Chapter 3: Computer and Internet Restrictions (Probation and Supervised Release Conditions)
A. Statutory Authority
Under 18 U.S.C. § 3563(b)(23), the court may provide that the defendant, “if required to register under the Sex Offender Registration and Notification Act, submit his person, and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation officer with reasonable suspicion concerning a violation of a condition of probation or unlawful conduct by the person, and by any probation officer in the lawful discharge of the officer’s supervision functions.”
Under 18 U.S.C. § 3563(b)(22), the court may provide that the defendant “satisfy such other conditions as the court may impose.”
B. Sample Condition Language
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.
You must submit your computers (as defined in 18 U.S.C. § 1030(e)(1)) or other electronic communications or data storage devices or media, to a search. You must warn any other people who use these computers or devices capable of accessing the Internet that the devices may be subject to searches pursuant to this condition. A probation officer may conduct a search pursuant to this condition only when reasonable suspicion exists that there is a violation of a condition of supervision and that the computer or device contains evidence of this violation. Any search will be conducted at a reasonable time and in a reasonable manner.
You must allow the probation officer to install computer monitoring software on any computer (as defined in 18 U.S.C. § 1030(e)(1)) you use.
To ensure compliance with the computer monitoring condition, you must allow the probation officer to conduct initial and periodic unannounced searches of any computers (as defined in 18 U.S.C. § 1030(e)(1)) subject to computer monitoring. These searches shall be conducted to determine whether the computer contains any prohibited data prior to installation of the monitoring software, whether the monitoring software is functioning effectively after its installation, and whether there have been attempts to circumvent the monitoring software after its installation. You must warn any other people who use these computers that the computers may be subject to searches pursuant to this condition.
- This condition serves the statutory sentencing purposes of deterrence, public protection, and rehabilitation. 18 U.S.C. § 3553(a)(2)(B)-(D).
- This condition enables the probation officer to satisfy the statutory requirements to keep informed of the conduct and condition of the defendant and aid the defendant and bring about improvements in his or her conduct and condition. 18 U.S.C. §§ 3603(2)-(3).
- This condition enables the probation officer to allow the defendant access to computers and Internet-connected devices for a variety of reasons while monitoring and potentially deterring future violations of supervision.
- In the case of an identified victim, a monitoring condition allows the probation officer to monitor the defendant’s Internet access and be alerted to any attempts to locate the victim on the Internet or attempts to contact the victim through the Internet.
D. Method of Implementation
- Computer-assisted offenses range from crimes that cannot be committed without a computer or Internet-capable device to the use of a computer or Internet-capable device to facilitate the commission of traditional crimes. The most common computer-assisted offenses in the federal system involve securities and credit card fraud, network manipulation, hacking, identity theft, on-line gambling, software and recording piracy, child sexual exploitation, child pornography, cyber-stalking, and counterfeiting.1
The nature of the specific crime will affect the types of special conditions that may be appropriate.
- Computer as Object, Victim, or Target: Crimes in this category involve attacks on the confidentiality, integrity, or availability of a computer’s information services (i.e., targeting a computer system to acquire stored information, steal services, corrupt data, or interfere with the accessibility of the computer server). A special condition prohibiting access to a computer may be appropriate for a hacker.
- Computer as Subject or Storage Device: Unlawful conduct of this type involves using a computer or connected device to store data used in carrying out criminal activity (e.g., transmitting a computer program containing instructions to trigger a malicious act automatically). A special condition allowing computer search may be appropriate for some defendants in this class.
- Computer as Instrument or Tool: With this type of criminal conduct, a computer or connected device is used to make traditional unlawful activity easier and faster. Appropriate special conditions to assist the officer in supervising this oftentimes sophisticated defendant might include prohibiting the defendant from owning or operating a computer; prohibiting the use of a device to access the Internet, bulletin board systems, or chat rooms; and computer search.
- Traditional supervision strategies can be effective for supervising defendants convicted of computer-related offenses as long as probation officers have a basic familiarity with computers and Internet terminology. These strategies include the use of targeted inquiry to develop information about defendants’ computing environments and their purposes or patterns of use and review of telephone records to yield information about Internet providers. Specifically, probation officers should ascertain information from the defendant and the defendant’s social network about: (1) what types of computer equipment they own or have access to at their residence and place of employment; (2) what Internet service providers they have on home and employment computers; (3) what web pages they operate or maintain; and (4) if a computer search or monitoring condition is in effect, what e-mail addresses, screen names, and passwords they use.
- Search and seizure special conditions may be necessary to monitor the defendant’s compliance with other conditions of release, including conditions prohibiting the possession of sexually stimulating material and conditions banning or restricting computer/Internet use.
Computer and Internet Monitoring
- Computer and Internet monitoring is a method of recording activity on a computer system in order to reasonably ensure compliance with the conditions of supervision. Computer and Internet monitoring conditions may also be necessary to monitor the defendant’s compliance with other conditions of release, including conditions prohibiting the possession of sexually stimulating material (see: Chapter 3, Section XVII) and conditions limiting the type of permissible computer/Internet use.
- In order to install computer monitoring software on computers, it is necessary to first conduct a search of the computer to determine whether it contains any prohibited data that may be detected by the monitoring software. It is also necessary to conduct subsequent searches of the computer to determine whether there have been any attempts to circumvent the software and to ensure it is functioning effectively.
- Monitoring computer and Internet activity is a supervision tool that not only serves as a deterrent to future criminal behaviors, but also permits defendants to use the Internet for legitimate and necessary reasons (i.e., employment and education) to facilitate rehabilitation and reintegration into the community.
- Computer and Internet monitoring may provide the least restrictive supervision method, as it permits Internet access as opposed to conditions that impose more restrictive bans or limits on access. Monitoring may allow the probation officer to control the defendant’s access to websites, limit activity to specific time frames, and allow or block access to certain applications. Monitoring may enable the probation officer to customize each monitoring case based on risks associated with the defendant’s offense history and other personal history and characteristics.
- In supervising a defendant with a history of computer-related offenses, probation officers must be aware of situations that may lead to reasonably foreseeable risk of harm to a third party (see: Chapter 2, Section XII), which may include information gathered by computer monitoring (for example, that shows visits to pornography sites, use of unauthorized external devices, altered monitoring software, or questionable file names, e-mail content, or chat conversations).
1 For an overview of legal issues concerning the imposition and execution of computer-related special conditions, including a discussion of the factors examined by appellate courts when considering the conditions and a discussion of some technological and logistical issues concerning the imposition and execution of these conditions, see Stephen E. Vance, Federal Judicial Center, Supervising Cyber Crime Offenders: A Guide for Judges.