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Posts Tagged ‘Packingham v. North Carolina’

Supreme Court Strikes Down Social Media Restrictions for Non-Supervised Sex Offenders

June 20th, 2017

In May of this year, I mentioned that the Supreme Court was going to decide whether North Carolina’s criminal statute prohibiting sex offenders would stand constitutional scrutiny. I speculated it would be struck down and I guess I win a cigar because the entire Court voted to nullify North Carolina’s statute for violating the First Amendment (Packingham v. North Carolina)

So what does this mean for probation and post release conditions prohibiting sex offenders from using social media? Well, here is what my crystal ball tells me. First, let me note that Packingham was NOT on any form of community supervision. He had completed his sentence and was prosecuted for a new criminal offense, specifically accessing social media as a convicted sex offender. Let me repeat that… this person was not under any supervision condition prohibiting him from accessing social media.

My layman’s reading of the Supreme Court decision is that it currently does not invalidate supervision conditions prohibiting sex offenders’ from accessing social media. That said, my layman’s mind tells me that the Supreme Court in this decisions has recognized the significance of accessing to social media as it relates to the First Amendment. It has not struck down the supervision conditions but it has clearly indicated that they likely will be subject to judicial review. In short, conditions restricting supervised offenders from accessing social media in the future will likely have to be narrowly drawn and related to the offender. For instance, one’s status as a supervised sex offender will not alone be enough to trigger the restriction. They might actually have to had to been convicted or have a history of abusing social media to commit a crime. Even then, they might not be totally restricted from accessing social media. For instance, they may be granted permission subject to monitoring of their profiles and/or Internet/computer use. This decision will likely make any total Internet restriction for probation/parole cases harder to justify. Look for more conditions that allow Internet use but only with some kind of monitoring.

The interesting thing here is Facebook has a policy that prohibits sex offenders from using their site. This case does not force Facebook to allow sex offenders on their site. It only struck down North Carolina’s statute criminalizing the access of any social media site by sex offenders. Will Facebook change their policy? Why should they? My guess is no. But I have been wrong before. Also, I don’t’ think the case will not have any impact on Facebook’s policy concerning inmates using their site, which it recently mitigated somewhat.

My question is why don’t legislatures just focus on increasing the penalties for sex offenders who use certain high tech tools to victimize others? For instance, adding a mandatory criminal penalty for any person that uses social media to victimize another. That would not restrict anyone from accessing social media. It would just criminalize or increase the penalty for using it as a tool to victimize others.

This case will require officers to justify their conditions. It will not, however be the end to conditions governing how offenders access the Internet while on supervision. I see more monitoring and more use of searches. Additionally, officers may now have to check profiles to see who supervised sex offenders may be “friending” to insure there are no future victims. On that note I left a cigar lit somewhere. Be safe out there!

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Cyber-risk: Can Corrections Get it Right?

May 9th, 2017

Computers and corrections (in the community and behind the walls),  is really getting some headlines recently. The thread that appears to running these stories is “risk.” Is there a risk with offenders and computers and if there, is how do we manage it? Let’s start with the case that is currently before the U.S. Supreme Court, Packingham v. North Carolina.

Lester Gerard Packingham Jr., a  convicted North Carolina sex offender, who was no longer under any form of supervision, posted a message “”G-d is Good” on Facebook after a traffic citation was dismissed. Problem is in North Carolina all sex offenders are prohibited from accessing social media.  His conviction has been appealed all the way to the Supreme Court.  A decision is likely this month. The question is can a sex offender, even after he has served all of his sentence, be prohibited for using social media? Does their risk trump the Constitution?

The next story comes from New Jersey. A sex offender on lifetime supervision was completed barred from accessing the Internet by his parole officer. It is unclear if the officer had tried monitoring/filtering and/or periodically computer searches before imposing the complete prohbition.The New Jersey Supreme Court struck down the condition noting that:

access to the internet is a basic need because most job seekers these days need it to find and obtain work.”

Gee, I wonder how the U.S. Supreme Court will rule in imposing Internet restrictions on sex offenders who completed their sentence (I am betting it gets struck down). Now the next two stories represent that even prisons can not stop offenders from accessing the Internet. In the first case, federal sex offenders, in custody, swapped child pornography using smuggled cellphones and data cards. Apparently, they were in a low-security prison, where they were able to work in tandem, to defeat staff’s supervision of them.

In the next story Ohio inmates built their own computer and used the prison’s Internet access to download hacking programs and carry out identity theft. Apparently, some of the inmates were part of a detail working on disassembled computers for a contractor. Unfortunately, they were not supervised and were able to build their system. They also were able to connect to the prison network and to power, all undetected.  The last two examples are cases where offenders, presumedly under a much higher level of supervision were still able to find a way to get connected. It appears corrections staff underestimated their “risk.”

Corrections appears to have trouble understanding risk when it comes to computers. They either overstate it or understate. I recently got forwarded a request from a corrections professional asking how to teach high risk offenders Internet safety because they were posting inappropriate things online and getting in trouble. I took this to be a request of “can we teach felons to lock up their social media profiles so they stop getting in trouble, particularly with their supervision officers?” Really? Is that what we want, high risk offenders who can’t be monitored online? I think not.

There is a fine line that many in corrections can’t seem to grasp in managing cyber-risk. They either go over board, such as with complete bans, which aren’’t always upheld, or they go the other way and ignore the risk. We need to get this right and soon. I have been absent from this column for too long and maybe, just maybe, I need to resume writing about these issues. On that note, I left a cigar lit somewhere. Be safe out there!

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