Trends & issues in crime and criminal justice (Part II)
Date: December 24, 2004Source: Australian Institute of Criminology
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NextGenerally, it seems that restrictions on the use of computers or the internet will be appropriate as long as they are reasonably related to the statutory purposes underlying the order, involve no greater deprivation of liberty than is reasonably necessary and are not overly broad (see Painter 2001; Hyne 2002). For example, in United States v Robb Walker Freeman (Third Circuit, 6 January 2003) the District Court for the Eastern District of Pennsylvania had imposed a special condition on supervised release that the offender could not possess a computer at his home or use an online computer service without the permission of his probation officer for the 70-month period of his supervised release. This case involved possession of computerised images of child pornography. The Court of Appeals held it was too broad a restriction as the offender had not tried to contact minors online but had merely obtained illegal images of children. Accordingly, a complete prohibition was overly restrictive.
A number of courts have held that a blanket ban on the use of computers and the internet is now inappropriate in view of the heavy reliance that we all have on computers for daily life. In United States v Holm (Seventh Circuit, 4 September 2003), Judge Diane Wood, writing for the Court of Appeal, observed:
for anyone, a total ban on all internet use would render life exceptionally difficult, given that today, the government strongly encourages taxpayers to file their returns electronically, more and more commerce is conducted online, and vast amounts of government information are communicated via web sites.
In terms of rehabilitation, it is often essential for offenders to have access to computers to secure employment on their release from prison. On occasions, however, prohibition of the use of computers or the internet could impede rehabilitation. In United States v Robert White (Tenth Circuit, 27 March 2001), for example, the offender pleaded guilty to receiving child pornography ordered over the internet. The District Court ordered that he should 'not possess a computer with internet access throughout his period of supervised release.' The offender, who was writing a book at the time, argued this would impede his ability to research the book and thus go against his rehabilitation. The Court of Appeals stated that although the offender could still technically possess a computer for word processing and record-keeping, most computers are now equipped with an internal modem, rendering any use of the computer a possible access to the internet. The court found the condition to be overly broad and invalid, instead suggesting that some form of monitoring of his computer use would have been adequate to prevent him from obtaining child pornography.
Similarly, in the case of United States v Holm (Seventh Circuit, 4 September 2003), the Court of Appeals overturned a restriction that the offender should not possess or use a computer that is equipped with a modem, that allows access to any part of the internet, email or other online service or possess software expressly used for connecting to an online service, including email. The court agreed that prohibiting the offender from use of computers with network connectivity would seriously impede his ability to find gainful employment upon his release from prison as he had previously worked as an information systems technologist.
Forfeiture of computer equipment
The earliest case in which a forfeiture order was used occurred in 1992 when the State of New York County Court ordered the forfeiture of the personal computers of four students from Cornell University after it was proved they had created and spread the MBDF computer virus which interfered with the operation of the university's computer system. One of these students had also created a false user account at the university. In addition to the forfeiture order the students were required to pay restitution of US$6,000 to the university and US$1,365 to two victims, and to perform 520 hours community service (New York v Blumenthal and Others Ind. No. 92-072-A, 4 September 1992). Forfeiture of computer equipment used in the commission of offences provides a clear example of proportionality by linking the punishment for an offence with the means by which the offence was committed. Proportionality, or 'just deserts,' simply means that the severity of punishment should be commensurate with the seriousness of the wrong. Although forfeiture of personal computers may be appropriate where they are owned by offenders and have been used to commit offences, difficulties may arise where hardware or software belongs to some other person or corporation, or where the forfeited computer contains data that belong to others. In such cases, the effect of the order may be to punish persons who were not involved in the commission of the offence. In the Queensland case of R v Hannah (District Court of Queensland, Ipswich, 9 April 2001), the offender was convicted of possessing a child abuse computer game and fined A$1,000. During a search of his premises, police found a number of disks containing child pornographic images. The court ordered the disks to be forfeited but not his computer because of the detriment such an order would have had on the offender's children (West 2003: 99).
In some cases in which computers have been seized in the execution of search warrants on lawyers' premises, claims of legal professional privilege have been successfully made on the grounds that the computer records contain confidential client communications (Smith, Grabosky &Urbas 2004). Forfeiture could also be viewed as a form of incapacitation in that it is seeking to prevent the offender from committing crime by isolating the individual from the online society in which the offence was committed. The ready availability of computers in public libraries and internet cafés, however, means that forfeiture of one's personal computer is unlikely to be entirely effective in preventing online access.
Restricting possession and use of computers
As an alternative to confiscating and forfeiting an offender's computer hardware – that is, physically removing them from the offender's premises – courts have made orders banning offenders from possessing computers or prohibiting them from having or using modems or gaining access to the internet. These orders have extended from complete prohibitions to specific orders that only prohibit certain types of activity, such as downloading child pornography.
The first case in which such an order was made involved an offender who had posted child pornographic images to bulletin boards from his home computer. The Ontario Provincial Court sentenced him to two years probation, with 150 hours community service, and ordered him to seek psychological treatment, not to communicate with anyone under 16, and not to download erotic material from the internet (R v Pecciarich (1995) 22 OR (3d) 748, [1995] OJ No. 2238, Ontario Court (Provincial Division) 20 July 1995). The obvious problem with such an order concerns its enforceability and the problems that probation officers would encounter in determining what material the offender had downloaded.
Problems have also arisen in defining exactly what 'erotic material' or 'pornography' means, although most cases have involved child pornography which is capable of more precise definition because of the age or appearance of the individuals being represented. Other courts have imposed bans on the use of computers with exceptions for work-related use, school work or where the offender's probation officer has approved of the use.
In the case involving Kevin Mitnick, in addition to being sentenced to almost five years imprisonment, being ordered to pay US$4,125 in restitution and being required to assign to his victims any proceeds he may receive from selling the story of his conduct, Mitnick was subject to stringent conditions during his three-year period of parole. These included a complete prohibition (without prior express written approval of the probation officer) on the possession or use (personally or through third parties), for any purpose, of the following:
- mobile phones;
- computers, any computer software programs, computer peripherals or support equipment;
- personal information assistants, modems or anything capable of accessing computer networks; and
- any other electronic equipment presently available...
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