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Home > Legal Updates > Pair of 8th Circuit Cases on Internet Prohibitions

Pair of 8th Circuit Cases on Internet Prohibitions

February 17th, 2011

Couple cases were published February 16, 2011, that thought might be of interest. Both of them are out of the 8th Circuit and come to different conclusions on Internet bans. Here are the highlights: 

U.S. v. WIEDOWER, No. 09-3192, 8th Circuit: Wiedower was convicted of possession of child pornography and the sentencing Court imposed the following conditions, 

 ”(1) a requirement that Wiedower participate in sexual offender treatment, which would involve submitting to polygraph testing; (2) a ban on the use of any computer, whether connected to the Internet or not, without the prior approval of the probation office; (3) a ban on any online gaming unless “otherwise indicated in the sex offender treatment plan”; (4) a ban on possessing or viewing any “form of media containing pornographic images or sexually explicit material”; and (5) a ban on contacting any minors without prior approval or entering any place “where children frequently congregate,” such as theaters and theme parks.” 

The 8th Circuit upheld (1), (4) and (5). However, relying in part on its discussion in United States v. Crume, 422 F.3d 728 (8th Cir. 2005) and the fact Wiedower was only convicted of possession of child porn, the 8th Circuit struck down conditions (2) and (3): 

 …”the district court did not explain why a specific restriction on online gaming was necessary, even though the only evidence in the record suggested that Wiedower was attempting to replace child pornography with online gaming. Accordingly, we reverse the computer and internet restrictions, including the more specific prohibition on online gaming, and remand this case for the district court to create a more narrowly tailored ban, if the district court deems one necessary after conducting an individualized inquiry.”  

U.S. v. DEMERS, No. 09-2886, 8th Circuit: Demers pled guilty to possession of child pornography. However, Demers had a prior sexual abuse offense and was a registered sex offender at the time of the offense. Demers challenged a special condition (Number 5) which forbid him to “have access to an Internet-connected computer” or to “access the Internet from any location without prior approval by the probation office and for a justified reason.” 

 He first argued that a ban on his Internet access was not reasonably related to the 18 U.S.C. § 3553(a) factors. The 8th Circuit noted: 

 ”Given Demers’s prior sexual abuse offense and his status as a registered sex offender, we have no trouble concluding that because Demers’s offense involved using the Internet to access child pornography, a limitation on his access to the Internet is “reasonably calculated to deter him from repeating his illegal activity, protect the public from similar conduct, and serve his correctional needs.”  

 Next, Demers argued that this condition “represents a greater deprivation of his First Amendment rights than is reasonably necessary.” The 8th Circuit noted: 

 ”Crume raises rather than decides the question of how much beyond mere possession of child pornography is necessary to justify a complete ban. In United States v. Boston, however, we upheld a restriction on internet access equally as broad in scope as the one at issue here. 494 F.3d 660, 668 (8th Cir. 2007).” 

Court further noted: 

 ”In the instant case, Demers was arrested at a public library after having printed images of child pornography, which, as in Boston, could very well have been done for the purpose of distributing those images. We find that Boston controls this issue, and we conclude that the district court did not plainly err in imposing special condition 5.”  

  

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