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January 12, 2010

"U.S. Courts Split on Internet Bans"

The title of this post is the headline of this Wired article, which highlights the split between arecent Third Circuit ruling and other circuit rulings on internet bans for certain sex offenders.  Here are excerpts from the piece: 

A federal appeals court is reversing a lifetime internet ban imposed on a child sex offender also handed a 15-year prison term.

The outcome highlights that appellate courts are all over the map when it comes to internet bans often imposed on defendants, especially sex deviants, once they have served their time. What’s more, the courts appear to be accepting the internet as a basic freedom to which convicts, even the worst of the worst, usually should not be denied permanent access....

In Heckman’s case, the appeals court noted that it had rejected a lifetime internet ban in 2007 for a pervert who displayed the naked buttocks of his 3-year-old daughter on a webcam. But last year, the same circuit court upheld a 20-year prison term and a 10-year internet ban on a man who distributed child pornography and lured “the direct exploitation of minors.” “This is the lengthiest ban we have upheld,” the appeals court wrote.

Celebrated hacker Kevin Mitnick was barred from the internet for three years following his 2000 release from prison. In August, the first unconditional lifetime internet ban on appeal (.pdf) was upheld by the Atlanta-based 11th U.S. Circuit Court of Appeals. The defendant was also sentenced to six years for “traveling in interstate commerce with intent to engage in illicit sexual conduct with a person under the age of 18.”

January 12, 2010 at 08:26 PM | Permalink

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Comments

The law ought to have more uniformity on this issue. No one who commits mail fraud is sentenced to a lifetime prohibition against using the postal service. No one who uses a telephone to commit a crime receives a lifetime phone ban.

The number of legitimate uses of the Internet far outstrips the number of potentially criminal uses. As several appellate courts have noted, there are very few jobs nowadays that don’t somehow involve a computer with Internet access. An unconditional lifetime ban comes perilously close to cutting off the defendant from any realistic chance of becoming a productive member of society. It makes very little sense to impose a prison sentence that contemplates eventual release, while hamstringing the defendant to the point where there is practically nothing useful he can do when he gets out.

Even Kevin Mitnick was banned for only three years, rather than a lifetime. Abuse of the Internet was at the heart of Mitnick's crimes (he was a hacker). But where the Internet is merely the communication mechanism, the ban (if there is any at all) ought to be far less severe. Someone who is determined to abuse children will find another way of communicating with his potential victims.

Posted by: Marc Shepherd | Jan 12, 2010 8:57:17 PM

Marc: It's sort of hard to make the case that the use of the computer isn't at the heart of nearly every child porn case or child solicitation case these days. And there were just as many "legitimate" uses for Mitnick as there are for child porn consumers, and for that matter, anyone else who manages not to exploit children with a computer - the core difference being the actual conduct USING the internet.

By your logic an armed offender ought not to be restricted from having the weapon of his choice because he could use them otherwise to hunt or make elegant canapes.

Perhaps there are more narrowly tailored ways to supervise internet usage of offenders, especially as we move forward technically, but my guess is that the same chorus of advocates would balk at ANY restriction aimed at offenders.

Posted by: Ferris Bueller | Jan 13, 2010 5:00:01 PM

Ferris, the Internet makes it a lot easier to commit sex offenses, but at its root, it is just a means of communicating. As I noted, we never banned offenders from using the telephone or the postal service, just because a phone or a letter was used in the commission of a crime. Sex offenses are a much older phenomenon than the Internet; those who are so inclined have always found, and will always find, many other ways of accomplishing the same thing.

In contrast, I am not sure what Mitnick's comparable offense would be, without the Internet. The crime of hacking never existed until there were computers to hack.

The firearms/weapons analogy isn't a good one. My concern about an unconditional lifetime Internet ban is that it effectively cuts the offender off from society, given the difficulty of finding employment these days that does not somehow involve usage of a computer. An offender banned from possessing weapons is not similarly precluded.

No: the “chorus of advocates” does not balk at ANY restriction aimed at offenders. And whatever your viewpoint may be, surely you can see the merits of establishing better guidance for judges. Even if the guidance is (as you apparently favor) lifetime bans for everybody, at least the law would be clear.

Posted by: Marc Shepherd | Jan 13, 2010 8:54:32 PM

Sorry Marc. Just as a court would have little sympathy for the former-gunsmith who is banned from possessing firearms and thus has limited career options, so should a court have little sympathy for the individual who has used internet access as a necessary means to complete his criminal offense.

Secondly, your notion that use of the internet is universally needed to work is a very "top-down" notion. While the US has one of the highest rates of adults who use the internet, that number is still under 40%. The idea that you need access to the internet to live your life successfully and have gainful employment is ludicrous. In almost any case access to the internet certainly useful but it isn't a requirement.

This strange well of support these type of defendants get from the bar and the bench is because they are, like their lawyers and judges are often, white and well-educated as a group. The variances that are handed out in these cases are particularly suspect. Where are the variances for the hispanic immigration offenders? Where are variances (at such a high rate) for the black drug defendants? The poor white gun defendants? It's all very transparent racial and socio-economic disparity.

We restrict poor offenders with conditions that affect their lifestyle and employment without a second thought, but when it comes to these sad-sack child porn consumers we have to make special exceptions?

As far as the condition of probation / supervised release itself, I think most people wouldn't have a problem with some sort of monitoring of the offender's internet usage if the judge wanted to construct such a system (and it was technically feasible). But I don't think that's the real objection here. The notion behind all of this is that, to some people (mostly white men on the bench and in the bar) child porn possession and trafficking just isn't that serious of an offense.

Congress disagrees.

Posted by: Ferris Bueller | Jan 14, 2010 11:40:10 AM

now i have no problem with LIMITED bans while under a criminal conviction supervison. NOW once that is FINISHED....it's done. You have no more right to tell an ex offender to do that then you do to tell your neighbor across the street.

Sorry it's a non-starter.

Posted by: rodsmith3510 | Jan 16, 2010 12:27:48 AM

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