There are limits to when a Federal District Court Judge may order computer monitoring by United States Probation as a special condition of supervised release. While it can be argued that individuals on supervised release have a diminished expectation of privacy, wholesale unfettered access to a personal computer must still be balanced by assessing the nexus, proportionality, privileges, and the constitutional requirements that require that such intrusions be narrowly tailored.
Admittedly there are situations where internet bans or bans on the use of computers may be directly related to the crime for which a defendant was convicted and is under supervision. The most obvious kinds of crimes that might justify plenary computer monitoring would involve convictions relating to child pornography, luring, computer hacking or other internet-based crimes. That said, in the context of complete internet bans our courts have recognized the serious constitutional implications involving the First and Fourth Amendments requiring courts to and narrowly tailor any such condition to accommodate the substantial Federal law, privacy, and constitutional rights that may be implicated.
Any special condition of supervised release, including the imposition of computer monitoring, must be reasonably related to the factors in 18 U.S.C. § 3553(a)(1),(2) and may not impose a greater deprivation of liberty than is reasonably necessary to achieve the § 3553(a)(2) purposes. Our courts have confirmed that the imposition of conditions of supervised release is “not open-textured.” As one court stated:
The § 3553(a) factors are fairly broad, but they do impose a real restriction on the district court’s freedom to impose conditions on supervised release. Courts generally cannot impose such a condition–even one with a clearly rehabilitative purpose–without evidence that the condition imposed is “reasonably related,” that is, related in a “tangible way,” [citation omitted] to the crime or to something in the defendant’s history.
This is not an especially high standard. At the same time, though, it is a standard with teeth: a condition with no basis in the record, or with only the most tenuous basis, will inevitably violate § 3583(d)(2)‘s command that such conditions “involve no greater deprivation of liberty than is reasonably necessary.”
United States v. Pruden, 398 F.3d 241, 248-250 (3rd Cir. 2005). Our courts have recognized that people, even those on supervised release, have a reasonable expectation of privacy as to the data on their computers.
It also must be remembered that probation officers are non-judicial and are not permitted to define the scope of punishment imposed on a defendant. A probation officer should not be vested with unfettered interpretation of a special condition and making assessments of compliance on an ad hoc and subjective basis. Even assuming the special conditions have some unexplained rehabilitative, deterrent or penological purpose, a special condition must still be measured and balanced against the serious privileges and constitutional rights that may be implicated.
In this digital age a person’s computer is akin to a personal diary, a personal library, a repository for not only his most personal thoughts and beliefs, the filing cabinet of confidential information, containing political opinions, proprietary information, and the new means of personal communication replacing the use of letters.
The courts recognize that a personal computer involves a person’s “private space.” In addition to highly personal information, personal computers may also contain confidential and privileged information including: 1) attorney client and work product privileged communications; 2) ongoing medical and treatment information that is confidential under Health Insurance Portability and Accountability Act of 1996 (HIPAA, Title II); 3) communications with spouses; and 4) possibly first amendment communications to public officials, newspapers, or others.
If a court intends to impose a condition of computer monitoring at the time of sentence, the court should articulate a special need which is directly related to the crime and person being sentenced. Even a good faith intention to empower a probation officer with broad discretion to access to a person’s computer is still about as intrusive as one can get – it essentially grants access into a person’s private: diary, library, filing cabinets, attorney records/communications, political beliefs/communications, proprietary information, and medical records/communications.
There is also a practical problem with the “monitoring” of a personal computer. The lack of any limitations or simply providing that disputes may be brought to the attention of the court will invite disputed violations. If a probation officer demands to review emails or other documents that a supervisee considers privileged, private, or contains attorney client and/or HIPPA privileged medical records and the supervisee refuses to allow access, will every objection have to be brought before the court? How will such disputes be managed? Will the probation officer seize the computer pending a resolution by the court? How will such disputes impact the relationship between the supervisee and the assigned probation officer? Will a probation officer issue a violation if the Probation Officer disagrees with the supervisee’s objection to the review of particular documents on the computer?
There are both Fourth and First Amendment Constitutional issues directly implicated in ordering the unlimited access to inspect a computer. The Fourth Amendment guarantees a right to be free from an unreasonable search and seizure and the First Amendment guarantees the rights of free expression and access to the courts. As one court has noted:
The First Amendment guarantees an individual the right to speak freely, including the right to criticize the government and government officials. [Footnote and citation omitted] To protect that right, public officials are prohibited from retaliating against individuals who criticize them. [citation omitted] Fear of retaliation may chill an individual’s speech, and, therefore, permit the government to “‘produce a result which [it] could not command directly.'” [citations omitted].
Trulock v. Freeh, 275 F.3d 391, 404 (4th Cir. Va. 2001).
The unlimited ability for a probation officer to access the contents of a computer will have a chilling effect on a person’s use of a computer. Given the increasing dependence on computers in today’s world a person’s reasonable expectation of privacy in the contents of one’s computer cannot be understated. Unfettered access to a personal computer clearly impacts substantial constitutional and personal privacy rights. Vague and overbroad conditions that implicate First and Fourth Amendment rights and substantial medical and legal privilege issues should not be delegated to the discretion of a probation officer. Should a court impose a special condition of computer monitoring at the time of sentence counsel should place an objection on the record so that the court may have the opportunity to reconsider the condition or to narrow and tailor the scope of the special condition to accommodate the important rights implicated by access to a personal computer.
For resources relevant to these issues, check out:
- United States v. King, 604 3d 125, 137 (3d Cir. Pa. 2010), cert. den. 562 U.S. 1223 (2011);
- United States v. Andrus, 483 3d 711, 718 (10th Cir. 2007);
- United States v. Pruden, 398 3d 241, 248-250 (3rd Cir. 2005);
- United States v. Lifshitz, 369 3d 173, 190 (2d Cir. 2004);
- Trulock v. Freeh, 275 3d 391, 403, 404 (4th Cir. 2001);
- United States v. Voelker, 489 3d 139, 151 (3rd Cir. 2007)
- United States v. Loy, 237 3d 251, 265-267 (3rd Cir. 2001);
- Note, Recent Case: Criminal Law – Supervised Release – Third Circuit Approves Decade-Long Internet Ban for Sex Offender, 123 Harv. L. Rev. 776, 779 (2010);
- 18 U.S.C. § 1029; 18 U.S.C. §1030;
- 18 U.S.C § 2241, et. seq.; 18 U.S.C. §2251, et. seq.
About the author:
Eric Marcy, Esq., is Of Counsel at Lyons & Associates, P.C., with Offices in Somerville, Morristown, and Freehold. His practice areas include criminal, civil rights, professional licensing, health care, and administrative law.
Mr. Marcy has been a member of the New Jersey Association of Criminal Defense Lawyers since 1987. He served as a Trustee of the NJ-ACDL from 2001 to 2010.
Mr. Marcy served as an instructor for the Institute of Continuing Legal Education Criminal Practice “Skills and Methods” program for newly admitted attorneys from 2000 to 2009.
Mr. Marcy has been selected for inclusion in New Jersey Super Lawyers® lists 2006-2009, 2017 to the present.
He is also an authorized attorney under the New Jersey State PBA Legal Protection Plan, representing law enforcement officers in administrative, civil, and criminal matters.