Monday, May 15, 2017

Computer Crime, “Using” a Computer and the Motion for Judgment of Acquittal

This post examines a recent opinion from the Court of Appeals of Oregon: State v. Tecle, 2017 WL 1929845 (2017). The court begins its opinion by explaining that
[d]efendant appeals a judgment of conviction for 18 counts of identity theft, [Oregon Revised Statutes] 165.800; 12 counts of theft in the second degree, [Oregon Revised Statutes] 164.045; and 18 counts of computer crime, [Oregon Revised Statutes] 164.377(2). He assigns error to the trial court's denial of his motion for a judgment of acquittal on the computer crime counts, arguing that evidence that he knowingly provided false information to banks was not sufficient to show that he `used’ a computer within the meaning of [Oregon Revised Statutes] 164.377(2), because the state should have been required to prove that he directly accessed or manipulated the banks' computers. 
State v. Tecle, supra.
The Court of Appeals went on to point out that
[w]hen denial of a defendant's motion for a judgment of acquittal `centers on the meaning of the statute defining the offense,’ we review the interpretation of the statute for legal error.. State v. Hunt, 270 Or. App. 206, 210, 346 P.3d 1285 (2015) (internal quotation marks and citation omitted). In determining the sufficiency of the evidence, we review the facts in the light most favorable to the state to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den., 514 U.S. 1005 (1995).
State v. Tecle, supra.
The court then explained why the charges were brought against Tecle:
The relevant facts are undisputed. In September and October 2012, defendant engaged in a scheme to defraud two banks. Defendant personally visited several bank branches and opened checking and savings accounts. Defendant provided the banks' employees with false information, primarily fraudulent social security numbers and home addresses. The bank employees relied on the information defendant provided, entering that information into the banks' computer systems to create bank accounts for defendant. Defendant activated automatic teller machine (ATM) cards and provided worthless checks for deposit into his new accounts. In compliance with federal law, the banks made at least $100 available immediately after defendant opened the accounts, before the checks were processed. Shortly after defendant created the accounts, someone other than defendant used the ATM cards and passwords to withdraw credited funds from the accounts or make purchases before the banks could determine the validity of the checks. As a result, the banks suffered financial losses.

Defendant was charged with multiple counts of identity theft, theft in the second degree, and computer crime. At the close of the state's case, defendant moved for a judgment of acquittal on the computer crime counts, among others, arguing that the state failed to present any evidence that defendant `used’ a computer for purposes of ORS 164.377(2). He argued that there was no evidence that he opened an account online or that he withdrew any money from the accounts using an ATM. Defendant argued that, `just because a bank or a business that you go to uses computers, that doesn't mean that [defendant] used a computer.’ The state countered that defendant was `using a computer system’ by `trying to inflate a bank balance’ so that money could be withdrawn later from an ATM. In the state's view, providing false information to a bank employee, who then enters that information into the bank’s computer database, constitutes `using’ a computer under [Oregon Revised Statutes] 164.377(2). The trial court denied defendant's motion, and the jury convicted defendant on all counts.
State v. Tecle, supra.
The opinion then explains that
[o]n appeal, defendant renews his arguments made in the trial court. Defendant contends that the state's interpretation of the term `use’ under [Oregon Revised Statutes] 164.377(2) is overly broad and contrary to the legislature's intent. The state reiterates its arguments, relying primarily on the statute's text and context to contend that defendant “used” the banks' computer systems for purposes of ORS 164.377(2).

The parties' arguments raise a question of statutory interpretation of whether the legislature intended the phrase, to `use’ a computer system, to reach defendant's conduct here. In construing a statute, we consider its text, context, and legislative history, to discern legislative intent. State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009).
State v. Tecle, supra.
The Court of Appeals began its analysis of this issue by explaining that
We begin with the text and context of the computer crime statute. That statute, [Oregon Revised Statutes] 164.377(2), provides:

`Any person commits computer crime who knowingly accesses, attempts to access or uses, or attempts to use, any computer, computer system, computer network or any part thereof for the purpose of:
`a) Devising or executing any scheme or artifice to defraud;
`(b) Obtaining money, property or services by means of false or fraudulent pretenses, representations or promises; or
`(c) Committing theft, including, but not limited to, theft of proprietary information or theft of an intimate image.’

The statute defines various terms, from `access’ to `services.’ For example, to `access’ is `to instruct, communicate with, store data in, retrieve data from or otherwise make use of any resources of a computer, computer system or computer network.’ ORS 164.377(a)(a) (emphasis added). The statute, however, does not define its term `use.’ 
State v. Tecle, supra.
The Court of Appeals then began its analysis of the meaning, and significance, of “using” a computer, explaining, initially, that 
`[b]ecause the legislature has not defined `use,’ we consider the term's ordinary, plain meaning. PGE v. Bureau of Labor and Industries, 317 Or. 606, 611, 859 P.2d 1143 (1993). The verb `use’ at the time the legislature enacted the statute was defined as `to carry out a purpose or action by means of : make instrumental to an end or process : apply to advantage : turn to account [.]’ Webster's Third New Int'l Dictionary 2524 (unabridged ed. 2002). The dictionary explains that `use is general and indicates any putting to service of a thing, usu[ally] for an intended or fit purpose or person [.]’ Id. That broad definition of `use’ posits a range of meanings, and it begs the question whether to `use’ may be directly or indirectly done.’
State v. Tecle, supra.
The opinion goes on to outline the arguments made by both parties, stating with Tecle:
Both parties argue that the text and context of [Oregon Revised Statutes] 164.377(2) supports their positions. Defendant observes that the plain meaning of `use’ can be either broad or narrow. Defendant argues that the `apply to advantage’ definition of `use’ connotes a `broad definition in which a person could take advantage of something indirectly, without accessing or manipulating it.’ Defendant contrasts that meaning of `use’ with the meaning of the phrases,`putting to service of a thing’ and `mak[ing] instrumental to an end.’ Webster's at 2524. He argues that the latter meaning of `use’ connotes a `more narrow definition in which a person directly manipulates something for an intended purpose, and that the thing being used be crucial to achieving that intended purpose.’ Defendant reasons that, because [Oregon Revised Statutes] 164.377(2) requires that the individual `use’ the computer `for the purpose of’ one of several prohibited activities, the context implies the direct manipulation of the computer for an intended and prohibited purpose, rather than indirectly taking advantage of someone else's manipulation of a computer system. Therefore, defendant posits that the legislature had a narrow definition of `use’ in mind—specifically to target computer hackers—when it enacted the computer crime statute.
State v. Tecle, supra.
The court then takes up the arguments made by the prosecution, explaining that the
state responds that nothing in the statute connotes a requirement that, to `use’ a computer in order to execute a fraud, the perpetrator must personally enter the fraudulent information into the computer. Applying one meaning of `use,’ the state argues that defendant `used’ a computer because defendant `carried out his purpose to commit fraud by means of the banks' computer networks.’ Or, applying another meaning, the state argues that defendant made the banks' computers `instrumental’ to the end of committing theft by fraud, and thus `used them for that purpose.’

For support, the state cites State v. Osborne, 242 Or. App. 85, 255 P.3d 513 (2011) as an application of the dictionary definition of the term `use’ in a different statute. In that case, we concluded that the evidence was sufficient for a jury to find that the defendant `used’ a knife for purposes of first-degree robbery, ORS 164.415, when he held a knife in his hand and demanded money from a store clerk. Id. at 89-90. Osborne does not resolve the question here, however, because, in that case, the defendant personally held the knife to carry out the robbery. Further, dictionary definitions do not resolve our question. `In construing statutes, we do not simply consult dictionaries and interpret words in a vacuum. Dictionaries, after all, do not tell us what words mean, only what words can mean, depending on their context and the particular manner in which they are used.’ State v. Cloutier, 351 Or. 68, 96, 261 P.3d 1234 (2011) (emphasis in original). In this case, further inquiry is needed to determine the legislature's intent.
State v. Tecle, supra.
The court went on to note that
[l]ike defendant, we acknowledge that the plain meaning of `use’ can be broad or narrow. As the parties' textual arguments demonstrate, the court could reach different results depending on how broadly or narrowly the term `use’ is construed. Recognizing a similar dilemma in interpreting another subsection of ORS 164.377, the Supreme Court looked to legislative history to understand that subsection based on the `context of the technology of the time. State v. Nascimento,’  360 Or. 28, 42-44, 379 P.3d 484 (2016); see State v. Perry, 165 Or. App. 342, 349, 996 P.2d 995 (2000), aff'd, 336 Or. 49, 77 P.3d 313 (2003) (`Context may be found in * * * the historical context of those relevant enactments.’). Although the state's proposed construction of the word `use’ in ORS 164.377(2) is plausible, that construction becomes untenable when considered in light of the legislative history.
State v. Tecle, supra.
The opinion goes on to explain that
[t]he statute, ORS 164.377, began as House Bill (HB) 2795. The bill was originally introduced during the 1985 legislative session to combat the theft of cable television services. See Bill File, HB 2795 (1985) (before amendment). Representatives of the General Telephone Company urged a House Judiciary subcommittee to adopt an amendment to respond to a related and growing problem at the time, described as `computer crime, or computer hackers if you will.’ Tape Recording, House Judiciary Committee, Subcommittee 1, HB 2795, May 6, 1985, Tape 576 (statement of Dave Overstreet, General Telephone Company). Sterling Gibson, an employee of General Telephone Company, explained that many businesses had come to use computers and that the purpose of the amendment was to `prevent people from calling into someone's computer’ to manipulate the data and `create havoc to that business or industry.’ Id. (statement of Sterling Gibson). To illustrate the kind of conduct the amendment sought to prohibit, he provided some examples: people who remotely accessed business computers and altered business documents; students who used computers to automatically `scan’ telephone exchanges for unsecured computer systems into which they could remotely dial; and individuals who publicly posted confidential long-distance telephone `billing codes’ on computer bulletin board systems. Id.
State v. Tecle, supra.
The Court of Appeals went on to explain that this
testimony, and other testimony, supports the sense that the bill was targeted at computer hacking and the direct manipulation of information stored within the computer or computer systems. For example, one legislator expressed concern that the amendment might criminalize the conduct of computer hobbyists who used telephone modems of that era to connect with other computers. Id. (statement of Rep Kopetski). Marion County District Attorney Dale Penn emphasized that the law would not apply to people who are allowed access to computer systems:

`There we get into the definition of ‘access.’ I think * * * if you call up to a computer system and you're not authorized you're probably not even going to be able to get the menu up. If you're calling to a bulletin board you're going to see the menu. And that's not what we're addressing here. We're addressing a computer system in which you're not authorized to dial. You won't know the codes.’

Id. (statement of District Attorney Dale Penn). A committee chair asked why the amendment was necessary in light of a previously enacted `theft of services’ statute. Gibson from General Telephone replied that the amendment was concerned with people utilizing computers to `manipulat[e] * * * documents that are vital to th[e] organization,’ which may or may not constitute theft. He stated that, `[a]gain we are not dealing necessarily with the theft of something, we are dealing with manipulation. We have in the environment computers with the ability of having information being observed by another * * *.’ Id. (statement of Sterling Gibson).

The amendments were adopted in the House Judiciary subcommittee and moved to the House Judiciary Committee and the Senate Judiciary Committee, where testimony again focused on computer hacking. At the House Judiciary Committee, legislative counsel stated that the proposed amendment was introduced to address the `idea of people who use their computers or instruments to get access to computer systems or networks and then gain by using the information or program that belongs to someone else.’ Tape Recording, House Judiciary Committee, HB 2795, May 13, 1985, Tape 613, Side A (statement of legislative counsel) (emphasis added). Before the Senate Judiciary Committee, Dave Overstreet, also from General Telephone, emphasized that the `bill address[es] computer hackers—persons who use computers to defraud. Computers can now be used to talk to other computers.’ Minutes, Senate Judiciary Committee, HB 2795, June 7, 1985, 18 (minutes noting comments; audiotape malfunctioned).
State v. Tecle, supra.
The Court of Appeal then began the process of articulating its holding – its decision – in this case, explaining that
[i]n sum, the legislative history of ORS 164.377 demonstrates that the bill was intended to combat `computer hacking,’ commonly understood as the practice of gaining access to a computer system and often tampering with sensitive data or information stored within. See Nascimento, 360 Or. at 42-44. In 1985, the legislature was concerned with people operating a computer to `call[ ] into someone's computer’ to manipulate the data stored within the computer, accessing someone's computer without authorization, and directly using computers for larcenous or fraudulent purposes. There is no indication that the bill was intended to reach the conduct of a person, such as defendant, who simply provided false information to an authorized employee, who then entered that false information into an employer's computer system. The 1985 legislature did not intend to turn ordinary theft or fraud into a computer crime merely when the victim's employee made authorized use of a computer, doing ordinary data entry, and when the perpetrator did not directly access or manipulate the computer.

The state acknowledges that the legislature's motivation was to criminalize computer hacking, but it argues that the `text the 1985 legislature ultimately adopted is not limited to addressing the problem of trespass-by-computer.’ The state argues that subsections (3) and (4) criminalize computer use that is `without authorization,’ so subsection (2) should be construed more broadly to include `areas outside that concern.’

In Nascimento, 360 Or. at 43-44, the Oregon Supreme Court rejected a similar argument about subsection (4) of ORS 164.377. In that case, the issue was the meaning of the phrase, `without authorization.’ Under 164.377(4), it is a crime to use, access, or attempt to access a computer or computer network `without authorization.’ ORS 164.377(4). The state urged the court to adopt a broad interpretation of `without authorization,’ arguing that the defendant's computer use violated her employer's computer use policies and, therefore, her violation of those policies constituted computer crime under ORS 164.377(4). Nascimento, 360 Or. at 35-36. The court concluded that the legislative history of ORS 164.377 established that the statute was intended to `address the unauthorized access of a computer by ‘hackers' or others who had no authority to use the computer.’ Id. at 43. The state contended that, even if the legislative history reflected those concerns, `the text that the legislature adopted is “not so limited,” and that it prohibits all “access” that is ‘without authorization’” Id. at 43-44 (emphasis in original). The court rejected the state's interpretation, explaining that the legislature may ultimately choose to adopt `broader language that applies to a wider range of circumstances than the precise problem that triggered legislative attention,’ but that `does not mean that we necessarily interpret statutes in the broadest possible sense that the text might permit.’ Id. at 44 (internal quotation marks and citation omitted).
State v. Tecle, supra.
The court then articulated its holding, its decision, on this issue:
[s]imilarly, here, the state urges us to interpret `use’ in the broadest possible sense, notwithstanding the narrower legislative history of ORS 164.377. However, we decline to interpret `use’ to include the situation in the present case, where defendant did not directly access or manipulate a computer or computer system in the commission of theft or fraud. Although defendant induced the banks to act to permit his theft, at all times the victim banks remained in unqualified and uncompromised control of their computer systems. Therefore, we conclude that defendant did not `use’ a computer or computer system within the meaning of ORS 164.377(2). The trial court, therefore, erred in denying defendant's motion for a judgment of acquittal on the computer crime counts.
State v. Tecle, supra.
It therefore held that
[c]onvictions on Counts 2, 5, 8, 11, 14, 16, 18, 21, 24, 26, 28, 31, 34, 36, 38, 41, 44, and 47 reversed; Count 10 reversed and remanded for entry of judgment of conviction for identity theft; remanded for resentencing; otherwise affirmed.
State v. Tecle, supra.

Friday, May 12, 2017

Vandalism, Probation and the Probation Conditions

This post examines a recent opinion from the California Court of Appeal – Fourth District:  People v. Edwin R., 2017 WL 1507526 (2017). The court begins the opinion by explaining that
Edwin R., a juvenile, appeals from a probation order entered after he admitted to committing an act of vandalism. Two of the probation requirements imposed on Edwin are that he consent to law enforcement searches of any electronic devices in his possession and that he provide his passwords to internet and social media websites to his probation officer. Edwin contends that these search conditions are invalid and constitutionally overbroad.
People v. Edwin R., supra.
The court goes on to explain how, and why, the prosecution arose:
A witness called police after observing Edwin and another juvenile spray painting graffiti on the wall of a building. When police arrived at the location, Edwin and the other juvenile attempted to run away. Edwin threw a can of spray paint as he fled. He later returned to the scene, then fled again, dropping a backpack along the way. Officers eventually caught Edwin and arrested him. They found the backpack that Edwin had discarded. The backpack contained a can of spray paint and some knives. Edwin admitted to police that he was a member of a criminal street gang.

The San Diego County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602, alleging that Edwin had vandalized property with graffiti and that he had caused more than $400 in damage (Pen. Code, § 594, subd. (a)(b)(1); count 1), and resisted an officer (§ 148, subd. (a)(1); count 2). The petition further alleged that with respect to count 1, Edwin committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).

At the hearing on the petition, Edwin admitted to having committed the acts underlying count 1. The court dismissed count 2, as well as the gang allegation associated with count 1. The court placed Edwin on probation and imposed several probation conditions on Edwin. Among the conditions that the court imposed are conditions that Edwin submit his electronic devices to a probation officer for a Fourth Amendment waiver search, and that he provide the probation officer with the passwords to his internet and social media accounts.

Edwin filed a timely notice of appeal.
People v. Edwin R., supra.
The opinion goes on to explain how, and why, the condition of probation at issue was imposed:
At the dispositional hearing, the People requested that the court impose a search waiver for electronic devices on Edwin as a condition of probation, in order to allow the probation department to more effectively monitor Edwin during his probationary period. Defense counsel objected on the ground that no nexus existed between the condition and the circumstances of Edwin's offense, under the Lent test. The court noted that Edwin had admitted his gang affiliation and surmised that gang members often communicate through electronic means. The court overruled Edwin's objection and imposed the following conditions:

`The minor's 4th Amendment waiver extends to any electronic device, such as a computer, electronic notepad, or cell phone, which the minor uses or to which the minor has access. The minor's 4th Amendment waiver also extends to any remote storage of any files or data which the minor knowingly uses or to which the minor has access. The minor agrees to submit to a search of any electronic device, such as a computer, electronic notepad, or cell phone, at any time without a warrant by any law enforcement officer, including a probation officer.’

`The minor shall provide all passwords or pass phrases to any internet sites or social media sites, such as FacebookTwitter, SnapChat, or Google+, used or accessed by the minor. When asked by any law enforcement officer, including a probation officer, the minor shall submit those websites to a search at any time without a warrant. The minor shall not knowingly clean or delete his or her Internet browsing activity.’

`The minor shall submit his/her person, property, or vehicle, and any property under his/her immediate custody or control to search at any time, with or without probable cause, with or without a search warrant, by any law enforcement officer or peace officers, probation officers, school officials or officers, and any other state security officers or agents engaged in the lawful performance of their duties.’

`The minor shall not knowingly have any direct or indirect contact with JOSE R[.] The minor shall not knowingly contact JOSE R[.] either directly or indirectly in any way, including, but not limited to, in person, by telephone, by texting, in writing, by public or private mail, by email or fax, or by any other electronic means.’

`The minor shall not knowingly associate with or be in the company of any person the minor knows or reasonably should know is a member of `OLD TOWN NATIONAL CITY’ (OTNC) GANG, or any other known criminal street gang or any person the probation officer informs the minor is affiliated with, or a member of, a criminal street gang.’

Edwin accepted the probation conditions and agreed to abide by them.
People v. Edwin R., supra.
The court went on to explain that
Edwin contends on appeal that the electronics search conditions that require him to submit his electronic devices to searches pursuant to a Fourth Amendment waiver (the electronic device condition) and to provide his probation officer with his internet and social media passwords (the password condition) are unreasonable and invalid because they have `”no relationship' whatsoever to [his] offense.”’ He further argues that these probation conditions are constitutionally overbroad because they limit his first amendment rights but are not sufficiently narrowly tailored for the purpose of public safety and offender rehabilitation.
People v. Edwin R., supra.
The Court of Appeal went on to explain that the probation conditions were valid:
Conditions of probation are generally reviewed for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) Pursuant to Lent, `”[a] condition of probation will not be held invalid unless it `(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.  . . .’” [Citation.]' This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. (Olguin, at pp. 379–380.)

In reviewing the validity of a probation condition, we bear in mind that `[t]he permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults.’ (In re Victor L. (2010) 182 Cal.App.4th 902, 910.)  'The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents' [citation], thereby occupying a “unique role . . . in caring for the minor's well-being.”' [Citation.] In keeping with this role, section 730, subdivision (b), provides that the court may impose 'any and all reasonable [probation] conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.'  (Id. at pp. 909–910.)

The electronic device condition and the password condition that the court imposed do not meet the third prong of the Lent analysis that would render them invalid because, under the circumstances of this case, these conditions, as drafted, are reasonably related to preventing future criminality. Under Olguinsupra, 45 Cal.4th at pages 380–381, a probation condition that enables probation officers `to supervise [their] charges effectively is . . . “reasonably related to future criminality.”’ This is true `even if [the] condition . . . has no relationship to the crime of which a defendant was convicted.’ (Id. at p. 380.) Other conditions of probation imposed on Edwin require that he avoid known members of the criminal street gang with which he was affiliated, and prohibit him from possessing, wearing, and/or displaying gang clothing and insignia. Edwin is also required to avoid contact with his co-participant in the offense, and is prohibited from contacting him `by telephone, by texting, . . . by email or fax, or by any other electronic means.’ The electronic device and password conditions reasonably relate to the effective monitoring of Edwin's compliance with these gang and no-contact conditions. (See In re P.O. (2016) 246 Cal.App.4th 288 [upholding validity of electronics search condition under Lent where condition was reasonably related to the ability of probation officers to supervise the probationer's compliance with other probation conditions].)
People v. Edwin R., supra.
The Court of Appeal then took up the password condition, explaining that
Edwin also argues that the electronic device and password conditions are unconstitutionally overbroad `because [they are] not narrowly tailored to limit the impact on [his] privacy rights.’ (Formatting omitted.) When a probation condition imposes limitations on a person's constitutional rights, it `must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.'  (Olguinsupra, 45 Cal.4th at p. 384.)

As an initial matter, the People contend that Edwin has forfeited his constitutional claim by failing to object on constitutional grounds in the trial court. Edwin acknowledges that he failed to raise a challenge to the electronics search condition on overbreadth grounds with the juvenile court, but he asserts that his contention is that the electronics search condition is `facially overbroad because it allows for the search on the sole legal basis of supervising the probationer,’ and because `[t]he individual facts and circumstances of the case do not necessarily need to be considered to reach this issue.’ We disagree with Edwin's characterization of his claim as a facial challenge. However, given the significant privacy interests at stake, we will exercise our discretion to consider Edwin's constitutional claim. (See People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6 [appellate court `is generally not prohibited from reaching a question that has not been preserved for review by a party’ and decision whether to consider such a question is left to the court's discretion].)
People v. Edwin R., supra.
The opinion goes on to explain that
`A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.’ (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) `The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.’ (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)

`”Even conditions which infringe on constitutional rights may not be invalid [as long as they are] tailored specifically to meet the needs of the juvenile.”'  (In re Tyrell J. (1994) 8 Cal.4th 68, 82, disapproved on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130.) “’[A] condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.'” (Sheena K.supra, 40 Cal.4th at p. 889.) `This is because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may “curtail a child's exercise of . . . constitutional rights . . . [because a] parent's own constitutionally protected `liberty’ includes the right to “bring up children” [citation,] and to “direct the upbringing and education of children.'“ (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.)
People v. Edwin R., supra.
The court then began its analysis of the constitutionally of the probation condition at issue here, explaining that
[w]hether a probation condition is unconstitutionally overbroad presents a question of law that we review de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

Although Edwin's rights may be more circumscribed than those of an adult probationer, it is nevertheless the case that any condition that imposes a limitation on his constitutional rights must be closely tailored to the purpose of the conditions so as to avoid the unnecessary infringement of those rights. The purpose of the conditions at issue here is Edwin's reformation and rehabilitation. Therefore, the limitation on his constitutional rights must be closely tailored to his reformation and rehabilitation.

We conclude that the electronic device condition is not overbroad, in that permitting a probation officer or other law enforcement officer to search Edwin's electronic devices will enable the officer to effectively supervise him. Further, being able to view how Edwin is utilizing the devices and what communications he may be undertaking with the devices is related to preventing his future criminality and serving the state's interest in ensuring his reformation and rehabilitation. We are unconvinced, however, that the password condition, as imposed, is sufficiently narrowly tailored to the purpose of Edwin's reformation and rehabilitation.
People v. Edwin R., supra (emphasis in the original).
The opinion goes on to explain that
[s]pecifically, the trial court did not tailor the password condition by limiting the types of private data that may be searched, so as to target the data that is most likely to be specifically relevant to Edwin's reformation and rehabilitation. The password condition requires Edwin to `provide all passwords or pass phrases to any internet sites or social media sites, such as FacebookTwitter, SnapChat, or Google+, used or accessed by the minor.’ By requiring Edwin to provide his passwords for `any internet sites’ that he uses or accesses, the password condition `permits review of all sorts of private information that is highly unlikely to shed any light on whether [the minor] is complying with the other conditions of his probation.’ (In re P.O.supra, 246 Cal.App.4th at p. 298.) Such a broad requirement could potentially expose a large volume of Edwin's private information, much of which may have nothing to do with illegal activity or the other conditions of probation—information that could include his medical and financial records. (See People v. Appleton (2016) 245 Cal.App.4th 717, 725.) The infringement of Edwin's privacy interests may extend only to searches that are reasonably likely to yield evidence of further gang or criminal activity, or noncompliance with the other probation conditions. Accordingly, the password condition must be modified to require only that Edwin provide passwords to access the electronic devices subject to search, if such passwords are required, and with respect to any accounts that he uses or accesses electronically that relate to communications (e.g., text messaging, e-mail, telephone calls, voice mail services, and video calling services), social media (e.g., Facebook, Twitter, SnapChat, and Google+), and/or video and photograph services. We shall therefore modify this probation condition and affirm the court's order as so modified.
People v. Edwin R., supra.
The Court of Appeal therefore held that
[t]he following sentence is stricken from the February 19, 2016 minute order setting forth the probation conditions: `The minor shall provide all passwords or pass phrases to any internet sites or social media sites, such as Facebook, Twitter, SnapChat, or Google+, used or accessed by the minor.’ It shall be replaced with the following: `The minor shall provide all passwords or pass phrases to any of the above-identified devices, and to any internet sites or accounts that he uses or accesses electronically to send or receive communications (e.g., text messaginge-mail, telephone calls, voice mail services, and video calling services), that are considered social media platforms (e.g., FacebookTwitter, SnapChat, and Google+), and/or that are used for the collection or dissemination of videography and photography.”

As so modified, the probation order is affirmed.
People v. Edwin R., supra.

Monday, May 08, 2017

The Released Sex Offender, Community Supervision and the Ban on Computers

This post examines an opinion from the Supreme Court of New Jersey: J.I. v. New Jersey State Parole Board, 2017 WL 1057462 (2017). The court begins by explaining that
the Internet plays an essential role in the daily lives of most people—in how they communicate, access news, purchase goods, seek employment, perform their jobs, enjoy entertainment, and function in countless other ways.

Sex offenders on community supervision for life (CSL) may be subject to restrictive Internet conditions at the discretion of the New Jersey State Parole Board (the Parole Board), provided the conditions promote public safety and/or the rehabilitation of the offender. In this case, the first issue is whether a total Internet ban imposed on a CSL offender was unnecessarily overbroad and oppressive and whether it served any rational penological purpose. The second issue is whether the Parole Board improperly denied J.I. a hearing to challenge the Internet restrictions that he claims were arbitrarily imposed.

J.I. is a sex offender subject to community supervision for life. After his release from confinement, J.I. was allowed full access to the Internet, with one exception: he could not visit an Internet social networking site without the approval of his District Parole Supervisor.

After J.I. had served thirteen months on community supervision for life without incident, his District Parole Supervisor totally banned his access to the Internet except for employment purposes. The District Parole Supervisor justified the ban based not on J.I.'s conduct while on community supervision for life, but rather on his conduct years earlier—the accessing of pornography sites and the possession of pornography—that led to a violation of his parole. A Parole Board panel affirmed, apparently with no input from J.I.

Following imposition of that near-total Internet ban, J.I. accessed several benign websites, such as those of his church and therapist, after repeated warnings not to do so. As a result, the parole authorities completely banned J.I. from possessing any Internet-capable device. The Parole Board upheld that determination and denied J.I. a hearing. The Appellate Division affirmed.
J.I. v. New Jersey State Parole Board, supra.  As may already be obvious, this is going to be a long post because the case is, as lawyers say “fact-sensitive.”      
The court went on to explain that
[w]e now reverse and remand to the Parole Board. Conditions imposed on CSL offenders—like those imposed on regular parolees—are intended to promote public safety, reduce recidivism, and foster the offender's reintegration into society. Arbitrarily imposed Internet restrictions that are not tethered to those objectives are inconsistent with the administrative regime governing CSL offenders. We agree with the position taken by federal courts that Internet conditions attached to the supervised release of sex offenders should not be more restrictive than necessary.

The sheer breadth of the initial near-total Internet ban, after J.I.'s thirteen months of good behavior, cannot be easily justified, particularly given the availability of less restrictive options, including software monitoring devices and unannounced inspections of J.I.'s computer. After the imposition of the total ban for J.I.'s Internet violations, J.I. should have been granted a hearing before the Parole Board to allow him to challenge the categorical Internet blackout. The complete denial of access to the Internet implicates a liberty interest, which in turn triggers due process concerns.

Accordingly, we remand to the full Parole Board for a hearing consistent with this opinion. The Board must determine whether the current total computer and Internet ban imposed on J.I. serves any public-safety, rehabilitative, or other penological goal.
J.I. v. New Jersey State Parole Board, supra.          
The opinion then goes on to explain how, and why, the prosecution arose:
In 2003, J.I. pled guilty to one count of second-degree sexual assault, N.J.S.A. 2C:14–2(b), and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24–4(a). J.I. admitted that, over a period of time, he sexually molested his three daughters, who ranged from six to fourteen years old. The trial court sentenced J.I. to a seven-year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43–7.2, on the sexual assault charge and to concurrent terms of seven years on the endangering charges. The court found that J.I.'s “conduct was characterized by a pattern of repetitive and compulsive behavior” and that he was amenable to sex offender treatment, and therefore ordered that the sentence be served at the Adult Diagnostic and Treatment Center (ADTC). The court also imposed a three-year period of mandatory parole supervision, to begin after J.I.'s release from custody, and a special sentence of community supervision for life, to follow the parole supervision period. Additionally, J.I. is subject to the registration and notification requirements of Megan's Law, N.J.S.A. 2C:7–1 to –23.
J.I. v. New Jersey State Parole Board, supra.
The Supreme Court then explained what happened next:
Upon J.I.'s release from confinement in October 2009, the Parole Board served him with the conditions of his mandatory parole supervision, which included the mandate that he refrain from accessing any social networking service or chat room. In January 2010, a parole officer's search of J.I.'s computer revealed that J.I. had visited multiple websites that `depicted minors in the nude.’ J.I. admitted to doing so. A parole officer also found in J.I.'s possession `”barely legal” DVDs and a book of “artistic” photos of pre-teen and minor females in the nude.’

J.I. was not charged with a criminal offense or parole violation, but his sex-offender treatment provider indicated that the possession of such material was `not conducive to [J.I.'s] rehabilitation or reintegration into society.’ In light of J.I.'s conduct, the Parole Board prohibited J.I. from using any Internet-capable device.

In October 2010, the parole authorities arrested J.I. for possessing a mobile phone with Internet capability and for using it `regularly in that capacity.’ In March 2011, a panel of the Parole Board found that J.I. had violated the conditions of his supervised release by having “an Internet capable device in his possession” and by his earlier `accessing pornography and images of nude children.’ In June 2011, J.I. returned to confinement at the ADTC, where he remained until his release sixteen months later.
J.I. v. New Jersey State Parole Board, supra.
The Supreme Court then took up the issue that is in dispute in this appeal, noting, initially, that
[b]efore his release in October 2012, J.I. acknowledged in writing the conditions attached to his community supervision for life. The only restriction on J.I.'s use of a computer or the Internet was that he `refrain from using any computer and/or device to create any social networking profile or to access any social networking service or chat room ... unless expressly authorized by the District Parole Supervisor.’ Under the social networking condition, J.I. was prohibited from accessing websites such as Facebook and J.I. otherwise had full access to the Internet. Indeed, a Deputy Attorney General confirmed by email that the social networking restriction was the only limitation on J.I.'s use of the Internet.

In 2013, J.I. was sixty-two years old, unemployed, and without the means to pay the mortgage on the home where his wife and son lived or otherwise provide financial assistance to his family. To further his search for employment, J.I. requested that his District Parole Supervisor modify the social networking condition to allow him to access LinkedIn, a job-related networking site. At this point, J.I. was in compliance with all the conditions of his community supervision for life, including the Internet conditions.
J.I. v. New Jersey State Parole Board, supra.
The court then explains what happened next:
In response to J.I.'s request for a limited modification to the social networking condition, on December 5, 2013, J.I.'s District Parole Supervisor prohibited J.I. from accessing the Internet for any purpose other than employment purposes, subject to his installing monitoring software on his computer. J.I.'s request to access LinkedIn was granted. J.I., however, was now subject to far more onerous Internet restrictions than before his request for relief—despite his thirteen-month compliance with the terms of his community supervision. The District Parole Supervisor justified this near-total Internet ban based on J.I.'s noncompliance, three years earlier, with “the State Parole Board's Social Networking/internet condition and his use of questionable and inappropriate internet sites.” Six days later, on December 11, 2013, a panel of the Parole Board affirmed the near-total Internet blackout. Nothing in the Board panel's statement of reasons suggests that J.I. had the opportunity to submit written objections to the newly imposed Internet restrictions.

Almost fifty days later, the District Parole Supervisor admonished J.I. for visiting non-work-related websites—a car-buying website, `Godtube,’ `Morris Psychological Group,’ and `Covenant Eye.’ Covenant Eye was the filtering website program that allowed J.I.'s parole officer to track and monitor his Internet usage.
J.I. v. New Jersey State Parole Board, supra (note omitted). In the omitted note, the Supreme Court explains that
[a]ccording to J.I. (per his Appellate Division brief), Godtube is a `religious website providing spiritual guidance through videos and biblical passages,’ and the Morris Psychological Group is where `his sex offender specific therapist is employed.’ Contact information for that therapist is located on the Group's website.
J.I. v. New Jersey State Parole Board, supra.
The court goes on to explain other encounters J.I. had with the authorities who were monitoring his uses of the Internet, explaining, initially, that
[o]n February 17, 2014, J.I. appealed to the Parole Board the conditions imposed by the District Parole Supervisor, restricting his computer and Internet access to employment-related uses. Ten days later, J.I. was admonished again, this time for visiting the websites of the church he attended—the Parsippany Baptist Church—and `Rent to Own.’

On March 7, 2014, J.I. and his counsel met with the District Parole Supervisor and a parole officer. At this meeting, the District Parole Supervisor stated that J.I. was never permitted to use a computer or access the Internet until he authorized him to do so and, then, only for work-related purposes. The District Parole Supervisor's assertion conflicted not only with the written CSL conditions issued at the time of J.I.'s release from custody, but also with assurances given to J.I.'s attorney by a Deputy Attorney General. The District Parole Supervisor made clear that J.I. could not use the Internet to communicate with relatives, visit his church's website, make purchases, bank, or engage in any other benign activity except to seek employment.

After the meeting, J.I. continued to visit websites unrelated to his employment search:, a website explaining different assistance programs, and, a website offering weight-loss counseling. In response, J.I.'s parole officer barred him from using a computer or the Internet for any purpose. J.I. was also advised that if any Internet-capable device—such as an iPhone—were found in his possession, he would be arrested. The parole authorities did not allege that J.I. accessed pornographic or illicit websites since his release from confinement.

In June 2014, a Parole Board panel affirmed the `computer/Internet' and `social networking' conditions attached to J.I.'s community supervision for life and denied his request for an evidentiary hearing.
J.I. v. New Jersey State Parole Board, supra.
The court goes on to explain the other steps J.I. took in an effort to have the restrictions on his use of the Internet relaxed, if not removed:
[o]n administrative appeal, J.I. urged the full Parole Board to remove the Internet and computer restrictions and grant him an evidentiary hearing.

On October 29, 2014, the full Parole Board issued a final agency decision, affirming the authority of the District Parole Supervisor to bar J.I. from using a computer or Internet-capable device and requiring him `to provide the nature and purpose of each request for computer/Internet use or social networking.’ According to the Board, the Division of Parole would determine whether each request for Internet use was consistent with J.I.'s rehabilitative needs based on supporting documentation.

The Parole Board found that the Division of Parole's complete restriction on J.I.'s use of a computer or Internet-capable device was justified because of his `willful disregard’ of the prohibition against accessing non-work-related websites. The Board also denied J.I.'s request for an evidentiary hearing, reasoning that the computer/Internet access ban did not constitute the infringement of a liberty interest similar to the imposition of a curfew and that no factual issue had to be resolved.
J.I. v. New Jersey State Parole Board, supra.
The Supreme Court went on to note that a
panel of the Appellate Division upheld the Parole Board's decision to keep standing a total ban on J.I.'s access to a computer and the Internet as a condition of his community supervision for life. J.I. v. N.J. State Parole Bd., 441 N.J.Super. 564, 120 A.3d 256 (App. Div. 2015). In doing so, the panel reaffirmed the constitutionality of N.J.A.C. 10A:71–6.11(b)(23). Id. at 578–79, 120 A.3d 256; see also J.B. v. N.J. State Parole Bd., 433 N.J.Super. 327, 341, 79 A.3d 467 (App. Div. 2013), certif. denied, 217 N.J. 296, 88 A.3d 192 (2014). That provision allows a Parole Board panel to order a parolee to `[r]efrain from using any computer and/or device to create any social networking profile or to access any social networking service.' N.J.A.C 10A:71–6.11(b)(23). The panel indicated that its affirmance of the social networking restriction in J.B. did not suggest that the Parole Board could not impose an absolute ban on the use of an Internet-capable device in a particular case. J.I., supra, 441 N.J.Super. at 579, 120 A.3d 256.

The panel also rejected J.I.'s ex-post facto and as-applied due process challenges to N.J.A.C. 10A:71–6.11(b)(23), which was adopted before J.I. began serving his community supervision for life but after the events resulting in his convictions. Id. at 580–82, 120 A.3d 256. The panel held that the regulation `is remedial in purpose and effect, not punitive’ and that `[i]t is aimed at protecting the public from sex offenders, fostering rehabilitation, and reducing the likelihood of recidivism.’ Id. at 582, 120 A.3d 256.

The panel, moreover, rejected J.I.'s argument that the Parole Board's decision to uphold an `absolute ban on his use of an Internet-capable device’ was arbitrary and capricious. Id. at 583, 120 A.3d 256. The panel asserted that the absolute ban was justified because of J.I.'s repeated violations of the conditions of his community supervision, which limited his Internet use to employment purposes; the nature of the crimes he committed; and his earlier accessing of pornographic material. Id. at 584, 120 A.3d 256. The panel found that the special `conditions were reasonable in order to reduce the likelihood of his recidivism and consistent with protecting the public safety and welfare and fostering his rehabilitation.’ Ibid. The panel concluded that J.I. had a due process right `of notice and an opportunity to object to the conditions and request broader Internet access,’ but not a right to a hearing. Id. at 584–85, 120 A.3d 256.

We granted J.I.'s petition for certification. J.I. v. N.J. State Parole Bd., 223 N.J. 555, 127 A.3d 701 (2015). We also granted the motions of the American Civil Liberties Union of New Jersey (ACLU–NJ) and the Office of the Public Defender to participate as amici curiae.
J.I. v. New Jersey State Parole Board, supra.
I am going to depart from my usual practice at this point in this post because the opinion goes on for many more pages, analyzing specific issues that were originally in the case or that cropped up later. I am going to follow the thread that will eventually lead to the court’s decision in the case.
Toward the end of the opinion, the court explains that
[a]t the time of J.I.'s second release from confinement, the social networking condition was the only restriction on his use of an Internet-capable device. A Deputy Attorney General confirmed that point with J.I.'s attorney by email. The District Parole Supervisor, therefore, was mistaken in his understanding that J.I. was never authorized to use the Internet upon his release. Although he indicated otherwise to J.I., the District Parole Supervisor had no power to impose restrictions orally or without the approval of a Board panel. Despite J.I.'s thirteen-month compliance with the Internet conditions attached to his CSL status, the District Parole Supervisor imposed dramatic restrictions after J.I. requested permission to access a professional networking site that he believed would improve his prospects for employment. As a result, J.I. went from full access to the Internet, subject to the social networking restriction, to no access to the Internet, except for employment purposes. The District Parole Supervisor did not point to any conduct during J.I.'s thirteen-month CSL period to justify the newly imposed restrictions. Instead, he justified the Internet ban based on J.I.'s visiting pornography websites more than three years earlier.

With no apparent input from J.I., a Board panel affirmed the Internet ban except for employment purposes. The timeline of events suggests that J.I.'s simple request for a relaxation of the social networking condition—to allow access to LinkedIn—set in motion the imposition of CSL conditions that banished him from nearly all of life's activities on the Internet.

J.I. appealed to the full Parole Board challenging the newly imposed special condition restricting his Internet access for employment purposes only. He also requested a hearing.

Ultimately, the near-total ban was transformed into a complete Internet ban. Before and after J.I. filed his administrative appeal, he visited the websites of his church, his therapist, and other seemingly benign websites. Those websites were not employment related and therefore accessing them was in violation of the new special condition. Thereafter, the parole authorities barred J.I. from using the Internet for any purpose—including employment-related purposes—and from possessing any Internet-capable device. A Parole Board panel and then the full Parole Board affirmed that decision. The Board denied J.I.'s request for a hearing.
J.I. v. New Jersey State Parole Board, supra.
The court began its ruling in the case by explaining that
[a]lthough the reasonableness of Internet restrictions imposed on a CSL offender is a novel issue for this Court, federal courts, such as the United States Court of Appeals for the Third Circuit, have addressed Internet restrictions on supervised offenders with some frequency. Although the federal statute dealing with supervised release, 18 U.S.C.A. § 3583, is worded differently from New Jersey's corollary CSL provisions, the principles governing the federal and state statutes are similar. Under federal law—as under state law—`the primary purpose of supervised release is to facilitate the integration of offenders back into the rather than to punish them.’ Albertson, supra, 645 F.3d at 197 (citing U.S. Sentencing Comm'n, Federal Offenders Sentenced to Supervised Release 8–9 (2010)). Moreover, conditions of supervised release under federal law must be `reasonably related’ to federal sentencing factors and must involve `no greater deprivation of liberty than is reasonably necessary’ to fulfill the statute's purposes. Id. at 196–97 (citing United States v. Pruden, 398 F.3d 241, 248 (3d Cir. 2005)).
J.I. v. New Jersey State Parole Board, supra.
The Supreme Court therefore concluded the opinion by holding that
[t]he Internet condition imposed by the District Parole Supervisor in December 2013 denying J.I. access to the Internet for any purpose unrelated to employment was unreasonable because it was not tied to criminal conduct, rehabilitation, or public safety. Moreover, J.I.'s prior visits to pornographic websites and possession of pornographic material occurred before his re-incarceration and after he had complied for more than a year with his CSL terms. The Parole Board had available less restrictive alternatives than a complete Internet ban to achieve its mission.

Accordingly, the Internet condition placed on J.I. cannot be sustained on administrative law grounds.
J.I. v. New Jersey State Parole Board, supra.
The Supreme Court therefore reversed the decision of the Superior Court – Appellate Division. J.I. v. New Jersey State Parole Board, supra.

If you are interested, you can find the entire opinion online here: