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

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!

Art Uncategorized Facebook restrictions, Internet restrictions, Packingham v. North Carolina, parole, probation, sex offenders

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!

Art Uncategorized computer restrictions, cybercrime, inmates and computers, Internet restrictions, Packingham v. North Carolina, sex offenders

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 9^th Circuit. 

On January 23, 2013, the 7^th 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? See 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, 9^th Circuit, 1998, was an early example of imposition of Internet restrictions as deterrence. But in that decision there was broad statement by the 9^th 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. (Again, sorry about my extended hiatus. But I am sure you will pardon my absence when you take a look at Todd Shipley’s and my efforts on Investigating Internet Crimes, 1st Edition: An Introduction to Solving Crimes in Cyberspace, due out in November 2013)

Art Uncategorized Internet restrictions, sex offenders