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You can get Internet access with your latte. You can surf the Web in the library, or even from your cell phone. From on-board automobile navigation systems to video game consoles to hand-held Blackberries that let you check e-mail in the air, computers are everywhere. Yet judges still routinely order accused hackers and other cybercriminals not to go anywhere near one. Jennifer Granick, director of Stanford University’s Center for Internet and Society, hopes the judicial impulse to wall defendants off from the networked world will soon go the way of the Atari 400. “I would like to see it not be the default in these cases,” says Granick. Next week, lawyers representing a 24-year-old computer whiz kid will ask U.S. Magistrate Patricia Trumbull to modify restrictions placed on him two years ago, when he was indicted for allegedly lifting sensitive information from the Qualcomm and eBay Web sites. Jerome Heckenkamp, who graduated from college at 18, is only allowed to access a “drone” computer to review the electronic evidence compiled against him. Granick says computer restrictions can make it all but impossible to find employment, placing an undue burden on defendants, like Heckenkamp, who have yet to be convicted of a crime. Under the Bail Reform Act, pretrial release conditions should be the “least restrictive” required to ensure that the defendant makes court appearances and to preserve community safety. But defense lawyers say it is routinely ignored. “The outright restriction on computer and Internet usage clearly violates the Bail Reform Act,” argues Heckenkamp’s lawyer, Benjamin Coleman, in court briefs. Every defendant released on bail is admonished not to break the law. But while those accused of mail or wire fraud are rarely barred from using stamps or placing a phone call, courts treat computers differently. For some reason, Granick says, “a computer is looked at as a nefarious instrument in a way that the U.S. mail or telephone isn’t.” Coleman, of Los Angeles’ Tarlow & Berk, said that in his only previous hacker case his client was allowed to continue working as a network administrator. But Heckenkamp can’t go on the Internet and has to wear an ankle bracelet, a condition Coleman thinks is aimed at keeping him away from cyber cafes or the local Kinko’s. “It appears to be the only real explanation for it is so he doesn’t use the Internet,” Coleman said. Although the conditions were originally set by a San Diego judge, Trumbull has twice turned aside motions to modify them. The government is opposing attempt No. 3 and likely has the upper hand. Most courts seem to view hackers in the same way one magistrate famously viewed cyber-fugitive Kevin Mitnick, whose late ’90s legal battles made him a computer-world cause c � l � bre: “Dangerous when armed with a keyboard.” The government argues that the issue has already been litigated, and that Heckenkamp has shown “a questionable willingness to comply with the orders and conditions of the court.” Assistant U.S. Attorney Mark Krotoski also says in court papers that the court told Heckenkamp it would alter the conditions of his release if a specific plan was adopted and a need shown — for example, if Heckenkamp needs to use a computer for work. But, the government argues, no such showing has been made. Coleman hopes the Ninth Circuit’s decision last month in United States v. Rearden, 03 C.D.O.S. 9632 , can help his cause. Although the court upheld a post-conviction restriction on Internet access, it did so because there was flexibility in the restriction. “The Ninth Circuit’s reasoning in Rearden demonstrates that the complete ban on computer and Internet usage as a condition of pretrial release in this case is improper,” Coleman wrote in his motion. But the government says the conditions in Heckenkamp’s case aren’t absolute, either. In United States v. Sofsky, 287 F.3d 122, the Second Circuit shot down a total post-conviction ban on computer access, even though the defendant could access the Internet with the consent of his probation officer. The Second Circuit acknowledged that courts have broad discretion to set release conditions. But it nonetheless lifted the ban, explicitly comparing it to restrictions on telephone or mail use. Noting that people use the Internet to do research, get weather reports and read the news, the court held that “the condition inflicts a greater deprivation on Sofsky’s liberty than is reasonably necessary.” But the Second Circuit case is a rarity. Omar Figueroa, who defended Mitnick, said it’s still normal for the government to ask for a computer ban. And it’s not uncommon for judges to grant the requests. Figueroa, who specializes in defending accused hackers, says that’s “because courts are unfamiliar with computers and they’ll defer to whatever the prosecutor says.” But that’s starting to change. “I think now they are able to grasp more distinctions,” Figueroa said. For example, Figueroa said he will ask judges to compromise — allow access to e-mail, say, but not the World Wide Web. That’s what happened to Adrian Lamo, the so-called homeless hacker accused of accessing sensitive information in New York Times databases. In September, a federal judge in New York lifted a total ban and restored his e-mail access. Most of the work determining what a defendant can and cannot do falls on the shoulders of U.S. magistrates and the pretrial services office. “I think it’s a case-by-case analysis,” said U.S. Magistrate Richard Seeborg. Judges want to make sure a defendant doesn’t break the law again, but “at the same time, it may be that legitimate business activities require the use of computers.” Seeborg said he looks at a number of factors, including a person’s background and whether someone is around to monitor their activities. “The nature of the process is so defendant-specific.” Granick said defendants will sometimes submit a list of everyday “computers” for approval — everything from cell phones to digital appliances. Pretrial services can also make unannounced visits on a defendant, which defense lawyers say is a good way to ensure compliance. But Figueroa said it often comes down to trust. “The pretrial services people don’t really know computers that well, so it’s pretty much on an honor system,” Figueroa said.

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