'You fall into Scylla in seeking to avoid Charybdis': the Second Circuit's pragmatic approach to supervised release for sex offenders.

• Author: Correll, Frank E., Jr.

TABLE OF CONTENTS INTRODUCTION I. THE ROLE OF THE COMPUTER AND THE INTERNET IN MODERN LIFE II. THE GOALS AND RATIONALE OF SUPERVISED RELEASE III. THE INTERNET AND THE SEX OFFENDER IV. THE CIRCUIT SPLIT A. Supervised Release Conditions Vacated 1. Second Circuit (Take One): No Total Ban 2. Third Circuit: Restrictions Must Be Focused 3. Tenth Circuit: Limited Monitoring Only B. Internet and Computer Restrictions Permitted by Courts 1. Fifth Circuit: Internet Bans Meet Statutory Goals 2. Ninth Circuit: Limitations Do Not Deprive Liberty 3. Eleventh Circuit: Computer Use Prohibited C. The Second Circuit Approach: Using Technology To Avoid Scylla and Charybdis 1. United States v. Lifshitz: Analyzing Technological Solutions 2. United States v. Balon: Efficiency of Technological Solution Is Vital D. The Middle Ground of the Second Circuit V. THE PRAGMATISM OF THE SECOND CIRCUIT CONCLUSION INTRODUCTION

In the past decade, Americans' access to communications technology has grown significantly. (1) The number of U.S. homes with computers grew from about 36 percent in October of 1997 to over 61 percent in October of 2003. (2) A more recent report concludes that 68 percent of all Americans own a desktop computer, while 30 percent own a laptop. (3) Meanwhile, U.S. households with Internet access grew from under 45 percent in 2000 to over 60 percent in early 2007. (4) The use of high-speed and broadband connections similarly increased, growing from 5 percent in 2000 to over 45 percent in early 2007. (5) The growth of Internet access has led to corresponding growth in Internet use: tens of millions of Americans now use the Internet for everything from communicating through e-mail and instant messaging (6) to shopping and conducting bank transactions. (7)

Although the advent of the Internet has allowed for the many benefits of increased and eased communication, the Internet has also facilitated additional criminal activities, (8) Aside from providing a new avenue for confidence men and snake oil peddlers, (9) the Internet has created new spawning grounds for prostitution, (10) child exploitation, and child pornography). (11) The interplay of these two developments--the great benefits to society and the great benefits to criminals--has created a split among American courts over how to deal with access to the Internet for sexual offenders after their release from the correctional system. (12) In an effort to promote rehabilitation, federal law requires a sentence of supervised release following imprisonment for certain crimes. (13) As part of that sentence, the courts may impose various conditions on offenders, some mandatory--such as a prohibition on the use of controlled substances--and others discretionary. (14) The court may impose discretionary conditions as it sees fit, subject to certain restrictions. (15) Peddlers and users of child pornography often receive such discretionary conditions that restrict their access to the Internet or to computers in general. (16)

This Note examines how the circuit courts of appeals have approached the issue of Internet restrictions for sexual offenders on supervised release, both the courts that have upheld them and the courts that have vacated them. This Note argues that the approach utilized by the Second Circuit most effectively addresses the primary goal of supervised release: rehabilitation of the offender. The Second Circuit Court of Appeals has taken the pragmatic middle ground in its approach to the question of restrictions on sexual offenders' use of computers and the Internet. This approach allows lower courts and probationary officers to harness technological advances for effective and reasonable monitoring of sexual offenders' computer use. Like negotiating between the mythological perils Scylla and Charybdis, (17) this type of monitoring avoids the opposing extremes: the Scylla of prohibiting computer and Internet use altogether--a truly draconian restriction given the significance of the computer in everyday life--and the Charybdis of not placing any restrictions on the use of the Internet or computers by sexual offenders. This Note argues that, by negotiating between these two extremes, the Second Circuit most effectively advances the purpose of supervised release as pronounced by Congress.

1. THE ROLE OF THE COMPUTER AND THE INTERNET IN MODERN LIFE

   The ubiquity of computer and Internet access in America today has transformed the computer's role in Americans' lives. Once considered a luxury or even a device only practical for business use, (18) the computer and the Internet now enjoy widespread use among all segments of society. (19) The courts have recognized this phenomenon in their discussions of supervised release. (20) Although these statements reveal a widespread belief in the growth of the Internet, the full extent of the Internet's impact is often difficult to discern without an examination of some of the available statistics and trends.

   Recent surveys have indicated that Internet usage among American consumers has reached an all-time high, with over 70 percent of respondents reportedly using the Internet on a regular basis. (21) Those who used the Internet stated that it improved their overall satisfaction with many daily activities, including shopping, pursuing hobbies or other recreation, job searching, and finding health information. (22) Additionally, the more often and the longer individuals used the Internet, the greater the benefit they tended to perceive. (23)

   Perhaps the most striking way in which the Internet has affected American daily life is how both state and federal governments have embraced the technology and used it to share information and allow more efficient access to government services. (24) American citizens can now file and pay income taxes online, (25) research available federal job openings, (26) and review current legislation or the upcoming legislative calendar. (27) Federal courts have posted argument schedules, bench memoranda, and opinions online. (28) With these sources available today, an average American with an Internet connection has access to more government information than at any point in the past. (29)

   As this brief discussion has shown, computers and the Internet play an integral role in the lives of most Americans today. The Internet supports communication, research, job-seeking, and access to government information; together, these activities form part of the social network a sexual offender must reenter. (30) Cutting released offenders off from access to that social network and its benefits would necessarily run against the basic reasoning behind supervised release enunciated by Congress--that of rehabilitation and successful reentry into society. (31)

2. THE GOALS AND RATIONALE OF SUPERVISED RELEASE

   The use of supervised release as a penological tool began with the passage of the Sentencing Reform Act of 1984. (32) Akin to probation in many respects, supervised release is nevertheless a different creature. (33) Unlike probation, which a court cannot give if it orders a term of imprisonment, supervised release "is a form of government supervision after a term of imprisonment." (34) At the time of its passage, Congress viewed supervised release as "a separate part of the defendant's sentence, rather than being the end of the term of imprisonment." (35) The release period begins the day the offender leaves prison and lasts as long as the court deems necessary. (36) If an offender violates the conditions of supervised release, the sentencing court, at its discretion, may return the offender to prison. (37)

   When determining the appropriate length of supervised release, the courts must look at many of the same factors as they would when giving a sentence of imprisonment. (38) For the mandatory conditions, the court must order domestic violence convicts to attend certain rehabilitative programs, and the law requires the court to order certain sex offenders to register pursuant to the Sex Offender Registration and Notification Act. (39) Offenders on supervised release must also abstain from use of controlled substances and undergo drug tests. (40)

   For the discretionary conditions, the statute allows the court to order conditions of supervised release to the extent that they: (1) are "reasonably related" to the sentencing provisions of 18 U.S.C [section] 3553, (41) (2) involve "no greater deprivation of liberty than is reasonably necessary" for purposes of [section] 3553, (42) and (3) are consistent with the relevant policy statements of the Sentencing Commission. (43) The factors listed under [section] 3553 include the need for the restrictions to accommodate the character of the offense and of the offender, to deter future criminal conduct, to protect the public from any additional crimes by the defendant, (44) and to provide the defendant with needed training or medical and correctional treatment. (45) The text of [section] 3583 also implies that any discretionary conditions imposed by the sentencing judge should meet both the needs of the offender--represented by the provisions of [section] 3553(a)(2)(D) and the instructions of [section] 3583 requiring conditions "reasonably related" to the minimization of any deprivation of the offender's liberty--and the interests of the government. (46)

   The principal goal of supervised release appears in the legislative history of the Sentencing Reform Act. In a 1983 Senate Judiciary Committee Report, the Committee noted that:

   The sentencing purposes of incapacitation and punishment would not be served by a term of supervised release ...; the primary goal of such a term is to ease the defendant's transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period in prison ... but still needs supervision and training programs after release. (47) The courts...