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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 2nd U.S. Circuit Court of Appeals 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. 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 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 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 Lifshitz’s crime. 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 Lifshitz’s home and computer, he said. The issue before the 2nd 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 2nd 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 Lifshitz’s situation. But 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:

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