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The 2nd U.S. Circuit Court of Appeals in the case, United States v. Sofsky, on March 28 reversed part of a child pornography conviction that prohibited computer and Internet use without probation officer approval. The 2nd Circuit held that such a prohibition would unfairly encroach on the convict’s liberties. Of course, one could argue that such liberties were sacrificed by virtue of the criminal conduct at issue. CASE BACKGROUND At trial, the government presented evidence that Sofsky had received over the Internet more than 1,000 images of child pornography in the form of still and moving pictures. Some of the images were transferred to CD-ROM disks. Sofsky also had used the Internet to exchange images of child pornography with other individuals. GUILTY PLEA On the third day of trial, Sofsky pled guilty to receiving child pornography in violation of 18 U.S.C. � 2252(a)(2)(A). SENTENCING The trial judge imposed a prison sentence of 10 years and one month followed by a three-year term of supervised release. In addition to standard conditions of supervised release, the trial judge imposed four special conditions: 1) participation in mental health treatment, including a program for sexual disorders; 2) searches of premises on reasonable suspicion that contraband or evidence of a violation of a condition of supervision may be found; 3) ban on access to a computer, the Internet and bulletin board systems unless approved by the probation officer; and 4) prohibition on viewing, purchasing or possessing child pornography materials. Only the third condition banning access to a computer, the Internet and bulleting board systems absent probation officer approval was challenged on appeal. APPELLATE DECISION The 2nd Circuit noted that a special condition of supervised release may be imposed that is “reasonably related” to the sentencing so long as it “involves no greater deprivation of liberty than is reasonably necessary” consistent with federal sentencing guidelines. The court observed that other courts have reached different conclusions as to whether persons convicted of child pornography offenses should face restrictions on Internet access. The court then went on to explain why it believed that a ban would not be appropriate in this case. The court stated: “We appreciate the Government’s point that permitting Sofsky access to a computer and the Internet after serving his ten-year sentence can facilitate the continuation of his electronic receipt of child pornography, but we are more persuaded by the observation [in another case] that ‘[a]lthough a defendant might use the telephone to commit fraud, this would not justify a condition of probation that includes an absolute bar on the use of telephones.’” The court observed that “the same could be said of a prohibition on the use of the mails imposed on a defendant convicted of mail fraud.” Thus, “a total ban on Internet access prevents use of e-mail, an increasingly widely used form of communication,” and prevents other computer uses, such as conducting research, obtaining weather forecasts, or reading newspapers online. According to the appellate court, “although the condition prohibiting Sofsky from accessing a computer or the Internet without his probation officer’s approval is reasonably related to the purposes of his sentencing, in light of the nature of his offense, we hold that the condition inflicts a greater deprivation on Sofsky’s liberty than is reasonably necessary.” The court suggested that a more appropriate ban would be to bar access to pornography sites and images. SUMMING UP The restriction placed on Sofsky by the trial court does not necessarily appear too onerous. After all, Sofsky could seek probation officer approval for certain online activities. Plus, anything less than a total ban would require the governmental burden of monitoring his online conduct to ensure that he is not frequenting pornography sites or images. Finally, any intrusion on his liberties caused by the ban were brought about by Sofsky’s own conduct — conduct that should not in any way be supported. While it is true that some forms of communication and information would be less available under the trial judge’s decision, other forms, such as the U.S. mail and hard copy newspapers, would still be available — and hopefully would be used for proper purposes. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected]

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