You are on page 1of 20

########## ########## ### ####### ####### ### ########## ########## ########## ########## ### ####### ####### ### ###

### ########## ########## ### ####### ####### ### ### ###

THE DOCUMENT CASE A collection of briefs, judgments white papers, rulings, and references of moment to the issues of law and order on The Electronic Frontier

Document #: 1 Title: EFF Amicus Brief in U.S. v. Riggs challenging computer-use prohibition in "hacker" defendant's sentencing Archived/Published to the Net: May 23, 1991 Filename: riggs.brief Anonymous ftp archive maintained by Mike Godwin and Chris Davis at The Electronic Frontier Foundation (eff.org) These files are in the "docs" subdirectory of the ftp directory. Related files may be found in the EFF and SJG subdirectories.

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT NO. 90-9108 NO. 90-9129 UNITED STATES OF AMERICA Plaintiff-Appellee, v. ROBERT J. RIGGS Defendant-Appellant.

A DIRECT APPEAL OF A CRIMINAL CASE >FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION BRIEF OF AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION

ERIC M. LIEBERMAN

NICHOLAS E. POSER RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBERMAN, P.C. 740 Broadway - Fifth Floor New York, New York 10003 (212) 254-1111 HARVEY A. SILVERGLATE SHARON L. BECKMAN SILVERGLATE & GOOD The Batterymarch Building 80 Broad Street - 14th Floor Boston, Massachusetts 02110 (617) 542-6663 Counsel for Amicus Curiae Electronic Frontier Foundation ---------------------United States v. Riggs, Nos. 90-9108 and 90-9129 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Local Rule 26.1 of this Court, it is hereby certified that the following persons and entities have an interest in the outcome of this case or have participated as attorneys or as judges in the adjudication of this case: Kent B. Alexander, Assistant United States Attorney Sharon L. Beckman, Attorney for Amicus Curiae Electronic Frontier Foundation Electronic Frontier Foundation, Amicus Curiae Honorable J. Owen Forrester, United States District Judge, Northern District of Georgia Paul S. Kish, Attorney for defendant-appellant Eric M. Lieberman, Attorney for Amicus Curiae Electronic Frontier Foundation Nicholas E. Poser, Attorney for Amicus Curiae Electronic Frontier Foundation Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., Attorneys for Amicus Curiae Electronic Frontier Foundation Robert J. Riggs, defendant-appellant Harvey A. Silverglate, Attorney for Amicus Curiae Electronic Frontier Foundation Silverglate & Good, Attorneys for Amicus Curiae Electronic Frontier Foundation

___________________________ NICHOLAS E. POSER STATEMENT OF INTEREST OF AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION Amicus curiae Electronic Frontier Foundation submits this brief to assist the Court's review of the special condition of the defendant's supervised release imposed by the district court prohibiting him from owning or personally using a computer. Pursuant to Fed. R. App. P. 29, the Foundation submits this brief with the written consent of both the defendant and the government. The letters of the parties consenting to the filing of this brief have been contemporaneously submitted to the clerk of the Court. The Electronic Frontier Foundation believes the condition barring computer ownership and personal use substantially infringes First Amendment rights of expression and association. The legality of the condition presents a novel and important question, whose resolution by this Court will have a profound impact on the development of the law. As explained below, the question presented here is precise of the kind which the Foundation was established to address and about which it has considerable expertise. The Electronic Frontier Foundation is a nonprofit organization established in 1990 to promote the public interest in the development of computer-based communication technology. The founders and directors of the Electronic Frontier Foundation include Mitchell Kapor and Steven Wozniak, two of our nation's leading experts in the area of computer technology. Mr. Kapor founded the Lotus Development Corporation and designed and developed the Lotus 1-2-3 spreadsheet software. Mr. Wozniak was one of the co-founders of Apple Computer, Incorporated. These individuals have comprehensive knowledge of the developing computer-based technologies and the promises and threats they present. The Foundation's goals, as set forth in its mission statement, are as follows: Engage in and support educational activities which increase popular understanding of the opportunities and challenges posed by developments in computing and telecommunications. Develop among policy-makers a better understanding of the issues underlying free and open telecommunications, and support the creation of legal and structural approaches which will ease the assimilation of these new technologies by society. Raise public awareness about civil liberties issues arising from the rapid advancement in the area of new computer-based communications media. Support litigation in the public interest to preserve, protect, and extend First Amendment rights within the realm of computing and telecommunications technology. Encourage and support the development of new tools which will endow non-technical users with full and easy access to computer-based telecommunication. While the Foundation regards unauthorized entry into computer systems as wrong and deserving of punishment, it also believes that legitimate law enforcement goals must be served by means that do not violate the rights and interest of the users of electronic technology and

that do not chill use and development of this technology. The novel question presented in this appeal falls squarely within the expertise and interest of the Electronic Frontier Foundation. The Foundation believes it can be of assistance to the Court in determining whether the condition imposing a computer ban infringes rights of speech and association in a broader manner than is reasonably necessary to achieve the goals of the supervised release statute. Accordingly, the Foundation submits this brief. STATEMENT REGARDING ORAL ARGUMENT Amicus curiae Electronic Frontier Foundation requests oral argument in this appeal, which presents the novel question of the legality of generally prohibiting computer ownership and personal use as a condition of supervised release. Because computers are means of communication and association with others, the prohibition raises important issues under the First Amendment. Amicus has comprehensive knowledge of computer-based technologies and a deep interest both in developing public understanding of those technologies and of the civil liberties implications of governmental restrictions on their use. (See Statement of Interest of Amicus at pp. i-iii.) Amicus believes oral argument will assist the court in resolving the legal issue presented by the computer ban.

TABLE OF CONTENTS Pages CERTIFICATE OF INTERESTED PARTIES ..................... C-1 STATEMENT OF INTEREST OF AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION ................. i STATEMENT REGARDING ORAL ARGUMENT ..................... iv TABLE OF CONTENTS ..................................... v TABLE OF AUTHORITIES .................................. vii STATEMENT OF JURISDICTION ............................. xi STATEMENT OF THE ISSUE ................................ 1 STATEMENT OF THE CASE ................................. 1 (i) Course of Proceedings and Disposition Below ............................ (ii) Statement of Facts ........................... 2 (iii) Scope of Review .............................. 2 SUMMARY OF ARGUMENT ................................... 3 I. THE PROHIBITION ON OWNERSHIP AND 1

PERSONAL USE OF COMPUTERS TRENCHES HEAVILY ON RIGHTS OF EXPRESSION AND ASSOCIATION PROTECTED BY THE FIRST AMENDMENT ................................... 5 II. THE DISTRICT COURT'S PROHIBITION ON MR. RIGGS' OWNERSHIP AND PERSONAL USE OF COMPUTERS AS A CONDITION OF HIS SUPERVISED RELEASE IS IMPROPER BECAUSE IT CREATES A GREATER DEPRIVATION OF LIBERTY THAN IS REASONABLY NECESSARY TO EFFECTUATE STATUTORY GOALS ........... 13 A. The Sentencing Reform Act Requires That Conditions Of Supervised Release Not Impinge Unnecessarily On Liberty Interests ......................... 13 B. The Prohibition On Ownership And Personal Use Of Computers Is A Deprivation of Liberty Not Reasonably Necessary to Carry Out The Purposes Of The Sentencing ................... 17 1. The Computer Ban Is Far Too Broad To Be Reasonably Necessary To The Statutory Purposes Of Deterrence, Public Protection And Rehabilitation ..... 2. Discretionary Conditions Specifically Authorized By Statute Or Imposed In Other Contexts Provide No Support For The Imposition Of The Computer Ban Here ..................................... 3. This Court Has Authority To Strike Down The Computer Ban ............. CONCLUSION ............................................ 25 TABLE OF AUTHORITIES Page Bell v. Wolfish, 441 U.S. 520 (1979) .................. 17 Buckley v. Valeo, 424 U.S. 1 (1976) ................... 9 Kleindienst v. Mandel, 408 U.S. 753 (1972) ............ 7 Owens v. Kelley, 681 F.2d 1362 (11th Cir. 1982) ................................. Pell v. Procunier, 417 U.S. 817 (1974) ................ 17 Porth v. Templar, 453 F.2d 330 (10th Cir. 1971) ................................. 21 16

17

22 25

Roberts v. United States Jaycees, 468 U.S. 609 (1984) .............................. United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975) .................................. United States v. Cothran, 855 F.2d 749 (11th Cir. 1988) .................................

11 3,17 3,16

United States v. Holloway, 740 F.2d 1373 (6th Cir.), cert. denied, 460 U.S. 1021 (1989) ............... 19,20, 21 United States v. Holmes, 614 F.2d 985 (5th Cir. 1980) .................................. United States v. Jalilian, 896 F.2d, 447 (10th Cir. 1990) ................................. United States v. Jimenez, 600 F.2d 1172 (5th Cir. 1979) .................................. United States v. Lawson, 670 F.2d 923 (10th Cir. 1982) ................................. 21,23 United States v. Patterson, 627 F.2d 760 (5th Cir. 1980) .................................. United States v. Pierce, 561 F.d 735 (9th Cir. 1982), cert. denied, 435 U.S. 923 (1978) ................ United States v. Smith, 618 F.2d 280 (5th Cir.), cert. denied, 449 U.S. 868 (1980) ................ 23 United States v. Stine, 646 F.2d 839 (3rd Cir. 1981) .................................. United States v. Tonry, 605 F.2d 144 (5th Cir. 1979) .................................. 17,24 COURT RULES Eleventh Circuit Rule 26.1 ........................... C-1 Fed. R. App. P. 29 ................................... i Fed. R. Crim. Pro. 20 ................................. 1 STATUTES 15 3,16, 23 16 16 2 25 3,17,

21,22-

18 U.S.C. 371 ......................................

18 U.S.C. 1343 ...................................... 1 18 U.S.C. 2314 ...................................... 1 18 U.S.C. 2701 et seq. .............................. 7 18 U.S.C. 3551 et seq. .............................. 13 18 U.S.C. 3553(a) ................................... 13,14 18 U.S.C. 3553(a)(2)(A) ............................. 18 18 U.S.C. 3563(b) ................................... 14 18 U.S.C. 3563(b)(1)-(10), (12)-(20) ................ 14,22 18 U.S.C. 3563(b)(6) ................................ 24 18 U.S.C. 3563(b)(7) ................................ 22 18 U.S.C. 3563(b)(9) ................................ 23 18 U.S.C. 3563(b)(21) ............................... 14 18 U.S.C. 3583(a) ................................... 13

18 U.S.C. 3583(d) ................................... 3,13,14 19,22 18 U.S.C. 3583(d)(2) ................................ 13,18 18 U.S.C. 3651 ...................................... 15,16 28 U.S.C. 991-998 ................................... 13 28 U.S.C. 1291 ...................................... x UNITED STATES SENTENCING GUIDELINES 5B1.4 ............................................... 14 5F1.5, Commentary ................................... 24 LEGISLATIVE MATERIALS S. Rep. No. 225, 98th Cong. 2d Sess. reprinted in 1984 U.S. Code Cong. & Ad News 3182 ................................... 16,22,24

14,15,

PERIODICALS An Electronic Soapbox: Computer Bulletin Boards and the First Amendment, 39 Fed. Com L. J. (1987) .... Becker, The Liability of Computer Bulletin Board Operators for Defamation Posted by Others, 22 Conn. L. Rev. (1989) ............... Computer Bulletin Board Operator Liability for User Misuse, 54 Ford. L. Rev. (1985) ......... Soma, Smith and Sprague, Legal Analysis of Electronic Bulletin Board Activities, 7 W. New Eng. L. Rev. (1985) ..................... MISCELLANEOUS Boardwatch Magazine (May 1991) ........................ 8 Brand, The Media Lab (1987) ........................... 8 Levy, Macworld (Jan. 1991) ............................ 8 Pool, Technologies of Freedom (Harvard University Press, 1983) ..................................... Talking On the Computer Redefines Human Contact, The New York Times, May 13, 1990 ................. Tribe, American Constitutional Law (1988) ............. 11 STATEMENT OF JURISDICTION The Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1291. STATEMENT OF THE ISSUE Amicus curiae Electronic Frontier Foundation, with the written consent of the parties, addresses the following issue on appeal: Whether the district court erred in imposing a condition of supervised release prohibiting Appellant from owning or personally using a computer. STATEMENT OF THE CASE (i) Course of Proceedings and Deposition Below Appellant Robert J. Riggs pleaded guilty to one count of conspiracy to defraud (18 U.S.C. 371) of an eight count indictment returned in the Northern District of Georgia. He also pleaded guilty to one count of wire fraud (18 U.S.C. 1343) of an eleven count indictment returned in the Northern District of Illinois. (FN1) Pursuant to Fed. R. Crim. Pro. 20, the Illinois case was transferred to the Northern District of Georgia for entry of the plea and sentencing. United States District Judge J. Owen Forrester, Northern District of Georgia, sentenced Mr. Riggs to 21 months imprisonment, ordered him to pay restitution in theamount of $233,880.00, and placed him on supervised release for a term of two years. The court ordered that Mr. 5,9,11 10 passim

6,7,9 6,9,10

Riggs may not "own personally or directly have control over a computer of any type for [his] own personal use during the period of supervised release." R3-75. (ii) Statement of Facts The conduct with which Mr. Riggs was charged involved unauthorized accessing and dissemination of data and information maintained on private computer networks. At the conclusion of the sentencing hearing for Mr. Riggs and his two codefendants, the district court imposed the following special condition of supervised release: None of the three of you may own personally or directly have control over a computer of any type for your own personal use during the period of supervised release. You may operate computers under your community service situation and in employment situations where you are employed by a third person and are being supervised by a third person. I'm simply saying that during the period of your supervised release, you may not personally use or own a PC or any other kind of computer; is that clear? (R3-75-76). The condition was neither requested nor commented on by counsel for the government. (iii) Scope of Review The district court, in imposing the ban on computer ownership and personal use, exceeded its authority under the supervised release statute. De novo review of the legality of the condition is therefore appropriate. Cf. United States v.Jalilian, 896 F.2d 447, 448 (10th Cir. 1990) (review of probation condition). Even if imposition of the condition were not beyond statutory authority, where, as here, a condition of supervised release (or probation) restricts constitutional rights, the condition must be subjected to "special scrutiny." See, e.g., United States v. Lawson, 670 F.2d 923, 930 (10th Cir. 1982), quoting United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975) (en banc); see also United States v. Tonry, 605 F.2d 144, 150 (5th Cir. 1979) (applying Ninth Circuit's standard to condition infringing First Amendment rights).(FN2) SUMMARY OF ARGUMENT The district court placed appellant Robert J. Riggs on supervised release for a period of two years and made a condition of the supervised release that Mr. Riggs neither "personally use nor own a PC [personal computer] or any other kind of computer." R3-76. The statute governing conditions of supervised release requires that conditions create no greater deprivation of fundamental rights than is "reasonably necessary" to achieve specified purposes of the 1984 Sentencing Reform Act. See 18 U.S.C. 3583(d). The computer ban cannot meet this standard andthe district court's sentence should be modified to eliminate this condition. The ban on personal ownership and use of computers heavily burdens rights of expression and association protected by the First Amendment. Because of technological advances in computers and telecommunicatons in recent years, computers have become a major, and in some circumstances the primary, way that individuals express their views, receive information and ideas, and associate with those sharing their interests. Individuals proficient in the new technology now exercise these fundamental rights through electronic bulletin boards, computer networks and electronic mail. (These facilities are defined infra.) The ban on computer ownership and personal use will make it impossible for Mr. Riggs to exercise his rights of expression and association through these facilities for two years after his release from prison.

A complete ban on computer ownership and personal use is a grossly overbroad restriction that is not "reasonably necessary" to accomplishing the statutory purposes of deterrence, public protection and rehabilitation of the defendant. Just as a complete ban on personal telephone use would be an overbroad condition of supervised release for a defendant convicted of wire fraud by use of the interstate telephone lines or a complete ban on personal use of the mails would be an overbroad restriction for a defendant convicted of mail fraud, so the computer ban is overly broad. The computer prohibition is far more sweeping than necessary to effect such purposes as deterring the defendant from committing and protecting the public from further crimes. The ban indiscriminately prevents not just illegal conduct, but all activities on computers, including wholly legitimate ones involving expression and association. Similarly, it prevents all associations with others that can be accomplished through computers, not merely associations with specific individuals who have committed computer crimes. Comparison with narrow discretionary conditions authorized by the statute demonstrates the inappropriateness and overbreadth of the computer ban. I. THE PROHIBITION ON OWNERSHIP AND PERSONAL USE OF COMPUTERS TRENCHES HEAVILY ON RIGHTS RIGHTS OF EXPRESSION AND ASSOCIATION PROTECTED BY THE FIRST AMENDMENT The rise of computer technology, particularly over the past ten years, has created new and increasingly important means for citizens to communicate and associate with one another. For individuals, like Robert Riggs, who have become literate in the forms of communication made possible by computer technology, a prohibition on ownership and personal use of computers represents a major restraint on rights of expression and association protected by the First Amendment. Advances in electronic communications technology have revolutionized citizens' abilities to and methods of communicating. As one distinguished scholar has put it: The technologies used for self-expression, human intercourse, and recording of knowledge are in unprecedented flux. A panoply of electronic devices puts at everyone's hand capacities far beyond anything that the printing press could offer. Machines that think, that bring great libraries into anybody's study, that allow discourse among persons a half-world apart, are expanders of human culture. They allow people to do anything that could be done with the communications tools of the past, and many more things too. Pool, Technologies of Freedom 226 (1983). For the individual citizen, the personal computer has been the foremost means by which the ability to communicate has been expanded. The owner of a personal computer may, from his or her own home, use electronic bulletin board systems, electronic mail and computer networks systems. Each of these services offers unprecedented means of expression and association. Electronic bulletin board systems are computer systems which permit users to communicate with others in a variety of ways.(FN3) Users can send or "post" messages, read messages left by others, and hold direct conversations. Electronic Soapbox, 39 Fed. Com. L. J. at 217. Electronic bulletin boards allow electronic conversations, which can occur between two or among hundreds of people. Id. at 218. The boards offer

a unique way for a group of people to discuss an idea or an event. One person starts the discussion by posting a message. Others read the message and add their comments. One need not respond immediately -- a person can carefully prepare a reply and post it later. The people involved need not be in the same place at the same time and do not have to know each other. The participants in the discussion do not even have to know each other. Those not actually adding to the discussion can benefit simply by reading the posted comments. Note, Computer Bulletin Board Operator Liability for User Misuse, 54 Ford. L. Rev. 439, 440-41 (1985). Boards can be used to hold conferences, which can be unstructured discussions or structured events such as professional meetings or press conferences. Computer Bulletin Board Defamation, 22 Conn. L. Rev. at 212. Computer networks, like the bulletin boards, offer the opportunity for numerous individuals to participate in a conference.(FN4) Bulletin boards and networks thus offer not only a forum for individuals to exercise their rights of free expression, but also a forum for exercise of the right to receive ideas. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972), and cases cited therein. Many electronic bulletin boards and computer networks offer a service known as electronic mail ("E-mail") by which a subscriber to a computer system may send correspondence to another user of the system via a central computer. E-mail is addressed to one or more accounts on a computer system assigned to specific users, and is typically stored on the system until read and deleted or stored again. The privacy of E-mail is typically secured by means of a password so that only individuals with knowledge of an account's password can obtain access to mail sent to that account. Thus computer systems provide a method for individuals to engage in private(FN5) conversations with one another. Like the use of electronic bulletin boards, use of E-mail is widespread. See Electronic Soapbox, at 219 n.10; see also Brand, The Media Lab 23, 24 (1987), estimating that by 1987, two and a half million homes were linked to services providing E-mail and related services and estimating 250 million to one billion messages a year are transmitted by E-mail. Because of the popularity and widespread use of personal computers, electronic bulletin boards provide a very significant new channel of communication. Bulletin Board systems range in size from small systems operated by individual using personal computers in their homes to larger systems operated by commercial organizations. Two of the largest systems -- Prodigy, operated by IBM and Sears, and CompuServe, operated by H&R Block -- have over 330,00 users and half a million users respectively. See Levy, Macworld 69 (Jan. 1991), Computer Bulletin BoardDefamation, 22 Conn. L. Rev. at 204 n.4. Industry estimates indicate there are approximately 32,000 bulletin board systems in operation in the United States today. Boardwatch Magazine 8 (May, 1991). The possibilities for speech and association presented by computer bulletin boards are easily and cheaply available to the public. "If one has a personal computer, gaining access to a computer bulletin board is as easy as dialing a phone number." Electronic Soapbox, 39 Fed. Com. L. J. at 218. In fact, in one sense bulletin board systems are simply extensions of telephone service, since it is usually through a modem connected to telephone lines that the personal computer user is linked to the computer operating the board and to other people who themselves are in telecommunication with the board. Id. The ease and economy with which communications can be made through boards makes them an increasingly important method for the individual citizen to be heard. "In an age when most forms of mass communication, and thus public debate, are controlled by a small number of people, bulletin boards have the potential to play an important role in the exploration and exchange of ideas." Bulletin Board Operator, 54 Ford. L.

Rev. at 441. Thus, the boards fairly have been analogized to Hyde ParkCorner, town meetings, the Democracy Wall, or leafletting, and called the printing presses of the twenty-first century.(FN6) Electronic bulletin boards permit communication on an unlimited variety of topics. Boards have been recognized as an effective forum for individual expression of opinion on matters of public interest and for public debate of controversial issues. Bulletin Board Operator, 54 Ford. L. Rev. at 440 and 444. Boards are thus a forum for speech acnowledged to lie at the heart of the First Amendment. See, e.g., Buckley v. Valeo, 424 U.S. 1, 14 (1976), and cases cited therein. But electronic bulletin boards also address a wide variety of other subjects and interests, ranging from business to religion. Electronic Soapbox, at 222. One common subject is computers themselves. Id. Individuals accessing a board devoted to computer use can, for example, ask technical questions about particular computer programs or seek advice about computer products and their capabilities. See Computer Bulletin Board Operator, at 440.(FN7) Denial of access to computers may close off the sole or at least the primary means of associating with those who share one's interests. Electronic bulletin boards may be the only place in which issues one is interested in are being addressed, audiences one wishes to reach can be found, or information one needs is being offered. Because of the possibilities for conversation among many people and the enormous distances that separate individuals interested in a particular topic, use of an electronic bulletin board may be the only feasible means of communication on that topic. See, e.g., 'Talking' on the Computer Redefines Human Contact, The New York Times, May 13, 1990 at 1 ("[C]omputer networks often become electronic communities that give people thousands of miles apart the feeling of being connected in a small village, with all the intimacy and ease of communication that implies.") Electronic bulletin boards have also become a means for individuals to meet and socialize with others who share their interests. The growth of computer networks is changing how people "find friends [and] seek entertainment." 'Talking' on the Computer Redefines Human Contact, The New York Times, May 13, 1990 at 1.(FN8) Therefore, a prohibition on personal ownership and use of computers can grossly interfere with an individual's right to associate for personal as well as professional and political purposes. See Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984) ("[W]e have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends") (citations omitted). The rapid advance of computer technology to this point has outstripped our legal system's ability to understand the proper place the new technology should hold in our scheme of constitutional protections.(FN8) This disjuncture has surfaced in this case, where the district court's restriction on computer use has swept too broadly, infringing the freedom of speech and association that the First Amendment guarantees. The ban on computer ownership and personal use significantly impinges on Mr. Riggs' exercise of fundamental rights. Like a growing segment of our society, Mr. Riggs communicates primarily through the written rather than the spoken word.(FN10) In his preference for the written word Mr. Riggs is similar to many who communicate via computer. It has been recognized that for some people: [electronic bulletin] boards offer an opportunity to know and be known by a nationwide circle, a process called "networking." Written conversation favors the witty turn of phrase, not the loudest voice. The instant interaction allows board communication to avoid the fate of the well

written, but slow moving letter. Finally, anonymity allows the timid to flower: identity, appearance, possibly even personality, become unimportant. Electronic Soapbox, at 224 (footnotes omitted). To deny Mr. Riggs the right to own and to personally use a computer is to deny him his primary means of expressing himself, receiving advice and information, and associating with others. The district court's prohibition is extremely broad. It does not merely prohibit particular, illegal uses of computers. Rather, it prevents any use of a computer by Mr. Riggs for his own personal speech or association. While the district court contemplated Mr. Riggs may use computers in his community service work and employment, R3-74-76, those efforts will be on behalf of others and will offer him no opportunity to express himself, receive information of his choosing or associate with whom he wishes to communicate.(FN11) The district court's condition will result in a two-year prohibition on Mr. Riggs' exercise of his constitutionally protected rights to communicate and associate with others through electronic means. II. THE DISTRICT COURT'S PROHIBITION ON MR. RIGGS' OWNERSHIP AND PERSONAL USE OF COMPUTERS AS A CONDITION OF HIS SUPERVISED RELEASE IS IMPROPER BECAUSE IT CREATES A GREATER DEPRIVATION OF LIBERTY THAN IS REASONABLY NECESSARY TO EFFECTUATE STATUTORY GOALS A. The Sentencing Reform Act Requires That Conditions Of Supervised Release Not Impinge Unnecessarily On Liberty Interests The Sentencing Reform Act of 1984, as amended, 18 U.S.C. 3551 et seq. and 28 U.S.C. 991-998, provides, in pertinent part, that the district court which is imposing a term of imprisonment may, and in some circumstances must "include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment. . . ." 18 U.S.C. 3583(a). Where a term of supervised release is imposed, the statute provides that certain conditions must be imposed and others may be imposed. In pertinent part, the statute provides that discretionary conditions on supervised release may be imposed only to the extent that any such condition: (2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D). . . . 18 U.S.C. 3583(d).(FN12) The statute specifies the types of discretionary conditions which may be imposed on a supervised release by reference to the statutory provisions listing discretionary conditions of probation. See 18 U.S.C. 3583(d), incorporating 18 U.S.C. 3563(b)(1) through (b)(10) and (b)(12) through (b)(20).(FN13) The supervised release statutory provisions also permit the court to impose other "appropriate" conditions, but only to the extent permitted by the restriction quoted above. 18 U.S.C. 3853(d). The probation statute contains a similar "wildcard" provision. 18 U.S.C. 3563(b)(21). As specified in 3583(d)(2), conditions on supervised release must involve "no greater deprivation of liberty than is reasonably necessary" to serve the purposes of deterrence ( 3553(a)(2)(B)), public protection (

3553(a)(2)(C)), and training, care or treatment of the defendant ( 3553(a)(2)(D)). The concern that civil liberties not be unnecessarily impinged is reflected in the legislative history of 3583. See S. Rep. No. 225, 98th Cong., 2d Sess. 125, reprinted in 1984 U.S. Code Cong. & Ad. News 3182, 3307 (hereinafter "S. Rep. at ___, 1984 U.S.C.C.A.N. at ___") ("Whatever conditions are imposed may not involve a greater deprivation of liberty than is necessary. . . ."). The Sentencing Reform Act of 1984 was intended to codify an approach to the imposition of conditions in sentencing more protective of civil liberties than under prior law, which authorized the imposition of probation "upon such terms and conditions as the court deems best." See former 18 U.S.C. 3651, repealed by Pub. L. 98-473, Title II, c. II, 212(a)(1),(2), Oct. 12, 1984.(FN14) The change in approach is unequivocally spelled out in the legislative history of 3563(b), the provision which sets out the discretionary conditions which may be applied in probation and supervised release: Unlike current law, subsection (b) specifically states . . . that any condition that involves a restriction of liberty must be reasonably necessary to the purposes of sentencing set forth in section 3553(a)(2). This language is designed to allay the fears of such disparate groups as the ACLU and the Business Roundtable that probation conditions might be too restrictive in a particular case or might involve more supervision than is justified by the case. The judge is limited in imposing conditions of probation to imposing only those that carry out the purposes of sentencing in a particular case. He cannot restrain the liberty of a defendant who does not need that level of punishment or incapacitation. . . . S. Rep. at 99, 1984 U.S.C.C.A.N. at 3282. The Senate report repeatedly emphasizes that conditions involving deprivations of liberty or property must be "reasonably necessary" to the purposes of the statutory sentencing provisions to be upheld. See, e.g., S. Rep. at 94, 95, 96, 1984 U.S.C.C.A.N. at 3277, 3278, 3279. Because of the significant change in the law, the case law under former 18 U.S.C. 3651 upholding probation conditions provides the Court little guidance in reviewing conditions imposed under the Sentencing Reform Act. See United States v. Cothran, 855 F.2d 749, 751 n.2 (11th Cir. 1988) (noting change in the law). Whereas previously, conditions affecting the exercise of constitutionally protected rights could be upheld if they were "reasonably related" to the purposes of the former 18 U.S.C. 3651, see, e.g., Owens v. Kelley, 681 F.2d 1362, 1366 (11th Cir. 1982)(FN15), under the current law such conditions may only be upheld if they effect no greater deprivation of rights than "reasonably necessary" to achieve statutory purposes.(FN16) B. The Prohibition On Ownership And Personal Use Of Computers Is A Deprivation Of Liberty Not Reasonably Necessary To Carry Out The Purposes Of The Sentencing Statute 1. The Computer Ban Is Far Too Broad To Be Reasonably Necessary Or Reasonably Related To The Statutory Purposes Of Deterrence, Public Protection And Rehabilitation A fundamental premise of our law is that those subject to the corrections system retain their constitutional rights except to the extent

that well-articulated requirements of that system necessitate incursions into those rights. Since this proposition is true for those who are incarcerated, see, e.g., Pell v. Procunier, 417 U.S. 817, 822 (1974) ("[An] inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate . . . objectives of the corrections system"), it is a fortiori true for probationers and those on supervised release. See, e.g., United States v. Tonry, 605 F.2d 144, 150 (5th Cir. 1979).(FN17) For this reason, "probation conditions that restrict constitutional rights merit 'special scrutiny.'" United States v. Lawson, 670 F.2d 923, 930 (10th Cir. 1982), quoting United States v. Consuelo-Gonzales, 521 F.2d 259, 265 (9th Cir. 1975) (en banc). Under current law, to survive this special scrutiny, a condition impinging fundamental rights must be "reasonably necessary" to the needs of the probation or supervised release system. Amicus submits that under the current standard -- or even under the former "reasonably related" standard -- the computer ban cannot survive. The district court acted outside its statutory and discretionary authority when it imposed the condition that Mr. Riggs may not own or use for personal reasons any computer during the two years of his supervised release. As demonstrated in Point I, ante, the court's condition impinges on Mr. Riggs' First Amendment interests, and therefore the condition must meet the requirement of 3583(d)(2). The ban on computer ownership and personal use is grossly overbroad and is not reasonably necessary to achieve the statutory goals of deterrence, protection of the public, and rehabilitation.(FN18) Furthermore, it is counterproductive to the purpose of rehabilitation. The overbreadth of the ban is most graphically illustrated by analogy. The condition imposed here is equivalent to a condition prohibiting an individual convicted of committing wire fraud by means of interstate telephone calls from owning (or leasing) a telephone and from making any personal, unsupervised calls. Analogy to telephone calls is particularly appropriate here, since it is generally by use of telephone lines that the user of a personal computer communicates with bulletin boards, networks and other individual computer users. See Electronic Soapbox, 39 Fed. Com. L. J. at 218. Presumably, it is precisely Mr. Riggs' ability to "call out" from his computer that the sentencing judge intended to halt, so that he cannot gain unauthorized access to network services or data.(FN19) But the ban does not merely prevent Mr. Riggs >from calling systems he is not authorized to enter. It prohibits him from calling any system or person. It also prevents him from receiving communications. A sentencing judge in a wire fraud case would unquestionably conclude that a complete ban on telephone possession and personal use would be an impermissibly overbroad means of preventing a recurrence of the wire fraud. So, too, a ban on personal computer use and ownership to prevent a repeat of unauthorized accessing of computers is impermissibly overbroad.(FN20) The ban on personal computer use is also analogous to a general prohibition on personal use of the mails as a condition imposed on one convicted of crimes involving fraudulent use of the mails. One such condition prohibiting use of the mails was recognized to be an overbroad restriction on First Amendment rights and was struck down. United States v. Holloway, 740 F.2d 1373 (6th Cir.), cert. denied, 469 U.S. 1021 (1984). Holloway involved a prison inmate who was convicted of a conspiracy with other inmates to file false tax returns. She received a sentence that included periods of incarceration and probation. The district court imposed two restrictions on Holloway regarding her correspondence. One prevented her during the period of her probation from corresponding with prison inmates. Id. at 1381. The court of appeals upheld this limited prohibition, finding it served purposes of

rehabilitation and public protection. Id. at 1383. The court found it significant that "Holloway became involved in the scheme only by virtue of her extended correspondence with inmates," and that Holloway made use of the mails in committing her crime. Id. The district court's second restriction provided that "Holloway could 'communicate by mail only with her relatives, legal counsel and other recognized counselors' during the period of her incarceration." Id. Observing that this prohibition would "forbid Holloway from writing letters to a wide range of persons who had nothing to do with her criminal conduct," the court stated: The limitation on Holloway's ability to communicate with friends, informal advisors and holders of public office is sufficiently broad to affect values and principles which are undoubtedly at the core of the first amendment. Id. Finding the condition overbroad, the court struck it down: The present restriction on mailing simply is not carefully drawn to "serve the dual objectives of rehabilitation and public safety." Rather, it imposes a restriction on Holloway which, because of its breadth, does not bear a logical relationship to the criminal conduct in which Holloway has engaged. The restriction is not, therefore, reasonably related to achieving rehabilitation and to protecting the public. Cf. [United States v.] Lawson, 670 F.2d [923,] 929-30 [10th Cir. 1982]; [United States v.] Smith, 618 F.2d [280,] 282 [5th Cir. 1980]; Porth v. Templar, 453 F.2d 330, 334 (10th Cir. 1971). Id. (footnote omitted). Like the mail restriction struck down in Holloway, the ban on computer use is "not carefully drawn" to effectuate statutory purposes and "because of its breadth, does not bear a logical relationship to the criminal conduct" in which Mr. Riggs engaged.(FN21) Like the Holloway ban, the computer ban prohibits Mr. Riggs from communicating with a wide range of persons having nothing to do with his criminal conduct. While the fact that Holloway corresponded with inmates as part of her criminal conspiracy could justify a ban on her correspondence with inmates, it could not justify a broader ban on her use of the mails. Similarly, Mr. Riggs' use of a computer to commit his crime does not justify a wholesale ban on his communicating with anyone by computer. Amicus submits that no rehabilitation is effected by the wholesale prohibition on personal computer use. Community service work, which is contemplated in Mr. Riggs' sentence, is a proper means of rehabilitating him. Prohibiting development of his skills and isolating him from legitimate uses and users of computers is surely not "reasonably necessary" to his rehabilitation. 2. Discretionary Conditions Specifically Authorized By Statute Or Imposed In Other Contexts Provide No Support For The Imposition Of The Computer Ban Here The computer ban condition is not authorized by the "wildcard" provision of 3583(d), which permits "appropriate" conditions other than those specified in the statute. Nor do the conditions in 3563(b)(1)-(10) and (12)-(20) authorize the computer ban. Furthermore, comparison with some of the discretionary conditions specified in the statute demonstrates the inappropriateness and overbreadth of the computer ban. The statute contemplates that in appropriate cases an individual may be required to refrain "from associating unnecessarily with specified

persons." 18 U.S.C. 3563(b)(7). As the legislative history of this provision makes clear, a condition limiting associations must be specific, and tailored to the particular circumstances of the defendant. S. Rep. at 97, 1984 U.S.C.C.A.N. at 3280. Here the condition in effect prohibits Mr. Riggs' association not just with individuals known to have committed computer crimes, but with everyone who uses computers. Even under prior law, reviewing courts have struck down or modified probation conditions requiring disassociation which swept too broadly. The former Court of Appeals for the Fifth Circuit, in a case involving a tax protester's conviction for violating the tax laws, disapproved a condition that the protester "divorce [himself] from any organization advocating the willful disobedience of any local, state or federal law...." United States v. Smith, 618 F.2d 280, 282 (5th Cir.), cert. denied, 449 U.S. 868 (1980). The Court modified the condition to prohibit only association with organizations advocating disobedience to the tax laws. Id. See also United States v. Patterson, 627 F.2d 760, 761 (5th Cir. 1980) (following Smith); United States v. Lawson, 670 F.2d 923, 929-30 (10th Cir. 1982) (in order to save condition, court interprets it to prohibit only tax protester's associating with groups urging disobedience of, as opposed to disagreement with tax laws.) In this case, the computer prohibition requires wholesale disassociation with everyone who communicates by computer, and could not withstand scrutiny even under the analysis of cases decided under prior law. The prohibition on possession of a computer suggests that the sentencing court had in mind another of the statutory discretionary conditions -- that the defendant "refrain from possessing a firearm, destructive device, or other dangerous weapon." 3563(b)(9). Any analogy between firearms and computers is extremely inapt. A computer is not a dangerous weapon; rather, it is primarily a means of communication and association. Analogies to revocations of drivers' licenses are also entirely inappropriate. Unlike a computer, an automobile is not essentially a means of communication and association. Driving is an activity licensed by the State, while computer use is First Amendment speech which is not and cannot be regulated or licensed by the government. Finally, the provision of the statute allowing restraints on individuals from engaging in specified occupations, businesses or professions, 18 U.S.C. 3563(b)(6), provides no support for the imposition of the computer ban. There is no constitutional right to engage in a particular job. For example, it violates no fundamental right to prohibit a stockbroker who has committed crimes in the course of his or her work >from selling stock for a period of time. In contrast, again, the computer ban is a limitless incursion into fundamental First Amendment rights. In rare circumstances, First Amendment rights do attach to a job -- for example, the holding of political office. See, e.g., United States v. Tonry, 605 F.2d at 150. But in such cases, an individual's commission of a crime while in public office makes it particularly appropriate to protect the public by "determining that the very limited activity" of running for or holding public office "should not be accorded him during probation. . . ." 605 F.2d at 151. The condition of restricting employment "should only be used as reasonably necessary to protect the public." United States Sentencing Guidelines, 5F1.5, Commentary, quoting S. Rep. at 96, 1984 U.S.C.C.A.N. at 3279. While protection of the public may have necessitated banning the defendant in Tonry from the "very limited activity" of public office, it is not necessary to bar Mr. Riggs from all personal computer use to protect the public. 3. This Court Has Authority To Strike Down The Computer Ban

It is within this Court's authority to modify the district court's sentence by eliminating the prohibition on computer ownership and personal use. See, e.g., United States v. Jimenez, 600 F.2d 1172, 1175 (5th Cir. 1979). Amicus submits that because the ban clearly trenches on First Amendment rights and is not reasonably necessary to statutory objectives of deterrence, public protection or rehabilitation, the Court should strike it down, rather than remand to the district court. CONCLUSION For the foregoing reasons, the sentence of the district court should be modified to eliminate the condition of Mr. Riggs' supervised release prohibiting his ownership and personal use of a computer. Dated: May 17, 1991 Respectfully submitted,

_____________________________ ERIC M. LIEBERMAN NICHOLAS E. POSER RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBERMAN, P.C. 740 Broadway - Fifth Floor New York, New York 10003 (212) 254-1111 HARVEY A. SILVERGLATE SHARON L. BECKMAN SILVERGLATE & GOOD The Batterymarch Building 80 Broad Street - 14th Floor Boston, Massachusetts 02110 (617) 542-6663 Counsel for Amicus Curiae Electronic Frontier Foundation

FOOTNOTES: FN1. Riggs pleaded guilty to a second count of the Illinois indictment, charging interstate transportation of stolen property, 18 U.S.C. 2314, but the government moved to dismiss the plea as to this count after it was revealed that the property was valued at under $5,000, the statutory minimum. The government did not make a similar motion as to the wire fraud count because 18 U.S.C. 1343 has no minimum dollar threshold. See Sentencing Information Filed on Behalf of the Northern District of Illinois United States Attorney's Office, submitted with the Government's Sentencing Memorandum and S.G. 5K1.1 Motion. R1-50-1-2 and 7-8. FN2. Because the condition applied in this case burdens First Amendment rights, the abuse of discretion standard, see, e.g., United States v. Cothran, 855 F.2d 749, 751 (11th Cir. 1988), is supplanted by a stricter level of review. FN3. See generally Note, An Electronic Soapbox: Computer Bulletin Boards and the First Amendment, 39 Fed. Com. L. J. 217 (1987) ("Electronic Soapbox"), Soma, Smith and Sprague, Legal Analysis of Electronic Bulletin Board Activities, 7 W. New Eng. L. Rev. 571 (1985) (hereinafter "Electronic Bulletin Board Activities"), and Becker, The Liability of

Computer Bulletin Board Operators for Defamation Posted by Others, 22 Conn. L. Rev. 203 (1989) ("Computer Bulletin Board Defamation"). FN4. Some boards and networks provide for instantaneous conversations.

FN5. Operators of electronic bulletin board systems, like operators of telephone systems, generally have the technological capability to access private communications. The privacy of electronic communications is protected by law. See Electronic Communications Privacy Act, 18 U.S.C. 2701 et seq. Some systems operators as a matter of policy or by contract with users ensure that no one but the intended recipient can read E-mail. FN6. See, e.g., Computer Bulletin Board Defamation, 22 Conn. L. Rev. at 204; Pool, Technologies of Freedom 189. FN7. As the government noted, one of Robert Riggs' three main objectives was to "learn C Programmming". Government's Sentencing Memorandum and S.G. 5K1. 1 Motion at 11. R1-50-11. The computer ban will cut him off >from useful sources of information on this subject. FN8. Stories have been reported of on-line courtships, id., and on-line wedding receptions and parties. Electronic Soapbox at 219 n.9. FN9. See Tribe, American Constitutional law 1007 (1988) (quoting Pool, Technologies of Freedom 7 (1983)). FN10. As his attorney emphasized at the sentencing hearing, Mr. Riggs does not speak well, but "writes very well." R3-38. In fact, in preparing his case, he communicated with his attorney primarily through written notes and observations. Id. FN11. It is unclear whether the district court intended to permit "supervised" personal use of a computer. Even if so, it is simply unrealistic to suppose that Mr. Riggs will obtain "supervision" from probation personnel or anyone approved by them which would permit him to engage in personal use of a computer. FN12. Section 3553(a) sets out the factors to be considered in imposing a sentence. The provisions of 3553(a) relevant to a determination under 3583(d)(2) are: (2) the need for the sentence imposed . . . (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. . . . FN13. See "Recommended Conditions of Probation and Supervised Release (Policy Statement)," which set out "standard" and "special" conditions that apply to both probation and supervised release. Sentencing Guidelines 5B1.4. FN14. See, e.g., U.S. v. Stine, 646 F.2d 839, 842 (3rd Cir. 1981), quoting former 18 U.S.C. 3651.

FN15. See also United States v. Tonry, 605 F.2d 144, 150 (5th Cir. 1979). This standard was held to facilitate "'an accommodation between the practical needs of the probation system and the constitutional guarantees of the Bill of Rights.'" Owens v. Kelley, 681 F.2d at 1366, quoting United States v. Pierce, 561 F.2d 735, 739 (9th Cir. 1977), cert. denied, 435 U.S. 923 (1978). FN16. The change in statutory language from "as the court deems best" to "reasonably necessary" unquestionably reflects a change to a more restrictive standard allowing less intrusion on fundamental rights. Cf. United States v. Holmes, 614 F.2d 985, 988 (5th Cir. 1980). FN17. The justifications for restricting the freedoms of probationers and those on supervised release will always be lesser than those for restricting prisoners. Safeguarding institutional security is a central objective of prison administration used to justify intrusions on prisoners' rights, see, e.g., Bell v. Wolfish, 441 U.S. 520, 546-47 (1979), which has no relevance to individuals living outside the prisons. FN18. Section 3583(d)(2) notably excludes from consideration the factors set out in 3553(a)(2)(A), including the "seriousness of the offense" and "just punishment." FN19. There is no conceivable justification for a prohibition on Mr. Riggs' engaging in activities on a personal computer disconnected from any other computer, such as word processing. Yet, the judge's overbroad condition also prohibits these solitary activities. FN20. It is a mandatory condition of supervised release that Mr. Riggs not commit another crime. 18 U.S.C 3583(d). Imposing a discretionary condition completely barring him from computer ownership and personal use is an extremely blunt and unnecessary tool for securing his compliance with the condition that he commit no crimes to which he is already bound. FN21. The district court's computer ban is broader than the mail restriction struck down in Holloway.