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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

Louisiana, beaten but not out, is making another stab at restricting sex offenders from social networking sites after having its previous law overturned. I have repeatedly discussed this issue in the past. (See Correction’s Play Role In Keeping Sex Offenders Off Social Networking Sites and States Limit Social Networking Use: Good or Bad? ) Legislatures are one thing and sentencing courts are another.  I have previously alluded to there being a split in the federal circuit courts on computer/Internet restrictions for supervised offenders. (See Federal Case Law on Technology Conditions in Corrections and Pair of 8th Circuit Cases on Internet Prohibitions) Frequently, the decisions on these restrictions hinge on the specific fact patterns and there are nuances between the circuits and even within the same circuit on the imposition of computer/Internet restrictions. Two recent cases, one in the Eighth Circuit and the other in the the Fifth Circuit indicate that such restrictions can still be imposed on supervised offenders, provided the fact patterns support such conditions.

 United States of America v. Theodore Joseph Schaefer, No. 11-2293,  8th Circuit,  04/09/2012

Schaefer was convicted of one count of knowingly possessing child pornography and was sentenced to 97 months’ imprisonment, followed by ten years of supervised release. He appealed the following two special conditions of supervision:

The defendant shall have no contact with children under the age of 18 (including through letters, communication devices, audio or visual devices, visits, electronic mail, the Internet, or any contact through a third party) without the prior written consent of the probation office.”

The defendant is prohibited from places where minor children under the age of 18 congregate, such as residences, parks, beaches, pools, daycare centers, playgrounds, and schools without the prior written consent of the probation office.”

Schaeferchallenged the two conditions because they prohibit him from having contact with, or being near, children (including his two daughters). He further stressed that the conditions were not narrowly tailored, or reasonably related to his offense, his history and characteristics, or public protection. He further emphasized that his conviction was for possession of child pornography, not distributing or trading child pornography; he had no prior criminal history; and, the public is protected because he had unproblematic contacts withhis children while on pretrial release. The Eighth Circuit noted, the record demonstrated that the sentencing court took “an individualized basis for the special conditions of supervision, noting his motive was “to trade that [child] pornography.”. It cited a Sentencing Memo, which noted:  

Clearly, he had the intent to distribute child pornography to others. His online chats establish that he was very interested in trading child pornography with others, although due to computer glitches he found himself without anything to trade. He stated he was trying to rebuild an inventory of pornography.”

Additionally, it was noted that the sentencing court found he had “expressed an interest in going into business with this [online] friend and selling his friend’s daughter for money.” The Eighth Circuit concluded that the sentencing court had imposed the two conditions after an individualized analysis of Schaefer, emphasizing its authority to modify them under 18 U.S.C. § 3583(e) and had not abused its discretion in imposing the two conditions. 

United States v. Seth Davidson Hilliker, Case No. 11-50112. 5th Circuit,  04/13/2012

This case is noteworthy as Hillikerwas convicted of violating the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a), which had nothing to do with using a computer or the Internet. He was sentenced to 40 months of imprisonment (with credit for the 10 months already served), to be followed by 20 years of supervised release. As part of the special conditions of supervised release, he was denied all access to computers, the Internet, cameras, photographic equipment, and other electronic equipment without the permission of his probation officer, and that he not purchase or possess any sexually oriented material.

Hilliker argued that the special condition banning him from computer and Internetaccess failed to comply with statutory requirements and compromises substantial liberty interests, (2) that the special condition banning him from possessing photographic devices and electronic equipment was not reasonably related to supervised release goals, and (3) that the special condition banning him from possessing sexually oriented or sexually stimulating materials was overly broad and failed to meet due process notice requirements.

The predicate offense that led to Hilliker’s SORNA registration requirement was his 2008 conviction for attempted indecency with a child by contact. In June 2007, the victim’s father reported that Hilliker fondled the buttocks of his four year old daughter while he and his daughter were shopping at a book store. In another, unrelated 2007 incident, Hilliker was reported because he had twice fondled the buttocks of a 10-year-old female inside a thrift store. In 2003, a state trooper responded to a report of Hilliker grabbing young girls in a Kohl’s department store in Sunset Valley, Texas. In 1998, Hilliker was charged in Durham, New Hampshire, with loitering and prowling and indecent exposure and lewdness. In 1995, Hilliker was charged with misdemeanor criminal trespassing when he was found inside a middle school without permission.  None of the acts in these cases involved the computer or the Internet.

However, at the time of sentencing Hilliker provided a letter to the court noting that … “Internet pornography was a factor in clouding his judgment regarding the propriety of touching or fondling young girls in public places. ” This coupled with his fugitive background and evasions of law enforcement, as well as its finding that he was a “predator” who had repeatedly engaged in direct physical contact with minor children was used by the court to justify the above conditions. The Fifth Circuit concluded that the sentencing court had not committed plain error by imposing near absolute restrictions on computer and Internet access or imposing the other conditions and upheld the court’s sentencing.  

Conclusion

What is the common thread in these cases, besides they contain Internet or computer restrictions? In both cases the courts are attempting to address “risk.”  In Schaefer, the offender’s offense conduct reflected he was online intending to trade child pornographyand in one incident had also discussed with an online friend selling a friend’s daughter for money.  In Hilliker, his offense conduct had nothing to do with using the Internet but he had acknowledged he committed the offenses due to his use of Internet pornography. Restricting the Internet in both cases limits its use as a tool or catalystfor future misconduct. Legislatures would do well to allow courts and parole authorities the discretion, if they chose to impose such restrictions, without mandating wholesale prohibitions based solely on the status of “sex offender.”  I will of course keep you posted on Louisiana’s second attempt to get what so many courts are doing appropriately, ie, managing risk with appropriate legally supported conditions. Until then I left a cigar lit somewhere.

Art Legal Updates

Correction’s Play Role In Keeping Sex Offenders Off Social Networking Sites

March 18th, 2012

Recently, a federal court struck down a Louisiana state law that prohibited sex offenders convicted of crimes involving minors from “using or accessing of social networking sites websites, chat rooms, and peer-to-peer networks.” The ruling found that the law impacted the First Amendment and was unconstitutionally vague. The court further concluded that it could not be cured through administrative regulations. The law covered both sex offenders under supervision and those who had completed their sentence. Additionally the social media definition was extremely broad and could have been interpreted to include the court’s own website. Needless to say the law had some major deficiencies. Louisiana appears posed to give it another go, correcting the deficiencies noted in the decision. The question is should they?

The reality is that social media is so intertwined with living in today’s society that any prohibition is sure to have a negative impact on whether an offender can get a job, find needed services, etc. But then again the dangerousness of an unmonitored sex offender using the Internet is very real. What to do? I read an interesting piece by Eric Goldman about this issue and the pitfalls of the Louisiana law. One thing that he noted was:

The ruling doesn’t require social media sites to allow sex offenders on their sites, and they can still use the Adam Walsh/KIDS Act database to block known sex offender aliases. (Of course sex offenders may not properly report all of their aliases, a general deficiency of the self-reporting database approach). Thus, striking down this law doesn’t immediately open up all of the Internet to the sex offenders. Nevertheless, it does mean that they can use the Internet without inadvertently committing a crime.”

This got me thinking what if more sites followed Facebook’s policy on not allowing sex offenders on their sites. Could enacting laws that prohibit sex offenders who use a site against the user agreement be one piece to this legislative quagmire? Facebook’s policy no doubt came into play because of the bad press some social networking sites got over sex offenders trawling the various social networking sites. They simply didn’t want sex offenders joining up like they had on other sites. I understand why they have this prohibition. They allow minors to join, age 13-17, and wanted a “safe” environment. But what about other sites, particularly those might specifically cater to minors? Do they have such a ban? I was shocked to find out they do not. The user agreements of the big gaming sites, X-Box Online; Playstation; and Nintendo do not ban sex offenders from joining or participating. Even Disney’s Club Penguin, does not have a prohibition against sex offenders joining the site.  In fairness, these sites do bar activities that are illegal, just not individuals that have been convicted of engaging in such activities, such as sex crimes.

So the sites that are  gaming in nature and/or cater to minors do not prohibit sex offenders on their sites. Yet they serve no legitimate purpose for offender reintegration. After all, there is no employment services section on X-Box Online, at least not in the real world. I don’t think giving sex offenders “recreation” in isolation, filled with role playing as well as access to minors is a legitimate reason for allowing them on gaming sites. Interesting, Facebook, which is interconnected with not only individuals but businesses, education, causes, etc. bars sex offender from its site, because a portion of its members are minors. Don’t get me wrong. I understand Facebook’s reason and understand the risk. But there does seem to be something a miss here. Should sites start barring sex offenders from their sites in total?  I think it would start with those which have minors on them and would quickly expand to the entire Internet. After all, with the exception of adult oriented sites,  there are few sites in the mainstream that would want to be known as one of the few locations that allows sex offenders to be members.  But if we allow legislatures to make the decisions you are likely to get sites that are important in rehabilation prohibited as well.  

Legislatures need to start working with corrections department on what is the best way to manage cyber-risk. Corrections obviously has got to step up its game but I think they can come to terms with cyber-risk management.  If they don’t who then? Who is in the best position to judgement offender risk?  Probation/parole departments time to get into the 21st Century and quick belly aching about laws being passed without consideration of the rehabiliative impact.

Additionally, the focus needs to be on sex offenders under a correctional supervision not those who have completed their sentence. I also think states would then be better served by providing community corrections with the tools needed to manage the risk posed by sex offender’s online. This means giving officers the ability to restrict sites that pose a risk for re-offending behavior. It also means allowing officers to restrict hardware and software used by offenders to that which can be monitored and/searched. States should also provide the legal framework for officers to install monitoring software and to be able to conduct computer searches. States should also provide the resources, namely training, software, and hardware to officers for this to occur.

Providing blanket restrictions that just tie the hands of officers and offenders is bad policy. (Please note I am talking about offenders in the community. Note those behind bars. See Why Does Your Facebook Profile have an Inmate Number?) Let those who are experienced in corrections make decisions on managing cyber-risk. Give them guidance but not legal mandates.

Yes, I know there was provisions in the Louisiana law that allowed officers to grant permission but few if any officers are going to go out on a limb to grant an exemption to a sex offender, particularly when they have no tools to manage risk in the first place. Maybe just maybe, states would be better off in directing their corrections to come up with a cyber-supervision policy for their review and approval. I think the American Probation and Parole Association Issue paper  is a good place to start the discussion (disclaimer, I had a hand in writing it!). There are ways to manage cyber-risk. In some cases, such as gaming sites, officers are right to prohibit access. Access to other sites, particularly those that directly impact employment need to be managed not prohibited.

I also would avoid passing restrictions on individuals that have already served their sentence. I have no issue with them having to report Internet identifers as part of sex offender registration but barring them from sections of the Internet, without realizing how interconnected the world and the Internet is is fool-hearty. For repeat sex offenders, particularly those who use the Internet as a tool for exploitation, consider mandatory sentencing that precludes them from being in the real world, let alone the cyber world. Okay, time to find my cigar.

Art Legal Updates, Supervision

Both Sides of Atlantic Take Aim at Offender Risk In Cyberspace

November 30th, 2011

Two news events occurred within the last week that warrant notice.  The first was the announcement by the American Probation and Parole Association (APPA) magazine Perspectives- Fall 2011 of the Issue Paper, ”Managing the Risks Posed by Offender Computer Use.” The second was the announcement that Britain was unveiling a new strategy to battle online threats.  Both announcements touch specifically on managing offender computer use. Let’s deal with the first announcement. 

APPA Issue Paper

APPA develops issue papers on topics currently facing community corrections. These papers outline the concerns or considerations of a particular topic in a generally neutral fashion. The APPA, though its Technology Committee, has been wrestling with a cyber-supervision issue paper for well over a year (I know, as I was intimately involved in the process).  The APPA Board of Directors approved the issue paper in September 2011. It was formally announced in the Perspectives last week.  The result is a ten page document which identifies  five components to good computer management in the supervision of people on probation, parole or supervised release. The components are: 1) Obtaining accurate and up-to-date knowledge about what computers a supervisee has or may use; 2) Deciding how to monitor the computer or Internet use (random searches or installing monitoring software); 3) Encouraging venturing beyond the traditional “brick and mortar” world into cyberspace itself by going on-line to find out what offenders are doing on social networking sites and the Internet;  4)  Incorporating complementary technologies, such as GPS monitoring and polygraph evaluations for some high risk cases to augment  computer management; and 5) Requiring officers continue to incorporate field visits, to residences, employment sites, schools and other relevant locations as part of computer management. The paper also discusses the pros and cons of computer searches vs. computer monitoring, noting the ideal approach is to integrate both to provide effective cyber-risk management. Although the paper notes the high percentage of cases involving sex offenders, the discussion is not limited to just supervising sex offenders. It specifically notes all manner of criminal and non-compliance behavior is being committed by offenders using advanced technology and community corrections needs to come to terms with this reality.  Bill Burrell, editor of the Perspectives notes:

With the proliferation of digital technology through our lives, it has become increasingly difficult and impractical to prohibit the use of computers and other digital devices by offenders. Managing the risks falls to probation and parole officers, and it is incumbent upon us to throughly understand and fully exploit the potential of digital technology to monitor and manage offender use of computers and related technology.” (p. 10)

UK Cyber Security Strategy

Almost on que was the announcement  by United Kingdom of its new cyber strategy called  The UK Cyber Security Strategy Protecting and Promoting the UK in a Digital World.  Included in this cyber stragey was the increased use of sanctions, including Internet restrictions against offenders involved in flash mobs or other acts where the Internet or social networking sites were used to cause havoc.  The report notes in part:

4.27 The Government will also work to ensure that law enforcement agencies and the judiciary are aware of the additional powers the courts already have to protect the public when there is strong reason to believe someone is likely to commit further serious cyber crime offences. Computer use may be monitored or restricted under licence conditions when an offender is released, or through a Serious Crime Prevention Order (under the Serious Crime Act 2007). For example an internet fraudster can be prevented from offering goods for sale online. Other orders which may include restrictions on internet use are used to protect the public or victims in cases of sexual offences, harassment and anti-social behaviour. Through guidance we will encourage the judicial system to consider these cyber-relevant sanctions for cyber offences wherever appropriate.

4.28 In addition, the Ministry of Justice and the Home Office will consider and scope the development of a new way of enforcing these orders, using ‘cyber-tags’ which are triggered by the offender breaching the conditions that have been put on their internet use, and which will automatically inform the police or probation service. If the approach shows promise we will look at expanding cyber-sanctions to a wider group of offenders.” (p. 30)

So in a nutshell we have a professional organization for community corrections in the United States noting that officers and agencies tasked with supervision need to come to terms with dealing with cyber-risk.  At a the same time the UK comes out with a strategy that expands Internet restrictions beyond prevention orders typical in sex offense cases to include a “wider group of offenders.”  Unless I am missing something sentencing and correctional professionals on both sides of the Atlantic are starting to take seriously the cyber-risk posed by those accused or convicted of crimes.  The question remains is what may develop out of these two “bits” of news. 

You see in the UK much of the monitoring of offender computer use appears to have been done not by probation officers but by law enforcement. (See Elliot, I. A., D. Findlater and T. Hughes. 2010. “A Practice Report: A Review of e-Safety Remote Computer Monitoring for UK Sex Offenders.” Journal of Sexual Aggression. 16(2), 237-248 for a discussion on computer monitoring). But in the U.S. probation and parole officers are doing the monitoring. Sure some agencies rely on law enforcement assistance for computer searches, but monitoring is deployed and reviewed by corrections agencies.

Will the UK continue using law enforcement to monitor offenders during rehabilitation, reintegration, etc. or will they be forced to back track on their efforts over ”big brother” concerns?  Likewise will US correction  agencies embrace 21st Century supervision or will they they advocate for law enforcement taking over a greater role in computer monitoring of these cases?  I doubt that will fly a lot lower in the US than in the UK which has no “First Amendment” concerns.  Maybe the private sector will step into the management role on both sides of the Atlantic as contract agencies offering monitoring service to corrections agencies. The advantage to private sector doing the monitoring is they are not law enforcement but unlike many in corrections, they have the expertise to get the job done. The issue though will be expense. Can they offer a service at a cost that public is willing to pay? 

Personally I see no issue with monitoring computer activities of convicted offenders but there will surely be those who argue that this smacks of “big brother.” I wonder though how these same individuals would feel if these offenders were just kept in prison. Is that a better solution?  What about the rights of  rest of  society which are negatively impacted by cyber-offenders? Don’t they count for something?  We all have to abide by the rules on the roadways, why should the information highway be any different? I think that cyberspace has been allowed to fester with lawlessness for too long without any repercussions to those who think it is their personal playground to stalk, attack, and victimize the rest of us.  The recognition of this fact on both sides of the Atlantic is clear. Equally clear is offender risk management is not going to be the same.  It now is being extended to cyberspace. On that note, where is that cigar I had?

Art Legal Updates, Supervision

Hackers, Sex Offenders, and All the Rest

October 24th, 2011

Community correction officers and others often equate technological conditions, such as computer searches, monitoring, Internet restrictions, etc. with sex offender supervision. Afer all, there isn’t a day that goes by where an individual isn’t busted for a sex crime in which a computer or the Internet did not play a role. We also have the cases of registered sex offenders violating their conditions and in some cases the law, by accessing social networking sites. Accordingly, it is understandable that many equate computer restrictions/monitoring with sex offender supervision. However, computer restrictions and monitoring go back to the early hacking cases. For instance, Kevin Mitnick, a reformed hacker and now security consultant/author, had numerous conditions imposed in 1999 including the following:

without the prior expressed written approval of the Probation Officer: 1. the defendant shall not possess or use, for any purpose, the following: (a) any computer hardware equipment; (b) any computer software programs; (c) modems; (d) any computer-related peripheral or support equipment; (e) portable laptop computers, personal information assistants, and derivatives; (f) cellular telephones; (g) televisions or other instruments of communication equipped with online, Internet, world-wide web or other computer network access; (h) any other electronic equipment, presently available or new technology that becomes available, that can be converted to or has as its function the ability to act as a computer system or to access a computer system, computer network or telecommunications network (except defendant may possess a “land line” telephone).”

But lets not equate computer restrictions/monitoring to just hackers and sex offenders. It is, however, kind of ironic that these two groups equated with such restrictions are making the news. For instance, the hacker group “Anonymous” reportedly crashed a large collection of child pornography Web sites, and published the names of its patrons.  So for those keeping score, that is Hackers 1 and Sex Offenders 0, oh that is not in binary code either. My money is on the hackers winning the cyberwar against those who victimize kids. But I digress.

Computer restrictions/monitoring conditions do get imposed on non-sex offender and non-hacker cases. Recently, a convicted fraudster, Charles D. Stergios, was released to a halfway house and home confinement. He promptly set about conducting a check kiting scheme via the Internet upon his release and succeeded in getting a second fraud conviction for his efforts. He also was given the following supervision conditions:

Subject always to review by the sentencing judge upon request by either the defendant or the government, the Defendant shall not possess or use a computer to access an online ‘computer service’ at any location, including his employment, without the supervising officer’s prior approval. This includes any Internet service provider, bulletin board system or any other public or private computer network.”

Defendant shall participate and comply with the requirements of the Computer and Internet Monitoring Program (which may include partial or full restriction of computer(s), Internet/intranet, and/or Internet capable devices), and shall pay for services, directly to the monitoring company. The defendant shall submit to periodic unannounced examinations of his/her computer(s), storage media, and/or other electronic or Internet capable device(s) performed by the probation officer based on reasonable suspicion of contraband evidence or a violation of supervision. This may include the retrieval and copying of any prohibited data and/or the removal of such system(s) for the purpose of conducting a more thorough inspection.”

Stergios appealed these conditions, noting in part they amounted to a complete Internet/computer ban. The First Circuit rejected his argument on October 18, 2011, noting he could access the Internet and computers, “as long as he obtains his supervising officer’s approval.” Additionally, if he disagreed with the officer’s decision he could take it to the sentencing judge. The First Circuit noted:

Stergios relied heavily on the Internet to perpetrate his frauds, including opening two checking accounts online through USAA, opening another using an email address, and conducting a number of electronic money transfers. Moreover, Stergios had a history of using the Internet to commit crimes. Stergios’s 2005 conviction involved hundreds of fraudulent Internet transactions on eBay, totaling over $421,000.00. It was therefore reasonable for the district court to find, the second time around, that restrictions on Stergios’s Internet usage were necessary to deter him from committing further crimes.”

Does this mean that we are going to see the flood gates open wide for special technology conditions being imposed in multitude of non-sex, non-hacker cases? I doubt it. However, in cases where offenders continue to misuse computers and the Internet to perperate fraud, those offenders better be prepared survive in a technologically advanced society without a computer, or at least not one that isn’t monitored. It is not an easy road to hoe. Mitnick noted upon his release from those restrictions that: “The greatest relief is that I am no longer subject to any conditions of supervised release” and … ”being prohibited from the Internet has been an impediment going forward with my own business.” But again, Mitnick was prohibited from being online for about ten years ending in 2003. That was before Facebook, Twitter, I-Pads, X-Box 360, etc.  I think that the only ones in the U.S. that might not be online now are the Amish…but wait they have mobile phones. Needless to say, not a pretty picture. What does all this mean for the community corrections officers out there? Well, be prepared to see more non-sex and hacker cases with computer restrictions.  On that note, where did I put my cigar at?

PS  BOOK UPDATE: Sent the revised page proofs and index back to my publisher, Charles C. Thomas. Look for The Cybercrime Handbook for Community Corrections: Managing Offender Risk in the 21st Century in early 2012. I, of course, will send out a “tweat” to all my loyal readers and followers when it is available.

Art Legal Updates, Supervision

The Password is “Trouble”

September 23rd, 2011

Years ago there was a game show called Password where one contestant had to guess the secret word or “password” known by the other contestant. I see Saturday Night Live does a parody on it every once and a while for those too young to know what I am talking about. Well, I am hearing some rather distributing things in regards to passwords and social networking sites that I thought I would delve into here. Lets deal with it first from an officer and offender relationship and then we will move to agency and officer perspective.

Officers and Offenders

 Officers supervising offenders, particularly those dealing with offender computer management, frequently ask for all an offender’s social networking site (SNS) profiles as well as the passwords associated with those profiles. Some sex offender registration agencies are likewise asking for passwords as part of registration. Before SNS became a phenomenon supervision officers frequently asked for e-mail passwords. Obviously, having a password is the key to an offender’s accounts. However, and this is a BIG HOWEVER, having the password and using it to gain access to an offender’s account is a BIG NO! NO!There are legal prohibitions against accessing some-one’s e-mail account or SNS, even if you have the password. Even if one does have permission or authorization, it can create a chain of custody nightmare. After all an offender could allege the officer deleted or sent something from the account. There can be better ways of getting at the information. For instance, directing the offender to log on to the account in your presence and going through it with them, in the presence of another officer.  

So why ask for the password in the first place? Well, it is a good practice to ask for the password in case it is needed later after the appropriate legal authorizations are in place. Additionally, individuals may use a password numerous times. It may be used to log into an e-mail account, SNS, or to log in to their computer or an encrypted file.  Let me explain. You have an offender’s e-mail password and you find a computer later they were not suppose to have. The computer is secured with a password. The offender tells you he doesn’t remember the password. Well the e-mail password might be the same one to unlock the computer. Even if is not, it might be very similar to the password and be of use for password cracking tools in brute force or dictionary attack to access the computer.

Think of it in these terms. Officers are allowed to visit offenders in their homes and even to conduct searches upon authorization. However, I can’t think of any supervision agency that demands an offender provide a key for the officer to enter the home at any time they wish. In short, having the password to a SNS or e-mail account means an officer has the key to the offender’s virtual home. That does not translate into accessing the virtual home at will, even if they are on supervision.

Officers and Agencies

Now lets move on to the officers and their agencies. I have previously noted the concerns with officers posting personal information on SNS. Well some agencies are starting to look at new employees and current officer’s SNS profiles. I see no issue at looking at what is publicly posted on these profiles. However, some agencies are taking a more aggressive position and asking for passwords to their employee’s profiles. They want access to the private areas too. Imagine, officers being subject to a “search” of their personal space as a condition of employment. The next step is obviously having to consent to a search of their home at any time without a warrant.

It really is not that farfetched. Take Google+, which is Google’s venture into creating a social networking site business. If one has a profile on this site the password that accesses it is the same as the user’s e-mail account. Imagine an employer being able to not only search the SNS profile but each and every e-mail sent or received from the user’s account. Oh yeah and Google’s wonderful search engine works just as great on a user’s e-mail account on their server. Google also has Google Documents that allow the user to save letters, resume’, spreadsheets, etc. on Google servers. Yep, those are also accessed by the same password. So as a condition of government employment, an officer has to consent to having their digital life searched…even private information. Now there is an incentive to get a low paying dangerous job! Well, not all is loss. In large part due to the efforts of the American Civil Liberties Union of Maryland, the Maryland Department of Corrections suspended their SNS policy for prospective hires.

So what is the point to all this. Sit down with some legal beagles and hammer out a policy for this stuff. As it stands, offenders can be asked for their passwords but using those passwords to access a SNS or e-mail account without the proper legal authorization will get the officer and their agency in very hot water. For agency’s asking for passwords of their employees or potential employees, don’t even think of asking unless you want a call from your local ACLU. In short, the password for not knowing what you are doing in today’s technological and legal environment can be “Trouble.” By the way my password is CIGAR…. I am of course kidding. Be safe out there!

Art Legal Updates, Supervision

States Limit Social Networking Use: Good or Bad?

August 11th, 2011

On almost a daily basis there are media reports about sex offenders being caught online, either trying to pick up a “minor” or viewing child porn. They are also stories about a supervised sex offenders going to a social networking site and getting arrested for failure to maintain their registration. The intersection between sex offending and the Internet seems no longer to be merely a crossroad in the public’s mind but a five lane expressway of deviant behavior. As a result, legislatures appear to be taking a “shotgun” approach to the issue of sex offenders and the Internet. Consider the following:

  • The Massachusetts legislature is contemplating a bill to make registered sex offender’s email addresses and online Identifiers available to the public at large.
  • In June, Louisiana passed a law prohibiting offenders convicted of certain sex offenses against a minor from using social networking sites, although probation and parole officers and judges can make exceptions.
  • New York passed a law in 2008, which requires sex offenders disclose screen names and e-mail addresses during registration. This information is then forwarded to two dozen social networking sites which then block the offenders. Since its enactment it is credited with removing 24,000 sex offenders from Internet social networking sites nationwide.
  • North Carolina, in 2008 prohibited all sex offenders from social networking sites used by minors.
  • Illinois in 2009 enacted a prohibition against registered sex offenders using a social-networking service defined as an “Internet website containing profile web pages…that include the names or nicknames of such members, photographs…or any other personal or personally identifying information.”

Louisiana’s approach on it face, seems much more “tailored” than the other states mentioned.  New York, at least by the numbers noted, is being successful in removing sex offenders from social networking sites.  The questions though are these sex offenders staying off and are there less sex crimes being committed in New York with a social networking aspect as a result. I would like to know.

I get what these legislatures are trying to do. They want to make the Internet safe for kids. That is a very noble objective. I have no issue with supervised high risk sex offenders being prohibited from certain areas of the Internet.  I have also no issue with registered sex offenders, particularly those under supervision, being required to disclose their e-mail and Internet identifiers to law enforcement and their supervision officers. However, Massachusetts the wholesale expansion of these disclosures to the general public seems a bit problematic. 

If Massachusetts passes their law and provides for public disclosure, it will only impact sex offenders in their state. There is no way a Massachusetts resident could check a questionable e-mail on any of the other states sex offender registrations. Many states simply haven’t mandated disclosing Internet identifiers.  As of July 27, 2011, only 14 states, nine tribes and one territory have substantially implemented Title I of the Adam Walsh Child Protection and Safety Act of 2006 (SORNA).  Ironically, only Louisiana of the states noted above has substantially implemented SORNA. So even if Massachusetts does provide for public disclosure of sex offender’s Internet identifiers, there are countless registered sex offenders whose Internet information are not even in the database.

By the way, Massachusetts is bordered by states Connecticut, New Hampshire, New York, Rhode Island and Vermont, none of which have substantially implemented SORNA. New York prohibits sex offenders on social networking sites but their disclosure of Internet identifiers is limited to social networking sites.  SORNA regulations explicitly prohibit public disclosure via the public registry websites (other “avenues” of public disclosure are however not prohibited).  In short, even if a state collects Internet identifiers, that does not translate into easy public access.

So Massachusetts I am having a bit of trouble understanding what public disclosure will do for you. Sure your parents would be able to check an e-mail against the registry to make sure it isn’t a local sex offender communicating with their son or daughter. But what about that sex offender in a border state or the non-complaint sex offender in your own state? If you enact your law it will be like giving your residents a Massachusetts telephone directory to look up a pizza delivery telephone number in California (hold the anchovies please). If I were in Massachusetts would I feel safer for my kids if this law gets passed? More to the point, would they be safer? Very doubtful. 

Oh Missouri don’t think I missed you in this legislative outing. Missouri is now restricting teachers from having contact with their students via social networking sites. One justification sited for this a Associated Press investigation that revealed sexual misconduct through social networking avenues were six times more prevalent than those from the priesthood scandals. Missouri is 11th worst state in the nation for teacher sexual misconduct with students. The law means teachers can’t communicate freely with their students online. Luckily, they didn’t prohibit teachers in the classroom too. Hopefully, the final regulations that result from this will be less than wholesale censorship, particularly with individuals who haven’t been charged with any law violations.

Don’t get me wrong. I know there are risks associated with being online and we need to protect our citizens. Again, I have no issue with requiring sex offenders report all their Internet identifiers, which can be used by law enforcement and corrections. I also have no problem with limiting and monitoring offender’s Internet activities while under supervision. I would also like to see more Internet safety and ethics being taught in our schools. Probably the best way to make your kids safe is to be involved and know what they are doing both in the real world and in cyberspace. I also like it when a state like Louisiana, provides an exception to one of their new laws dealing with these restrictions. This allows us in the “real world” to tailor are risk management efforts.

I have never been fond of a one size fits all approach. Tailor the law to the need. Don’t make it too big or too small. Our laws need to be based upon some rational basis beyond a good “sound bite” on the television news. I know I am asking a lot and I am going to ask for more. Before a legislature passes one of these feel goods laws consider how it is going to be enforced and provide training and resources to get it enforced right. For now one last request. Where is that cigar I put down?

Art Legal Updates, Supervision

Digital Sticks and Stones

March 26th, 2011

Child Abuse Prevention Month and Sexual Assault Awareness Month are in April. Additionally, April 10-16, 2011 is National Crime Victims Rights Week. What do these events have to do with cyberspace? I mean, cyberspace isn’t real right? No one gets harmed by 1′s and 0′s. Sure there are hackers and virus writers that harm or steal data but that has nothing to do with this month’s “real victims.” Oh contraire mon amie! Let me show you how what happens in cyberspace can have real world consequences.

Child Porn

One of the things that really fries my grits is the comment by some that child porn is just “dirty pictures” and the offenders who posses digital images are somehow removed from the victimization process because they didn’t produce the images. I somethings also hear the comment that these images mainly involve 16-17 year olds or are almost 18 years old, and it is “borderline illegal.” Moose hockey!

According to to National Center for Missing and Exploited Children the content of these illegal images “varies from exposure of genitalia to graphic sexual abuse, such as penetration by objects, anal penetration, and bestiality.” Additionally, of the “child pornography victims identified by law enforcement, 42% appear to be pubescent, 52% appear to be prepubescent, and 6% appear to be infants or toddlers.”

Beyond the creation trauma, what kind of harm are we talking about with these images? Digital images don’t degrade over time. Electronic media is the closest thing mankind has come to creating something that is permanent. These images can be traded hundreds and thousands of times and the look of fear, shock, and trauma on the victim’s face is just as fresh as the day it was taken. The images, transmitted all over the world, can’t just be deleted or recalled. They are viewed by all manner of sex offender, from the dabbler (curious offender) to the hard core preferential offender. They are even used by some offenders to entice new children. The children in these pictures are repeatedly victimized a little bit more each time these images are viewed, traded, and distributed. The phrase “dirty pictures”, sometimes used by offenders, attorney, and even judges, to describe these images minimizes the harm done to these children. It is like equating a tsunami with the splash one creates in a mud puddle.

Some federal courts are wrestling with putting a dollar figure for restitution orders in convictions involving child pornography possession. If these restitution orders stand,  maybe, just maybe, potential offenders will realize that possessing images of a children being brutalized can have a negative financial impact on them. It is a small measure of comfort to the victims in these images.

Internet Harassment

Approximately 3.4 million people are stalked annually and 1 in 4 victims reported the offense included a cyberstalking act. (Baum, Catalano, and Rand, 2009) Additionally, law enforcement estimates that electronic communications are a factor in 20% to 40% of all stalking cases. So the lines between on-line and off-line stalking frequently overlap. The effects of cyberstalking and more recently cyberbullying are starting to be viewed as more than just a cyberspace event. According to the National Center for Victims of Crime, cyberstalking victims … “often psychological trauma, as well as physical and emotional reactions as a result of their victimization. Some of these effects may include: changes in sleeping and eating patterns; nightmares; hypervigilance; anxiety; helplessness; fear for safety; shock and disbelief.”

Hinduja and Patchin found … “that experience with traditional bullying and cyberbullying is associated with an increase in suicidal ideation among our sample, and that both seem to be related to the outcome measure in similar ways.” They further note that the data does not support a cause and effect type relation, but that these experiences with bullying and cyberbullying may tend … “to exacerbate instability and hopelessness in the minds of adolescents already struggling with stressful life circumstances.”

Conclusion

I hope that during the upcoming month we realize that a crime, regardless of whether it occurs online or off-line, profoundly and negatively effects victims. We should not paint with broad minimization strokes simply because the crime occurred in the digital age. Those “1′s and 0′s” can sometimes be as harmful as “sticks and stones.”

References

1999 Report on Cyberstalking: A New Challenge for Law Enforcement and Industry, a Report from the Attorney General to the Vice President, August 1999

Baum, Katrina; Catalano, Shannan; and Rand, Michael, (2009). Stalking Victimization in the United States. Bureau of Justice Statistics (BJS), U.S. Department of Justice, Office of Justice Programs.

Hinduja, Sameer and Patchin, Justin W. ‘Bullying, Cyberbullying, and Suicide’, Archives of Suicide Research, 14:3, 206 – 221

Lozano, Juan, “Legal experts: Ruling benefits child porn victims” Associated Press, March 25, 2011

National Center for Missing and Exploited Children,  Child Pornography Fact Sheet

The National Center for Victims of Crime, Cyberstalking

Art Internet Safety, Legal Updates, Supervision