|Taking it on the Chin: Legislatively Imposed Internet Restrictions for Sex Offenders
|By Art Bowker, Cybercrime Specialist
Clear back on February 4, 2013, I gave some predictions for the coming year. I never finished my thoughts, getting waylaid by co-writing a book on Internet investigations. Sorry about that. One of my last comments was… “what about the remainder of my 2013 predictions, such as sex offender Internet restrictions?” It would obviously be silly to continue on with my Nostradamus imitation this late in the year. But what about my ending comment concerning Internet restrictions? Where are they? As luck would have it we had a lot movement on Internet restrictions that warrant mentioning.
Before I go into these recent developments let me play a bit of catch up here on some cases which did not get previously mentioned by me. All of the cases deal with First Amendment concerns regarding sex offender Internet restrictions and/or requiring disclosure of Internet identifiers as part of sex offender registration. The first case, Doe v. Nebraska, 898 F. Supp. 2d 1086 – Dist. Court, D. Nebraska 2012, also concerned a Fourth Amendment issue.
Doe. V. Nebraska was decided October 17, 2012, and was a Federal district court decision which struck down various sections of Nebraska 2009 sex offender restriction law. The enacted law was very broad and had covered both sex offenders who had completed their entire sentence as well as those serving a sentence (probation, imprisonment, or parole). The Court struck down the law’s requirement that sex offenders disclosure their Internet identifiers as part of registration, concluding it violated the First Amendment. Additionally, the Court struck provisions that banned sex offenders from social networking websites, instant messaging, or chat room service that could be used by minors, again finding this provision violated the First Amendment. Finally, the Court struck down provisions requiring “consent” to search and/or monitoring for sex offenders who had completed their sentence, concluding it violated the Fourth Amendment. However, the Court did NOT strike down the search/monitor provisions for those on probation or parole.
The next case occurred on January 11, 2013. On that date a U.S. District Court Judge granted the plaintiff’s motion for an injunction, blocking enforcement of California’s Proposition 35, which required registered sex offenders turn over a list of their Internet identifiers and service providers to law enforcement. (Case 3:12-CV-05713-TEH, Doe v Harris) This matter is now before the 9th Circuit.
On January 23, 2013, the 7th Circuit in Doe v. Prosecutor, Marion County, Indiana, 705 F. 3d 694 – Court of Appeals, 7th Circuit 2013, struck down an Indiana law that criminalized sex offenders using social networking websites or instant messaging or chatroom programs that they knew could be accessed by minors. However, POLITICO’s Tal Kopan (2013) correctly noted “The court was careful to note that its opinion does not prohibit including Internet restrictions as part of terms of release from prison for other sex offenders.”
Okay, that brings you up to speed for what happened during this month. On August 20, 2013, a North Carolina Court of Appeals struck down a law that made it a new crime for sex offenders to access social networking sites.(State v. Packingham, NC: Court of Appeals 2013). This is no surprise considering what occurred in Nebraska and Indiana. (Hello, Louisiana, are you listening? Internet Restrictions Still A Viable Option )
The last case I want to bring up is Bykov v. Rosen, Wash: Court of Appeals, 1st Div. 2013, Court of Appeals of Washington, Division One, which was decided August 12, 2013. By the way, this case did not involve a sex offender. Bykov was convicted of one count of e-mail harassment and was sentenced to 21 days and placed on probation with the following restriction: “Do not use any device connected to the Internet, be subject to search by probation, and cooperate by providing access.” Bykov appealled contending the Internet restriction was an unlawful restraint because it infringed on his rights to freedom of speech, freedom of association, and freedom to receive information under the First Amendment. His appeal was rejected. The Appellate Court noted in part:
“Restricting him from further access to the instrumentality of his crime during his supervisory period was reasonably related to his crime, and it was a reasonable means of discouraging repeat offenses.”
Did you get that last part, “a reasonable means of discouraging repeat offenses?” Restricting Internet access has always been seen primarily as a risk management condition. Now many of you might argue that the U. S. v. Kevin Mitnick, 145 F.3d 1342, 9th Circuit, 1998, was an early example of imposition of Internet restrictions as deterrence. But in that decision there was broad statement by the 9th Circuit, which held that the restrictions were … “reasonably related to legitimate sentencing goals.” Deterrence, although one of many sentencing factors noted 18 USC § 3553, is not specifically cited as a rationale. I think an argument could be made that many of the conditions imposed in Mitnick’s case were really about community protection. He was after all considered a “dangerous” hacker. In Bykov, the Washington Appellate Court singles out Internet restrictions as a “deterrent” sentence. Maybe it is just me but I thought that was very intriguing.
As I have repeated said, 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.” Internet conditions/restrictions on community corrections cases (probation, parole, supervised release), properly crafted have been repeatedly upheld. The Bykov case signifies that separate and apart from managing cyber-risk, an Internet restriction can be punishment that deters future Internet misconduct. The idea that someone could be punished by Internet restrictions, regardless of the risk they pose, is I think, a new sentencing wrinkle. It will be interesting to see how far it goes. For now, I have a cigar burning somewhere.
Mr. Bowker has over 27 years’ experience in law enforcement/corrections and is recognized as an expert in managing cyber-risk in offender populations. In addition to co-writing Investigating Internet Crimes, 1st Edition: An Introduction to Solving Crimes in Cyberspace, (Syngress, November 2013) he is also the author of The Cybercrime Handbook for Community Corrections: Managing Offender Risk in the 21st Century. In 2013, Mr. Bowker received the American Probation and Parole Association (APPA) Sam Houston State University Award for his writing contributions to promote awareness of cybercrime and tools for helping the community corrections field combat computer crime.
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