INTERNET LAW - Prohibition from Accessing the Internet as Defendant’s Condition of Supervised Release

Martha L. Arias, Immigration and Internet Law Attorney, Miami; IBLS Director
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Defendants in criminal proceedings are imposed conditions or restrictions when granted supervised release. Now with Internet crimes on the rise, United States (U.S.) courts are imposing the prohibition from accessing the Internet as condition of supervised release. The prohibition from accessing the Internet may be imposed as initial condition or may be added as modification of supervised release conditions. But, is this prohibition legal? and how does it fit federal sentencing guidelines?

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Defendants in criminal proceedings are imposed conditions or restrictions when granted supervised release. Now with Internet crimes on the rise, United States (U.S.) courts are imposing the prohibition from accessing the Internet as condition of supervised release.  The prohibition from accessing the Internet may be imposed as initial condition or may be added as modification of supervised release conditions.  But, is this prohibition legal? and how does it fit federal sentencing guidelines?   

The prohibition from accessing the Internet fits well the federal sentence guideline"s factors enumerated in 18 U.S.C. § 3553(a), when the underline crime was committed through the use of the Internet.  According to 18 U.S.C. § 3553(a) -Criminal Procedure, Sentence Guidelines, - several factors must be considered when imposing a criminal sentence; "(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed. . . to afford adequate deterrence to criminal conduct and to protect the public from further crimes of the defendant. . . (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guideline. . . ; (5) any pertinent policy statement. . . ; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense." Particularly, factors 1, 2, 4, 5, and 6 may directly justify Internet usage prohibition for certain Internet crimes such as hacking, child pornography, and identity theft, among others.  

Obviously, this prohibition makes more sense when the defendant is released from custody under supervised release. Some U.S. district courts have held that "[U]nder certain circumstances, a temporary prohibition of access to the Internet as a condition of supervised release may be reasonably related to the purposes of sentencing." U.S. v. Johnson, 97-CR-0206 (N.D.N.Y 2005).  In Johnson, the New York district court justified the imposition of Internet usage prohibition under the U.S. federal sentencing guidelines; particularly, factors related to the circumstances of the offense, the need for deterrence, the need to protect the public, and the need to provide defendant with rehabilitation or medical care.  

Supervised release conditions may also be modified according to Fed. R. Crim. P. 32.1(c), to respond to changes, new ideas and methods of rehabilitation. Modifications may include prohibition from accessing the Internet or changes to the already-imposed Internet usage prohibition.  For instance, in Johnson, the court held that "a district court is free to modify the terms of supervised release at any time after considering factors such as the nature and circumstances of the offense or the history and characteristics of the defendant. As the United States Court of Appeals for the Seventh Circuit has noted, just as a district court has wide discretion when imposing the terms of supervised release so too must it have wide discretion in modifying the terms of that supervised release."  This holding was reached when defendant had been imposed a blanket prohibition from accessing the Internet, even for employment purposes and later sought to modify this prohibition. Defendant was accused of child pornography and other Internet-related crimes.  After some months, defendant's probation officer recommended some modification to defendant's supervised conditions as to include possible use of the Internet for employment purposes with some requirements and notifications to defendant's employer.  After expert testimony and evaluation of defendant's mental health and treatment, the court concluded that defendant's supervised released conditions could not be modified to allow defendant some limited Internet access. The court considered that defendant treatment with a mental health provider had not been truthful and that sex offenders have a high recidivism rate; these factors showed great risk of future offenses against minors.  Defendant argued that blanket prohibition from accessing the Internet was not legal and used the United States v. Peterson, 248 F.3d 79 (2d Cir. 2001) case to support his contention. The court responded by arguing that in Peterson, defendant was accused of bank larceny and had previously been accused of incest.  In that case, Peterson was prohibited from accessing the Internet. On appeal, the court held that prohibition from accessing the Internet as conditions for supervised released was not reasonable related to the nature and circumstances of the offense or defendant's history and characteristics, nor it was related to the sentencing purposes of 18 U.S.C § 3553(a)(2).  

Thus, blanket prohibition from accessing the Internet is a legal supervised release condition under the U.S. federal sentencing guidelines provided that there is a reasonable relation between the underline offense and the characteristics of defendant.

 

 

Martha L. Arias, Immigration and Internet Law Attorney, Miami; IBLS Director

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