For 15 years, a man named Robert Legg will be limited to a single, personal Internet-capable device and must be prepared for random government monitoring of his computer use. Legg can only have a computer if the U.S. Probation Office first gives him approval.
The technological restraints imposed against Legg, convicted in an online child exploitation sting, are at the center of a case in the U.S. Court of Appeals for the D.C. Circuit. Legg is serving a 30-month prison sentence. His lawyer on Monday urged the appeals court to find that the restrictions go too far.
Legg’s attorney, Steven Kiersh, argued that the restrictions in this case have no connection to the crime. Kiersh said his client’s criminal conduct — arranging to meet a minor for unlawful sexual activity — occurred over a telephone, not a computer. Legg, he said, only used a computer to first initiate contact with a man — an undercover officer — online in a chat room.
“All of the criminal conduct occurred on the telephone,” Kiersh said. “That’s where the criminality occurs.”
The appellate panel is exploring where to draw the line between protecting the public and not depriving Legg of his liberty by more than what’s necessary. Appellate courts are increasingly grappling with the management of computer use as a component of punishment for a crime.
Judge Merrick Garland, on the D.C. Circuit panel Monday, said that without a computer in Legg’s case, there wouldn’t have been a crime in the first place. He questioned whether Legg’s use of a computer facilitated his conduct, even if he didn’t commit a crime with one. (Garland heard the case with Judge Brett Kavanaugh and Senior Judge A. Raymond Randolph.)
In 2010, the D.C. Circuit vacated an order that required a convicted sex offender to keep a daily log of Internet use and to permit the authorities to monitor that use. The court said the technology restrictions targeting the defendant, Aaron Burroughs, were not “reasonably related” to the offense, which did not involve a computer.
In the Burroughs case, Judge Thomas Griffith criticized the government position that the Internet can be used to arrange illegal, sexual encounters. “Of course it can,” Griffith wrote. “But from drug dealers and Ponzi schemers and smugglers to stalkers — nearly any criminal can use the Internet to facilitate illegal conduct.”
Legg was 37 in 2010 when he planned a meeting that he believed would involve a sex act with a teenage boy. Legg pleaded guilty. A federal trial judge in Washington sentenced him to 30 months in prison and ordered to spend 15 years on supervised release.
The judge, Colleen Kollar-Kotelly, said in court that Legg “shall not possess or use a computer, [or] have access to any online device,” without the approval from a federal probation officer. The judge said, “This is not an unrestricted — or a totally restricted use — but you do need to talk to probation about any opportunity to do so.”
David Rybicki, an assistant U.S. attorney in Washington, said in the D.C. Circuit on Monday that the conditions imposed against Legg are reasonable and directly connected to his criminal conduct. The restraints, he argued, are not a categorical ban on computer and Internet use.
Randolph, during one exchange with Rybicki, questioned whether the language of Kollar-Kotelly’s order was overly broad. There are devices that are Internet-capable, he said, but do not allow communication with other individuals. The judge mentioned, for instance, a television set connected to the Internet.
“The way this is written would prohibit him from having that, because it’s Internet-capable,” Randolph said. “That’s not possibly what she could have meant.”
Rybicki said the thrust of Kollar-Kotelly’s order targeted Legg’s communication with other people.
Garland at one point asked Rybicki, “What happens when we very soon come to a world where we can’t get a telephone that isn’t Internet-capable?” (The judge called his question “not very hypothetical.”)
The probation office, Rybicki responded, may have technology that allows the Internet capacity of a phone to be disabled.
Kavanaugh asked Rybicki whether a federal trial judge can ban the use of a telephone — one that doesn’t connect to the Internet — as a condition of supervised release.
“That’s a much more difficult question,” Rybicki responded. Telephones, he said, are “more basic” to modern life than the computer.
“Not sure about that,” Kavanaugh said.
The appeals court didn’t immediately rule in the case.
Mike Scarcella is a reporter for The National Law Journal, a Legal affiliate based in New York. This article first appeared on The BLT: The Blog of Legal Times. •