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The Internet has been a blessing and a curse. As a blessing, it has transformed our world by allowing unprecedented communication and information access. As a curse, it has become a tool for a wide array of criminals. Courts have had to learn how to deal with the Internet when imposing probation and parole conditions. While most such restrictions are upheld, the courts’ power is not unlimited. Because of continuing concerns over First Amendment rights, there are limits on the conditions a court may impose on defendants’ access to the Internet. Courts have sought to limit criminal access to Internet Perhaps the greatest criminal use of the Internet is by child pornographers. With the Internet, they can scan the globe for their illegal images. They can also exchange these images and arrange for direct sexual contact. When the Internet was newer, the government tried a frontal assault on its use by banning all child pornography. However, these efforts failed. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court struck down the Child Pornography Protection Act of 1996 as unconstitutional. It held that the broad ban was unconstitutional because it prohibited speech that may be protected by the First Amendment-namely, virtual images of child sexual activity. Justice Anthony M. Kennedy wrote, “As a general principle, the First Amendment bars the government [including the courts] from dictating what we see or read or speak or hear.” Id. at 245. This principle comes into play as sentencing courts seek to put limit defendants’ use of the Internet. There are many ways defendants use the Internet to commit crimes. Some defendants use it as a tool to commit frauds; others use it to access and distribute child pornography; still others use it to operate sophisticated narcotics syndicates. It is fair to say that the Internet is a key tool of the 21st century criminal. In response to this reality, courts have sought to restrict defendants’ access to the Internet. It has become a standard condition of parole or probation in a child pornography case for the judge to prohibit a defendant from accessing the Internet. While defendants challenge these conditions, they are ordinarily upheld so long as the order is tailored to the circumstances of the case. For example, in People v. Harrisson, 134 CalApp.4th 637 (2005), the defendant was convicted of possessing child pornography after he used his computer to send pornographic images to an undercover police officer. As a term of probation, the sentencing court forbade the defendant from having access to the Internet. Harrisson complained that his rights had been violated, but the court rejected his challenge. The court could properly prohibit the defendant from having access to any computer that allowed Internet access, even though such a restriction limited his potential employment as a digital technician If necessary, Harrisson would have to get a job “selling candy bars . . . in a snack shop that was old-fashioned and still had a manual cash register.” Id. at 640. As a general principle, courts possess broad discretion when selecting probation conditions. A condition of probation is not invalid unless it: (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not itself criminal, and (3) forbids conduct which is not reasonably related to future criminality. Probation conditions are constitutionally overbroad when they are not closely tailored to the purpose of the probation condition. In Harrisson, the prohibition against use of the Internet made sense. The defendant had not only used the Internet to send pornographic images, but had also indicated that he had a violent plan to seek revenge against the prosecutor-a plan that might be facilitated through Internet research. Harrisson could use computers; he just couldn’t use ones that allowed him access to the Internet. Many state and federal courts have upheld similar prohibitions. See, e.g., United States v. Rearden, 349 F.3d 608 (9th Cir. 2003) (after defendant e-mailed another man about kidnapping and raping his nieces, Internet ban was warranted); United States v. Zinn, 321 F.3d 1084 (11th Cir. 2003) (defendant could not use Internet without prior approval); United States v. Paul, 274 F.3d 155 (5th Cir. 2001) (defendant barred from Internet access because he possessed massive amount of pornography); United States v. Crandon, 173 F.3d 122 (3d Cir. 1999) (defendant required to have specific approval of probation department to access Internet); In re Hudson, 2006 Cal.App. LEXIS 1440 (Sept. 20, 2006) (parole condition limiting use of Internet upheld); State v. Ehli, 681 N.W.2d 808 (N.D. 2004) (Internet prohibitions upheld for defendant who used Internet to instruct child on sex acts). Yet other courts have found bans on access to the Internet overbroad, absent special circumstances in the case. For example, in United States v. Freeman, 316 F.3d 386, 387-88 (3d Cir.2003), the defendant possessed child pornography, but did not use the Internet to contact any potential victims. Therefore, the court held that total cut off from the Internet was unjustified when more focused restrictions, such as limiting pornography sites or using unannounced inspection of material stored on the defendant’s computer hard drive, could be effective in monitoring the defendant’s behavior. As Freeman teaches, the challenge for defense counsel is to downplay the role of the Internet in the defendant’s crime and to offer other conditions of probation or parole that will alleviate the court’s concerns about the defendant’s future behavior. Courts also struggle with whether defendants should have access to Internet images while a case is in progress. This is an especially delicate issue in discovery disputes in child pornography cases. Prosecutors argue that merely by providing defendants with copies of the Internet photos at issue in the case, there is a high risk that those illegal images will be electronically redistributed. Generally, protective orders are used to handle these issues. Defense counsel and their experts are given access to the disputed images, but may not examine them on any computer connected to the Internet. See, e.g., United States v. Frabizio, 341 F.Supp.2d 47 (D.Mass. 2004); United States v. Hill, 322 F.Supp.2d 1081 (C.D. Cal. 2004). Internet restrictions are also applied in cases that do not involve convictions for illegal pornography. Judges may impose such a restriction when a defendant uses a computer for fraud or narcotics transactions. Courts may impose restrictions when a defendant’s past violations indicate that access to the Internet creates a danger. But see United States v. Peterson, 248 F.3d 79 (2d Cir. 2001) (defendant’s past incest did not justify complete Internet restriction). For example, in United States v. Scott, 316 F.3d 733 (7th Cir. 2003), Todd Scott pleaded guilty to fraud. In searching his computer, government agents found a few images of pornography. The government sought a total prohibition on the defendant’s use of the Internet. The court balked at a total restriction, but upheld a reasonable one that limited Scott’s access to illegal material. As Judge Frank Easterbrook wrote: “Computers and the Internet may be used to commit crimes, of which child pornography and fraud are only two examples. Inveterate hackers who have used access to injure others may be ordered to give up the digital world.” Id. at 737. As he noted, it is likely that a defendant would far prefer limited Internet access over jail to stop him from engaging in illegal activities. Key to balance is tailoring defendants’ Internet use Similarly, in United States v. Stanfield, 360 F.3d. 1346 (D.C. Cir. 2004), the defendant was convicted of identity theft, conspiracy to distribute methamphetamine and transferal of a false identification document in furtherance of a drug trafficking crime. The court imposed a set of supervised release conditions that included a bar from using the Internet “in any way, shape, or form until further order of the Court.” Later, the court modified the order with more specific restrictions. Chief Justice John G. Roberts Jr., then sitting as a circuit judge in Stanfield, wanted more clarification of the order and was concerned about its breadth. However, his opinion left open the possibility that reasonable restrictions on Internet use would be valid if they were reasonably related to a defendant’s illegal conduct. The key to balancing a defendant’s First Amendment rights against the need to prevent that defendant from causing future harm lies in tailoring the conditions imposed upon a defendant’s Internet use. See United States v. Lifshitz, 369 F.3d 173 (2d Cir. 2004). Complete bans may be suspect, but limited restrictions tend to pass constitutional muster. In general, the more serious the offense and the more integral its relationship to use of the Internet, the more the courts will allow restrictions as a condition of probation or supervisory release. Compare, e.g., United States v. Ristine, 335 F.3d 692 (8th Cir. 2003) (broad Internet restriction upheld where defendant exchanged pornographic images with other Internet users) and United States v. Crandon, 173 F.3d 122 (3d Cir. 1999) (broad restrictions on Internet use upheld when Internet was use to have direct contact with victim), with United States v. Sofksy, 287 F.3d 122 (2d Cir. 2002) (Internet restriction overbroad for possession and exchange of child pornography), and United States v. White, 244 F.3d 1199 (10th Cir. 2001) (Internet restrictions both overbroad and too narrow given defendant’s crime). Courts are fairly realistic about the contributions and risks offered by the Internet. The Internet can be fairly described as “a vast repository, offering books, newspapers magazines, and research tools along with smut.” Scott, 316 F.3d at 737. Therefore, the challenge for judges is to find a way to keep the Internet as a tool of good and not a weapon of harm. It is a challenging task indeed. Laurie L. Levenson is a professor of law, William M. Rains Fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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