Opinion
Case No. 20-cr-00253-VC-1
04-05-2021
UNITED STATES of America, Plaintiff, v. Chad Andrew CARTER, Defendant.
David J. Ward, U.S. Department of Justice, Antritrust Divsion San Francisco Field Office, San Francisco, CA, for Plaintiff. Varell Laphalle Fuller, Federal Public Defender, Mara K. Goldman, Assistant Federal Public Defender, San Jose, CA, for Defendant.
David J. Ward, U.S. Department of Justice, Antritrust Divsion San Francisco Field Office, San Francisco, CA, for Plaintiff.
Varell Laphalle Fuller, Federal Public Defender, Mara K. Goldman, Assistant Federal Public Defender, San Jose, CA, for Defendant.
ORDER REVISING STANDARD CONDITIONS OF RELEASE RELATED TO COMPUTER AND INTERNET USE FOR CHILD PORNOGRAPHY OFFENDERS
VINCE CHHABRIA, United States District Judge The Northern District of California's standard conditions of supervised release for child pornography offenders impose numerous restrictions on an offender's use of computers and access to the internet. The defendant in this case, who was convicted of possessing child pornography, objected to three of these conditions on the grounds that they were not reasonably related to the goals of deterrence, public protection, or rehabilitation, and involved a greater deprivation of liberty than was reasonably necessary. See United States v. Weber , 451 F.3d 552, 558 (9th Cir. 2006) ; see also 18 U.S.C. § 3583(d).
The Court agrees that these standard conditions are overly restrictive (as well as confusing), and has revised conditions 5, 6, and 7 in response to the defendant's objections. These revisions are not as comprehensive as the defendant originally requested, but they were adopted in consultation with the Probation Office, defense counsel, and the government, after all parties involved had an opportunity to review and comment on the proposed revisions.
The standard conditions define "computer" by incorporating the definition from 18 U.S.C. § 1030(e), which provides a vague and overbroad definition of "computer" that includes indisputably non-problematic devices such as calculators, smart refrigerators, and VoIP phones. See United States v. Peterson , 776 F. App'x 533, 534 (9th Cir. 2019). There is, of course, a need to define "computer" at a high enough level of abstraction to account for rapidly evolving technology, but the definition should not be so expansive so as to include devices that could never be used to view or solicit child pornography. See United States v. Lupold , 806 F. App'x 522, 526 (9th Cir. 2020).
Section 1030(e)(1) defines computer as "an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device."
In addition, the internet has become, for many people, a primary source of news and social interaction, and a primary means of buying food, looking for jobs, and booking transportation. See Packingham v. North Carolina , ––– U.S. ––––, 137 S. Ct. 1730, 1737, 198 L.Ed.2d 273 (2017) ; United States v. LaCoste , 821 F.3d 1187, 1191 (9th Cir. 2016). Partially in recognition of the internet's growing importance, the Second, Third, Seventh, Eighth, and Tenth Circuits have all held that conditions of release banning internet use (or conditioning use on the prior approval of a probation officer) are unreasonable. See United States v. Sofsky , 287 F.3d 122, 126-27 (2d Cir. 2002) ; United States v. Freeman , 316 F.3d 386, 391-92 (3d Cir. 2003) ; United States v. Holm , 326 F.3d 872, 877-79 (7th Cir. 2003) ; United States v. Crume , 422 F.3d 728, 733 (8th Cir. 2005) ; United States v. Blair , 933 F.3d 1271, 1275-1280 (10th Cir. 2019). The role that the internet plays in society has dramatically increased even in the last twenty years, and will undoubtedly continue to change in unforeseen ways in the future. The restrictions imposed on child pornography offenders must account for these changes. See Blair , 933 F.3d at 1277.
Accordingly, for this defendant, and for future child pornography offenders sentenced by the undersigned judge, the standard conditions of supervised release 5, 6, and 7, will be replaced with the following language:
5. You must enroll in the Computer Internet Monitoring Program (CIMP) and abide by the requirements of the CIMP Participation Agreement. You may not use or possess any computer that is not subject to the CIMP without prior permission of the probation officer. For purposes of these conditions of supervised release and your participation in CIMP, "computer" means any electronic device capable of accessing or storing images or video.
6. You must also abide by the requirements of the Computer & Internet Acceptable Use Contract, subject to the following limitations.
For purposes of the Acceptable Use Contract, "computer" means any electronic device capable of accessing or storing images or video.
With respect to the Acceptable Use Contract's prohibition on "online pornography" without prior approval of the probation officer, "pornography" means "any materials with depictions of sexually explicit conduct, as defined by 18 U.S.C. § 2256(2)."
The Acceptable Use Contract shall not be used to prevent you from doing any of the following:
• Maintaining a profile on social networking sites, so long as any social networking activity occurs only on a monitored computer.
• Accessing an email account, so long as the email account is subject to monitoring or is for work with the prior approval of a probation officer.
• Establishing a personal or business website, including online "blogs," so long as the website or blog is accessed only on a monitored computer.
• Using videoconferencing services, so long as the videoconferencing occurs only on a monitored computer or at work with the prior approval of a probation officer.
• Accessing chat rooms or other online environments allowing for real-time interaction with others, website message boards, or newsgroups, so long as this activity occurs only on a monitored computer.
• Selling/purchasing or offering to sell/purchase items over the Internet, including on Internet auction sites, so long as this activity occurs only on a monitored computer.
The probation officer shall not impose any special restrictions not listed in the Acceptable Use Contract without court approval.
7. As directed by the probation officer, you must warn your employer of any restrictions on your computer use.
IT IS SO ORDERED.
APPENDIX
FOLLOW-UP RESPONSE TO COURT ORDER REQUESTING REPORT FROM PROBATION OFFICE
AMY RIZOR ASST DEPUTY CHIEF U S PROBATION OFFICER CHRIS CARRUBBA-KATZ ASST DEPUTY CHIEF U S PROBATION OFFICER
Introduction
The Computer and Internet Management/Monitoring Program (CIMP) was established in July 2008 as a response to the increasing number of persons under supervision who commit offenses using computers. The program is designed to enable the probation office to provide comprehensive oversight of the computer use of these individuals, and to respond quickly and effectively to suspected violations of supervision or new criminal conduct.
The probation office has implemented a CIMP Team, which consists of a CIMP Coordinator, a Cybercrime Specialist, and a designee who conducts oversight, specifically, of monitored devices. [redacted]
Persons under supervision are enrolled in CIMP as quickly as reasonably possible upon release from imprisonment, or the beginning of supervision, as a means to orient the individual to the rules and restrictions of the program. Enrollment in CIMP does not necessarily mean the individual has been approved to obtain a device or that the individual has a monitored device. The CIMP Team maintains close communication with probation officers who supervise persons under supervision enrolled in CIMP. Examples of this collaboration include, but not limited to, 1) providing technical support to both the officers and persons under supervision, and 2) recommending any changes to monitoring strategies or other actions that may be necessary based on the conduct of the persons under supervision. The CIMP Team's responsibilities are supportive and advisory in nature, and ultimate decision-making responsibilities remain with the case officer and that officer's supervisor.
As the CIMP program continues to develop it has proven to be a valuable tool in the comprehensive and competent monitoring of the "online" conduct of persons under supervision, while allowing individuals to take advantage of the various tools and conveniences offered by advancements in computer and internet technologies.
Common cases in the Northern District of California that result in a CIMP enrollment
The computer use of persons under supervision enrolled in CIMP is subject to monitoring when the Court has imposed a special condition limiting an individual's right to possess a computer and/or authorizing the probation office to install software on the subject computer for the purpose of monitoring.
In the Northern District of California, the following three special conditions are generally imposed collectively and provide the authority for the probation office to effectively enforce the computer restrictions and/or computer monitoring component of the program:
1. You must not possess or use a computer without the prior approval of the probation officer. "Computer" includes any electronic device capable of accessing the internet or processing or storing data as described at 18 U.S.C. § 1030(e)(1) (including cell phones), and all peripheral devices
2. As directed by the probation officer, the client shall enroll in the probation office's Computer and Internet Monitoring Program (CIMP) and shall abide by the requirements of the CIMP program and the Acceptable Use Contract, and
3. You must consent to the probation officer conducting periodic unannounced examinations of your computer equipment which may include retrieval and copying of all data from
your computer(s) and any peripheral device to ensure compliance with this condition, and/or removal of any such equipment for the purpose of conducting more thorough inspection. You must also consent to the installation of any hardware or software as directed by the probation officer to monitor your Internet use.
Cybercrime offenses often result in a CIMP enrollment. Cybercrimes are offenses in which a computer is the object of the crime (hacking, phishing, spamming) or is used as a tool to commit a crime (child pornography, hate crimes, human trafficking, drug trafficking, weapons trafficking, terrorism) or avoid its detection (encryption software, deep/dark web). Additional circumstances that may result in a CIMP enrollment include 1) any person charged with or convicted of an offense where a component of that offense indicates a risk that the person has used a computer to assist in the commission of the offense, 2) any person under supervision suspected of using a computer to assist in violation conduct, and 3) any person under supervision with one or more court-imposed conditions involving computer or internet restrictions.
How does the Computer and Internet Monitoring Program work?
Internet and computer filtering or computer monitoring may provide an effective supervision method in addressing computer use as it permits computer access as opposed to banning access entirely. The U.S. Probation Officer in the Northern District of California utilizes the services of a third-party vendor (referred to as "the vendor"). The vendor provides software that is installed on an individual's computer hard drive that is to be monitored. After installation, the data is transmitted to a designated server. This tool can be used to:
1. block an individual's internet access,
2. internet filtering – to either prevent access to certain websites or allow access to specific websites. [redacted]
3. monitor internet and computer use,
4. monitor keystrokes, and
5. (on Android devices) capture text messages, photos, videos, calls, as well as, third-party application control and blocking of third-party applications.
[redacted]
The use of the vendor's software to monitor an individual's computer use is one of several techniques used by probation officers to effectively manage the risk and needs of persons under supervision with computer restrictions. Computer monitoring is not the sole focus of supervision. Traditional supervision techniques include home, collateral, and community contacts, [redacted]
What devices can the probation office monitor?
Currently, the vendor supports monitoring of Android cellular phones (except for OnePlus, Alcatel, ANS, TCL, Unimax, or Huawei Android phones, or Chrome OS for Android devices), Windows devices running Windows 7, 8.1, and 10 (except Windows 10 S), and Apple computers.
[redacted]
How does the probation office actively review the content on the devices?
[redacted] These case officers are responsible for reviewing data for their respective cases and responding to compliance issues. [redacted] Ultimately, the responsibility of the assigned case officer to address the risk and needs of the person under supervision. Once software is installed on a user's computer, the data is transmitted to the vendor's server over an internet connection (computer) or internet/cellular connect (cell phone). [redacted]
[redacted]
• Phase I – [redacted]
• Phase II – [redacted]
• Phase III – [redacted]
[redacted]
What are the concerns about how offenders can bypass the monitoring program? Does the probation office believe that the program is effective?
[redacted] In the instances where a computer, or storage device, is not monitored there is a concern that illicit material can be on those devices and accessible to the person under supervision without any oversight by the probation office. For this reason, it is imperative the probation office has discretion in authorizing a computer or Internet-capable device(s) used by a person under supervision.
The probation office has implemented practices, outlined in the CIMP Acceptable Use contract, that reduce these risks in hopes of identifying if/when a person under supervision attempts to circumvent monitoring.
Additionally, the probation office has invested in computer forensic tools to assist probation officers with investigating suspected criminal conduct or violations of court-imposed conditions of supervision when reasonable suspicion of a violation is present. Specifically, computer searches may be conducted when the Court has imposed a special condition authorizing an electronic search or granted specific permission to the probation office to conduct a search of a client's computer; computer seizures may be conducted when the Court has imposed a special condition limiting the client's right to possess a computer, and/or authorizing the USPO to remove a client's computer for the purpose of search; and computer searches and/or seizures may be conducted upon the consent of the client.
The probation office has utilized computer monitoring tools and strategies since, at least, 2008, and has witnessed the effectiveness in identifying violation conduct and/or opportunities to address issues with the person under supervision through therapeutic measures. The clear notice in the special conditions of supervision of having their computer monitored can have the added benefit of increasing the deterrent effect of the condition.
How does the probation office determine the specific monitoring/blocking restrictions to be applied in an individual's case?
The investigation and supervision techniques utilized in cybercrime cases must be based on an individualized ongoing assessment. Officers (in collaboration with their supervisor, the CIMP Team, and treatment provider) use all available information to determine the overall supervision plan for the individual, including the Post-Conviction Risk Assessment (PCRA) and any additional offense or behaviorally specific information.
Officers consider the type of alleged, or committed cybercrime:
• Computer as Object, Victim, or Target: Crimes in this category involve attacks on the confidentiality, integrity, or availability of a computer's information services, i.e., targeting a computer system to acquire stored information, steal services, corrupt data, or interfere with the accessibility of the computer server.
• Computer as Subject or Storage Device: Unlawful conduct of this type involves using a computer or connected device to store data used in committing the criminal activity, e.g., transmitting a computer program containing instructions to trigger a malicious act automatically.
• Computer as Instrument or Tool: With this type of criminal conduct, a computer or connected device is used to more easily and efficiently facilitate traditional, unlawful activity. Appropriate conditions to assist the officer in supervising this individual might include prohibiting the individual from owning or operating a computer; prohibiting the use of a device to access the internet, prohibiting access to bulletin board systems, or chat rooms; and require computer searches.
In addition to the way the computer was utilized to commit the crime, officers consider the individual's specific circumstances:
• Whether the individual has a history of illegal or prohibited internet use;
• The severity of the instant offense conduct (if applicable) and prior offense history;
• The length of term of supervision (if applicable);
• The individual's sophisticated computer skills, [redacted]
• Whether the individual's occupation requires access to computers; and
• Whether there are other restrictive conditions, precluding computer or internet limits.
These considerations assist the probation officer in determining when to authorize a monitored device and at what frequency that device will be monitored. [redacted]
A gradual decrease of monitoring efforts for a person under supervision with time and compliance is in line with the national policy. The review of data is commensurate with the risk and needs of the person under supervision and can be reduced as those risk factors become mitigated or are not present. The decrease of monitoring efforts can be [redacted] eventually the removal of monitoring software. On the other hand, the monitoring efforts increase should the risk elevate. The probation office has implemented practices, outlined in the CIMP Acceptable Use Contract, in an attempt to reduce these risks. [redacted] The rules and regulations contained in the CIMP Acceptable Use Contract were developed as a guide to effectively supervise individuals with computer and internet restrictions. It is used not only in the interest of protecting the community but also in assisting the client in his or her rehabilitation.
The PSR proposes a probation condition requiring that an offender obtain a probation officer's prior approval before using a "computer" as defined in 18 U.S.C. § 1030(e)(1). If the Court determines that this definition is overbroad, would the probation office have any concerns with defining "computer" as any device capable of accessing the internet or of sending/receiving data electronically? If so, what are those concerns?
Should the Court determine that the special condition read, "You must not possess or use a computer with the prior approval of the probation officer. "Computer" includes any device capable or accessing the internet or of sending/receiving data electronically," the probation office would be highly concerned with the omission of "[any device capable of accessing the internet] or processing or storing data ... and all peripheral devices. "
In many cybercrime offenses, evidence of criminal activity is found on storage devices including: a target computer's hard drive; external hard drives; thumb drives; SD cards; and CD-R, DVD-R, and BD-R (known as optical storage devices or optical disk media). A computer, even without the capability of accessing the internet, can be used to process and store unlawful material, or otherwise unauthorized data. Additionally, a device containing only processing capabilities only can be used as a gateway to access the internet and or process illegal/illicit material. The probation office respectfully requests that the definition of a "Computer" include any device also capable of "processing or storing data and all peripheral devices." A peripheral device is generally defined as any auxiliary device that connects to and works with the computer in some way. Peripheral devices are used to enter information and instructions into a computer for storage or processing and to deliver the processed data to a human operator or, in some cases, a machine controlled by the computer. Some examples of peripheral devices include expansion cards, graphics cards, webcams, digital cameras, drones, modems, and storage devices. Some peripheral devices are storage devices and others can serve as gateways to the internet, some are both (thumb drives/external hard drives depending on the program contained within). Drones, for instance, do not necessarily have internet access but can be used to collect illicit material which can then be accessed through any monitor (not necessarily a computer).
In the case of Chad Carter, he possessed images of child sexual exploitation on "hard drives" and a laptop. This is an example of an individual who saved unlawful material on a peripheral device (the hard drives) that is not capable of accessing the internet or sending/receiving data electronically.
More generally—separate and apart from computer monitoring—the PSR recommends that the decision about whether certain restrictions be imposed on a particular offender be left to the probation officer (for example, whether the offender should have email access, whether the offender should be allowed to access newsgroups, and whether the offender should be allowed to view adult pornography). How are decisions made about these matters? Who is involved in the decisions? Why do they need to be left to the discretion of the probation officer?
The case officer determines which persons under supervision should be allowed to access newsgroups and whether he/she is permitted to view adult pornography based on the individual's ongoing assessment of the risk and needs of persons under supervision with computer restrictions. Additionally, the decision to restrict/limit access to adult pornography is often in conjunction with input from the treatment provider and any additional offense or behaviorally specific information.
Blending traditional supervision strategies with advanced technologies offers the best solution to supervising persons charged with or convicted of internet and computer crimes and/or those who use technology to facilitate criminal offenses or violation conduct.
Reasons for imposing adult pornography restrictions is an individualized approach. The current literature regarding the treatment of sexual abusers is mixed on the impact of the use of adult pornography. We recommend imposing this condition, which allows the probation officer to make exceptions, in consultation with the treatment provider, who will fully assess the offense of conviction, behaviors disclosed during the course of treatment, as well as the information gathered through traditional supervision measures. While adult pornography may be beneficial in some cases, we err on the side of caution until a licensed mental health professional can make a recommendation. This is in part due to acute and stable dynamic risk factors, which are known to impact sexual recidivism, that adult pornography may impact.
In the past, the vendor's capability to capture email data was limited to one email service, which was designated by the vendor. In recent years, the vendor has expanded its capabilities; therefore, the probation office no longer restricts an individual's email service but does limit how the individual accesses email. [redacted]. The vendor offers a free application automatically installed on Windows devices and is easily configured with the monitored user's existing email address. [redacted] The probation office may limit the number of email accounts a person under supervision uses to more effectively supervise the individual's online activity. Additionally, authorizing a person under supervision to access an email account requires the probation office to authorize access to the internet. By including a requirement to prohibit or limit email accounts, the probation office can more adequately assess risks associated with online correspondence.
Any restriction of an individual's use of, or access to, message boards and/or newsgroups and/or online marketing platforms, is based on the probation officer's individualized ongoing assessment of the person under supervision. Officers use all available information to determine if restrictions are necessary, including any additional offense or behaviorally specific information. Online forums like message boards and newsgroups provide a space for people to talk about items of interest. For instance, the Federal Bureau of Investigation has a dedicated informational web page, https://www.fbi.gov/cve508/teen-website/how, specific to violent extremism, that notes, "Online forums and chat rooms are places where violent extremists and hate groups find many new recruits. In these sites, people often discuss things that interest them, sometimes in secret areas designated for members only. Violent extremists look for those who might be open to such "beliefs."" Similar forums are available for other interest groups like drug and human trafficking and other illicit conduct.