Monday, October 15, 2018
Complete ban on computer and internet use not sufficiently tailored to the risks of the defendant and violated First Amendment norms.
In United States v. Holena, 2018 WL 4905748 (Oct. 10, 2018), http://www2.ca3.uscourts.gov/opinarch/173537p.pdf, the Third Circuit vacated a total ban on computer and internet use as a special condition of supervision for a defendant who had been convicted of using the internet to entice a child to have sex.
Holena was originally sentenced to ten years imprisonment and lifetime supervision with the special conditions that he must: (1) get approval of Probation Officer before any internet use, (2) submit to regular searches of his computer and home, and (3) let the Probation Office install monitoring and filtering software on his computer. Holena twice violated supervision, first going online to update social-media profiles and answer emails, and then logging into Facebook without approval and lying about it. At the second revocation, the judge amended the special conditions to forbid possessing or using any computers, electronic communications devices, or electronic storage devices. The Third Circuit agreed with Holena’s objection that the ban on computers was contradictory, more restrictive than necessary, and violated the First Amendment.
First, the ban on computers was contradictory: Holena was forbidden to possess a computer, but also had to seek approval from probation and install monitoring software. The Third Circuit rejected the government’s position that probation-officer-approval provision was an exception to the ban: due process requires fair warning/understandable conditions.
Second, the ban on computers was more restrictive than necessary. Courts consider four factors to determine if special conditions deprive a defendant of more liberty “than is reasonably necessary” to deter crime, protect the public, and rehabilitate the defendant: (1) the restriction’s length, (2) its scope, (3) “the defendant’s underlying conduct,” and (4) the proportion of the supervised-release restriction to the total restriction period (including prison). The fourth factor was given no weight here.
The lifetime duration of the blanket ban was presumptively excessive. The Court had trouble “imagin[ing] how [a defendant] could function in modern society given [a] lifetime ban” on computer use.
The scope of the computer and internet bans was too broad and not justified by the record. Under the least restrictive reading, Holena could not use any computer or cellphone without his Probation Officer’s approval, even with devices not connected to the internet and to do everyday tasks like “preparing a résumé or calling a friend for a ride.” Further, the Probation Officer had no guidance on approving internet use. On remand, the District Court should offer some categories of websites or a guiding principle on what is permissible, i.e., shopping, searching for jobs, news, maps, traffic, weather, websites where he will probably never encounter a child; and what is not permissible, i.e., social media, chat rooms, peer-to-peer file-sharing services, and any site where he could interact with a child. The District Court should also consider available filtering and monitoring software to determine if Holena can safely be allowed a smartphone, or if a non-internet-connected phone is necessary. Restrictions having nothing to do with preying on children are not tailored to Holena’s conduct.
Finally, the lack of tailoring also raises First Amendment concerns. Under Packingham v. North Carolina, 137 S. Ct. 1730, 1738 (2017) (striking down law banning sex offenders from using social-media websites), blanket internet restrictions will rarely be tailored enough to pass constitutional muster because their “wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child.” On remand, the District Court must take care not to restrict Holena’s First Amendment rights more than reasonably necessary or appropriate to protect the public.
Amendment 801 to § 2G2.2(b)(3)(F) is a substantive change to the Guidelines, and does not apply retroactively under § 2255
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