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Ban on Internet access should rarely be ordered

Easterbrook

Hon. Frank H. Easterbrook

A sentencing court cannot order that a defendant have no access to the Internet while on supervised release, unless there is no less severe alternative, the Seventh Circuit held on Jan. 21.

The court also held that such a condition cannot be imposed without giving the defendant notice and an opportunity to propose less invasive alternatives.

Todd Scott pleaded guilty to fraud in Illinois federal court, and was sentenced to 24 months’ imprisonment, the top of the Guideline range, based on his conduct and criminal history. The court also imposed three years’ supervised release.

During sentencing, the prosecutor suggested, for the first time, that Scott be prohibited from access to the Internet without prior approval of his probation officer.

The only rationale for the condition was that a search of the computer in Scott’s office revealed a few images of child pornography. However, Scott was not prosecuted for that.

The sentencing court imposed the condition requested by the government, and Scott appealed it. The Seventh Circuit reversed in a decision by Judge Frank H. Easterbrook.

Notice

The court agreed with Scott that he should have been given some notice that this condition was an option, finding that such notice would have enabled Scott to discuss other options intelligently, and to remind the judge that 18 U.S.C. 3583(d)(2) provides that special conditions of supervised release must entail "no greater deprivation of liberty than is reasonably necessary for the purposes" of sentencing.

In Scott’s case, the judge did not explain how the no-Internet condition could meet this criteria, given that he did not use the Internet extensively to commit the fraud at issue.

The court observed, "the only justification was misbehavior that neither resulted in a conviction nor was treated as relevant conduct, making an outright ban difficult to justify. The sort of engagement that would have been facilitated by notice to Scott’s lawyers could have averted this problem."

What the court held

Case: United States v. Todd Scott, No. 01-4340.

Issue: Can a court impose, as a condition of supervised release, that a defendant not access the Internet without approval from his probation officer? Can a court impose such a condition without giving the defendant prior notice that it may do so?

Holding: Yes. But only if the defendant has a record of extensive abuse of digital communications that would justify an outright ban. No. When a court intends to impose conditions of supervised release that are unexpected and "out of the ordinary," the defendant must be given advance notice.

Counsel: Norman R. Smith, Arlington, IL, for appellee; Richard H. Parsons, Jonathan E. Hawley, Kent V. Anderson, Peoria, IL, for appellant.

Having found that notice would be preferable, the court then turned to whether it was mandatory, and concluded it was. The court examined at length the decision in Burns v. United States, 501 U.S. 129 (1991), which held that the judge or presentence report must alert the defense if there is a possibility of an upward departure from the sentencing guidelines to the defendant’s term of imprisonment.

The court likened the condition imposed on Scott to a "back-door form of [upward] departure," because the imprisonment term was the maximum he could receive within his guideline range.

The court acknowledged that, if the guidelines permitted a sentence of 60 months in prison, then a combination of 24 months in jail plus 36 months of release with no Internet access could be an appropriate middle ground between imprisonment and complete freedom.

Discussing Scott’s case, however, the court stated, "But what happened here looks more like a departure, given that Scott received the maximum imprisonment in the prescribed range."

Nevertheless, the court did not rely on Burns and the fact that Scott received the maximum in his range in order to conclude that notice was required, but cited the case of U.S. v. Angle, 234 F.3d 326 (7th Cir. 2000), for the proposition that FRCP 32 requires notice of terms that are out of the ordinary, and thus unexpected.

Because there was no contention by the government that Scott should have foreseen that Internet access would be a topic of conditions of supervised release, the court concluded that Scott is entitled to a new proceeding, at which he can offer alternatives to a flat ban, and at which the sentencing court can consider the application of sec. 3583(d)(2).

Delegation of Power

The court then offered various suggestions for the sentencing court to consider upon resentencing, emphasizing that any such conditions should be precise, and stating that the court should refrain from giving broad discretion to the probation officer.

The court wrote, "Courts should do what they can to eliminate open-ended delegations, which create opportunities for arbitrary action — opportunities that are especially worrisome when the subject concerns what people may read. Is the probation officer to become a censor who determines that Scott may read the New York Times online, but not the version of "Ulysses" at Bibliomania.com? Bureaucrats acting as guardians of morals offend the first amendment as well as the ideals behind our commitment to the rule of law."

The court added, "Instead of delegating a standardless power, the judge should invite the probation officer to recommend restrictions on Internet access designed to ensure that Scott does not use his computer to commit additional crimes while on supervised release. The judge may then establish terms without a risk of arbitrary application."

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Case Analysis

The court rejected an argument by Scott that the First Amendment prohibits any limitations on Internet use, noting that computers and the Internet may be used to commit crimes.

Nevertheless, the court agreed that such an Internet ban will rarely be justified, stating, "The Internet is a vast repository, offering books, newspapers, magazines, and research tools along with smut. A judge who would not forbid Scott to enter a video rental store (which may have an adult-video section) also should not forbid Scott to enter the Internet, even though Disney’s Web site coexists with others offering filthy pictures or audio files circulated in violation of the copyright laws. A judge who would not forbid a defendant to send or receive postal mail or use the telephone should not forbid that person to send or receive email or to order books at Amazon.com (cites omitted)."

Citing recent Third Circuit case law with approval, the court concluded by saying that an outright ban could only be justified by "a record of extensive abuse of digital communications," and suggesting that unannounced inspections would be a proper means of preventing crime.

Quoting the Third Circuit at length the court announced, "a total ban on internet access prevents use of email, an increasingly widely used form of communication, and other common-place computer uses such as getting a weather forecast or reading a newspaper online. There is no need to cut off … access to email or benign internet usage when a more focused restriction … can be enforced by unannounced inspections of material stored on [the defendant’s] hard drive or removable disks." United States v. Freeman, 2003 U.S. App. LEXIS 196, 16-17 (3d Cir. Jan. 6, 2003).

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David Ziemer can be reached by email.

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