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October 10, 2010

Assailing too-broad internet bans as part of a sentence

The National Law Journal has this notable new commentary headlined "Banned from the Internet: Prohibiting a defendant on probation from conducting any business online is overly restrictive and not reasonably related to legitimate sentencing goals."  The piece is authored by A. Jeff Ifrah and Steven Eichorn, and here are excerpts:

Given the pervasiveness of the Internet, it is curious to us that some courts have been all too willing to prohibit Internet use for defendants on probation or supervised release. Are such Internet bans narrowly tailored to affect "only such deprivations of liberty or property as are reasonably necessary," a statutory factor in the conditions of release issued by a judge? Recent cases suggest the answer is no.

Internet bans are most commonly issued by courts as a condition of probation in child pornography cases in which the defendants may have utilized the Internet as a tool to lure their victims.  But even when the courts have permitted Internet bans in such cases, they have often noted the harshness of a complete ban and have listed numerous factors to consider before imposing a ban, such as whether it "is narrowly tailored to impose no greater restriction than necessary," the "availability of filtering software that could allow [the defendant's] Internet activity to be monitored and/or restricted" and the duration of the ban....

Given the limitations imposed in child-pornography cases, the growing number of Internet bans in white-collar cases raises our eyebrows.  Is an Internet ban appropriate for a defendant who used the Internet to perpetrate a fraud like a telemarketing scheme or investment fraud?...

Clearly, courts would not apply a complete ban on conducting business for a defendant who operated many fraudulent brick-and-mortar companies with separate storefronts.  Courts readily understand that banning a defendant from conducting any further business is not reasonably related to legitimate sentencing goals and is much more restrictive than necessary. So why are courts willing to place a complete ban on Internet business for defendants who use the Internet to conduct their business and bar them from "the town square for the global village of tomorrow?" And why are courts handing down more restrictive Internet bans in white-collar cases than those handed out in Internet child pornography cases?

The answer may be related to some judges' lack of appreciation of the importance of the Internet in today's society.  We hope that, as online commerce becomes universally perceived as being as routine as business conducted in a brick-and-mortar store, courts will be careful to ensure that this critical form of communication with customers is not restricted in the absence of compelling circumstances.  Anything less would clearly constitute "deprivations of liberty or property" that are far from "reasonably necessary."

October 10, 2010 at 09:45 PM | Permalink

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Comments

hmm

"The answer may be related to some judges' lack of appreciation of the importance of the Internet in today's society."

Horse Pucky no judge who has been seated in the last 15-20 years believes that! let's get real. It all boils down to the govt has decided they can do what they want PERIOD! TILL you can find the 1,000,000 bucks to take it to the supreme court and hope they see it your way. Even then they have been known to simply change a word and go back to busiiness as usual till someone else takes them back again.

Posted by: rodsmith | Oct 11, 2010 2:30:09 AM

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