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| Six Myths Why We Can't Manage Sex Offender's Computer/Internet Use |
| By Art Bowker, Cybercrime Specialist |
| Published: 11/15/2010 |
There was a recent debate raging in California about legislation aimed at requiring sex offenders disclose Internet identifiers during registration and prohibiting them from accessing social networking sites, such as Facebook®. Several notable criminal justice and correctional experts were cited in the debate provided reasons why such measures were ill-advised. These reasons and others have been cited over the years as justifications for overlooking cyber-supervision strategies for sex offenders. These myths need to be addressed if we hope to manage the risk posed by sex offenders in the 21st Century.
Myth 1: Restricting Internet Use Will Negatively Impact Offender's Ability to Obtain/Maintain Employment and Other Needed Services. In today's environment it is true that many services and employment opportunities are only available via the Internet. However, this does not mean officers should turn a blind eye to a sex offender's Internet use. This is particularly the case for those whose offense conduct involved computer use. Any officer would not hesitate to prohibit or restrict a sex offender's employment opportunities if it placed the community, particularly minors, at risk. Somehow, officers and others are hesitate to show the same due diligence when it comes to the Internet, where literally millions of minors are present. A complete ban may not be appropriate in all cases but for some, particularly those with a willingness to seek out minors and/or child pornography on-line, such a prohibition or monitoring can be legally justified. Nevertheless, such measures do not have to be permanent, but can be as reduced as the monitored sex offender shows real progress in treatment and through the supervision process. Myth No. 2: Monitoring Supervised Sex Offender's Internet Use Violates Their Rights. Courts have supported that offenders have diminished rights while under supervision. Probation and parole officers routinely monitor offender behavior in the community. We do home visits and employment visits. We talk to family and friends to see how the offender is doing. We obtain progress reports from treatment providers. However, we are somehow violating their rights by checking social networking sites to see if they have a profile, the same profile which a minor might easily access? Obviously, installing monitoring software requires the appropriate condition and searches require justification. But supervised sex offenders have a diminished expectation of privacy and such strategies are totally appropriate to manage risk. Myth No. 3: Our sex offenders don't use the Internet or computers. In 2008, Nielsen Online, reported 220 million Americans had Internet access at home and/or work and 73%, or 162 million went on-line in May of 2008. (Nielsen Online, 2008) These numbers are only increasing, particularly with the easy access available via cell phones and other mobile devices. Can we really believe that sex offenders, even those under supervision, are not a part of the larger Internet accessing population? Myth No. 4: Let Supervised Sex offenders on the Internet, Without Accountability, as We Can't Supervise Them. This myth includes the following components:
It is accurate there are numerous Internet access points. There are also numerous locations in the community where minors congregate and offenders can access. We obviously do not give up community supervision as a result. This is one way other supervision methods can be brought to bear on managing the risk. Speaking with third parties may reveal offenders are spending time at locations where computers are located or have purchased a new Internet capable cell phone. Polygraph examinations can also reveal unknown access points used by the offender and other non-compliance related to computers. Detection of a sex offender on-line, without permission, is a proactive measure to protecting the community. Many sex offenders are using their real names or an e-mail reported to their officers to create a profile on social networking site, in effect hiding in plain view of their officers. The only reason they are not detected is because officers are not looking for them. Some offenders will obviously use fake names and emails to cover their tracks. Offenders also do other things to avoid detection while under supervision. Does that mean we give up? A sex offender's use of a fake name or email is a red flag a proactive intervention is needed. Again, there are investigative measures that can be utilized to overcome or minimize this issue. Ignoring the issue is not addressing risk. It is true that many officers currently lack the expertize to do many of the tasks required to make sex offender's accountable for their Internet use. However, this can be overcome with training and education. After all, are we really going to argue that such expertize is beyond community corrections officers ability to develop when the rest of society (including offenders) are growing technologically proficient? Myth No. 5: Monitoring Sex Offender's Internet/Computer Use Takes Away from Traditional Work, i.e. Home visits. Yes, such activities do take time. But how is doing numerous home visits, without checking out their computer, going to detect a supervision violation related to computer use? A sex offender can conceal hundreds of thousands of child pornography images on a computer, which will go undetected unless someone checks or monitors the computer. Likewise a sex offender can establish a social networking profile that will go undetected (except by a minor or the press) if the officer limits their supervision to only traditional home visits. Why would a supervision officer limit their activities to the brick and mortar world when today's sex offender is doing his or her violation behavior in cyberspace? Myth No. 6: There is no evidence managing a sex offender's computer/Internet use has any impact on community safety. There is a lack of “evidence based” studies on this issue. However, there have been numerous media reports of sex offenders on community supervision being arrested by law enforcement for attempting to obtain child pornography or reach minors via the Internet. A recent article documents that of six probation searches conducted in the Middle District of Florida from 2007 to 2009, five detected violations of the terms of supervision and four detected new law violations (possession, receipt/production of child pornography via a computer). (MacNichol and Palmiotto, 2010). This is a very small sample. However, it and numerous media reports supports that more officers need to employ cyber-supervision strategies to effectively manage risk. Conclusion This article was meant to dispel many of the “we can't” justifications regarding managing sex offender's computer use. The real issue is not “we can't”, but we need resources, training, staff, and equipment to accomplish this task. This is the true argument. We also need serious studies of what can be only pointed to as anecdotal evidence that today's cyber-supervision practices are protecting minors from victimization. It is believed such serious research will demonstrate that managing supervised sex offenders' computer/Internet use is a key component (along with treatment and traditional practices) in protecting our communities from future victimization by these individuals. References 1. Ironically, this same rationale would hold that law enforcement should not investigate crimes on the Internet as it is too immense. Do we really want the Internet taken over by offenders? MyNews3 (2009)“Accused Dugard kidnapper kept Internet Blog”, Retrieved October 16, 2010 from http://www.mynews3.com/story.php?id=4412&n=4775,134,140 MacNichol, S. and Palmiotto, M. (2010). “Supervision of Sex Offenders: A Multi-Faceted Approach”, Federal Probation, September 2010, Vol. 74, No. 2 Nielsen Online (2008). “Nielsen Reports TV, Internet and Mobile Usage Among Americans” July 8, 2008 Poulsen, Kevin (2005) “Blog Bares Sex Offender's Demons,” Retrieved October 16, 2010 from http://www.wired.com/techbiz/media/news/2005/07/68094 San Diego News Network (2010) “Accused rapist/killer John Gardner III reportedly Hid MySpace Page,” Retrieved October 16, 2010 from http://www.sdnn.com/sandiego/2010-04-01/local-county-news/accused-rapistkiller-john-gardner-iii-reportedly-hid-myspace-page "Art Bowker has over 25 years experience in both law enforcement and corrections at the state and federal levels. He has been an Executive Committee Officer for the High Technology Crime Investigation Association (htcia.org) numerous times and is also on the Technology Committee for the American Probation and Parole Officers Association (appa-net.org). He has a Master of Corrections degree from Kent State University. Follow Art on Twitter.com at:(http://twitter.com/Computerpo) Other articles by Bowker: |
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What JohnDoeUtah on 01/30/2011, forgot to mention in his post about his pending Supreme Court case is that he lost at the Distict level and than at the appealate court level. He may win his argument but at this point what he is claiming is not a legal fact. Additionally, He also is picking an choosing stats out of the survey...located at: http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/ISTTF_Final_Report.pdf He notes: "There are no studies that concern the activities of registered sex offenders online, whether their participation in social media is correlated with increased risk, or whether they use social media to contact youth more than other channels'...'the image presented by the media of an older male deceiving and preying on a young child does not paint an accurate picture of the nature of the majority of sexual solicitations and Internet-initiated offline encounters'...'youth identify most sexual solicitors as being other adolescents (48 percent in 2000; 43 percent in 2006).") Therefore, there is very clear indications, thus far, that such laws will fail to achieve the government's stated interests, protecting children, and thus are not constitutionally valid.” The study does reflect youth identified most sexual solicitors as being other adolescents... 48% down to 43%... However one has to understand, these were solictions received over the Internet. They could have been adolescents or adults. This stat is based upon the youth’s opinion, based upon their interaction with someone they probally never ever saw. Additionally, work out the numbers.. Does this mean the remaining “ 52 to 57% “ are from adults? That didnn’t make sense to me. so I went to the study.... here is what it said: "Youth identify most sexual solicitors as being other adolescents (48%–43%) or young adults between the ages of 18 and 21 (20%–30%), with only 4%–9% coming from older adults and the remaining being of unknown age (Finkelhor et al. 2000; Wolak et al. 2006). Not all solicitations are from strangers; 14% come from offline friends and acquaintances (Wolak et al. 2006, 2008b)."... So you have 24 to 39 coming from adults..that is over 18. Sure I know 18-21 are young adults...but are those 18-21 yr. solicting 16-17 olds....or 12-13 yr olds? A more complete quote about these studies was: “There are no studies that concern the activities of registered sex offenders online, whether their participation in social media is correlated with increased risk, or whether they use social media to contact youth more than other channels. Much more research is necessary to determine whether registered sex offenders pose a threat to youth through their online activities.” The study he is citing means there needs to be more research on the topic NOT as he implies that it has been proven there is no risk. And both the cases he cite, Doe v. State of Nebraska, 2009 U.S. Dist. LEXIS 121104 (D. Neb. December 30, 2009) and Doe v. Prosecutor, Marion County, Ind., 566 F. Supp. 2d 862 - Dist. Court, SD Indiana 2008 appear to have nothing to do with persons not under correctional supervision. So before you start aserting folks are using "hearsay babble" try providing all the facts.... or the very least note what is your opinion and was is fact. As it stands now you appear to be claiming your opinion is the fact...which just is plain inaccurate...and misleading. You do have a First Amendment right...but I think most folks prefer individual use to to provide facts as oppose to misinformation.
Re:CDRTx I acknowledged in my statement that Sex Offenders on probation and parole are bound by the conditions set by the judge (such as electronic monitoring and random search and siezure); however, while you seem to say 20% of monitored offenders look at prohibited material, you failed to cite any source for your assertions. Therefore, it will be ignored as hearsay babble.
In re: to JohnDoeUtah. Your case is not applicable to what this article is covering. Your case involved monitoring AFTER you had completed your sentence. If you are suggesting that the Courts have no right to monitor supervised sex offenders, you are sadly mistaken. There are several Appellate Court decisions confirming the constitutionality of computer monitoring. First, they have stated that being "supervised" as a probationer or parolee you are not guaranteed the same expectations to rights of privacy. Probation is a deal. In order to get out of Jail you must agree to certain conditions and monitoring is generally included in that SIGNED agreement. Second, there is the phrase "Special Needs". This means that if the court finds that monitoring is a special need to protect the public, reduce recidivism or assist the probationer in rehabilitation, it is allowable. Your argument that it does not reduce recidivism is, in my own professional experience, incorrect. We have found that about 20% of monitored offenders are viewing illegal or prohibited materials via the internet even when they know they are being monitored. It's these cases, in my opinion, that clearly justify computer monitoring of sex offenders. There are many articles and cases that confirm what I have stated. Here are a few Court rulings to study. United States v. Balon United States V. Lifschitz
After reading this I feel compelled to advise you of a few things in the works regarding the subject of your article. For starters, I am the Plaintiff in Doe v. Shurtleff; a case currenly on Petition for Writ of Certiorari before the United States Supreme Court concerning the Constitutionality of sex offenders, and the government violating thier clearly founded First Amendment rights to anonymous Free Speech, McIntyre v. Ohio Elections Comission 514 US 334. This right is also clearly established via the internet, Reno v. ACLU, 521 US 844. The First Amendment states that the right to Free Speech shall not be abridged by the government. Stripping a citizen of thier right to anonymous free speech, without individualised suspicion, violate thier clearly established rights. In order for the government to prevail, it must be shown that the governments exercise meets a specific governmental interest. Just like studys indicating that there are no correlation between sex offender recividism and proximity to schools, parks or daycares (which defeat the government argument that residency restrictions meet address a legitiment state interest); one study, and I'm sure many will follow, indicate that internet restrictions on sex offenders do not lower recividism. The same applies to internet based restrictions upon sex offenders, ENHANCING CHILD SAFETY AND ONLINE TECHNOLOGIES: FINAL REPORT OF THE INTERNET SAFETY TECHNICAL TASK FORCE TO THE MULTI-STATE WORKING GROUP ON SOCIAL NETWORKING OF STATE ATTORNEYS GENERAL OF THE UNITED STATES ("There are no studies that concern the activities of registered sex offenders online, whether their participation in social media is correlated with increased risk, or whether they use social media to contact youth more than other channels'...'the image presented by the media of an older male deceiving and preying on a young child does not paint an accurate picture of the nature of the majority of sexual solicitations and Internet-initiated offline encounters'...'youth identify most sexual solicitors as being other adolescents (48 percent in 2000; 43 percent in 2006).") Therefore, there is very clear indications, thus far, that such laws will fail to achieve the government's stated interests, protecting children, and thus are not constitutionally valid. See, http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/ISTTF_Final_Report.pdf While those on probation and parole are subject to the conditions placed upon them by the courts; the sex offender who is no longer under court supervision has his First Amendment rights restored fully, Doe v. Shurtleff at. el., 2008 U.S. Dist. LEXIS 73787, at *23. Therefore, in regard to the First Amendment, a sex offender does not have dimmished rights under the First Amendment according to the law and our constitution. With regard to your take on Monitoring Software, and monitoring sex offenders internet actively generally; that has also been resolved as unconstitutional by two federal courts, Doe v. State of Nebraska, 2009 U.S. Dist. LEXIS 121104 (D. Neb. December 30, 2009, Doe v. Prosecutor, Marion County, Ind., 566 F. Supp. 2d 862, 865-66 (S.D. Ind. 2008) (granting declaratory judgment stating that consent-to-search personal computer requirements in Ind. Code § 11-8-8-8(b) may not be applied to class of “all persons, current and future, who are required to register as sex or violent offenders pursuant to Indiana law and who are not currently on parole or probation or court supervision;” explaining that the “unprecedented new law, however well intentioned it may be, violates the Fourth Amendment rights of the plaintiff class, who have completed their sentences and are no longer on probation, parole, or any other kind of court supervision.”) Therefore, for those offender not on probation or parole, your position violates the Fourth Amendment of the Constitution, which yes are also not diminished due to our status as sex offenders. Infact, even those offenders on probation are protected from limitless monitoring of thier activity on, or their exclusion from, the internet, State v. Howell, 166 N.C. App. 751 (2004), United States v. Russell, 600 F.3d 631 (D.C. Cir. 2010), United States v. Heckman, 592 F.3d 400 (3rd Cir. 2010). This would be especially true if the offenders predicate crime did not involve the use of the internet to facilitate the crime. Wholesale violation of our rights as citizens is not being taken lightly, and we are starting a movement across this nation to combat these illegal actions against our civil liberties.
Prznboss, you note, "I've been in this business many years and obviously there are restrictions placed on those on probation and parole and for good reason. In prison they have many more restrictions." So you appear to be okay with restrictions, but are troubled by just those that involve computers. Or is it just installing monitoring software that has you troubled? Search a computer as opposed to installing monitoring software can be must more intrusive that installing...their computer might have to be removed from the house....and officer might have to be in the home for hours to check it. Or you just don't like both searching or monitoring computers? That is too big brother...more than keeping them in prison? Take a step back for a moment...Take searching and monitoring off the table. Do you have an issue with checking social networking sites to see if a supervised sex offender is online? Is that too big brother? Well, the fact is little brothers and sisters are on those websites...they are in the cyber-play grounds...and there are predators there. A teenager can get on those sites...but because someone works as a probation/parole officer, charged with protecting them...they can't. That is like arguing a police officer can't go into the streets because they are law enforcement and not everyone is breaking the law. Here is something that should be considered. At least 1/3 of the states have laws on the books that either restrict/prohibit computer/Internet access. Many states already authorize monitoring/searches. The Feds also do. However, computer searches and/or monitoring require numerous factors to be present...one of which is a law or court order, permitting it. The next is risk...either the offender and/or the offense dicitates that such a condition is warranted. Courts have approved this. As far a checking the Internet, no law is required...all you need to know in many cases is how to spell "Google"... We have a choice. Do we manage the risk in the least restrict method (which is usually required by law) OR we lock every sex offender away for LIFE. (But then again, some prisons have emails..gee wonder if they get monitored or if someone believes that is too big brother...) The discussion about health care and travel security don't apply.... Again, we are talking about individuals who committed crimes and are being supervised by corrections personnel. Anyway good discussion.
Computerpro, That's not my reasoning at all. I've been in this business many years and obviously there are restrictions placed on those on probation and parole and for good reason. In prison they have many more restrictions. My argument is the opening of the door, in general, to this type of monitoring. We all know that the government would love to be able to monitor everything we do, however, there are restrictions in place that keep them from doing it. A similar line of thought would be comparing it to Obamacare's death panels. We don't want the government deciding who's going to be allowed to live or not by deciding to provide or deny medical care. Similarly we don't want to open the door to the government being able to monitor us in this manner. Look at the current backlash at TSAs full body screeners. People are tired of their freedoms being gradually taken away.
ChronoTrigger, I am not sure of your knowledge of how monitoring and filtering software works. Monitoring software records activites. Filtering software blocks access, either by user selected sites or "blacklists". Some monitoring software has filtering or blocking features. These settings can be adjusted to meet the needs of the case. I have never heard of any being blocked from a banking and employment site because of monitoring or even filtering software settings. In fact, I am hard pressed to think how someone's banking would be blocked, unless their bank had sexual references in its name or URL. If an monitored offender is blocked from a site, they could alway communicate that information to their officer, who could check into it and adjust the setting accordingly. Monitoring software is also deployed by businesses, which use it to prevent employees from going to sites that have nothing do with business or are porn related. There are companies now that specialize in cell phone monitoring software. Monitoring/filtering is much better than it was. I understand the argument about filtering blocking too much. That can be an issue but again, it can be adjusted. The issue you mention about computers being controlled by a viruses is more of a defense used by some offfenders when caught with child porn. "I didn't download that stuff....my computer is controlled by a mad hacker." The truth is law enforcement frequently finds evidence that the offender viewed the images, saved them to locations, etc....activities that shoot holes in this defense. For instance, hacker via remote control can't save child porn to a CD and put the CD in the offender's closet. The reason this issue wasn't mentioned is because the article focuses on supervision activies concerning convicted offenders.
This article makes a very weak argument and is full of red herrings. The internet is becoming more integral for many necessary activities such as banking, seeking employment, and communications. The monitoring argument does not fly because ultimately it leads to blanket restrictions. There were problems in the past with filtering software because they were overbroad; they would block too much legitimate sites that used similar words such as s*x so you'd have to distort the word s*x just to type it in. Most current "monitoring" software would essentially do about the same thing-- interfere with legitimate internet functions. This problem will get even worse with the latest news from Facebook. Many cell phones now have FB apps; at what point will these restrictions reach a peak? This article also fails to mention a growing problem-- computers infected with viruses that allows people to control a computer from a remote location and use it to store illegal images. Sex offender truth @ oncefallendotcom
Prznboss the articles pertains to convicted sex offenders as part of their community supervision. Obviously, installing monitoring software is more intrusive and requires a condition. But many of those drug dealers are already subject to search conditions, which would include computers. As far lawful protests, this is not a criminal act and therefore not subject to criminal sanctions and conditions of supervision. Would you make the same argument for offenders not submitting to other restrictions...because the rest of us might have to submit to them? So you would not require offenders to report to their probation officer, allow them to visit them at their home or work, submit monthy reports or have travel restrictions, etc. because the rest of us might have to submit to it. The key here is these folks committed a crime. The line that was crossed was by them. No one is arguing that these cybersupervision practices would employed on anyone other than a convicted offender, and even then only for the period they are on supervision. If you follow your reasoning to the extreme no one should be sent to prison because the rest of society might have to someday.
I certainly have no love for child molesters but where would we draw the line on who we monitor once this line has been crossed? I can see the argument for monitoring drug dealers also. What if politics got involved? They might want to monitor protesters of abortion clinics. After awhile, after everyone's used to the monitoring, I can see the government eventually monitoring all of us. Not sure we want that.