North Carolina Criminal Law NC Criminal Law

Jamie recently blogged here about ad hoc conditions of probation, i.e., conditions other than the statutory ones. Because I’m interested in criminal law and technology, I wanted to add a follow-up post about restrictions on computer or internet use as part of a criminal sentence. It’s a timely topic, both because of Jamie’s post and because of last week’s decision by the United States Supreme Court in City of Ontario v. Quon, in which the Court observed that certain forms of electronic communications may be “essential means or necessary instruments for self-expression, even self-identification.”

And that gets right to the heart of the issue. On the one hand, computers and other electronic devices are ubiquitous and essential parts of the modern world. Restricting a defendant’s access to electronic technology and to the internet dramatically impacts the defendant’s job prospects, ability to sustain a social network, and ability to complete daily tasks such as banking or renewing a driver’s license. On the other hand, computers and the internet are, for some people, dangerous instrumentalities of crime, whether child pornography or eBay fraud. Balancing these considerations, should hackers be denied computer access? Should people who possess child pornography? If so, for how long, and with what, if any exceptions?

This Wired magazine article is a nice, brief overview of the problem if the basic outlines aren’t clear enough already. I’ll just add a few additional points.

• Surprisingly, I couldn’t find any law on this issue in North Carolina. In State v. Howell, 166 N.C. App. 751 (2004), a defendant who was convicted of child pornography offenses was sentenced to probation with the condition that he not possess a computer. He appealed, but the opinion concerns procedural issues only — it doesn’t address the propriety of the condition of probation. After reading Jamie’s prior post, my guess is that our appellate courts would be inclined to give sentencing judges substantial leeway in fashioning conditions of probation concerning computer and internet use.
• There are quite a few federal court opinions in this area, generally involving challenges to supervised release conditions. (Not many defendants in the federal system get probation, but most receive lengthy terms of post-release supervision.) Folks litigating these issues may want to dig into the federal cases, though the statutory constraints are a little different under federal law than under state law. I won’t attempt to synthesize all the cases, but I’ll summarize a couple of recent decisions to give you the flavor. In United States v. Russell, 600 F.3d 631 (D.C. Cir. 2010), the defendant made contact over the internet with an undercover officer posing as a 13-year-old girl and tried to convince the “girl” to meet him for sex. The sentencing judge imposed a computer ban as a part of the defendant’s supervised release, but the reviewing court deemed that unreasonable in light of the fact that no one was actually harmed as a result of the crime, and given the necessity of computer use in connection with employment. In United States v. Moran, 573 F.3d 1132 (11th Cir. 2009), the defendant was convicted of possession of a firearm by a felon, but in light of his history of sex offenses and the fact that he was apparently not in compliance with his registration obligations at the time of his arrest, the sentencing judge ordered that the defendant not use an internet-connected computer without his probation officer’s written consent. The appellate court affirmed, succinctly summarizing the issue as follows: “Although the internet provides valuable resources for information and communication, it also serves as a dangerous forum in which an offender can freely access child pornography and communicate with potential victims.”
• Some courts have suggested that ordering a defendant to submit to monitoring of his computer or internet usage may be an alternative to a total ban. See, e.g., United States v. Heckman, 592 F.3d 400 (3rd Cir. 2010). There are a number of cases upholding or invalidating monitoring conditions in various circumstances. Compare, for example, United States v. Goddard, 537 F.3d 1087 (9th Cir. 2008) (upholding monitoring condition for child pornography defendant), with United States v. Sales, 476 F.3d 732 (9th Cir. 2007) (rejecting broad monitoring provision for counterfeiting defendant, and stating that “[a] computer monitoring condition in some form may be reasonable. However, to comply with the Fourth Amendment, it must be narrowly tailored – producing no greater deprivation of liberty than is reasonably necessary.”). Again, I’m not aware of any North Carolina law on point, though G.S. 15A-1343(b2)(9) provides for warrantless searches of sex offenders’ computers while on probation — not quite monitoring, but in the same vein — and G.S. 14-208.7(b)(7) requires sex offenders to register their “online identifiers,” which might be useful as part of a system of monitoring.

As always, we’d love to hear from you if you have experience with these issues in North Carolina or if you’re aware of cases in which these issues have arisen.