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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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HELP: A Pokémon Is After Me!

August 25th, 2016

I am not sure if any of you have witnessed the recent craze that started in July called Pokémon GO, which has individuals using their Smart Phones to search and capture imaginary creatures in the real world. No I am not making this up.  Some are forecasting a “flood” of more games to come, capitalizing on this concept which is more specifically referred to as augmented reality gaming. As with any new technological development, there can be a dark side, which has already been exploited by those who look to victimize others.

Before delving into this discussion, let me first explain a little further about Pokémon Go. The game is aimed at players age 10 and up and at least initially the developers did not see fit to put perimeters on where the “creatures” could be located. Individuals were finding the creatures in clearly inappropriate places for children playing a game, such as The Holocaust Museum, funeral homes, and adult themed stores.

Not long after game was released, a NY state senator expressed concern that the game could be used by “higher-level sex offenders” to gain access to children.  The senator observed an informal investigation revealed 57 Pokémon creatures were located near 100 addresses of registered sex offenders across New York City.  The senator advocated and apparently obtained earlier  this week a parole condition for MOST sex offenders in NY that reflects:

“I understand that I shall not download, access, or otherwise engage in any internet-enabled gaming activities to include Pokémon Go.”

I find this very interesting. I have long stressed that Internet gaming held the potential for sex offenders to engage in grooming activities and therefore was an appropriate supervision prohibition. After all playing a game does not educate or help someone get employment.  However, I tended to focus on games children victims would most likely be playing. Children are the ones who are the grooming targets of pedophiles. However, the prohibition reflects “any Internet-enabled gaming.” That clearly applies to Pokémon Go. But does it also apply to online Chess and games less likely to be played by children? A more specific example is the American Association of Retired Persons, which has games for the over 50 crowd to play.   Is an elderly, maybe disabled  sex offender under supervision in NY now prohibited from this activity? There is a real potential to widen the net here beyond what is needed.

One thing that kind of dropped by the wayside was a recommendation by this same senator to require these game developers to exclude locations where registered sex offenders reside. The state of NY has a shown a willingness to share sex offender registration information for such purposes. Gee, that would exclude a much larger sex offender population then just those under parole supervision.  I think though from a developers’ standpoint it may make it bit more challenging to have these augmented reality games function in large areas that are off limits due to sex offenders in the community. (Yes, people, not all sex offenders are in prison and they do live in our communities.)

I mean, what is the acceptable distance from a sex offender and Pokémon creature, 100 feet, or like school restrictions, a 1,000 to 2,000 feet from the sex offender’s residence? Additionally sex offenders are allowed to move, which requires them to update their registration. This would require the gaming company to periodically update their “exclusion zones.” At a minimum this might require a monthly reconciliation but more likely a weekly update to make sure the zones are properly excluded. Also, people we are just taking about keeping the residences of sex offenders off the gaming zones. What about where they work or go to school? This information is also part of the registration. Should the gaming grid also exclude these locations to make sure kids are safe? Maybe from a developer’s standpoint, they hold no responsibility to make sure the players are safe. That is up to the Government, right?

The Government only has control over those who are currently under supervision. Many sex offenders aren’t on supervision. Additionally, there are obviously those who have absconded and are wanted. No parent should throw caution to the wind because there are parole conditions that prohibit supervised sex offenders from using these games.  Allowing their children to run free, unsupervised, and possibly alone, while playing Pokémon Go or any other augmented reality game is asking for trouble.

By the way, to date the biggest offender group to exploit Pokémon Go, appears not to be in the sex offender population. At a minimum there have been reports in California, Georgia, Florida, Indiana, Oklahoma, Nevada, Maryland, and Texas where adults playing this game have been robbed at gun point. (I found maybe two examples of sex offenders missing using this particular gaming application) Basically, victims find themselves distracted by the game, in areas they probably should not be in, during times when they should be there. It doesn’t help that they are holding expensive electronic devices in the open.  Should we start barring parolees who committed robbery from playing these games too? Maybe they should not be in the close vacancy of a Pokémon creature.

It seems we need to do a better job of balancing these parole restrictions to the risk and tailored to the needs of the case.  Additionally, it probably is appropriate to require software/gaming companies to develop products that minimize the potential for harm to users.  For starters they should focus on game grids in the real world that are as free from risk areas as possible and where law enforcement regularly patrols. They should also have built in controls that prohibit any users from adding creatures or game tokens to locations that have not been approved.  They might also consider requiring users that are given such powers to be properly vetted. Finally, we as consumers, either as individuals or parents need to start thinking about how we are ultimately responsible for our own safety  and that of our loved ones and quit relying solely on the private sector and Government to make us safe.  On that note, I left a cigar lit somewhere (Hopefully some stray Pokémon hasn’t taken off with it.). Be safe out there!

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Back to Tor, Silk Road and Bitcoins

March 4th, 2014

It was a few months back when I first introduced the terms, Tor, Silk Road, and Bitcoins on this forum. Those of you who read my piece recall that drugs were being sold on an underground website located on the Tor network called Silk Road. The currency for this underground website was bitcoins, a digital cyptocurrency.  I know. It sounds like the start of a bad science fiction movie but it is all true. Quite a bit has happened since that piece was written which warrants revisiting.

 At approximately the same time I introduced the above,  law enforcement appeared to be on a Tor offensive, with Silk Road’s allegedly leader, Ross Ulbricht, aka, Dread Pirate Roberts (DPR) and several of his alleged co-conspirators arrested and the offending site shut down.  Additionally, arrests related to illegal guns sales were also made on another Tor site, called BlackMarket Reloaded, which by the way also sells drugs.  But the online drug dealers were not through and launched Silk Road 2.0.  Much to their surprise they found that law enforcement was up to the task and two moderators of Silk Road 2.0, who apparently were also involved in the original site, were arrested. It came out last month that Silk Road 2.0, unlike its predecessor, apparently had its assets stolen by hackers as opposed to being seized by law enforcement.  

The assets stolen, specifically bitcoins, have also had their ups and downs. When I first mentioned them they were going for about $135 a piece.  Early last month they were going for about $800 a piece, only to drop these past few weeks to about $500 a piece. The reasons for this wide price fluctuation are varied but include: the seizure of Silk Road bitcoins, China imposing restrictions on their use, and more recently  the public exposure of a bitcoin flaw, transaction malleability. Okay, your head is now officially spinning. Transaction malleability, is that like a trans warp, anti-matter drive used on a starship? Trust me it is not and I promise I will stop using “geek” terms.

Here is something that is not so geek for you to wrap your mind around.   An Australian online study involving 9,470 drug using respondents, in three countries (United States, United Kingdom, and Australia) was completed at the end of 2012. Silk Road goods were part of the survey questions. To put this in perspective, Silk Road was only about a year old in 2012. The results of this study were published in the journal,  Addiction.   According to a news report on this study:

  • 18% of American drug users had used Silk Road “products.” 
  • Over  three-quarters of the respondents indicated they used Silk Road because it had better-quality of drugs.
  • Depending upon the country, between 53 and 60 percent bought MDMA, while 35 and 51 percent bought marijuana.

I know this study may be considered skewed because it was an online study, meaning non-online drug users would not be included. But think about it for a moment. After only a year being on the cyber-space corner, 18% of U.S. online drug users had experienced Silk Road products. I am no business major but 18% from nothing in a year seems pretty impressive to me.

So what does this all mean to those of us in corrections? I think it reiterates what I noted in 2011, namely that drug use and sales are going online.  We now have large scale sites dealing drugs and a significant number of users consuming drugs obtained online. Users are noting they are buying online based upon quality. What trends can we expect?  Stopping drug usage in your own community is one thing. When the entire world becomes an illicit supply chain the task  becomes much more difficult to control. We are likley to see more users getting their supply, at least in part, from online sources.  I also think if  Tor becomes much more user friendly on cell phones we will likely see more underground drug purchases made through cell phones. It can be currently run on an Android phones but it ain’t pretty. Android phones by the way can be used to hold a bitcoin wallet,  the currency of choice in this underground market place. Instead of looking at an offender with a wad of bills, we may need to start looking at cell phones with bitcoin wallets. On that thought, I left a cigar lit somewhere. Be safe out there in the real world and in cyberspace.

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Thank You American Probation and Parole Association!

December 18th, 2012

I got notified today that the American Probation and Parole Association is giving me the 2013 Sam Houston University Award. This award is presented to an individual who has published an article concerning probation, parole or community corrections, which provides new information and insight into the operation, effectiveness or future of the community corrections profession. They noted… “Not only have you published an article, you have been prolific in the number of articles you have published.” Most if not all of the stuff I have written this year has been on cybercrime. It has been a good day!

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