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California Parole Condition Prohibiting Computer Access For Molester Ruled Unreasonable
The California Court of Appeals granted habeas corpus relief sought by a paroled child molester who complained that the condition of parole forbidding him from either using a computer or getting on the Internet was unreasonable. Ramon Stevens was convicted in 1997 of lewd conduct on a child. When arrested, he had a photo album of naked boys and a video recording of him having sex with an adult male. A search of his home computer revealed he had not used the computer for pornography, for contacting the victim, or for any criminal activity. When he was released onto parole in 2002, a special parole condition was You shall not possess or have access to computer hardware or software including the internet.
Stevens' pro per petition contended that the restrictive condition which impeded his ability to earn a living bore no relation to his crime or to conduct that was inherently criminal, nor was it tethered to any reasonably foreseeable criminal conduct. After the court issued an order to show cause, respondent California Board of Prison Terms (BPT) modified its restriction to allow Stevens limited use of the Internet now just forbidding computer access to pornographic web sites or communication with minors. The BPT then moved to moot the petition, but the court elected to retain jurisdiction because the question was of great public interest, was especially novel" by developing new case law involving cyberspace, and could potentially recur with every California parolei.e., 115,000 times per year.
The court first reviewed the Legislative intent of parole, finding that they recognized the initial period following release as highly significant to a parolee's successful reintegration into society. The court cited precedent holding that conditions of parole are a proper tool to bar a parolee from his prior bad associates and aim him away from a former crime-inducing lifestyle." The court concluded that existing precedent would uphold the restriction of a parolee from otherwise lawful conduct if it were reasonably related to his underlying conviction or to prevent future criminality.
Presiding Justice Gilbert then reviewed cyberspace law. Noting the mass appeal of the Internet and its integration into the mainstream of modern society, the court noted First Amendment protections attaching to its availability (citing Clement v. California Dept. Of Corrections, 364 F.3d 1148 (9th Cir. 2004) [prisoners have right to receive Internet-generated mail].
The court then focused on child molesters and their abuse of the Internet, observing that the U.S. Supreme Court held (Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) that society has a strong interest in protecting the Internet's use from the harmful effects of obscene material. The court approved decisions that had restricted Internet use by paroled molesters where it had been used in their crime, but cautioned that such restrictions ought not be overbroad.
Applying these principles, the court characterized the BPT's general concern regarding future criminal conduct as legitimate. But because the prohibition of any computer use was inherently inconsistent with Stevens' employability and thus his successful reintegration into society, the parole restriction was anomalous. As an alternative, any concerns of computer abuse could be monitored by random inspection of Stevens' hard drive, or by using an automatic link from Stevens' computer to the parole office.
The court concluded that Rehabilitation of a felon entails integration into society where he or she can be self-supporting. In appropriate cases, access to the Internet assists parolees to become law-abiding citizens." Accordingly, the court discharged its order to show cause and declared the petition now moot based upon the BPT's intervening modification of its restrictions. See: In re Stevens, 119 Cal. App. 4th 1228 (Cal.App. 2d Dist. 2004).
Stevens' pro per petition contended that the restrictive condition which impeded his ability to earn a living bore no relation to his crime or to conduct that was inherently criminal, nor was it tethered to any reasonably foreseeable criminal conduct. After the court issued an order to show cause, respondent California Board of Prison Terms (BPT) modified its restriction to allow Stevens limited use of the Internet now just forbidding computer access to pornographic web sites or communication with minors. The BPT then moved to moot the petition, but the court elected to retain jurisdiction because the question was of great public interest, was especially novel" by developing new case law involving cyberspace, and could potentially recur with every California parolei.e., 115,000 times per year.
The court first reviewed the Legislative intent of parole, finding that they recognized the initial period following release as highly significant to a parolee's successful reintegration into society. The court cited precedent holding that conditions of parole are a proper tool to bar a parolee from his prior bad associates and aim him away from a former crime-inducing lifestyle." The court concluded that existing precedent would uphold the restriction of a parolee from otherwise lawful conduct if it were reasonably related to his underlying conviction or to prevent future criminality.
Presiding Justice Gilbert then reviewed cyberspace law. Noting the mass appeal of the Internet and its integration into the mainstream of modern society, the court noted First Amendment protections attaching to its availability (citing Clement v. California Dept. Of Corrections, 364 F.3d 1148 (9th Cir. 2004) [prisoners have right to receive Internet-generated mail].
The court then focused on child molesters and their abuse of the Internet, observing that the U.S. Supreme Court held (Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) that society has a strong interest in protecting the Internet's use from the harmful effects of obscene material. The court approved decisions that had restricted Internet use by paroled molesters where it had been used in their crime, but cautioned that such restrictions ought not be overbroad.
Applying these principles, the court characterized the BPT's general concern regarding future criminal conduct as legitimate. But because the prohibition of any computer use was inherently inconsistent with Stevens' employability and thus his successful reintegration into society, the parole restriction was anomalous. As an alternative, any concerns of computer abuse could be monitored by random inspection of Stevens' hard drive, or by using an automatic link from Stevens' computer to the parole office.
The court concluded that Rehabilitation of a felon entails integration into society where he or she can be self-supporting. In appropriate cases, access to the Internet assists parolees to become law-abiding citizens." Accordingly, the court discharged its order to show cause and declared the petition now moot based upon the BPT's intervening modification of its restrictions. See: In re Stevens, 119 Cal. App. 4th 1228 (Cal.App. 2d Dist. 2004).
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Related legal case
In re Stevens
| Year | 2004 |
|---|---|
| Cite | 120 Cal.App.4th 881 (2004) |
| Level | State Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
3. Cyberspace
The 20th century witnessed the stunning growth of mass communication through the media of radio, television, movies, and telephone. (Bimber, Information and American Democracy: Technology in the **172 Evolution of Political Power (2003) pp. 75-88; Smith, Redeeming the Time (1987) pp. 920-921.) The past decade has borne witness to even more ways in which information is exchanged. "America is reacting, generally, to the omnipresence of cyberspace, [fn. omitted] made possible by the rise of new forms of electronic communication. Specifically, the Internet, now past its nascence, comprises the 'backbone' of American academic, governmental, and economic information systems. [Fn. omitted.]" (Schweiger, The Path of E-Law: Liberty, Property, and Democracy from the Colonies to the Republic of Cyberia (1998) 24 Rutgers Computer & Tech. L.J. 223, pp. 224-225.) "Computers and Internet access have become virtually indispensable in the modern world of communications and information gathering." (U.S. v. Peterson (2d Cir.2001) 248 F.3d 79, 83-84.)
In Hall v. LaRonde (1997) 56 Cal.App.4th 1342, 66 Cal.Rptr.2d 399, we took note of the important role electronic communications play in business transactions. Electronic communication may establish the necessary minimum contacts in a state to establish jurisdiction over a defendant.
The Supreme Court has characterized the Internet as "a vast library including millions of readily available and indexed publications...." (Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 853, 117 S.Ct. 2329, 138 *1235 L.Ed.2d 874.) In recent years, the legal profession has been fast drawn to cyberspace. Westlaw and Lexis are basic research tools. Our state superior courts post their dockets and other relevant information on the web. Opinions of the California Supreme Court and Courts of Appeal are available on the Internet within moments of filing. For better or worse, the computer and the Internet have facilitated the writing of this opinion.
A study in 2003, conducted by the Pew Research Center, estimated that there were 200 million users of the Internet in the United States. (Madden, America's Online Pursuits (Dec. 12, 2003) (Pew Research Center, Internet & Am. Life Project
"Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods. These methods are constantly evolving and difficult to categorize precisely. But, as presently constituted, those most relevant to this case are electronic mail (e-mail), automatic mailing list services ('mail exploders,' sometimes referred to as 'listservs'), 'newsgroups,' 'chat rooms,' and the 'World Wide Web.' All of these methods can be used to transmit text; most can transmit sound, pictures, and moving video images. Taken together, these tools constitute a unique medium--known to its users as 'cyberspace'--located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet. E-mail enables an individual to send an electronic message--generally akin to a note or letter--to another individual or to a group of addressees." (Reno v. American Civil Liberties Union, supra, 521 U.S. at p. 851, 117 S.Ct. 2329.) "[P]ublic debate is enabled by removing perhaps the most significant cost of human interaction--synchronicity. I can add to your conversation tonight; you can follow it up tomorrow; someone else, the day after." (Lessig, Code and Other Laws of Cyberspace (1999) p. 10 (Lessig).)
"With the Internet, the average computer blogger has, in effect, his or her own printing press to reach the world." (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 453, 9 Cal.Rptr.3d 257 **173 (conc. & dis. opn. of Sills, J.) [FN3] Restrictions upon access to the Internet necessarily curtail First Amendment rights. (Ashcroft v. American Civil Liberties Union, supra, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690; Clement v. California Dept. of Corrections (9th Cir.2004) 364 F.3d 1148.) "The architecture of the Internet, as it is right now, is perhaps the most important model of free speech since the founding [of the Republic]. Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means.... The model for speech that the framers embraced was the model of the Internet--distributed, noncentralized, fully free and diverse." (Lessig, supra, at pp. 167, 185.) "Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer." (Reno v. American Civil Liberties Union, supra, 521 U.S. at p. 870, 117 S.Ct. 2329.)
FN3. Blog: "A Web site (or section of a Web site) where users can post a chronological, up-to-date e-journal entry of their thoughts. Each post usually contains a Web link. Basically, it is an open forum communication tool that, depending on the Web site, is either very individualistic or performs a crucial function for a company." (Jensen, Netlingo the Internet Dictionary (1995-2004) < WWW.Netlingo.com/inframes.cfm> (as of June 11, 2004) see also Davis, Rants, Rulings, & Recipes (June 2004) Cal. Lawyer, pp. 22-25.)
4. Child Molesters and the Internet
Society has a strong interest in protecting its youth from the harmful effects of obscene material. (Reno v. American Civil Liberties Union, supra, 521 U.S. at pp. 869-870, 117 S.Ct. 2329; Ginsberg v. State of New York (1968) 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195.) Some child molesters reach their victims through the Internet. (U.S. v. Zinn (11th Cir.2003) 321 F.3d 1084, 1093 [the court found that limited restriction on child pornography offender's Internet usage was reasonably related to legitimate sentencing considerations]; U.S. v. Paul (5th Cir.2001) 274 F.3d 155.) "[Defendant] Paul used the Internet to encourage exploitation of children by seeking out fellow 'boy lovers' and providing them with advice on how to find and obtain access to 'young friends.' Restricting his access to this communication medium clearly serves the dual statutory goals of protecting the public and preventing future criminal activity." (U.S. v. Paul, supra, at p. 169.)
In United States v. Rearden (9th Cir.2003) 349 F.3d 608, defendant was convicted of shipping child pornography over the Internet. The Ninth Circuit affirmed the imposition of a probation condition prohibiting the defendant from possessing or using a computer with access to any online service without prior approval of the probation officer, noting that the restriction was "reasonably related to the offense that involved e-mail transmissions of quite graphic child pornography, and to the important goal of deterring him during the period of supervision from reverting to similar conduct, and thus, to rehabilitation and protecting the public." (Id. at p. 621.)
In United States v. Crandon (3d Cir.1999) 173 F.3d 122, defendant solicited a minor by e-mail and traveled to the victim's hometown where he engaged in sexual relations with her. He pled guilty to receiving child pornography and was sentenced to 78 months imprisonment and three years of supervised release. (Id. at p. 125.) The terms of parole included a special condition directing that defendant "not 'possess, procure, purchase or otherwise obtain access to any form of computer network, bulletin board, Internet, *1237 or **174 exchange format involving computers unless specifically approved by the United States Probation Office.' " (Ibid.)
On appeal, it was asserted that the special condition unnecessarily infringed upon defendant's liberty interests and bore no logical relation to his offense. The Third Circuit held that because the defendant "used the Internet as a means to develop an illegal sexual relationship with a young girl over a period of several months[,] the condition of release limiting [the defendant's] Internet access is related to the dual aims of deterring him from recidivism and protecting the public." (U.S. v. Crandon, supra, 173 F.3d at pp. 127- 128.) The court held that even though this special restriction "may hamper [defendant's] employment opportunities upon release" (id. at p. 128), and infringe upon his First Amendment rights, "the restrictions ... are permissible because the special condition is narrowly tailored and is directly related to deterring [the defendant] and protecting the public. [Citation.]" (Ibid.)
But "[i]t is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." (Sable Communications of California, Inc. v. F.C.C. (1989) 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93.) A state may restrict a constitutional right, but only when narrowly drawn to serve a compelling state interest. (Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1427, 115 Cal.Rptr.2d 439.) The state's power to inhibit free speech is limited. " '[T]he government may enforce reasonable time, place, and manner regulations as long as the restrictions "are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication." [Citations.]' " (Gonzales v. Superior Court (1986) 180 Cal.App.3d 1116, 1125, 226 Cal.Rptr. 164.) "Because laws that attempt to regulate expression 'pose a particular danger of abuse by the State,' [citation], they are carefully scrutinized. [Citation.]" (Berry v. City of Santa Barbara (1995) 40 Cal.App.4th 1075, 1083, 47 Cal.Rptr.2d 661; see also Ashcroft v. American Civil Liberties Union, supra, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690.)
The federal Second Circuit has staked out a policy of wide-open access to the Internet regardless of whether a computer was used for the underlying crime. In Peterson, defendant was convicted of larceny. He had prior state convictions for incest and accessing adult pornography on his home computer. A condition of probation banned his use of the Internet. (U.S. v. Peterson, supra, 248 F.3d at pp. 82-84.) Noting that computers and internet access are essential to communication and the gathering of information, the Second Circuit ruled the ban unreasonable. (Id. at p. 83.)
*1238 The defendant in United States v. Sofsky (2d Cir.2002) 287 F.3d 122, was convicted of possession of child pornography and, as a condition of probation, he was not allowed access to the Internet. The Second Circuit struck the restriction. The appellate court acknowledged that "access to a computer and the Internet after serving his ... sentence can facilitate continuation of his electronic receipt of child pornography, but we are more persuaded by the observation in Peterson that '[a]lthough a defendant might use the telephone to commit fraud, this would not justify a condition of probation that includes an absolute bar on the use of telephones.' [Citation.] The same could be said of a prohibition on the use of the mails imposed on a defendant convicted of mail fraud.... Although the condition prohibiting Sofsky from accessing a computer or the Internet without his probation officer's approval is reasonably related to the purposes of his sentencing, in light of the nature of his offense, we hold that the **175 condition inflicts a greater deprivation on Sofsky's liberty than is reasonably necessary." (Id. at p. 126.)
United States v. White (2001) 244 F.3d 1199, reaches a middle ground. Responding to an Internet advertisement posted as part of a sting operation, the defendant in White ordered videotapes advertised as containing child pornography. The defendant pled guilty to possessing child pornography and served a two-year sentence. After completing his sentence, defendant twice violated a requirement of his supervised release by consuming alcohol. The district court found him to be in violation of parole and sentenced the defendant to six months' incarceration. As a special condition, the court banned defendant from or possessing a computer which had access to the Internet. Defendant challenged this special condition, arguing that a "plea to a single count of receiving child pornography which he ordered over the Internet ... is not 'reasonably related' to prohibiting him from all access to the Internet" (id. at p. 1205) and that this "special condition [was] 'greater than necessary' in the equation balancing protection of the public with the goals of sentencing." (Ibid.)
The 10th Circuit held that the absolute restriction upon Internet access to be too narrow as well as overbroad. It found the condition potentially too narrow because the terms of the condition were unspecified. For example, the condition did not bar the defendant from accessing the Internet at a library or cyber cafe, but simply enjoined him from owning a computer with such access. The court found the condition potentially too broad because the district court may have intended the word "possess" to restrict usage unrelated to the defendant's underlying crime. From that viewpoint, the sentence was " 'greater than necessary.' " (U.S. v. White, supra, 244 F.3d at p. 1205.) The court thus found the restriction "neither reasoned nor reasonable" and remanded the case for clarification on the condition of prohibiting the defendant from owning a computer with Internet access. (Id. at p. 1207.)
*1239 In United States v. Freeman (3d Cir.2003) 316 F.3d 386, 392, the Third Circuit reconsidered its holding in Crandon and essentially adopted the 10th Circuit's approach. "There is no need to cut off ... access to e-mail or benign Internet usage when a more focused restriction ... can be enforced by unannounced inspections of material stored on [the defendant's] hard drive or removable disks." (Ibid.)
5. The Instant Case
Here, BPT was legitimately concerned that a released child molester's unfettered access to a computer might result in criminal conduct. In contrast to cases such as Crandon, Paul and Rearden, the broad prohibition on use of the computer and Internet bore no relation to Stevens's conviction for child molestation and imposed a greater restriction of his rights than was reasonably necessary to accomplish the state's legitimate goal.
BPT, concerned about Stevens's illegitimate use of the Internet, sought to prevent his having any access to cyberspace. One can understand the dilemma BPT faced. "[C]yberspace defies boundaries; it offers unlimited access. '[T]he openness of this architecture means this: That there is no 'natural' or simple or 'automatic' way to keep people out because there are no natural or real borders that close off access to those who should not have access.' [Citation.]" (U.S. v. White, supra, 244 F.3d at p. 1207.)
But BPT's task was less daunting than it appeared to be. A focused restriction could be enforced by unannounced inspections of material stored on Stevens's hard drive or his removable disks. (U.S. v. Freeman, supra, 316 F.3d at p. 392.; **176U.S. v. Sofsky, supra, 287 F.3d at pp. 126-127.) BPT might also have explored the implementation of monitoring software which automatically generates an e-mail to the parole officer should the parolee engage in an illegal use of his computer. (See, e.g., McKay, Guardrails on the Information Superhighway: Supervising Computer Use of the Adjudicated Sex Offender (2003) 106 W.Va. L.Rev. 203, 242.) Finally, BPT can verify Stevens's Internet usage with a sting operation--surreptitiously inviting him to respond to government--placed Internet ads for pornography. (See U.S. v. White, supra, 244 F.3d at p. 1201.)
BPT cannot, of course, monitor every aspect of Stevens's behavior. Other than a prohibition on his use of a computer to access pornographic sites, BPT would most likely be unable to monitor Stevens's use of someone else's computer. But like any other parolee, Stevens's unauthorized use of any computer would be at his own peril.
*1240 Conclusion
As observed by Sir William S. Gilbert, a felon's "capacity for innocent enjoyment is just as great as any honest man's." (Gilbert & Sullivan, Pirates of Penzance (1880) act II.) Rehabilitation of a felon entails integration into society where he or she can be self-supporting. In appropriate cases, access to the Internet assists parolees to become law-abiding citizens.
The order to show cause, having served its purpose, is discharged. Because the parole authority modified its restrictions on Steven's computer and Internet access, we now deny the petition as moot.
We concur: COFFEE and PERREN, JJ.
119 Cal.App.4th 1228, 15 Cal.Rptr.3d 168, 04 Cal. Daily Op. Serv. 5814, 2004 Daily Journal D.A.R. 7940, 2004 Daily Journal D.A.R. 9294
END OF DOCUMENT
The 20th century witnessed the stunning growth of mass communication through the media of radio, television, movies, and telephone. (Bimber, Information and American Democracy: Technology in the **172 Evolution of Political Power (2003) pp. 75-88; Smith, Redeeming the Time (1987) pp. 920-921.) The past decade has borne witness to even more ways in which information is exchanged. "America is reacting, generally, to the omnipresence of cyberspace, [fn. omitted] made possible by the rise of new forms of electronic communication. Specifically, the Internet, now past its nascence, comprises the 'backbone' of American academic, governmental, and economic information systems. [Fn. omitted.]" (Schweiger, The Path of E-Law: Liberty, Property, and Democracy from the Colonies to the Republic of Cyberia (1998) 24 Rutgers Computer & Tech. L.J. 223, pp. 224-225.) "Computers and Internet access have become virtually indispensable in the modern world of communications and information gathering." (U.S. v. Peterson (2d Cir.2001) 248 F.3d 79, 83-84.)
In Hall v. LaRonde (1997) 56 Cal.App.4th 1342, 66 Cal.Rptr.2d 399, we took note of the important role electronic communications play in business transactions. Electronic communication may establish the necessary minimum contacts in a state to establish jurisdiction over a defendant.
The Supreme Court has characterized the Internet as "a vast library including millions of readily available and indexed publications...." (Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 853, 117 S.Ct. 2329, 138 *1235 L.Ed.2d 874.) In recent years, the legal profession has been fast drawn to cyberspace. Westlaw and Lexis are basic research tools. Our state superior courts post their dockets and other relevant information on the web. Opinions of the California Supreme Court and Courts of Appeal are available on the Internet within moments of filing. For better or worse, the computer and the Internet have facilitated the writing of this opinion.
A study in 2003, conducted by the Pew Research Center, estimated that there were 200 million users of the Internet in the United States. (Madden, America's Online Pursuits (Dec. 12, 2003) (Pew Research Center, Internet & Am. Life Project
"Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods. These methods are constantly evolving and difficult to categorize precisely. But, as presently constituted, those most relevant to this case are electronic mail (e-mail), automatic mailing list services ('mail exploders,' sometimes referred to as 'listservs'), 'newsgroups,' 'chat rooms,' and the 'World Wide Web.' All of these methods can be used to transmit text; most can transmit sound, pictures, and moving video images. Taken together, these tools constitute a unique medium--known to its users as 'cyberspace'--located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet. E-mail enables an individual to send an electronic message--generally akin to a note or letter--to another individual or to a group of addressees." (Reno v. American Civil Liberties Union, supra, 521 U.S. at p. 851, 117 S.Ct. 2329.) "[P]ublic debate is enabled by removing perhaps the most significant cost of human interaction--synchronicity. I can add to your conversation tonight; you can follow it up tomorrow; someone else, the day after." (Lessig, Code and Other Laws of Cyberspace (1999) p. 10 (Lessig).)
"With the Internet, the average computer blogger has, in effect, his or her own printing press to reach the world." (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 453, 9 Cal.Rptr.3d 257 **173 (conc. & dis. opn. of Sills, J.) [FN3] Restrictions upon access to the Internet necessarily curtail First Amendment rights. (Ashcroft v. American Civil Liberties Union, supra, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690; Clement v. California Dept. of Corrections (9th Cir.2004) 364 F.3d 1148.) "The architecture of the Internet, as it is right now, is perhaps the most important model of free speech since the founding [of the Republic]. Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means.... The model for speech that the framers embraced was the model of the Internet--distributed, noncentralized, fully free and diverse." (Lessig, supra, at pp. 167, 185.) "Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer." (Reno v. American Civil Liberties Union, supra, 521 U.S. at p. 870, 117 S.Ct. 2329.)
FN3. Blog: "A Web site (or section of a Web site) where users can post a chronological, up-to-date e-journal entry of their thoughts. Each post usually contains a Web link. Basically, it is an open forum communication tool that, depending on the Web site, is either very individualistic or performs a crucial function for a company." (Jensen, Netlingo the Internet Dictionary (1995-2004) < WWW.Netlingo.com/inframes.cfm> (as of June 11, 2004) see also Davis, Rants, Rulings, & Recipes (June 2004) Cal. Lawyer, pp. 22-25.)
4. Child Molesters and the Internet
Society has a strong interest in protecting its youth from the harmful effects of obscene material. (Reno v. American Civil Liberties Union, supra, 521 U.S. at pp. 869-870, 117 S.Ct. 2329; Ginsberg v. State of New York (1968) 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195.) Some child molesters reach their victims through the Internet. (U.S. v. Zinn (11th Cir.2003) 321 F.3d 1084, 1093 [the court found that limited restriction on child pornography offender's Internet usage was reasonably related to legitimate sentencing considerations]; U.S. v. Paul (5th Cir.2001) 274 F.3d 155.) "[Defendant] Paul used the Internet to encourage exploitation of children by seeking out fellow 'boy lovers' and providing them with advice on how to find and obtain access to 'young friends.' Restricting his access to this communication medium clearly serves the dual statutory goals of protecting the public and preventing future criminal activity." (U.S. v. Paul, supra, at p. 169.)
In United States v. Rearden (9th Cir.2003) 349 F.3d 608, defendant was convicted of shipping child pornography over the Internet. The Ninth Circuit affirmed the imposition of a probation condition prohibiting the defendant from possessing or using a computer with access to any online service without prior approval of the probation officer, noting that the restriction was "reasonably related to the offense that involved e-mail transmissions of quite graphic child pornography, and to the important goal of deterring him during the period of supervision from reverting to similar conduct, and thus, to rehabilitation and protecting the public." (Id. at p. 621.)
In United States v. Crandon (3d Cir.1999) 173 F.3d 122, defendant solicited a minor by e-mail and traveled to the victim's hometown where he engaged in sexual relations with her. He pled guilty to receiving child pornography and was sentenced to 78 months imprisonment and three years of supervised release. (Id. at p. 125.) The terms of parole included a special condition directing that defendant "not 'possess, procure, purchase or otherwise obtain access to any form of computer network, bulletin board, Internet, *1237 or **174 exchange format involving computers unless specifically approved by the United States Probation Office.' " (Ibid.)
On appeal, it was asserted that the special condition unnecessarily infringed upon defendant's liberty interests and bore no logical relation to his offense. The Third Circuit held that because the defendant "used the Internet as a means to develop an illegal sexual relationship with a young girl over a period of several months[,] the condition of release limiting [the defendant's] Internet access is related to the dual aims of deterring him from recidivism and protecting the public." (U.S. v. Crandon, supra, 173 F.3d at pp. 127- 128.) The court held that even though this special restriction "may hamper [defendant's] employment opportunities upon release" (id. at p. 128), and infringe upon his First Amendment rights, "the restrictions ... are permissible because the special condition is narrowly tailored and is directly related to deterring [the defendant] and protecting the public. [Citation.]" (Ibid.)
But "[i]t is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." (Sable Communications of California, Inc. v. F.C.C. (1989) 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93.) A state may restrict a constitutional right, but only when narrowly drawn to serve a compelling state interest. (Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1427, 115 Cal.Rptr.2d 439.) The state's power to inhibit free speech is limited. " '[T]he government may enforce reasonable time, place, and manner regulations as long as the restrictions "are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication." [Citations.]' " (Gonzales v. Superior Court (1986) 180 Cal.App.3d 1116, 1125, 226 Cal.Rptr. 164.) "Because laws that attempt to regulate expression 'pose a particular danger of abuse by the State,' [citation], they are carefully scrutinized. [Citation.]" (Berry v. City of Santa Barbara (1995) 40 Cal.App.4th 1075, 1083, 47 Cal.Rptr.2d 661; see also Ashcroft v. American Civil Liberties Union, supra, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690.)
The federal Second Circuit has staked out a policy of wide-open access to the Internet regardless of whether a computer was used for the underlying crime. In Peterson, defendant was convicted of larceny. He had prior state convictions for incest and accessing adult pornography on his home computer. A condition of probation banned his use of the Internet. (U.S. v. Peterson, supra, 248 F.3d at pp. 82-84.) Noting that computers and internet access are essential to communication and the gathering of information, the Second Circuit ruled the ban unreasonable. (Id. at p. 83.)
*1238 The defendant in United States v. Sofsky (2d Cir.2002) 287 F.3d 122, was convicted of possession of child pornography and, as a condition of probation, he was not allowed access to the Internet. The Second Circuit struck the restriction. The appellate court acknowledged that "access to a computer and the Internet after serving his ... sentence can facilitate continuation of his electronic receipt of child pornography, but we are more persuaded by the observation in Peterson that '[a]lthough a defendant might use the telephone to commit fraud, this would not justify a condition of probation that includes an absolute bar on the use of telephones.' [Citation.] The same could be said of a prohibition on the use of the mails imposed on a defendant convicted of mail fraud.... Although the condition prohibiting Sofsky from accessing a computer or the Internet without his probation officer's approval is reasonably related to the purposes of his sentencing, in light of the nature of his offense, we hold that the **175 condition inflicts a greater deprivation on Sofsky's liberty than is reasonably necessary." (Id. at p. 126.)
United States v. White (2001) 244 F.3d 1199, reaches a middle ground. Responding to an Internet advertisement posted as part of a sting operation, the defendant in White ordered videotapes advertised as containing child pornography. The defendant pled guilty to possessing child pornography and served a two-year sentence. After completing his sentence, defendant twice violated a requirement of his supervised release by consuming alcohol. The district court found him to be in violation of parole and sentenced the defendant to six months' incarceration. As a special condition, the court banned defendant from or possessing a computer which had access to the Internet. Defendant challenged this special condition, arguing that a "plea to a single count of receiving child pornography which he ordered over the Internet ... is not 'reasonably related' to prohibiting him from all access to the Internet" (id. at p. 1205) and that this "special condition [was] 'greater than necessary' in the equation balancing protection of the public with the goals of sentencing." (Ibid.)
The 10th Circuit held that the absolute restriction upon Internet access to be too narrow as well as overbroad. It found the condition potentially too narrow because the terms of the condition were unspecified. For example, the condition did not bar the defendant from accessing the Internet at a library or cyber cafe, but simply enjoined him from owning a computer with such access. The court found the condition potentially too broad because the district court may have intended the word "possess" to restrict usage unrelated to the defendant's underlying crime. From that viewpoint, the sentence was " 'greater than necessary.' " (U.S. v. White, supra, 244 F.3d at p. 1205.) The court thus found the restriction "neither reasoned nor reasonable" and remanded the case for clarification on the condition of prohibiting the defendant from owning a computer with Internet access. (Id. at p. 1207.)
*1239 In United States v. Freeman (3d Cir.2003) 316 F.3d 386, 392, the Third Circuit reconsidered its holding in Crandon and essentially adopted the 10th Circuit's approach. "There is no need to cut off ... access to e-mail or benign Internet usage when a more focused restriction ... can be enforced by unannounced inspections of material stored on [the defendant's] hard drive or removable disks." (Ibid.)
5. The Instant Case
Here, BPT was legitimately concerned that a released child molester's unfettered access to a computer might result in criminal conduct. In contrast to cases such as Crandon, Paul and Rearden, the broad prohibition on use of the computer and Internet bore no relation to Stevens's conviction for child molestation and imposed a greater restriction of his rights than was reasonably necessary to accomplish the state's legitimate goal.
BPT, concerned about Stevens's illegitimate use of the Internet, sought to prevent his having any access to cyberspace. One can understand the dilemma BPT faced. "[C]yberspace defies boundaries; it offers unlimited access. '[T]he openness of this architecture means this: That there is no 'natural' or simple or 'automatic' way to keep people out because there are no natural or real borders that close off access to those who should not have access.' [Citation.]" (U.S. v. White, supra, 244 F.3d at p. 1207.)
But BPT's task was less daunting than it appeared to be. A focused restriction could be enforced by unannounced inspections of material stored on Stevens's hard drive or his removable disks. (U.S. v. Freeman, supra, 316 F.3d at p. 392.; **176U.S. v. Sofsky, supra, 287 F.3d at pp. 126-127.) BPT might also have explored the implementation of monitoring software which automatically generates an e-mail to the parole officer should the parolee engage in an illegal use of his computer. (See, e.g., McKay, Guardrails on the Information Superhighway: Supervising Computer Use of the Adjudicated Sex Offender (2003) 106 W.Va. L.Rev. 203, 242.) Finally, BPT can verify Stevens's Internet usage with a sting operation--surreptitiously inviting him to respond to government--placed Internet ads for pornography. (See U.S. v. White, supra, 244 F.3d at p. 1201.)
BPT cannot, of course, monitor every aspect of Stevens's behavior. Other than a prohibition on his use of a computer to access pornographic sites, BPT would most likely be unable to monitor Stevens's use of someone else's computer. But like any other parolee, Stevens's unauthorized use of any computer would be at his own peril.
*1240 Conclusion
As observed by Sir William S. Gilbert, a felon's "capacity for innocent enjoyment is just as great as any honest man's." (Gilbert & Sullivan, Pirates of Penzance (1880) act II.) Rehabilitation of a felon entails integration into society where he or she can be self-supporting. In appropriate cases, access to the Internet assists parolees to become law-abiding citizens.
The order to show cause, having served its purpose, is discharged. Because the parole authority modified its restrictions on Steven's computer and Internet access, we now deny the petition as moot.
We concur: COFFEE and PERREN, JJ.
119 Cal.App.4th 1228, 15 Cal.Rptr.3d 168, 04 Cal. Daily Op. Serv. 5814, 2004 Daily Journal D.A.R. 7940, 2004 Daily Journal D.A.R. 9294
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