Recognizing Access to the Internet as a “Basic Need,” Rejecting Blanket Bans on Internet Use, and Raising Questions as to the Scope of Monitoring Personal Computers

Mar. 31, 2017 / by Eric Marcy

 

 Rejecting Blanket Bans On Internet Access:

             In the recent case of J.I. v. New Jersey State Parole Board (A-29-15) (Decided March 21, 2017), in an unanimous opinion authored by Associate Justice Barry Albin, the court entered the 21st century by acknowledging the fundamental need for access to the internet in today’s digital world:

Today, access to the Internet is considered to be a basic need and one of the most meaningful ways to participate in the essentials of everyday life.  [citation omitted].  Through email and social networks, the Internet has become a primary means of communication among family members and friends, coworkers, patients and their doctors, clients and their lawyers, and individuals seeking employment.  

Online, people engage in banking and business transactions, purchase items, and watch movies and television. [citation omitted].  The Internet provides access to newspapers, magazines, news networks and blogs, reference materials, and much of the world’s literature. [citation omitted].  In 2012, the Internet surpassed radio and newspapers as a source of news for Americans and was poised to become more popular than television. [citation omitted].  Most unemployed workers searching for jobs do so on the Internet, and millions of students take online classes. [citation omitted].  All in all, the Internet is a ubiquitous presence in contemporary life, and it is difficult “to imagine how [a person] could function in modern society given [a] lifetime ban on all forms of computer access and use.” [citation omitted].

             The case presented two primary issues:  the first, was whether a total internet ban was rationally related to any legitimate penological purpose; the second, was whether access to the internet presents a liberty interest triggering Due Process and the right to contest the imposition of restrictions to the internet.

Computer Montoring, Internet Monitoring, Criminal Defense, Parole, Eric Marcy, a Blog.jpg

             The New Jersey Supreme Court reversed a blanket ban on internet access imposed by the Parole Board on a parolee who was on community supervision for life arising out of a conviction for a sex offense. In reversing the total ban, the court acknowledged a “liberty interest,” that establishes the right to challenge a ban’s denial to access to the internet and the scope of any restrictions.  The court recognized that “A CSL offender possesses protectible liberty interests, and the deprivation of such an interest implicates the minimal requirements of due process -- notice and an opportunity to be heard.”  This “liberty interest” requires that whenever such restrictions are imposed, they should be narrowly tailored, to accommodate both an individual’s need for access while protecting and safeguarding society.  In striking the proper balance the Parole Board was directed to strive for “less restrictive alternatives than a complete Internet ban to achieve its mission” to protect society.

             While this case arose out of the context of a challenge to a condition of parole imposed as part of community supervision for life, it has equal application in setting conditions of bail and/or sentencing and conditions imposed for probation.  It follows from the ruling in J.I. v. New Jersey State Parole Board, that if a court intends to impose a condition of banning or limiting access to the internet and/or requiring computer monitoring as a result of any legal proceeding, the court should articulate a special need which is directly related to the crime and person being sentenced and the limitation of access must be reasonable in scope.

 Tailoring Supervisory Access to the Internet and/or a Personal Computer:

             The court having recognized the fundamental need in today’s digital world to be able to access the internet, the next question is how can computer usage and internet access be monitored without being over broad and invasive?  In this digital age a person’s computer is akin to a personal diary, a personal library, a repository for not only his most personal thoughts and beliefs, the filing cabinet of confidential information, containing political opinions, proprietary information, and the new means of personal communication replacing the use of letters. The courts recognize that a personal computer involves a person’s “private space.” In addition to highly personal information, personal computers may also contain confidential and privileged information including: 1) attorney client and work product privileged communications; 2) ongoing medical and treatment information that is confidential under Health Insurance Portability and Accountability Act of 1996 (HIPAA, Title II); 3) communications with spouses; and 4) possibly first amendment communications to public officials, newspapers, or others.

             Aside from permitting challenges to a blanket ban on internet access, the scope of access vested with a parole officer and/or probation officer to review the contents of a computer should be defined and limited to the least invasive method of preventing unlawful conduct.  Even a good faith intention to empower a parole or probation officer with broad discretion to review internet activity or access to a person’s computer is still about as intrusive as one can get – it essentially grants access into a person’s private: diary, library, filing cabinets, attorney records/communications, political beliefs/communications, proprietary information, and medical records/communications.

             Given the increasing dependence on computers in today’s world a person’s reasonable expectation of privacy in the contents of one’s computer cannot be understated.  Denial of access to the internet, much as allowing unfettered access to a personal computer, clearly impacts substantial constitutional and personal privacy rights. Vague and overbroad conditions that implicate First and Fourth Amendment rights and substantial medical and legal privilege issues should not be delegated to the discretion of a parole or probation officer.

             Just as the Parole Board or a court must now articulate and allow for a challenge to the scope of internet restrictions, the Board or a Court in fashioning a means of monitoring must also find the least invasive means of insuring appropriate access to the internet.  The scope of internet monitoring should be defined and clear.  Moreover, the need to monitor internet activities should not permit a wholesale rummaging into the documents, emails, and other digital records that may be maintained on a personal computer. 

Defining Limitations/Scope and Preserving the Record for Appellate Review

             Whenever the Parole Board or a court imposes any restriction on access to the internet and/or an Order permitting the review of an individual’s computer, counsel should request a clear explanation from the court as to any special conditions relating to the internet or the method of monitoring of a computer at the time such an Order is entered.  Counsel should request that the Board or court be specific and define the scope of access permitted by a Parole or Probation Officer.  Counsel should place an objection on the record, so that the Board and/or court may have the opportunity to reconsider the condition or to narrow and tailor the scope of the special condition to accommodate the important rights implicated by access to the internet and to the contents of a personal computer.  By raising the objection and providing the Board and/or court with the opportunity to specifically define the limits of use and scope of access, the record is preserved for proper appellate review if there is a need to challenge the restrictions to the internet and/or access to a personal computer as unnecessary or over broad.

 For resources relevant to these issues, check out:

  • United States v. King, 604 3d 125, 137 (3d Cir. Pa. 2010), cert. den. 562 U.S. 1223 (2011);
  • United States v. Andrus, 483 F3d 711, 718 (10th Cir. 2007);
  • United States v. Pruden, 398 F3d 241, 248-250 (3rd Cir. 2005);
  • United States v. Lifshitz, 369 F3d 173, 190 (2d Cir. 2004);
  • Trulock v. Freeh, 275 F3d 391, 403, 404 (4th Cir. 2001);
  • United States v. Voelker, 489 F3d 139, 151 (3rd Cir. 2007);
  • United States v. Loy, 237 F3d 251, 265-267 (3rd Cir. 2001);
  • Note, Recent Case: Criminal Law - Supervised Release - Third Circuit Approves Decade-Long Internet Ban for Sex Offender, 123 Harv. L. Rev. 776, 779 (2010);
  • Laura Tatelman, Note, Give Me Internet or Give Me Death: Analyzing the Constitutionality of Internet Restrictions as a Condition of Supervised Release for Child Pornography Offenders, 20 Cardozo J.L. & Gender 431, 442 (2014);
  • Lori McPherson, The Sex Offender Registration and Notification Act (SORNA) at 10 Years: History, Implementation, and the Future, 64 Drake L. Rev. 741, 789 (2016);
  • 18 U.S.C. § 1029; 18 U.S.C. §1030;
  • 18 U.S.C § 2241, et. seq.; 18 U.S.C. §2251, et. seq.
  • J.B. v. N.J. State Parole Bd., 433 N.J. Super. 327, 341 (App. Div. 2013), certif. denied, 217 N.J. 296 (2014);
  • http://blog.wilentz.com/criminallaw/2015/10/29/the-limits-to-ordering-computer-monitoring-as-a-special-condition-of-supervised-release-in-the-federal-court-system/

 

 

 

 

Topics: Criminal Defense, Parole, Criminal Law, Appellate Practice, Internet Monitoring, Computer Monitoring

Eric Marcy

Written by Eric Marcy

Eric Marcy is a Shareholder at Wilentz, Goldman, & Spitzer, PA, 90 Woodbridge Center Drive, P.O. Box 10, Woodbridge, N.J. 07095. He has been employed with the firm since September of 1985 and has a wide variety of experience in criminal, civil, and administrative litigation. View Mr. Marcy’s bio at www.wilentz.com/eric-john-marcy.

Mr. Marcy has been a member of the New Jersey Association of Criminal Defense Lawyers since 1987. He served as a Trustee of the NJ-ACDL from 2001 to 2010. He also served on the legislative committee and instrumental in creating Association’s website and served as the website administrator for the NJ-ACDL (www.acdlnj.org).

Mr. Marcy served as an instructor for the Institute of Continuing Legal Education Criminal Practice “Skills and Methods” program for newly admitted attorneys from 2000 to 2009.

Mr. Marcy has served as a panelist on credited Continuing Legal Education programs on Ethics, Municipal Liability, and Police Liability for the New Jersey Association for Justice, the National Business Institute, and Lorman Educational Services.

Mr. Marcy has been selected for inclusion in New Jersey Super Lawyers® lists 2017, 2009-2006. Super Lawyers is published by Thomson Reuters. A description of their selection process can be found in the respective link above. The aforementioned organization is a private peer review organization, not a court specific public certification vehicle. No aspect of this advertisement has been submitted to or approved by the Supreme Court of New Jersey.

He is also an authorized attorney under the New Jersey State PBA Legal Protection Plan, representing law enforcement officers in administrative, civil and criminal matters.

Inquiries may be directed to him by telephone at 732-855-6004 or by email at emarcy@wilentz.com.

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