Trends & issues in crime and criminal justice (Part II)
Date: December 24, 2004Source: Australian Institute of Criminology
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NextMitnick was also banned from accessing computer systems, computer networks or telecommunications networks. In addition, he was prohibited from acting as a consultant or advisor to individuals or groups engaged in any computer-related activity. Mitnick appealed against this order on the basis that it involved a violation of his first amendment rights and because it was said to be vague and overly restrictive. The appeal court, however, decided that the conditions were reasonable in view of Mitnick's recidivist tendencies and in order to protect the public (United States v Kevin Mitnick, 1998 WL255343, 9th Circuit 20 May 1998).
Monitoring computer use
The most recent cases have decided that rather than prohibit use of computers and the internet, it is preferable for some form of monitoring to take place, either through unannounced visits by probation officers, or through the installation of filtering software which would prevent the offender from visiting certain web sites – principally those relating to child pornography or paedophile activity. Of course, filtering software is not always effective in restricting access to certain content, and technologically skilled high tech criminals could well program their computers to disable the filtering software.
As suggested by Judge Wood in United States v Holm, monitoring computer use has previously been applied as a condition in cases involving high tech crime. In United States v Scott Dennis (District Court for the Eastern District of New York, 19 January 2001), for example, the offender was convicted of perpetrating a series of 'denial of service' attacks, in which the victim's computer systems were maliciously flooded with data, and was sentenced to six months incarceration to be served by three months in jail and three months in home confinement, followed by one year of supervised release. He was also ordered to perform 240 hours of community service, and was required to allow the probation authorities to monitor his computing activity during the period of supervision.
In the first prosecution to go to trial in Los Angeles under the federal statute covering computer abuse and spamming – the Computer Fraud and Abuse Act 1986 (18 USC §1029) – Bret McDanel, otherwise known as 'Secret Squirrel', was sentenced to 16 months in a federal prison, and ordered to submit to unannounced searches of his computer, to advise all future employers about his conviction and receive psychological counselling, for having maliciously bombarded his company's server with thousands of spam emails (United States v McDanel, District Court at Los Angeles, 25 March 2003).
In the case of United States v Chance Rearden (349 F.3d 608, United States Court of Appeals, 6 November 2003), in which the offender was convicted of using a computer to communicate information about raping children and sending graphic child pornography by email over the internet, the District Court ordered that:
all computers, computer-related devices, and the peripheral equipment used by the defendant shall [be] subject to search and seizure and the installation of search and/or monitoring software and/or hardware including unannounced seizure for the purpose of search.
This order was upheld on appeal. The defendant argued the conditions were vague, as even a television, palm pilot or watch could be considered a computer or computer-related device. However, the Court of Appeals saw no reasonable possibility that a computer, a computer-related device and peripheral equipment would be interpreted beyond the normal accoutrements of one's personal computer such as disks and disk drives, and devices for extra storage. The possibility of an unannounced inspection of one's computer may act as a specific deterrent to some forms of high tech crime. Problems could, however, arise in inspecting computers shared by offenders and others as the privacy of non-offenders could be infringed if an entire hard drive were inspected which contained data belonging to third parties. These questions will, no doubt, need to be addressed by courts over time as orders of this kind continue to be made.
Generally, conditional orders which require the surveillance of offenders must not be unreasonable in their potential to interfere with the offender's life. In the Northern Territory case of Dunn v Woodcock [2003] NTSC 24 (Supreme Court of the Northern Territory, 20 March 2003), conditions were imposed on an offender convicted of unlawfully supplying cannabis which required her to consent to any number of searches at any time during the day or night over a period of 12 months, irrespective of whether or not the police had reasonable grounds for believing there may be dangerous drugs concealed upon her premises, and even if a search warrant had not been obtained. The court considered that the condition placed an unreasonable burden on the offender as it placed her in the power of the police who could exercise very substantial control over her life by the mere threat of exercising the power to search unreasonably or unfairly. The court struck out the condition on the grounds that it was unduly oppressive.
Effectiveness of the orders
How effective, then, are forfeiture and restriction-of-use orders in reducing crime? Because these orders have only recently been employed in cases involving computer crimes, we do not have a sufficiently large sample to undertake quantitative research. There are, however, some logical barriers to the likely utility of these orders.
Use of other computers
The use of forfeiture of an offender's personal computer and modem is unlikely to stop the offender from using any one of a number of computers that are readily available to members of the public in libraries and other public places such as internet cafés. Forfeiture is, therefore, unlikely to have an incapacitating effect.
Effects on non-offenders
Forfeiture of a personal computer may affect individuals other than the offender, such as where other family members make use of the computer for school work or recreational activities. Forfeiture could, therefore, infringe the principle of proportionality in punishment.
Difficulties of enforcement
Restriction-of-use orders will only be effective to the extent that the order is capable of being enforced. This may require that probation officers be trained in computer forensics to conduct thorough inspections of the offender's computer, which is unlikely to be feasible for most probation services. Technologically adept offenders would be quite capable of concealing their activities from most probation officers who have not been fully trained in computer forensics.
Limits of monitoring software
If monitoring or filtering software is installed on the offender's computer this could be disabled by the offender, or be either inadequate to detect the full range of prohibited content or, alternatively, could be over-inclusive and prevent the offender from gaining access to legitimate content. This could impede a person's potential rehabilitation or employment during parole.
Effect on rehabilitation
Forfeiture and restriction-of-use orders could create problems in terms of rehabilitation of offenders, particularly for individuals who work in the information and communications technologies industries. A ban on computer or internet use may make them unemployable. In addition, the use of filtering software may be over-inclusive and prevent the offender from gaining access to legitimate content.
Limits on restitution/community service
Related to the problem of achieving rehabilitation, forfeiture and restriction-of-use orders may mean the offender is unable to earn sufficient money to pay compensation orders or other financial penalties. Similarly, offenders subject to forfeiture or restriction-of-use orders could not engage in some types of constructive community service that might require the use of computers. In this sense, their skills are being wasted during the period of the order.Future directions
From these few illustrations of sentences imposed on high tech criminals in recent years, we can see that courts are beginning to adapt sanctions to suit the novel circumstances of the cases. The difficulty which courts face in sentencing is to impose an appropriate punishment that will have some deterrent effect while at the same time devising orders that will be enforceable and not overly restrictive on the offender and third parties.
The decisions that have been imposed remain in their infancy and we are only beginning to see decisions of appellate courts being handed down which explore the boundaries and appropriateness of some of the conditional orders being imposed. Restricting access to computers or the internet can have potentially profound consequences, making punishments of this kind arguably more severe than traditional conditional orders. The simple prohibition on the use of a computer could deprive a person of the ability to find employment which could educe, not enhance, the possibility of rehabilitation.
Rather than seeking to impose restrictions on the use of computers as a means of punishment, courts could perhaps adopt the alternative approach of requiring offenders to use their computer skills or knowledge for constructive purposes. This could occur in a variety of ways:
- assisting police to investigate high tech crime cases, such as in the case of...
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