offering legal advice to anyone). Here are the more intriguing ones thus far: 

How Does Probation Monitor Computer Activity?

It depends on the agency. Some do computer searches or get law enforcement  assistance to do them.  Others install monitoring software. Still others rely solely on traditional techniques, such as surprise home visits. Some use polygraphs, specifically for sex offenders. Still others do online investigations and go check social networking sites to see what their offenders are doing online. I should note that in the United Kingdom law enforcement takes a central role in enforcing sexual offences prevention orders. Too many agencies I am sadden to say, ignore cyber-risk completely.  The best practice is to employ multiple techniques.

Can Sex Offenders Use or Access Social Networking Sites (SNS)?

This one also comes under the heading of ”What is Facebook’s Policy on Sex Offenders?”  The answer is it depends. Some states have statutes that make it illegal for sex offenders, regardless of being under correctional supervision, from accessing these sites.  Currently, there is a lot of legal action  going on attacking these criminal statutes.  We will see how it turns out.

Additionally, it may be a specific condition of supervision that a sex offender not access a social networking site. This would mean if an offender got on a SNS without permission their supervision could be revoked.

Finally, independent of criminal statutes or supervision conditions, many SNS are banning sex offenders from using their sites. Facebook’s User Policy reflects: “You will not use Facebook if you are a convicted sex offender.” However, Facebook is no longer alone in making sex offenders unwelcome. Recently three dating sites, Match.com, eHarmony and Spark Networks signed a joint business principle statement agreeing to check subscribers against national sex offender registries. To my knowledge there have been no cases thus far decided that have ruled that a SNS can’t bar sex offenders from their site.  In summary, check the jurisdiction’s legal statutes/court decisions; correction supervision conditions; and the user agreement of the particular SNS.

Can Probation Officers Hack Your Phone?

My, are we a bit paranoid or what? I am assuming “hack” means access a mobile phone, either remotely or through breaking in without a password. The answer is not without legal authorization, which translates into a court order, warrant and/or condition, subject to your jurisdictions legal requirements.  A probation officer could search a mobile phone with your consent or with specific legal authorization, supported with “reasonable suspicion” that you have broken your conditions. They could also search under some circumstances, such as a specific condition authorizing “random searches.” They could may also search the phone pursuant to an arrest.

Now if you mean “hack” as remotely access the phone, without your knowledge, that would likely require a specific order or warrant. Additionally, I would have a tough time naming many probation officer that have the technical ability and/or equipment to accomplish this task.  The exception would be to install monitoring software on the mobile phone. That is relatively easy, requiring only access to the phone. However, there has to be some legal authorization behind such activity.  Without legal authorization it could be a violation of  law. It simply is not a routine supervision activity.

Conclusion

There is one conclusion that might be drawn from these collective search terms. What you ask? Well, it seems I might be an information source for the offender population. It is kind of interesting that offenders are doing research on what officers are doing in cyber-risk management. I wonder what else they are doing Internet searches on, maybe how to defeat urine screenings or polygraph examinations? Maybe with more offenders asking questions, I might get a few more comments from probation and parole officers. Hopefully, they aren’t “what the heck are you telling my offenders?” Until then I left a cigar lit somewhere. Be safe out there!

Art Legal Updates, Supervision

Internet Restrictions Still A Viable Option

May 2nd, 2012