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A concern that the Probation Department’s monitoring of a convicted child pornographer’s computer may violate the Fourth Amendment has prompted a federal appeals court to order a review of different techniques for tracking the defendant. The U.S. Court of Appeals for the Second Circuit instructed a sentencing judge to explore the privacy implications of both computer monitoring and filtering techniques proposed by probation officials who want to ensure that Brandon Lifshitz is prevented from downloading pornographic images of children. The ruling in United States v. Lifshitz, 03-1221, written by Judge Robert Katzmann, concerned the so-called special needs exception to the Fourth Amendment’s requirement of probable cause to search and seize based on reasonable suspicion that a crime has been, or is about to be, committed. The decision will be published Wednesday. Mr. Lifshitz pleaded guilty in 2001 to receiving child pornography on his computer. After hearing from three specialists who had different opinions on his mental state, including one who said he suffered from schizoid personality disorder, Judge Patterson sentenced Mr. Lifshitz to three years probation without a prison term. Judge Patterson ordered the defendant to consent to the installation of systems that allow the Probation Department to “monitor and filter” computer use. He said Mr. Lifshitz must consent to unannounced examination of his computer equipment and the removal of the equipment for a more thorough investigation. Defense counsel objected, saying the U.S. Supreme Court’s decision in Griffin v. Wisconsin, 483 U.S. 868 (1987) established, at a minimum, that probation officials need reasonable suspicion to conduct a search. The government argued that there was no need for reasonable suspicion because of the nature of Mr. Lifshitz’s crime. Judge Patterson said reasonable suspicion was still required and he agreed with Chief U.S. Probation Officer Chris Stanton that regular monitoring was acceptable. If the monitoring uncovered child pornography images, probation officials would have reasonable suspicion for a more intrusive search of Mr. Lifshitz’s home and computer, he said. The issue before the Second Circuit, Judge Katzmann wrote, was the standards for probationary searches and “the several contexts in which ‘special needs’ have legitimized searches in the absence of a warrant or probable cause.” After a review of case law on probationary searches, he said the Second Circuit has “never evaluated the conformity of special conditions of probation or supervised release with the Fourth Amendment.” He drew comparisons with other special needs searches, including the continuing drug testing of a drug offender, which the government said was analogous to Mr. Lifshitz’s situation. But Judge Katzmann said “the attempt to establish the best point of comparison with all computer monitoring may prove futile, because computers serve a multiplicity of functions.” “It is, therefore, not the nature of computers themselves that determines what type of search occurs, but the manner in which particular monitoring software or techniques operate and the kind of computer activity that they target,” he wrote. The U.S. Supreme Court, he wrote, has applied three criteria in determining whether “special needs” justify a search: � The government must allege a special need. � There must be a diminished expectation of privacy. � The search must seek a minimum of intrusiveness coupled with maximum effectiveness so that the searches “bear a close and substantial relationship” to the government’s special needs. Previous Decision The Second Circuit has already struck down a prohibition on computer access for a man convicted of possessing child pornography in United States v. Sofsky, 287 F.3d 122 (2002). While the court in Sofsky did not rule out that a total ban on computer access might be “reasonably related to the purposes of sentencing,” it said the ban for Mr. Sofsky was a deprivation of liberty that was “greater . . . than reasonably necessary.” The court then suggested for Mr. Sofsky a “more focused restriction, limited to pornography sites and images” that could be enforced by unannounced inspections and searches of Mr. Sofsky’s computer. Turning to the case of Mr. Lifshitz, the judge wrote that “a brief survey of monitoring methods . . . reveals that even the varieties of products and techniques currently available diverge vastly in their breadth, and in their implications for computer users’ privacy.” The court, he said, was worried that constant inspection of documents on Mr. Lifshitz’s computer “might be more like searching his diary or inspecting his closets than it is like the highly targeted diagnosis accomplished by drug testing.” By contrast, Judge Katzmann said, software that alerted a probation officer only when Mr. Lifshitz was engaging in impermissible e-mail communications would bear a greater resemblance to screening a probationer’s urine for particular drugs. Given doubts about the efficacy of monitoring versus that of filtering, with both methods potentially open to circumvention by Mr. Lifshitz, Judge Katzmann wrote, “The scope of the monitoring condition, therefore, may be overbroad, and it is not clear from the record as it stands whether or not monitoring is sufficiently effective to justify its implementation.” The court remanded the case to Judge Patterson to examine the pros and cons of monitoring versus filtering and then “impose a condition consistent with this opinion.” Judges Guido Calabresi and Barrington D. Parker joined in the opinion. Assistant U.S. Attorneys Celeste L. Koeleveld and Jennifer G. Rogers represented the government. Steven M. Statsinger of The Legal Aid Society’s Federal Defender Division Appeals Bureau represented Mr. Lifshitz.

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