The U.S. Court of Appeals for the D.C. Circuit, in a child pornography appeal, has joined what it called an emerging consensus among the circuits that a complete ban on Internet usage is appropriate for defendants who use the web to victimize children.
In U.S. v. Love, a three-judge panel on Jan. 22 upheld the Internet ban that was imposed as a condition on Allan Love’s release after he has served his sentence for transporting or shipping material involving child pornography. Love is required to get prior written approval from the Probation Office before he can access the Internet again.
The condition states, “The defendant shall not possess or use a computer that has access to any ‘on-line computer service’ at any location, including his place of employment, without the prior written approval of the Probation Office.”
Love argued that the condition was overbroad in light of the widespread use, presence and need for the Internet in every day life. His counsel, Assistant Federal Public Defender Beverly Dyer, urged a more tailored condition that would ban only electronic communication involving prohibited sexual material, or, alternatively, would require the Probation Office to monitor his Internet use remotely.
But the panel, led by Judge Thomas Griffith, said the condition in this case was “eminently reasonable.” Although it noted that the Internet ban would substantially affect Love’s day-to-day activities, the panel said the condition was properly tailored to Love’s offense and background. Love not only distributed child pornography, said the court, but he also solicited sex with an undercover officer’s fictitious daughter.
“Consensus is emerging among our sister circuits that Internet bans, while perhaps unreasonably broad for defendants who possess or distribute child pornography, may be appropriate for those who use the Internet to ‘initiate or facilitate the victimization of children,’” wrote Judge Griffith. “The distinction is grounded in the simple proposition that when a defendant has used the Internet to solicit sex with minors, `the hazard presented by recidivism’ is greater than when the defendant has traded child pornography.”
The panel noted that the 2nd, 3rd , 5th and 8th Circuits have recognized that distinction in approving Internet bans. The Probation Office, added the panel, will have discretion to tailor the prohibition to the technology in use when Love gets out of prison. Love received a sentence of sentence of 188 months’ imprisonment, followed by supervised release for life.