Why Banning Criminals from the Web Doesn’t Work

By: Steven Eichorn

A few weeks ago, the Supreme Court issued a unanimous ruling in Packingham v. North Carolina, 137 S. Ct. 1730 (U.S. 2017) invalidating a state law outlawing registered sex offenders from accessing websites which could facilitate offender-minor direct communication.  While the majority opinion and concurrence seems grounded in, and specific to, sex offender restrictions, the underlying characterizations and beliefs about websites has far-reaching consequences for other criminal defendants in state or federal courts.

Lester Packingham pled guilty to having sex with a 13-year-old girl when he was 21.  Eight years after his conviction, Lester bragged on Facebook about a happy day in traffic court, using the screen name J.R. Gerrard, and exclaiming:

“Man God is Good!  How about I got so much favor they dismissed the ticket before court even started?  No fine, no court cost, no nothing spent…Praise be to GOD, WOW!  Thanks JESUS!”

Apparently offended by the concept that someone would celebrate dodging a speeding ticket with such religious fervor, a police officer tracked down court records, obtained a search warrant, and determined that “J.R.” was actually Lester Packingham.  Lester was soon convicted of illegally accessing a “commercial social networking Web site,” as broadly defined by the North Carolina legislature.

The Supreme Court reversed the conviction based on the First Amendment’s protection of free speech, with Justice Kennedy criticizing the unnecessarily broad prohibition on accessing social networking sites, which prevented sex offenders from accessing the “vast democratic forums of the Internet,” that serve as principal sources of information on things such as employment opportunities, current events, and unrestricted opinions or ideas that have no connection to criminal plans or potential victimization of children.  Justice Alito’s concurrence agreed with striking down the North Carolina statute, pointing out that the statute’s definition of social networking sites included websites such as Amazon, the Washington Post, and WebMD. However the concurrence emphasized that states could still draft narrower, and constitutionally valid restrictions because of their legitimate interest in thwarting recidivist sex offenders.

The most interesting part of this decision is its future.  Is it really possible for a state legislature to sufficiently narrow its sights on offender/child communication to the point where the law has its intended effect while still passing constitutional muster?  If there is a North American Man Boy Love Association (“NAMBLA”) version of Tinder or Match.com, then there may be a way to characterize the “social site” in a permissible and effective way.  However, like the ones for the Washington Post or Amazon, many websites allow for user IDs for the very point of communicating with other visitors to that site, even if simply editorializing on a Washington Post story.  While the ensuing communications may not be fairly called a “chat room,” they are close enough to a “bulletin board” to bring us right back into the perils of North Carolina’s now-invalidated law.

And what of the defendants facing internet restrictions for reasons other than molestation or child pornography violations?  There are numerous defendants who are bounced off the Internet as a condition of probation or supervised release because the internet was an instrumentality for their crimes.  This probation condition that imposes an Internet ban is often referred to as CIMP- the computer and Internet monitoring program. It is imposed for both crimes that cannot be committed without a computer and also the use of a computer to facilitate the commission of traditional crimes. Some common computer-assisted offenses in the federal system that don’t require a computer per se are securities and credit card fraud, network manipulation, and on-line gambling.

Packingham will make for an interesting argument when one of these defendants is brought before the judge on a violation of probation, and the courts may have to balance constitutional concerns with facts that are much more ominous than Lester’s happy day in traffic court.

Even without the constitutional concerns, a strict CIMP condition has problems with satisfying the three statutory sentencing purposes: adequate deterrence, protection of the public from further crimes, and rehabilitation of the defendant in the most effective manner, 18 U.S.C. § 3553(a)(2)(B)-(D). While a strict ban obviously satisfies the adequate deterrence and public protection purposes, it does not further the purpose of rehabilitation.  It can even frustrate the rehabilitation purpose because an unreasonably restrictive Internet ban often means that defendants are unable to comply and end up in violation of their probation conditions. For example, below are some sample probation conditions that are quite onerous and likely to result in a probation violation:

• You must not possess and/or use computers (as defined in 18 U.S.C. § 1030(e)(1)) or other electronic communications or data storage devices or media.
• You must not access the Internet.
• You must not access the Internet except for reasons approved in advance by the probation officer.

Generally, the imposition of monitoring and access by probation of a defendant’s computer remains problematic in many cases because- like in the sample conditions listed above-  it imposes a greater deprivation of liberty than is reasonable necessary. This was acknowledged by the 10^th Circuit, which stated as a matter of general principle that, “conditions imposing complete prohibitions on Internet use or use of Internet-capable devices will typically constitute greater deprivations of liberty than reasonably necessary, in violation of § 3583(d)(2).”  With constantly evolving technology and the Court’s balancing act as evidenced in Packingham, it is likely that additional similar cases will wind their way through the state and federal appellate courts this year. Meanwhile, we would advise counsel and defendants to vigorously push back against any imposition of a restriction on Internet access (whether via a CIMP condition or otherwise) and to impress upon the judge at sentencing that these conditions raise both constitutional concerns and sentencing policy concerns.