Complete Ban on Internet and Computer Use for Sex Offenders Will Rarely Be Upheld

Filed under: Criminal Law, Sex Crimes by Contributor @ November 11, 2018

The Third Circuit Court of Appeals recently held that, in sentencing a defendant, a judge may restrict the use of a computer and electronic devices, but the restrictions must be narrowly tailored to the actual danger the defendant poses to society. The court also noted that only rarely would a complete ban be tailored to the defendant’s risk to society.  U.S. v. Holena.

In the case before the court, the defendant used an online chat room to attempt to meet and have sex with a fourteen-year-old boy, who turned out to be an FBI agent. Holena pled guilty to attempting to entice a minor to engage in sexual acts and was sentenced to ten years in prison and lifetime supervised release. As part of his supervised release, Holena could not use the internet without his probation officer’s approval. Holena violated these terms twice and at the last hearing on his violations, the judge imposed a new condition: a lifetime ban on possessing or using computers, electronic communication devices, or electronic storage devices.

The Third Circuit first held that the probation conditions contradict each other. You cannot use the internet at the probation officer’s discretion if you are banned from using the internet altogether. He was also required to have monitoring software on any computer he used, yet he was not allowed to use computers.

In the next step, the court analyzed three factors in determining whether a ban on using the internet or access to a computer is more restrictive than necessary:

  • restriction’s length
  • restriction’s coverage
  • defendant’s conduct

The court found it hard to imagine a circumstance in modern society when a lifetime ban on internet and computers would be narrowly tailored. However, if the proper situation arose, they reserved the possibility a lifetime ban could be narrowly tailored.

The scope of the ban is also too broad, as there are parts of the internet and some computer use Holena could access without the risk of harm to society. Also, Holena’s restrictions must be more tailored to his conduct.

The restrictions imposed also ban some First Amendment activity. While those under supervised release have less freedom than those who have finished their sentence, the restrictions need to be narrowly tailored to avoid undue constitutional restrictions. A blanket ban will usually be too expansive and restrict access to other websites Holena could safely use.

So, unless exceptional circumstances occur, a blanket ban on internet and computer use as a term of probation for sex offenders will not be upheld.

You can read the full case here:

https://cases.justia.com/federal/appellate-courts/ca3/17-3537/17-3537-2018-10-10.pdf?ts=1539190806

Also check out a related case about sex offenders and social media:

https://fairlielaw.net/social-media-for-all-sex-offenders-included/

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