The Three C’s (Computers, Crime, and Corrections)

Two articles dealing with Facebook caught my attention recently. The first by DeConto described a North Carolina lawsuit challenging state statute §14-202.5 as unconstitutional. This law prohibits registered sex offenders, …. “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.” Violations are a Class I felony (punishable but up to 5 years or fine or both). The arguments appear to be centered on freedom of speech and the law is too broad.

At about the same time an article was written by Brennan describing how difficult it was for a New York police department to keep sex offenders off of Facebook. The article noted:

“But local law enforcement is almost powerless to monitor sex offenders allowed to use websites such as Facebook. ‘We have our hands tied, unless they’re supposed to refrain (from using social networking),’ said Steuben County Sheriff Joel Ordway. Ted Murray, Hornell police chief, agreed with Ordway. ‘Unless they’re on probation or parole, there are no restrictions prohibiting them from being on a site like that (Facebook),’ he said.” ¹

So we have articles noting a legal challenge against a law restricting sex offenders from Facebook and another noting a different state’s law enforcement being practically powerless to remove sex offenders from social networking sites (SNS). What is the story? Are sex offenders allowed on Facebook?

Drum roll please… the answer is… sex offenders are prohibited from using Facebook. Take a look at their user agreement. Specifically: Statement of Rights and Responsibilities, 4. Registration and Account Security, Item 6, reflects: “You will not use Facebook if you are a convicted sex offender.”Facebook goes a step further and provides a method for notifying them of convicted sex offenders on their site.

Why would Facebook have such a policy? They are a private concern and have a right to set their policy as long as it doesn’t discriminate. Sex offenders, last time I checked are not a protected class. So they can set their policy to not exclude them. Some users may actually join Facebook or at least feel some comfort in joining because of this policy. They join with the belief that sex offenders aren’t allowed on the website, a belief that is enforced by Facebook’s policy on reporting sex offenders for action. That is what is called “freedom of association,” another one of those constitutional rights we have. So a private company sets up a rule excluding a non-protected group from joining, a group that represents a risk to minors. I am sure the courts will decide whose rights are more compelling, the sex offender’s first amendment right or the general public’s to associate with whom they chose.

During the discussion we need not forget that SNS are fundamentally different from other communicationvenues in the real world. A sex offender can be anyone they want to be on a SNS. They can be kid or the opposite sex. They can pretend to be several different people, all in an attempt to entice or mislead a minor. They can’t easily accomplish these tricks in the real world. Additionally, in those public places in the real world there are police walking around…parents…other kids….folks that can stop them or at least identify them. A sex offender on a SNS can hide, manipulate, and prey, without much concern about someone seeing them and/or identifying them before they strike. It is different than the real world and the danger can be much higher indeed!

So what does all this mean for a community supervision officer with a sex offender who has a Facebook profile? Consider the following suggestions:

1. Know what your state laws and/or supervision conditions are pertaining to sex offenders having a SNS. If a sex offender has a profile against a state statute this is obviously a new law violation.  It may also be a violation of supervision conditions. 
2. Check to see if the sex offender is reporting all Internet accounts and identifiers when they registered.²If the Facebook profile is not being reported, depending upon state law, they might not be maintaining their sex offender registration. This can be either a new law violation or a technical violation.
3. Even sex offenders who are not registered are violating the Facebook’s user agreement. A case can be made that they are gaining unauthorized access to Facebook’s website by maintaining the profile. This may be a violation of a state law regarding exceeding computer access or trespass. Think in the real world. Would law enforcement allow an offender to loiter or trespassing in a location they have been told they are not suppose to be at?
4. Use common sense. It could be the offender didn’t know about the prohibitions and the matter might be resolved by the offender deleting the account, with a follow up to Facebook. Or it might require you to ratchet up the supervision or get law enforcement involved. For instance, what would a sex offender be up to with a Facebook profile with 50 minors as “Friends”? Why conceal such a profile from their sex offender registration or supervision officer if it was innocence conduct? Investigate and follow where the evidence leads!

Now some of you maybe wondering how do I find out if my sex offenders have a Facebook profile? Well, develop your skills. Seek training on it. The High Technology Crime Investigation Association (HTCIA.org) is a great place to start. Join and get to their conference, which by the way usually has excellent sessions on social networking investigations.

If you don’t think it is important to be concerned about a supervised sex offender on a SNS check out Burton’s article below. It is about a law suit filed against Cook County Probation Department regarding a sex offender case. The suit was filed by a mother who found a sex offender, not online through MySpace® like her daughter…but in act of raping her in her own bedroom. For now remember, convicted sex offenders are not authorized to use Facebook!

Notes

¹ I am not sure what to make of Brennan’s article. In 2008, New York passed the Electronic Securing and Targeting of Online Predators Act (e-STOP) which requires sex offenders register all of their Internet accounts and identifiers; authorizes the release of state sex offender Internet identifiers to social networking sites; and requires, as a condition of probation or parole, mandatory restrictions on a sex offender’s access to the Internet where the offender’s victim was a minor, the Internet was used to commit the offense, or the offender was designated a level 3 (highest level) offender. As such it would appear New York’s law would be rather conducive to removing sex offenders from social networking sites, including Facebook.

² It is a federal requirement under the Adam Walsh Act of 2006 and the Keeping the Internet Devoid of Sexual Predators Act of 2008 (the KIDS Act of 2008) that sex offenders are to disclose all Internet identifiers. However, not all states are up to speed with the federal sex offender registration requirements. Make sure you know your state’s sex offender registeration requirements.

References

Brennan, Lynn, “The Ugly Side of Facebook”, The Evening Tribune Retrieved from http://www.eveningtribune.com/features/x286167677/The-ugly-side-of-Facebook

Burton, Cherly, “Mother files suit for alleged rape victim, 13” Retrieved from http://abclocal.go.com/wls/story?section=news/local&id=7922281

DeConto, Jesse, “Pol Defends Keeping Pervs off Facebook” The Raleigh, N.C. News & Observer Retrieved from http://news.bostonherald.com/news/national/south/view/20110129pol_defends_keeping_pervs_off_facebook/srvc=home&position=recent

Facebook User Agreement, Dated October 4, 2010,Statement of Rights and Responsibilities, 4.Registration and Account Security, Item 6, Retrieved from http://www.facebook.com/terms.php.

North Carolina Revised General Statutes, Chapter 14, Criminal Law. Retreived from http://www.ncsu.edu/police/Information/NCLaw.html

North Carolina § 14-202.5. Ban Use of Commercial Social Networking Web Sites by Sex Offenders. Retrieved from http://www.ncga.state.nc.us/enactedlegislation/statutes/html/bysection/chapter_14/gs_14-202.5.html

Art Supervision

My blog “The Three C’s (Computers, Crime & Corrections)” has been up for a little over two months now and I have been a little self centric. I have been writing about topics that I found interesting/intriguing etc. However, I am sure my reader(s) out there have some thoughts, questions, etc. that they are curious about. Well here is what you do:

1. You don’t need a user account to post a comment, However.
2. Your name and email are required to post a comment but only your “Screen Name” will appear in all communications and APPROVED comments that are posted. So, use good judgment about it. Be good and be safe!
3. Your email is included in the communication but it does not get posted with the comment.
4. Post a comment on this page and I will get your message.

Couple things about posting. We, the blog authors, Moderate the comments. Which means we have authority to APPROVE, which means make public your comments. So remember in Item 2, if you put your full name in your profile it will appear on the post, if APPROVED.

No one but the individual blog authors and of course corrections.com can see the message or who sent it . After it is APPROVED the comment and author appears but not the email. I also can just trash it so it is gone too (I do that after reading the spam for laughs). So this means you can shoot me a topic and don’t have to worry the whole world will read what you suggested or that you asked something. Nothing gets posted unless it is APPROVED.

So if you have a topic that is germane to this blog, shoot me your suggestion.

Now I will also entertain “how to or what does this mean’ questions from correctional professionals, which means, correctional, probation, parole, pretrial, or community sanction officer or someone employed in the system (as opposed to “serviced” by the system), please be prepared to give me your name/agency and work telephone number. Again, that information will not appear on the blog as I won’t be approving it. This way I can confirm I am not telling those who shall not be named how to take over the world! (If it were that easy)

So get registered and start those questions/comments flying!

Art Supervision

Community corrections agencies are increasing being asked to manage cyber-risk. Some prohibit all computer or Internet use. Others conduct periodic computer searches. Many are relying on computer monitoring software to do the lion’s share of the risk management. So how does wiretap laws pertain to community corrections computer monitoring? Lets see!

Title III in this article collectively refers to wiretap laws at the federal and state level. Kerr writes this in regards to the federal statute:

“The basic structure of the Wiretap Act is surprising simple. The statue envisions that an individual is exchanging communication with another person or machine. The state makes it a crime for someone who is not a party to the communication to use an interrupting device to intentionally access the private communication in “real time.” (pg. 451)

How does this relate to computer monitoring then? In O’Brien v. O’Brien, Case No. 5D03-3484, (2005) a Florida appellate court ruled that computer monitoring by a spouse was governed by the state’s wiretap statute, which was patterned after the federal law (18 U.S.C. § 2501). In this case the spouse used software to capture chats, instant messages, and web browsing by her husband, without his knowledge. The software eventually captured the husband’s communication with his girlfriend, who also was unaware of the monitoring. The appellate court ruled in part that …. “spyware installed by the wife intercepted the electronic communication contemporaneously with transmission, copied it, and routed the copy to a file in the computer’s hard drive, the electronic communications were intercepted in violation of the Florida Act.”

Some community corrections officers are deploying similar monitoring software, particularly on sex offenders’ computers. The installation is usually through a supervision condition authority. Additionally, the offender and all household members who may use the computer are always fully aware that the monitoring software is present. Progressive agencies also place electronic consent banners at the start up of the operating system and place hard copy warning stickers letting all who may use the system know they have no expectation of privacy if they use the computer.

Federal law provides a minimum level of privacy protection with the wiretap statute. Some states have greater protections. The federal Title III law and states with similar laws provide for some exceptions to a wire tap. Several exceptions are germane here. The first is commonly known as consent. There are two kinds of consent. The first is one party consent, which is contained in the federal law and 38 state statutes.

Under one party consent if one person knows about the inception (monitoring) and agrees, the monitoring can occur. In a correctional setting, the offender knows as well as all who use the system, that the computer is being monitored. This is established by the use of the banner and/or hard copy notices. Additionally under federal law there is also an exception for a person acting under “color of law” to intercept a wire, oral, or electronic communication with consent of one party to the communication.

The other type of consent is called two party. This means that both parties to the communication have to consent to the monitoring. There are twelve states that have two party consent (CA, CN, FL, IL, MD, MA, MI, MO, NV, NH, PA, and WA,  Reporters Committee for Free Press). Some two party states, such as Florida, allow an exception to law enforcement with one party consent, when…. “the purpose of such interception is to obtain evidence of a criminal act.” (FL 934.03(1)(c)). The purpose of correctional computer monitoring is to insure compliance not necessarily to obtain evidence of a criminal act. For instance, monitoring may used to insure a sex offender is not viewing adult pornography, which would be a treatment issue and not a criminal act.  

Two party consent can therefore be an important consideration if computer monitoring is occurring. The offender and their household’s consent means little when they communicate via the computer with someone who is not aware the monitoring is taking place. The third party person they may communicate with can’t see the warning banner or the stickers. Lets see how this plays out.

1. Sally’s son is being supervised for downloading child pornography. They live in a two party state and her son’s officer has installed monitoring software on the computer so he can have Internet access to look for work. Sally is okay with this as she wants her son to say out of trouble. The software will be on the computer as long as her son is in the home and on supervision.
2. Sometime after the installation, Sally gets online and enters a chat room where a discussion on breast cancer is taking place. There are five others in the chat room. Sally posts in the chat room as well as communicates via instant messaging with the other participants. Additionally, she sends and receives e-mails from all them after exiting the chat room. All of this activity is being recorded by the monitoring software. Sally knows about the monitoring software but the five others do not.

Do the five have a reduced expectation of privacy for their chat room discussions, yes of course? But what about the private instant messages or their e-mails with Sally? You see the problem.

Some monitoring software alleviates this problem by limiting monitoring to only the offender’s usage. One company actually uses a biometric device to ensure only the offender is being monitored. But the offender’s communications are still obviously being monitored. It is hard to imagine why a sex offender would be allowed in a chat room, but use of e-mail is another matter. The offender’s exchange of e-mail with someone else could also create the same consent issues to monitoring in a two party state.

Now the second exception to wire taps is the issuance of a court order. Under federal law there are specific time constraints and judicial oversight of the entire process. Additionally, there are specific requirements to get a wiretap order issued. They include a finding of probable cause that the following exists:

” a) there is probable cause that an individual is committing or about to commit a specific crime; there is the belief that particular communications concerning that offense will be obtained through such interception; and c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.”

Even a supervision condition for monitoring software, ordered by a Court is hard to imagine being the same. There is no probable cause to believe the offender is committing or about to commit a new crime.  Additionally, a periodic computer search can be used to find the evidence so a normal investigative procedure could be used.  Finally, computer monitoring on an offender can literaly be on the entire term of supervision, which is often years in duration as opposed to days or months common in wiretap orders. 

It is possible that monitoring software might follow what has occurred with probation searches. Specifically, in United States v. Knights, 122 S.Ct.587 (2002), the Supreme Court “…held warrantless search of a probationer’s apartment, supported by reasonable suspicion and authorized by a condition of his probation, was reasonable within the meaning of the Fourth Amendment.” Does this mean an appellate Court could carve out some kind of exception for computer monitoring for probation/paroles because they have an reduced expectation of privacy? What about the order’s impact on others inside and outside of the offender’s home who may be involved in communications with the offender’s monitored computer?

By the way, what is the down side of breaking a wiretap law? How does possible criminal and/or civil penalties grab you? Clearly some thought has to go into computer monitoring in states with two party consent issues. At a minimum agency’s should do the following:

Know throughly what computer monitoring they are using can do and can not do. Some important considerations are:

1. Is a electronic consent banner part of the program?
2. Can it be configured to only capture the offender’s activities?
3. Can it be set to prevent incoming communication from non-supervised person’s from being captured?
4. Can it block programs that might create two party consent programs, such a chat or Instant message programs?
5. Can it filter data to monitor or alert, to only that which is germane to the conviction or problem conduct?
6. Can it set to capture only outgoing communication from the offender

With a working knowledge of the software discuss the situation with a Title III legal expert in the jurisdiction to insure that if monitoring can be deployed that it is done only in a manner consistent with state and federal law. The last thing you want to do is create bad case law or worse, by not dealing with this “gorilla.”

References

Electronic Surveillance Laws, Accessed from http://www.ncsl.org/default.aspx?tabid=13492

Florida State 934.03: Interception and disclosure of wire, oral, or electronic communications prohibited. Accessed from http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0934/Sections/0934.03.html

Kerr, Orin (2006) Computer Crime Law, Thompson, St. Paul

O’Brien v. O’Brien, Case No. 5D03-3484, (2005). Accessed from http://www.5dca.org/Opinions/Opin2005/020705/5D03-3484.pdf

Reporters Committee for Free Press “Can We Tape?” Accessed from http://www.rcfp.org/taping/

United States v. Knights, 122 S.Ct.587 (2002)

18 U.S.C. Chapter 119, Wire and Electronic Communications Interception and Interception of Oral Communications. Accessed from http://www.justice.gov/criminal/cybercrime/wiretap2510_2522.htm

Art Supervision

We repeatedly see stories of sex offenders posting on Facebook® or MySpace®. There are news accounts of sex offenders being removed by these sites and law enforcement arresting them for failure to report their Internet Identifiers. One of the things I have been trying to stress is that all offenders, not just sex offenders use social media to communicate. They are no different then any other person in this regard. They post commentary about their lives and how things are going on. They even post stuff they probably really shouldn’t. I was curious though if they were also “Tweeters”…. Well the answer is YES. Here is a snap shot of some of the tweets I collected in about 5 minutes, cleaned up slightly, with only their Twitter names. They give you an idea of what some of these folks are thinking when they leave your office or waiting for you to make your home visit. By the way, if you have a Twitter account and the right information about your offender you can see what they are posting specifically. Enjoy!

ScottiePiffin15: “*itch im on probation so my nerves bad”

C3pmoody: Once I get off probation I get bac on dats *ucked

cchellahandsome: “Sitting in the probation place like I don’t have *hit to do today.”

Lil_CrYs420: “Ughhhhhh who knew you needed a whole cup of *iss…grrrrr hates probation soooo much!!! I need to smoke badly”

sillyskrod: “I am all in compliance and my probation officer is happy with me. Only three more probation visits!!!!!!!! Eeeeeeee!!!!!!!!!!!”

MrPearlEm: “*itch im on probation so my nerves bad, and they say time flys well mine first class”

JGon561: “@KalioGo1wayWM how you smoke and on probation? I’m scared as *uck to smoke!”

IamGotti: “Just left my probation officer office…….this is no good”

brycelamaar: “*uck probation!! I seriously won’t let this get me down.”

ThatsSoKiva Kivz: “Released on probabtion. Reduced sentence for good behaviour. Have to see my *ucking parole officer. #TwitterJail”

Shedd2009: “Damn… Gotta see the Probation Officer today…. Just another #Mutha*uckaIHateButWontEverKnowIt”

VthePerfection: “Waiting on this parole officer to make a home visit. I’ll b glad when thus *hit over. Got one more year 2012, then I’m free.”

Stickileaks: “#thingsthat*issmeoff My parole officer…”

xADRiZZy: “I need to get alway frm my parole officer! Smh; All up on my business’”

harkinator: “@BrettGates She’s been sandbagged by her Lindsay Lohan SCRAM bracelet. Her parole officer will be here any second.”

Art Supervision

The Internet has blossomed into a modern day necessity. However, serious on-line victimization, such as cyberharrsssment, cyberbulling, and cyberstalking can have a chilling effect on a victim’s computer use. The negative impact can be even more frightening when on-line harassment transcends into real world contact. Former Vice President Al Gore observed: “Make no mistake. This kind of harassment can be as frightening and as real as being followed and watched in your own neighborhood or in your own home.” (U.S. Department of Justice, 1999, p. 1)

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) Law enforcement estimates that electronic communications are a factor in 20% to 40% of all stalking cases. (NCSL, 2009) Forty-seven states have laws which explicitly include electronic communications with stalking and harassment laws. (NCSL, 2009)

The Internet is often a stalker’s harassment vehicle, either directly, such as through e-mails/Instant messages to the victim, or indirectly, by posting false or misleading information about victims in chatrooms, social networking sites, etc. The offender can also use the Internet to influence and encourage others to harass the victim, such as can occur in cyberbullying cases. They can also create bogus social networking profiles, impersonating the victim, to harass or gain even more information about their target.

The Internet can also be used to conduct victim research. If the victim has any kind of information that has been posted to the Internet, a stalker can find it. This information may have been posted willingly by the victim, such as in social networking profiles or innocently by others, such as friends, employers, schools, churches, etc. Even posts in chatrooms can sometimes find their way into Internet databases. Once the information is posted on-line it is very hard to contain.

Some stalkers have also used computer spyware or monitoring software [i] to track their victims’ on-line and real world activities. Spyware does not require a great deal of sophistication to deploy or use. It is also readily available online for a nominal fee. Offenders can send an innocent looking e-mail containing a malicious program to their victim. The victim opens the e-mail and inadvertently installs spyware on their computer. In cases where the stalker has gained access to the victim’s computer, they may directly install spyware themselves. The installed spyware usually reports back to the stalker via the Internet and the results can be reviewed at their leisure. Depending upon the spyware the stalker may collect an amazing amount of personal information and details from the victim’s computer. Some spyware can capture the user’s web cam activity or even activate the user’s web cam, forwarding the victim’s images to the stalker.

Finally stalkers use computers to store their research efforts. Victim pictures, spy monitoring reports, etc. can be stored for ready access by the stalker. In cases were the stalker is under community supervision, this information is easily hidden during home visits, unless of course the officer conducts computer searches.

Correctional Efforts

Many correctional methods currently employed, such as location monitoring or victim alerts, cannot prevent cyberstalkers from using the Internet to research and/or strike at their victims. Eliminating the stalker’s Internet use or computer access seems to some to be the logical solution. However, such drastic measures fail to take into account how integrated Internet use has become to our modern society. In juvenile offenses, such as cyberbullying, Internet prohibitions can have serious repercussions for their education and rehabilitation.

Computer monitoring software, which has been used with sex offenders, can also be deployed to supervise Internet harassment cases. The offender can be permitted Internet acesss but their computer is monitored to determine if they are attempting to research, contact, or otherwise harass their victims. The software can also be used to prevent offenders from online locations, such as social networking sites, which were the harassment vehicle or location. Depending upon the software it can generate an alert to a supervision officers’ cell phone of serious non-compliance. Imagine the significance if officers can be instantly alerted to an offender’s efforts to locate their victim’s new contact information or address online.

For the software to be effective offenders must be required to use only a monitored computer. Employers will sometimes allow software to be installed on their computers or have restrictions/monitoring efforts already in place that are sufficient. Likewise, schools can be accommodating. Frequently school services can be accessed via the offender’s assigned monitored computer. Any use of a non-monitored computer without advanced approval should be considered a serious supervision violation.

Officers should not depend solely on monitoring software to supervise the risk posed by the Internet harasser. Field work, ie., home/community contacts are still a requirement. Location monitoring, such as global positioning, can also be used to remain aware of the offender’s location in relationship to the victim and also to computers which could be used to bypass monitoring efforts. Officers should also routinely check the Internet for evidence that the offender is using a non-monitored computer. Oftentimes offenders will recycle or slightly modify old Internet Identifiers (e-mails/profiles) and again start posting on-line. The use of polygraphs, a tool frequently used in sex offender treatment, can also be employed to detect if an offender has used an unmonitored computer or taken some action to locate or contact a victim. These supervision efforts also have to be combined with the appropriate treatment options available for dealing with stalkers.

Conclusion

Stalkers will use whatever means necessary, including the Internet, to annoy, harass, threaten, locate, and/or harm their victims. Officers cannot ignore this reality. To do so places victims and our communities at risk. Computer monitoring of Internet harassers, coupled with other supervision strategies, can help manage the online and real world risk posed by these offenders.

References

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.

National Conference of State Legislatures (NCSL) http://www.ncsl.org/IssuesResearch/TelecommunicationsInformationTechnology/CyberstalkingLaws/tabid/13495/Default.aspx Retrieved November 28, 2010

U.S. Department of Justice (1999) Cyberstalking: A New Challenge for Law Enforcement and Industry — A Report from the Attorney General to the Vice President. Washington, DC: U.S. Department of Justice

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[i] Monitoring software is used legitimately by parents, employers, and even community corrections officers to monitor the activities of individuals. In such cases it being used with authorization. For purposes of this article, where such software is deployed without authorization, it is collectively referred to as spyware.

Art Supervision