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

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.

[thenet411]

Judges use logic? No way!

Normally, I disagree with most judges. However, in the excerpt I read it appears that they logically and methodically thought out the sentence and did the right thing.

Don't get me wrong, I don't condone the behavior of the convicted, but in this case preventing him from EVER using a computer network or the Internet is a little extreme. Especially when you consider the other case referenced in the decision.

Let's hope that the lower court revisits the decision with the same logic and creates a more appropriate set of conditions.

[rich966]

Ever?

In 10 years everything is going to be online or networked, including the toaster and cars. This sentence would prevent this man from living at all in today or tomorrow's world.

[Hoser McMoose]

Sentance will quickly become pointless

As you mentioned, the world is quickly becoming completely networked and that's only going to continue. The guy is only 35 so it's quite reasonable to assume he'll be alive for another 40 years, so try to imagine what "The Internet" will look like in 40 years time?

Just as a counter-example, let's think 40 years back to 1967. At that time personal computers didn't exist, a "computer network" was a few terminals strung together to the company mainframe. If a similar sentence had been passed in 1967 for possession of child porn, what would it have included? It probably would have focused on photos and magazines, but probably not movies to be played at home and certainly not anything to do with computers and the internet! How effective would such a sentence be now?

I have absolutely no clue what method perverts are going to be using to pass around child porn in 2027 (let alone 2047!), but I can guarantee you this, whatever it is it doesn't exist today!

[expatincebu]

All because he showed his 3 year olds butt

on his webcam. For this the police raided his house? Oh you say, but they found child pornography! Do you realize that in most states prosecutors and courts consider any nude photo of a minor (including that shot of you as a baby on the carpet with your bare ass showing) as child pornography? That is the truth.

The U.S. has gone totally completely insane. From the politically correct speech of the left to the nut case xtians fundies on the right. I am soooooo glad I got teh hell out last year.

[PzkwVIb]

I couldn't agree more

Our legal system has become insane.

[Hoser McMoose]

Are we making the problem worse?

When I read about cases like this, I can't help but think that WE, as a society in general, are just hugely making the problem of child exploitation WORSE in our attempts to "protect the children".

Go and ask your grandparents what they think of a picture of a baby's bare bum and they'll probably just laugh and say it reminds them of the Coppertone girl or some such thing. But show the same photo to a young person and they're MUCH more likely to say that it's perverted child porn.

How did we go from cute advertisements to perverted child porn? In an effort to get on our high-horses and stare down at "those disgusting pedophiles" we're sexualizing these images and, by connection, sexualizing our children. We're trying to force deviance on what was once considered perfectly normal, and I think we want it that way.

Honestly I think people subconsciously LIKE having perverts and child molesters around because it makes us feel better about ourselves. Child exploitation is such a demonoized crime (for obvious reasons) that no matter what other bad stuff we do we can at least point and say "Hey, at least I'm not a pedophile". We have this 'lowest of the low' to point to and the more of them there are, the less our little indiscretions seem to matter.

"Yeah, I may have been driving drunk and could have killed someone, but come on, it's not like I'm downloading child porn! Go deal with the REAL criminals and leave me be. Won't someone think of the children?".

[chuck_whealton]

Yea, all because...

And just like you said, because of what he did they raided his house and found his child pornography stash. He got nailed, as he should.

What's the problem?

I'd probably agree that the US is a bit out of line in some circumstances.

Nailing people in possession of child pornography is NOT one of those circumstances. They did a great job and hopefully he won't do it again.

Charles R. Whealton
Charles Whealton @ pleasedontspam.com

[cttnpckn]

Glad YOU got out last year

I am REALLY glad YOU got out last year, too - and don't come back!

[mpotter28]

somebody else should leave also

with your profound pronouncement you seem to have dipped below the allowed I.Q. i.e. if you aren't smarter than your average politician you should keep your opinion to yourself

[anarchyreigns]

Perhaps you shoud go too...and take your 3rd grade education with you!

Moron!

[hardedge]

Okay so let's term limit the sentence

"...careful and sensitive individualized assessment (that) is always required before such a ban is imposed."

The only assessment that needed to be made was how hot the knife should be so it would cauteruze the wound when they cut off his ******. Pedophiles should have fewer rights than children.

[lstinpa]

Again....

Ok, While I agree that pedophiles are the lowest of the low, and should spend life without thier private parts, lets not just jump to conclusion. The guy showed(or was shown) a kids butt on a webcam... ok is that wrong?? A search of his home found "child porn", is that wrong? With what they consider child porn these days, i don't even risk sending my childrens baby pictures to thier grandfather who lives over 2000 miles away, because showing my 2 yr old unwrapping christmas gifts wearing just a diaper is considered child porn, that compounded by the fact that I would have to send it across state lines turns it into a federal offense for which i could spend 20 years in prison. I would not jump to conclusions until you know the full details of the case.

Yes true pedophiles should spend life behind bars away from children, but a true pedophile is someone who has uncontrollable urges to use a chile for his own sexual gratification, and not a proud parent sending pictures of his babies first bath to grandpa. Lets all use a little common sense

[NoVista]

Your turn

It wouldn't be hard for spyware/malware or a hacker to put child porn on =your= computer.

Or to imagine a scenario where in the course of some other investigation, maybe business crime related, for police/FBI to 'claim' they found such on your computer. Similar to those drug busts gone wrong, where a cop plants the bag of marijuana to cover the fact they got the wrong house ...

So when the hot knife comes for you, remember your golden rule.

[Gromit801]

How Sad Your Life Must Be

That fact that most legal groups estimate that 30-40% of all men
now living the life of Sex Offender, are factually innocent probably
has no impact on your thinking.

You're a perfect example of the previous post as someone who
hungers for a class of people they need to feel superior to. How
sad your life must actually be.

[Leria]

No, they shouldn't

Pedophiles should have the same rights as children, and children should be allowed to make their own sexual decisions.

You are an *******, who thinks that just by castrating someone, that is going to stop them from 'abusing' (a false term made up by religious zealots who apparently have never SEEN a child enjoy sexual activities, which I have!) children.

There is NO SUCH THING AS SEXUAL ABUSE! That is coming from a woman who was on the anti's side for many years, is a psychologist with many laurels on her, and turned against it when she found out that many of the 'negatives' of sexual abuse were not coming from people having sex with children, but from abuse from the PARENTS when they found out about the sexual interactions.

Period and done with, allow pedosexuals to ask children for sexual encounters in front of parents, and forbid the parents from interfering on pain of lifetime imprisonment, and you will see child rape/murders and sexual assaults disappear (not as though there really are any anyways, coming from being on the defendants side as a paralegal in most cases and having the child ADMIT that they instigated the sexual encounter!).

[dayebreak]

Lifetime Supervision

At the federal level, the law changed a few years back allowing lifetime supervision of 'sex offenders'. Not everyone gets lifetime supervision, but the terms and conditions are handed out arbitrarily, forcing one to appeal. Beyond the normal conditions every felon is subject to, 'special conditions' are imposed on 'sex offenders'. Those conditions include restrictions on residence, employment, travel, visiting libraries, possession of electronic equipment, possession of 'inappropriate material' pursuant to P.O. or therapist opinion, computer use/internet access anywhere, and treatment programs, which have additional conditions and which are now big business. These could be for life, unless you move the court to reduce the terms or conditions, which the P.O. will oppose.
Keep in mind this would apply to those who went to trial, maintain their innocence, and are actively fighting their case pro se.

[Michael00360]

Computer Police

OK, I can understand the no use of computers or the technology sentence, but how do you police someone from accessing the web. Watching one person may be easy, but the more this sentence is passed out, the harder it will be to enforce such a sentence. There are just to many access points in the United States and the world to watch not to mention how easy it is to get around the requirements for getting on (if there are any). Besides, we should not forget that the government is still a few years behind technology.

[Too Old For IT]

Thought Police

Big Brother is Watching.

[dayebreak]

Vigilante Groups

It's believed that down the road the government will contract with private organizations to monitor, and spy on registered sex offenders, the first stone has already been laid with MySpace.

[Travis Ernst]

Way out of line

You can't use credit cards in stores now? They go over the 'net.
ID verification goes over the net. Any Thumb print verification is
a violation (used in stores for payment or ID confirmation) of
parole.

Most phones now are NOT copper wire or even the previous
Fiber generation, but now are run through computers AFTER
they leave our homes. So does that make him in violation?

Watches are computers. What extreme are we going to. The
Bank ATM's link to the net.

Cars have computers in them as well as other features that allow
you to link up. Unless you force him to drive one from the 70's
so it has "no computer".

These conditions HAVE to be redrawn to a reality standard.

I can understand no Internet access to some extent. Even that is
pushing the way todays society is going more and more net,
even for providing television services and telephone.

No photographic equiptment is a valid clause.

and restrctions (distance) from minors.

This will get redrawn or overturned by some judge or court.

[NoVista]

The real criminals

of child porn never seem to feature in court cases, every wonder about that? Like, who produces these pictures exploiting children.

It's like winning the 'war on drugs' by busting the occasional pot smoker.

There was a police blotter story a couple of months back of two 17 y.o. in Florida who had consensual sex, took naked pictures (shock, horror!) and emailled them to the bloke. He got the criminal conviction for child porn. Who exploted whom? and why only punish the one. Maybe there's a quota system.

Remember the "Buffy" episode "Surprise" in which the night before her 17th birthday, she has sex with Angel? Technically, that's child porn. Yes, we all know Sara Michelle was not underage but still. Or Jane March in "The Lover".

Maybe law enforcement ought to stop wasting effort on watchers and do the hard yakka of finding the producers of real porn.

[Too Old For IT]

Police afraid of the hard work

Can't find burglers unless the victims catch them and hold them. Same with forced entry. Bank robbers, carry-out holdup men, same story, Murder rates on the rise, drug dealers dealing crack outside the school house door.

But the cops just want to know who is viewing Russian kiddie porn.

Blah!

[Hoser McMoose]

The real perverts DO get caught sometimes

The guys that produce the child porn most definitely are targeted by the police and yes, they do sometimes get caught. This is perhaps the one area where police forces around the world are working together and avoiding any petty squabbles about jurisdiction. Of course, most people producing child porn probably go to some lengths to try and hide their identity, so finding them might be a somewhat non-trivial task.

You don't hear about them much because their cases are usually pretty cut-and-dry. The only time child exploitation cases get in the media is when there is something odd about them. Unfortunately the 'odd' thing usually seems to be that the legal system has either totally over-reacted (as was the case from this news article before the ban was overturned) or just done something mind-numbingly stupid (as was the case of the 16 and 17 y/o taking nudie pics of each other and being charged for it).

[Phillep_H]

Catching the perp

Porn can circulate for decades. The kids may be dead of old age, and the porn is still making the rounds.

The cops cannot find every single copy, and that's exactly what they would need to do.

[ss02906]

it is certain... you will need a state issued license to use the web

Just think about it, 20 or 100 yrs from now, all citizens may need to confirm their identity before using the net, and it will eventually become a practice to suspended the user access for any kind of mischief. Just like they do it for Driver's license. This is just a beginning. Ofcourse there would be compelling reasons and justifications. It is a certainty don't you think?

[R.Jefferson]

Dont commit crimes!

This is only one instance and one fact set.

The fact of the matter is if you are on probation or parole or any kind of supervised sanction for a ?sexual offense? you forfeit your rights to enjoy the use of a computer, and are at the mercy of the trier of fact. It is incumbent on the judge to craft appropriate conditions of supervision. In this instance it appears the judge was overreaching.

Do the crime pay the time.

[Gromit801]

Hmmm

Too bad then for the 30-40% who have paid the time without doing
the crime.

[Phillep_H]

Do the crime pay the time.

Unless, of course, you are Columbo.

[iZune]

Banned from using Apple, not Windows

Given the negative influences Apple has on morality, the restriction order should have appled to hardware and software from Apple. The fact that Windows is a better OS and people tend not to do bad things while using that OS, the court order should have allowed use of Windows.

[jdbwar07]

Gimme a break

Have any statistics to back this up? And it must by why there are tons of viruses and spyware for windows especially and virtually none for that.

Still, with logic like that, I suggest you try to get a job at Fox news or the Bush admininstration's press office! Disconnection from reality, apititude for tying everything that happens into the immorality of your opponents, lack of reasoning or facts. Hmmm.... They'd hire you in heart beat!