Police Blotter: Court overturns man's Net ban for life

Appeals court decides that judge's decision to permanently ban sex offender from Internet is too broad.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read
Police Blotter is a weekly News.com report on the intersection of technology and the law.

What: Pennsylvania man appeals a lifelong ban on using any computer network at "any location, including employment or education."

When: Three-judge panel of 3rd Circuit Court of Appeals in Philadelphia unanimously rules on Tuesday.

Outcome: Permanent ban on Internet use thrown out.

What happened, according to court documents:
An FBI investigation of a man named Wyndell Williams led agents to one of his online correspondents: a 35-year-old Pennsylvania resident named Daniel Voelker who briefly exposed the naked rear end of his 3-year-old daughter over a Webcam.

During a subsequent search of Voelker's home, the FBI claims to have found computer files containing child pornography. Voelker pleaded guilty to receiving material depicting the sexual exploitation of a minor and was sentenced to 5 years and 11 months in prison.

What makes this case unique are two special conditions the judge imposed on him that would remain in effect until his death.

Specifically, one of the permanent conditions of supervised release is: "The defendant is prohibited from accessing any computer equipment or any 'online' computer service at any location, including employment or education. This includes, but is not limited to, any Internet service provider, bulletin board system, or any other public or private computer network." A second permanent condition bars him from possessing "sexually explicit" books, movies or video games.

Read literally, this would prohibit Voelker from owning many books including the Bible, medical textbooks, and classics of modern fiction. Also prohibited would be owning a modern mobile phone or setting up a private home network to stream iTunes music between two computers.

Voelker appealed, saying the conditions were too broad.

For the most part, judges have wide discretion in imposing sentences. But it is not unchecked: conditions for supervised release have to be related to something like the actual offense, the defendant's criminal history or the need for general deterrence.

In this case, the 3rd Circuit agreed with the defendant. It threw out the conditions of supervised release and sent the case back to U.S. District Judge Alan Bloch for a second try.

Excerpts from the 3rd Circuit's opinion, written by Judge Theodore McKee:
Voelker contends that an absolute lifetime ban on using computers and computer equipment as well as accessing the Internet, with no exception for employment or education, involves a greater deprivation of liberty than is reasonably necessary...

The district court did not explain its reasons for imposing such an unprecedented and sweeping lifetime restriction. We therefore have no way of determining if the court undertook the "careful and sensitive individualized assessment (that) is always required before such a ban is imposed."

Given this record, we assume that the court imposed the ban because computers and the Internet were inextricably involved in his criminal conduct. Nevertheless, given the extraordinary breadth of this condition and the absence of any explanation, we are at a loss to understand how the district court could have considered the factors... and concluded that this condition is narrowly tailored to impose no greater restriction than necessary. The condition is the antithesis of a "narrowly tailored" sanction. The lifetime ban on all computer equipment and the Internet is the functional equivalent of prohibiting a defendant who pleads guilty to possession of magazines containing child pornography from ever possessing any books or magazines of any type during the remainder of his/her life.

We realize, of course, that the anonymous access to all kinds of information opens the door to all kinds of abuse. This case clearly illustrates the potential for abuse and victimization that is also endemic in the Internet. Here, the victims of that abuse are children who tragically become involved in the world of online child pornography. This was obviously the district court's concern and focus in imposing this condition.

Nevertheless, we have never approved such an all-encompassing, severe and permanent restriction, and nothing on this record inspires confidence in the propriety of doing so now. The court in (the) Crandon (case) imposed the most severe restriction on computer and Internet use that we have thus far upheld. There, (Richard) Crandon, a 39-year-old New Jersey resident, met a 14-year-old girl from Minnesota online. Crandon communicated with the girl over the Internet for several months and eventually traveled to Minnesota to meet her. During his visit to Minnesota, the two had sexual relations, and Crandon took sexually explicit photos of her.

His activity was subsequently discovered, and he eventually pled guilty to one count of receiving child pornography in violation of 18 U.S.C. Sec. 2252(a)(2). He was sentenced to 78 months in prison followed by a three-year term of supervised release. One of the conditions of supervised release directed that Crandon not "possess, procure, purchase or otherwise obtain access to any form of computer network, bulletin board, Internet, or exchange format involving computers unless specifically approved by the United States Probation Office." We upheld that condition because Crandon had used the Internet to develop and exploit the relationship...The restriction was narrowly tailored and consistent with Crandon's criminal conduct even though it may have jeopardized his employment and impacted his First Amendment freedoms.

The government's reliance on Crandon ignores the glaringly obvious difference between the duration of Crandon's conditions and the duration of Voelker's conditions. Crandon's restrictions remained in place for three years; Voelker's restrictions will last as long as he does. Furthermore, Crandon used computers and the Internet to actually seek out, and then communicate with, his victim. Crandon also traveled across the country to have sex with the minor he met and seduced online. Still, Crandon was allowed to continue using standalone computers and computer equipment, and he retained the right to use the Internet with the consent of the probation office. Voelker is not afforded either of those options. Although Voelker's conduct was reprehensible, he did not use his computer equipment to seek out minors nor did he attempt to set up any meetings with minors over the Internet as Crandon did. Since Voelker's conduct was not nearly as predatory as Crandon's, the latter actually counsels against the much more intrusive lifetime restriction on Voelker.

The government does not claim that Voelker used computers to download pornography at work, and the record does not suggest that he did. Yet, the court imposed a prohibition that prevents him from resuming his previous vocation and erects a seemingly insurmountable barrier to future training to secure other employment. It precludes him from taking online courses and could easily interfere with more traditional instruction, as those classes may rely on e-mail and online reference materials.

This does not, of course, mean that the district court may not impose some kind of restriction on Voelker's computer use and Internet access on remand. However, any such restrictions must be...appropriately tailored and impose no greater restriction on Voelker's liberty than necessary.