Think about how often you use the internet. Seriously, just think about it for a second. I’m willing to bet that the vast majority of people would severely underestimate their dependence. Sure, maybe you don’t really get on Facebook or Twitter all that often. Maybe you’re not an online gamer. But when’s the last time you sent an email? Looked up a restaurant or used online maps? Hell, when’s the last time you Googled something?
Of course, I’m making a silly argument. Everyone knows that the internet has become an indelible part of everyday life for most people. But would you go so far as to say that access to the internet and social media has become an unalienable right? One that if restricted, violates the constitution?
If you answered yes to that, let’s tack on another layer. Would you still say it was a right for some of the worst criminal offenders imaginable? Those guilty of sex crimes? How about another layer. What if the criminal in question was a minor? Let us know in the comments.
A California Appellate judge has ruled that the probation conditions of a 15-year-old boy that barred him from accessing a computer in non-academic settings and disallowed any participation in social media are invalid. The 15-year old offender was found to have sexually assaulted two girls, a 13-year-old and a 2-year-old.
The minor and his lawyers had challenged some of the terms of his probation, including a ban on using computers with encryption, cracking, keystroke monitoring, security testing, etc. He also challenged the ban on maintaing a social media page and using chat rooms and instant messaging software. Finally, he took issue with being barred from using a computer for any purpose other the school-related assignments.
First, a little background on his crimes.
The minor, only identified as Andre B., was found to have sexually assaulted two individuals on separate occasions. His first victim was a 13-year-old middle school student who claimed that Andre held her down and “grinded his pelvis on her” for about 30 seconds. The other victim was a two-and-a-half-year-old girl whose vagina was “touched and possibly penetrated” by the defendant. Terrible crimes, of course. But the specifics aren’t important except for the fact that neither crime involved the internet in any way (according to the court).
In the opinion, Judge Terry O’Rourke notes that Andre’s contentions lean on a 1975 case that determined how probation conditions could be held invalid if they have no ties to the actual crime committed.
“A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality…Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.”
He also cites a 2003 ruling that discusses how outright internet bans on probationers and parolees have been struck down in both state and federal courts.
‘[S]uch a ban renders modern life—in which, for example, the government strongly encourages taxpayers to file their returns electronically, where more and more commerce is conducted on-line, and where vast amounts of government information are communicated via website—exceptionally difficult.”
O’Rourke’s opinion is that a blanket internet ban is invalid because it’s not closely tied to past crimes or future criminality.
“They are not tailored to Andre’s convictions for violating another’s personal liberty, willfully annoying and molesting another, unlawful use of force, and lewd and lascivious conduct, or the juvenile court’s dual goals of rehabilitation and public safety,” he says.
As far as the ban on social media accounts, the logic is similar (but with a caveat):
There is no evidence or indication in the record that Andre used Internet chat rooms or social media to contact his victims or to learn how to carry out his actions underlying the true findings. We conclude that prohibiting Andre from using social media is overbroad and, as phrased, the prohibition has no bearing on his possible rehabilitation.
At oral argument, defense counsel conceded that in light of the fact a minor’s constitutional rights are circumscribed, the probation terms prohibiting him from having or using social media accounts can be more narrowly tailored to fit his sexual crimes and foster his rehabilitation. Accordingly, we remand for the trial court to narrowly tailor the probation terms banning him from having or using “a MySpace page, a Facebook page, or any other similar page,” and from “participating in chat rooms, using instant messaging such as ICQ, MySpace, Facebook, TWITTER, or other similar communication programs.”
In short, an outright ban on social media use is overbroad, but certain restrictions could be possible if they could be shown to pertain to his specific crimes and help in his rehabilitation.
Andre didn’t challenge the condition that he be barred from accessing porn online, but he did challenge the ban on ” knowingly using ‘a computer that contains any encryption, hacking, cracking, keystroke monitoring, security testing, or steganography, Trojan or virus software.'” The Judge upheld that condition, saying that it is reasonable because it allows probation officers to monitor his compliance with the no-porn clause.
So – blanket computer bans and social media bans are a tricky prospect. Of course, any parents acknowledges that the internet can be a dangerous place for their kids – and the visceral reaction is to want any sex offender (no matter the age) banned from using the internet as his scouting grounds.
But has the internet become so important to functioning, day to day, in modern society that restricting access amounts to a violation of rights?
Earlier this year, we told you about a wave of challenges to state laws banning sex offenders’ use of social media, spearheaded by civil right groups like the ACLU.
Many states, including Indiana and Louisiana have passed legislation that makes accessing Facebook, Twitter or the like a crime for convicted sex offenders. In Louisiana, a Judge ruled such a law “unconstitutionally overbroad” (recognize that phrase?), saying:
Although the act is intended to promote the legitimate and compelling state interest of protecting minors from internet predators, the near total ban on internet access imposed by the act unreasonably restricts many ordinary activities that have become important to everyday life in today’s world. The sweeping restrictions on the use of the internet for purposes completely unrelated to the activities sought to be banned by the Act impose severe and unwarranted restraints on constitutionally protected speech. More focused restriction that are narrowly tailored to address the specific conduct sought to be proscribed should be pursued.
“To broadly prohibit such a large group of persons from ever using these modern forms of communication is just something the First Amendment cannot tolerate,” said the ACLU’s Ken Falk in response to such measures.
In our featured case, Andre didn’t use the internet to stalk his victims. The Judge saw that, and said that the punishment didn’t fit the crime. But of course, one of a sexual predator’s biggest tools is the internet. For those concerned about the protection of kids online, it doesn’t seem that out of the realm of possibility to cut his rights to it altogether.
Then again, he’s 15. And over the next (8, at the maximum) years, a ban on non-academic computer use and social media use would cripple his ability to do so many things in modern society. Can we really cut people off like that? Is there some happy medium that protects kids and doesn’t restrict rights beyond what’s proper? Let us know what you think in the comments.