A World Without Internet: A New Framework for Analyzing a Supervised Release Condition That Restricts Computer and Internet Access

Fordham Law Review, Aug 2018

This Note explores whether a condition of supervised release that restricts computer and Internet access violates the doctrine of unconstitutional conditions. Although a circuit split has developed regarding the scope of a permissible restriction, as Courts of Appeals have been inundated with cases challenging the validity of these technology restrictions, no court has yet viewed these limits through the lens of the doctrine of unconstitutional conditions. This Note begins with a discussion of the First Amendment and the theory of unconstitutional conditions, tracing their respective developments in cases relating to prisoners, speech, and the Internet age. Next, it synthesizes the oft-criticized idea of unconstitutional conditions into a new three-prong framework, judging the propriety of a condition based on the government’s coerciveness in making the offer, the purpose for pursuing the condition, and the condition’s effect on protected speech. Then, this Note surveys cases where courts have ruled on the validity of a computer or Internet restriction, and recasts their reasoning to discuss whether such a condition may be constitutional, using the coercion-purpose-effect framework. Finally, this Note concludes that a condition is constitutional where it is accepted knowingly and voluntarily, is intended to protect the public rather than regulate speech indirectly, and where computer-monitoring and Internet-filtering technology is maximized to minimize First Amendment infringement.

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A World Without Internet: A New Framework for Analyzing a Supervised Release Condition That Restricts Computer and Internet Access

A World Without Internet: A New Framework for Analyzing a Super vised Release Condition Th Restricts Computer and Internet Access at Gabriel Gillett 0 1 0 Thi s Note is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact 1 Gabriel Gillett, A World Without Internet: A New Framework for Analyzing a Supervised Release Condition Th at Restricts Computer and Internet Access , 79 Fordham L. Rev. 217 (2011). Available at: - Article 9 Gabriel Gillett* This Note explores whether a condition of supervised release that restricts computer and Internet access violates the doctrine of unconstitutional conditions. Although a circuit split has developed regarding the scope of a permissible restriction, as Courts of Appeals have been inundated with cases challenging the validity of these technology restrictions, no court has yet viewed these limits through the lens of the doctrine of unconstitutional conditions. This Note begins with a discussion of the First Amendment and the theory of unconstitutional conditions, tracing their respective developments in cases relating to prisoners, speech, and the Internet age. Next, it synthesizes the oft-criticized idea of unconstitutional conditions into a new three-prong framework, judging the propriety of a condition based on the government’s coerciveness in making the offer, the purpose for pursuing the condition, and the condition’s effect on protected speech. Then, this Note surveys cases where courts have ruled on the validity of a computer or Internet restriction, and recasts their reasoning to discuss whether such a condition may be constitutional, using the coercion-purpose-effect framework. Finally, this Note concludes that a condition is constitutional where it is accepted knowingly and voluntarily, is intended to protect the public rather than regulate speech indirectly, and where computer-monitoring and Internet-filtering technology is maximized to minimize First Amendment infringement. TABLE OF CONTENTS INTRODUCTION.......................................................................................... 219  I. UNDERSTANDING A TECHNOLOGY RESTRICTION ON SUPERVISED RELEASE: THE FIRST AMENDMENT, PRISONERS, AND THE THEORY OF UNCONSTITUTIONAL CONDITIONS ............................. 222  * J.D. Candidate, 2011, Fordham University School of Law. B.A., 2005, The George Washington University. I am grateful to Professor Abner Greene and Dean Michael M. Martin for their guidance and counsel in developing this Note. I couldn’t have done it without Stacey’s encouragement, patience, and ne ver-ending support. 2010 ] INTRODUCTION Paul R. Thielemann had the support of his family, a history of employment, and had never had run-ins with the law;1 Thielemann, however, was a predator who trafficked in child pornography.2 After America Online (AOL) detected transmissions of child pornography from Thielemann’s account, it reported the activity to the Delaware State Police.3 On February 23, 2007, law enforcement executed a search warrant, based on AOL’s tip, and seized Thielemann’s computer.4 Stored on the computer, the officers found hundreds of pornographic images of children, explicit online conversations describing sexual encounters with minors, and transcripts of Thielemann encouraging others to exploit and victimize children.5 Thielemann was indicted on eighteen counts of child 1. United States v. Thielemann, 575 F.3d 265, 271 (3d Cir. 2009) , cert. denied, 130 S. Ct. 1109 (2010). 2. See id. at 268. 3. Id. 4. Id. 5. Id. at 268, 269 n.4. pornography-related crimes, and pleaded guilty to one count of receiving child pornography.6 The trial court sentenced him to twenty years in prison followed by a ten-year term of supervised release, which included a condition preventing him from “own[ing] or operat[ing] a personal computer with Internet access in a home or at any other location, including employment, without prior written approval of the Probation Office.”7 Thielemann appealed the computer condition, arguing it was unrelated to the offense and overly restrictive.8 The U.S. Court of Appeals for the Third Circuit disagreed, finding the condition “clearly and properly imposed . . . to deter future crimes via the [I]nternet and to protect children.”9 Thielemann’s case became the fifth time in a decade that the Third Circuit had faced a similar challengethree times accepting the condition as constitutional, because it related to the crime and did not unnecessarily deprive the convict of liberty,10 and twice finding the condition unconstitutional, because it was unduly restrictive and an overbroad regulation of speech.11 The Third Circuit’s experience is emblematic of the struggle of federal courts across the country to balance the need to protect the public from released sex offenders without unduly restricting the constitutional rights of convicts that are no longer incarcerated.12 As child pornography crimes on the Internet have become increasingly prevalent,13 more and more courts are ruling on the legality of a condition of supervised release that limits access to a computer or the Internet. Every United States Court of Appeals, save the Federal Circuit, has dealt with the issue.14 On one h and, allowing 2010 ] a rehabilitating prisoner to use the Internet affords him15 the chance to communicate with millions of people and “access vast amounts of information from around the world.”16 Nevertheless, Internet access also provides the offender the means to seek new victims and the opportunity to prey on society’s weakest members.17 While courts have frequently ruled on the propriety of limiting computer and Internet access as a condition of supervised release, they have not discussed the issue using the theory of unconstitutional conditions.18 This Note will harness the relevant cases and theories to develop a new framework to examine whether such a restriction may be an unconstitutional condition. It will do so by looking at this legal question through the prism of cases that have not explicitly addressed unconstitutional conditions, despite the opportunity. Part I.A introduces the U.S. Constitution’s First Amendment right to free speech and its adaptation in the technological age, which is crucial to understanding the backdrop of disputes over a restriction that limits access to technology. Then, Part I.B recounts the history and theory of unconstitutional conditions, including the theory’s application in First Amendment and prisoner contexts. Part I.C offers a new three-prong framework, gleaned from the reasoning of courts and commentators, to analyze the constitutionality of a condition that limits computer and Internet use. These prongs judge whether the government coerces a beneficiary into accepting a conditional offer, whether the government’s purpose for a condition is proper, and whether a condition’s effect on speech is overly restrictive. Finally, Part I.C explains why imposing a computer or Internet restriction as a condition of supervised release for a sex offender may create an unconstitutional conditions problem. Part II surveys cases where courts have ruled on the validity of a computer condition, and recasts their reasoning to discuss whether or not such a condition may be constitutional, using this Note’s coercion-purposeeffect framework. Finally, Part III argues that a condition that limits computer and Internet access is constitutional where the convict is not compelled to accept release, the government does not intend to regulate speech indirectly, and the condition protects children while minimizing First Amendment infringement. I. UNDERSTANDING A TECHNOLOGY RESTRICTION ON SUPERVISED RELEASE: THE FIRST AMENDMENT, PRISONERS, AND THE THEORY OF UNCONSTITUTIONAL CONDITIONS Part I of this Note introduces the First Amendment and the elements needed to determine the validity of a condition on supervised release. First, it lays out the right to freedom of speech as it relates to prisoners, pornography, and the Internet, because a computer and Internet restriction as a condition of supervised release operates at the nexus of these issues. Next, it describes the “doctrine” of unconstitutional conditions, including the theoretical foundation and case law related to a condition that circumscribes speech or prisoner rights. Then, it synthesizes various frameworks for analyzing a condition to offer a new model for judging the validity of a condition. Finally, this part explains why a restriction on computer and Internet access as a condition of supervised release may create an unconstitutional condition. A. The Scope and Limits of First Amendment Freedom of Speech The First Amendment is implicated because it underlies concerns about the effect of computer and Internet restrictions on the speech of convicts on supervised release. The First Amendment prohibits the federal government from “abridging the freedom of speech.”19 The right to free speech was enshrined in the Constitution to “assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”20 It has since been credited as the foundation upon which American democracy thrives.21 Despite the broad guarantee of freedom of speech in the text of the First Amendment, the government is not affirmatively obligated to provide citizens the means to exercise those rights,22 and the 19. U.S. CONST. amend. I. The guarantee of freedom of speech originally only applied to the federal government, but has since been incorporated against the states through the Due Process Clause of the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666 (1925). 20. Roth v. United States, 354 U.S. 476, 484 (1957). 21. See GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 38 (3d ed. 2008); THE FIRST AMENDMENT, FREEDOM OF SPEECH: ITS CONSTITUTIONAL HISTORY AND THE CONTEMPORARY DEBATE 1320 (Vikram David Amar ed., 2009); see also DAVID G. POST, IN SEARCH OF JEFFERSON’S MOOSE: NOTES ON THE STATE OF CYBERSPACE 18792 (2009) (detailing Thomas Jefferson’s view on the critical importance of the First Amendment). 22. See U.S. CONST. amend. I. (stating the right to free speech as a prohibition on government activity); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 115 (1995) (“Government is under no obligation to subsidize speech. It can refuse to fund any and all speech-related activities. If it does not want to fund expression at all, it is free to do so.”); Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293, 132425 (1984). 2010] U.S. Supreme Court has consistently held the government may stifle speech in appropriate situations.23 By way of example, this part discusses how the government may limit speech for prisoners at various stages of incarceration, and may also restrict obscene speech that the First Amendment does not protect. If the government may regulate speech in the tangible world, it also may regulate similar speech occurring online. 1. A Convict’s Enjoyment of First Amendment Speech Rights Depends on His Level of Incarceration The government’s power to regulate prisoner speech is commensurate with the level of incarceration along a continuum of severity of punishment, and is at its apogee for incarcerated prisoners. In Procunier v. Martinez,24 the Supreme Court established that the government need only show that a regulation reasonably relates to maintaining prison order to comply with the First Amendment.25 Procunier also empowered the government to impose a speech regulation within prison where it rationally advanced the state interest in security or rehabilitation, and did not limit speech more than necessary.26 This justified restrictions on speech between prisoners in different institutions and limits on an inmate’s right to access speech from outside prison where the government showed its actions related to prison safety and security.27 The Procunier line of cases has been adapted in modern times to substantiate regulations that curb Internet access inside prison,28 though electronic communication may have a positive impact on inmate rehabilitation and ease reintegration into society after a sentence is completed.29 Thus, the Court found that a prisoner in lockup has a more limited right to free speech than a person outside the prison walls. While the government may regulate speech for a prison inmate, it has much less power to restrict the First Amendment rights of a released convict on parole or probation. Parole is a system where the government decides to release the prisoner before he serves the full sentence, often because of good behavior.30 It is typically given to a convict who is not yet ready for freedom, and often requires the parolee to report regularly to a parole officer.31 Even less severe is probation, a court-imposed sentence given in lieu of a prison term.32 In either case, the government maintains leverage to enforce the condition by retaining power to alter the condition or return the convict to prison.33 A released convict’s conditional liberty affords him greater speech rights than an inmate, but only to the extent that the state’s interest in public safety or prisoner rehabilitation is not implicated.34 For example, the government may restrict speech for penological reasons, but may not universally require a parolee to obtain permission before speaking publicly,35 or prevent a released convict from profiting by publishing details of a crime.36 In essence, the government must prove a more rational connection between limiting parolee or probationer speech and public safety to comport with the First Amendment. Supervised release is a hybrid penalty, which creates an intermediate burden for the state to justify burdens on convict speech. Supervised release, “in contrast to probation [or parole], is ‘meted out in addition to, 30. BLACK’S LAW DICTIONARY 1227 (9th ed. 2009); see also Morrissey v. Brewer, 408 U.S. 471, 477 (1972) (stating parole is given to reintegrate prisoners into society while cutting incarceration costs). See generally JUDITH GREENE & MARC MAUER, THE SENTENCING PROJECT, DOWNSCALING PRISONS: LESSONS FROM FO UR STATES (2010 ), available at http://sentencingproject.org/doc/publications/ publications/inc_DownscalingPrisons2010.pdf (charting early release trends); ILYANA KUZIEMKO, GOING OFF PAROLE: HOW THE ELIMINATION OF DISCRETIONARY PRISON RELEASE AFFECTS THE SOCIAL COST OF CRIME (2007), available at http://faculty.chicagobooth.edu/workshops/AppliedEcon/archive/pdf/KuziemkoGoingOffParole.pdf (suggesting that parole lowers long-term prison costs and reduces recidivism). 31. See Samson v. California, 547 U.S. 843, 854 (2006). Federal parole decisions are made by the U.S. Parole Commission, a Justice Department agency. U.S. DEP’T OF JUSTICE: ANSWERING YOUR QUESTIONS, http://www.justice.gov/uspc/questions.htm (last visited Sept. 23, 2010) . 32. BLACK’S LAW DICTIONARY 1322 (9th ed. 2009); infra note 37 and accompanying text. 33. See Morrissey, 408 U.S. at 47880; see also LAUREN E. GLAZE & THOMAS P. BONCZAR, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS BULL. , PROBATION AND PAROLE IN THE UNITED STATES, 2008 , at 1 (2009), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/ppus08.pdf (counting, as of 2007, more than five million probationers and parolees in the United States) ; Solomon Moore, Struggling to Keep Tabs on Paroled Sex Offenders, N.Y. TIMES, Sept. 27, 2009, at A14 (highlighting parole’s impact on state prison systems). 34. See Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (“[I]t is always true of probationers . . . that they do not enjoy ‘the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.’” (alteration in original) (quoting Morrissey, 408 U.S. at 480)); Morrissey, 408 U.S. at 482; United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 & n.14 (9th Cir. 1975) (noting a condition on probationer and parolee speech is not per se suspect). 35. See United States v. Richards, No. 09-10324, 2010 U.S. App. LEXIS 13133, at *67 (9th Cir. June 25, 2010) ; Porth v. Templar, 453 F.2d 330, 334 (10th Cir. 1971); Hyland v. Procunier, 311 F. Supp. 749, 75051 (N.D. Cal. 1970). 36. See Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 10815, 12023 (1991). 2010] not in lieu of, incarceration.’”37 This places it in the middle of the continuum because it is more lenient than jail time, but more harsh than parole or probation.38 The United States Probation Office, an arm of the judicial branch, oversees a convict on supervised release.39 To deter recidivism, a court has independent power to impose conditions of release, alter the conditions after confinement, and hold a convict in contempt for any violation.40 Following the logic of Procunier and its progeny, the government has less power to restrict the liberty and speech of a convict on supervised release precisely because it is a less harsh punishment than prison.41 However, the government may restrict the speech of a convict on supervised release where it has a legitimate state interest. 2. The Government’s Power To Limit Enjoyment of Sexually Explicit Material Depends on the Type of Content Just as the government’s authority to constrain prisoner speech differs based on the severity of the punishment, its power to regulate non-prisoner speech also varies based on the nature of the content. Despite the Supreme Court’s holding that states could regulate sexually explicit speech for minors,42 the line between pornography and obscenity as it related to adults remained unclear until Miller v. California.43 In that case, a jury convicted the owner of a mail-order business, which sold erotic photos and drawings, of a misdemeanor after he sent unsolicited advertising brochures to potential customers.44 In a landmark ruling, the Supreme Court held that “obscene material is not protected by the First Amendment.”45 However, due to the danger of speech regulation, it found that obscenity was “carefully limited” to sexual content that met the following standard:46 (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.47 While Miller established that the government may have the power to regulate obscene material within the strictures of the First Amendment, it failed to provide guidance on whether obscene content was the only regulable speech under the First Amendment. Nine years after Miller, the Supreme Court found that the government may regulate child pornography, whether deemed obscene or not. In New York v. Ferber,48 a jury convicted a bookstore owner of violating a law that outlawed sales of material depicting sexual conduct by minors.49 The New York Court of Appeals struck down the law, saying its failure to include a standard for obscenity violated free speech.50 The Supreme Court, which granted certiorari to decide if child pornography must be regulated as obscenity,51 found it “evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’”52 The Court went on to state that “the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment.”53 Therefore, states have a paramount interest in preventing child sexual exploitation, and the limited artistic value of child pornography justified regulating such content outside the Miller obscenity standard.54 This made Miller’s inquiry into the average person’s prurient interest, the material’s portrayal of patently offensive sexual conduct, and the value of the work as a whole irrelevant in the child pornography context.55 As a result, consistent with the First Amendment, the government may regulate obscene speech that satisfies the Miller standard, and depictions of child pornography under Ferber. 3. Freedom of Speech and the State’s Authority To Regulate Sexually Explicit Content Are Evolving in the Internet Age Precedent from Miller and Ferber has been strained as the contours of freedom of speech have shifted alongside the development and mass adoption of computer and Internet technology. Like the telegraph, radio, telephone, and television in previous eras, the growth of the Internet as a “forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity” has revolutionized mass communication and information systems.56 Nearly three-fourths of Americans are now online,57 and the federal government continues to take measures to expand Internet access across the country.58 Recent scholarship indicates that Americans of all ages are online between ten and fourteen hours per week.59 Each hour one hundred thousand new websites join the more than two billion pages already on the Internet;60 the U.S. Government alone maintains more than twenty-four thousand websites and resources online.61 Computers and the Internet are such prolific information sources and ubiquitous features of life that one expert claimed “without a computer in this day and age you can’t work, you can’t communicate, you can’t function as people normally do in modern society.”62 56. 47 U.S.C. § 230(a)(3) (2006); see BRUCE BIMBER, INFORMATION AND AMERICAN DEMOCRACY: TECHNOLOGY IN THE EVOLUTION OF POLITICAL POWER 7588 (2003); CARLA G. SURRATT, THE INTERNET AND SOCIAL CHANGE 15 (2001). For an interesting discussion of the future of the Internet, see generally Symposium, Notes from the New World: The Future of the Internet, 78 FORDHAM L. REV. 2751 (2010) (introducing “an exchange on theories of Internet governance”). 57. Internet Users (per 100 people), THE WORLD BANK, http://data.worldbank.org/indicator/IT.NET.USER.P2 (last visited Sept. 23, 2010) . In 2009, seventy-seven million people, including forty-four percent of people living in poverty, used a public library to facilitate Internet access. Nearly One-Third of Americans Use Library to Access Internet, MEDIA ACCESS PROJECT (Mar. 26, 2010), http://www.mediaaccess.org/2010 /03/nearly-one-third-of-americans-use-library-to-accessinternet/. 58. See Stephanie Condon, Stimulus Bill Includes $7.2 Billion for Broadband, CNET NEWS (Feb. 17, 2009, 9:40 AM), http://news.cnet.com/8301-13578_3-10165726-38.html. See generally The National Broadband Plan: Connecting America, FCC, http://www.broadband.gov (last visited Sept. 23, 2010) (lauding the benefits of broadband Internet). 59. See VICTORIA RIDEOUT ET AL., THE HENRY J. KAISER FAMILY FOUNDATION, GENERATION M2: MEDIA IN THE LIVES OF 8- TO 18-YEAR-OLDS 2 (2010), available at http://www.kff.org/entmedia/upload/8010.pdf; Lance Whitney, Average Net User Now Online 13 Hours Per Week, CNET NEWS (Dec. 23, 2009, 7:30 AM), http://news.cnet.com/8301-1023_3-10421016-93.html. 60. STONE ET AL., supra note 21, at 345. 61. FED. WEB MANAGERS COUNCIL, PUTTING CITIZENS FIRST: TRANSFORMING ONLINE GOVERNMENT 1 (2008), available at http://www.usa.gov/webcontent/documents/Federal_Web_Managers_WhitePaper.pdf. 62. Matt Richtel, Barring Web Use After Web Crime, N.Y. TIMES, Jan. 21, 2003, at A1; see U.S. DEP’T OF COMMERCE, A NATION ONLINE: ENTERING THE BROADBAND AGE 3 (2004), available at http://www.ntia.doc.gov/reports/anol/NationOnlineBroadband04.pdf; JEFFREY I. COLE ET AL., THE UCLA INTERNET REPORT: SURVEYING THE DIGITAL FUTURE 45 (2000), available at http://www.digitalcenter.org/pdf/InternetReportYearOne.pdf. Additionally, the Internet has become an important tool for political and civic engagement. Technology has driven democracy as millions of people have used the Internet to educate voters, contribute time and money to political candidates, and even cast a ballot.63 The Internet now functions as a modern public square, empowering each user with a virtual printing press and megaphone to disseminate their views.64 Scholar Lawrence Lessig described the Internet as “the most important model of free speech since [America’s] founding,” and noted that “the Net has taught us what the First Amendment means.”65 He also remarked that “[t]he model for speech that the framers embraced was the model of the Internetdistributed, noncentralized, fully free and diverse.”66 Floyd Abrams, a legendary First Amendment lawyer, has gone so far as to suggest that the Internet obviates the need for constitutional protection of speech because prior restraint on publication is no longer viable.67 Like speech in the material world, the government may not broadly regulate Internet speech without contravening the First Amendment, but it may regulate online the same obscene speech that it could regulate in the tangible world.68 As the Internet has exploded in scope and importance, the Supreme Court has sought to adapt its precedent to the technological age. The Supreme Court first ruled on government regulation of electronic content in Reno v. ACLU,69 where it invalidated, on First Amendment grounds, sections of a law that regulated online speech.70 To protect children online, Congress passed the Communications Decency Act of 1996,71 which made it a crime to transmit an obscene or indecent message that, like Miller, “depicts or describes, in terms patently offensi ve as measured by contemporary 2010 ] community standards, sexual or excretory activities or organs.”72 The Court distinguished Internet speech from other communication, and held the law unconstitutional because it shielded minors by “suppress[ing] a large amount of speech that adults have a constitutional right to receive.”73 Five years later, the Supreme Court again ruled on Internet speech regulation in Ashcroft v. Free Speech Coalition,74 where it rejected a ban on “virtual” child pornography. The case arose when Congress passed the Child Pornography Prevention Act of 1996 (CPPA),75 which regulated computer generated images the Court defined as “virtual child pornography,”76 as well as images that implied a minor was engaged in a sexual act.77 The Supreme Court agreed with the erotic entertainers who had challenged the law,78 and found that the CPPA unduly restricted “the freedom to engage in a substantial amount of lawful speech.”79 Thus, the Court applied Ferber in the Internet context, and simultaneously reaffirmed the government’s sweeping power to regulate real child pornography but limited power to regulate online speech that is neither obscene nor child pornography. Later in 2002, in Ashcroft v. ACLU (Ashcroft I),80 the Supreme Court temporarily sidestepped the question of the breadth of the government’s power to regulate Internet content. In response to Reno,81 Congress had enacted the Child Online Protection Act (COPA),82 which criminalized commercial Internet postings deemed “harmful to minors”83 as defined by the three-part Miller standard.84 Reversing the Third Circuit, the Supreme Court held that COPA’s use of “community standards” to identify illicit content, without reference to a specific geographic area, did not alone render the law in violation of the First Amendment.85 However, the Court declined to rule whether COPA was overbroad for other reasons, and remanded the case to the Third Circuit to adjudicate those issues before the law would take effect.86 72. 47 U.S.C. § 223(d)(1) (1994). In 2003, this language was removed from the statute and replaced by “is obscene or child pornography.” Pub. L. No. 108-21, 117 Stat. 650, 687 § 603(2) (2003) (codified as amended at 47 U.S.C. § 223 (2006)). 73. Reno, 521 U.S. at 874; see also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 74 (1983) (“The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.”). 74. 535 U.S. 234 (2002). 75. Pub. L. No. 104-208, 110 Stat. 3009, 3026 (codified as amended in scattered sections of 18 U.S.C. (1996)). 76. See Free Speech Coal., 535 U.S. at 24142 (citing 18 U.S.C. § 2256(8)(b) (1994)). 77. See id. at 24243 (citing 18 U.S.C. § 2256(8)(d) (1994)). 78. Id. at 243. 79. Id. at 256. 80. 535 U.S. 564 (2002). 81. See supra notes 6873 and accompanying text. 82. Pub. L. No. 105-277, 112 Stat. 2681, 2736 (codified at 47 U.S.C. § 231 (1998)). 83. 47 U.S.C. § 231(a)(1). 84. See Ashcroft I, 535 U.S. at 56970 (citing 47 U.S.C. § 231); supra notes 4647 and accompanying text. 85. See id. at 58586. 86. See id. The Supreme Court finally settled the issue in 2004 by reaffirming the central holding in Reno, namely that the government has only limited authority to restrict online speech. In Ashcroft v. ACLU (Ashcroft II),87 the Supreme Court affirmed the Third Circuit’s ruling,88 on remand from Ashcroft I,89 that COPA was unconstitutional because it did not use the least restrictive means to protect a minor from harmful online speech.90 The Court found that the government may encourage parents and schools to limit Internet access,91 but that it may not directly regulate Internet content without showing that the alternative filtering software was less effective in preventing harmful material from reaching children.92 In sum, the government could not take steps to block unprotected speech until it effectively determined how to separate it from protected speech.93 Ashcroft II set the standard for when the government may regulate the Internet, but left open the issue of when the government may entice Americans to consent to Internet speech regulations in exchange for a voluntary government benefit. B. The Theory of Unconstitutional Conditions While there is agreement that the unconstitutional conditions theory is needed to “constrain[] indirect governmental pressure on the exercise of constitutional rights, no easy or perhaps single rationale” exists to explain when a condition becomes unconstitutional.94 The idea has been a part of American jurisprudence for many years, and “has for just as long suffered from notoriously inconsistent application; it has never been an overarching principle of constitutional law” equally applied to individual rights and governmental powers.95 Among varied formulations, the gist of the theory is that the government may not voluntarily offer a benefit that requires a citizen to forego a constitutional right in order to take ad vantage of that 2010 ] benefit.96 The doctrine pertains to an offer or conferral of a benefit by a state actor, including a federal court.97 Though the unconstitutional conditions doctrine is centuries old, it remains difficult to predict when it applies, and, if it applies, when it is violated. Part I.B of this Note reviews the development and theory of unconstitutional conditions to discern a method for evaluating the validity of computer and Internet restrictions as a condition of supervised release. First, it examines the foundation of unconstitutional conditions theory in commercial and employment cases. Next, it explores the doctrine’s development in free speech and prisoner rights cases. Finally, it distills the leading theories to posit a new framework whereby a condition is unconstitutional if it too stringently restricts protected speech and if the government’s offer is coercive or intended to regulate protected speech indirectly. 1. Unconstitutional Conditions “Doctrine” Arose in Economic Cases and Developed to Encompass Speech and Individual Rights The theory of unconstitutional conditions was first articulated around the dawn of the twentieth century. The Supreme Court gave life to the ideas behind the theory in Insurance Co. v. Morse,98 where it struck down a Wisconsin statute that prohibited insurance companies from transacting business in the state unless they agreed not to use the federal courts.99 The term “unconstitutional conditions” debuted two years later in a case reaffirming Morse, when Justice Joseph P. Bradley wrote in dissent that, “Though a state may have the power, if it sees fit to subject its citizens to the inconvenience, of prohibiting all foreign corporations from transacting business within its jurisdiction, it has no power to impose unconstitutional conditions upon their doing so.”100 The doctrine then laid dormant until the era of Lochner v. New York,101 when the Supreme Court repeatedly rejected state attempts to implement restrictive conditions on businesses.102 The Court initially grounded unconstitutional conditions theory in economic freedom, but would later dramatically expand the scope of the doctrine. Two decades after the demise of Lochner, the Supreme Court broadened the reach of unconstitutional conditions theory to cover individual rights and free speech. In Speiser v. Randall,103 California offered a property tax exemption to World War II veterans who signed an oath of loyalty to the state and federal governments.104 Veterans challenged the exemption on First Amendment grounds, saying the oath restricted their freedom of speech.105 The Supreme Court agreed, finding that the exemption was a government benefit and that the condition improperly infringed on their cognizable speech rights.106 Thus, the unconstitutional conditions doctrine became relevant to analyze a government benefit given in exchange for a personal waiver of an individual’s constitutional right. In subsequent years, the Supreme Court continued expanding the breadth of the unconstitutional conditions doctrine. The Court utilized the theory to strike down conditions on public employment,107 takings of property,108 and receipt of federal funds.109 It also found a condition unconstitutional where receiving government unemployment benefits burdened religious exercise110 and where accepting public employment limited procedural due process.111 Nonetheless, the Court found the government complied with the doctrine in cases involving federalism,112 the tax code,113 and public financing of abortion.114 The Court also found unconstitutional conditions theory inapposite where a law conditioned the receipt of welfare benefits on 2010] a beneficiary consenting to a home visit by a state agency employee.115 In these varied holdings, however, the Court failed to delineate the circumstances that would make a condition pass constitutional muster. 2. If Not All Fundamental Criminal Protections May Be Waived, When Does Offering Early Release from Prison Create an Unconstitutional Condition? As unconstitutional conditions doctrine expanded, its analysis became pertinent in situations where the government offered a convict a more lenient punishment, such as supervised release, in exchange for the waiver of a constitutional right. This section discusses how courts have also examined a bargain that circumscribes the rights of a criminal or prisoner to determine whether it presents an unconstitutional condition. The government may offer a benefit in exchange for a guilty plea,116 but it is difficult to predict whether it may offer a benefit conditioned on the waiver of a constitutional right. a. Waiver of Constitutional Rights in Criminal Cases The Supreme Court has permitted the waiver of constitutional criminal protections without becoming entangled in unconstitutional conditions analysis. As the Court articulated in United States v. Mezzanatto,117 “a criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution.”118 For example, a defendant may receive the benefit of a plea bargain in exchange for waiving, among other things, the right to trial by jury, right against selfincrimination, and right to confront accusers.119 This may allow the government to trade a benefit for a right, even if there is unequal bargaining power, so long as the offer is similar to another choice the beneficiary faces.120 It is black letter law that “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”121 Importantly, though, the knowingness, intelligentness, and voluntariness that are required for a bona fide waiver are each a complicated legal idea subject to a separate standard; “the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.”122 Where a convict is aware of the ramifications of his conduct and acts voluntarily, courts will often uphold the waiver of constitutional criminal rights outside the reach of unconstitutional conditions doctrine. However, not all waivers of constitutional rights are acceptable; the government may not force a prisoner to choose between rights and death. In United States v. Jackson,123 the Supreme Court held the government acted improperly to force a choice between exercising the right to trial and risking capital punishment.124 Congress had passed the Federal Kidnapping Act,125 which authorized a jury to recommend the death penalty but made no such provision for someone who pleads guilty or waives the right to trial.126 The Court affirmed the district court’s holding that the provision was invalid because “it makes ‘the risk of death’ the price for asserting the right to jury trial.”127 The Court noted that no matter what the government’s objective in inducing the waiver, it “cannot be pursued by means that needlessly chill the exercise of basic constitutional rights.”128 Since Jackson, the Supreme Court has found other limits on the state’s ability to bargain for a citizen’s constitutional rights, noting that some protections “are so fundamental to the reliability of the factfinding process that they may never be waived.”129 For example, the government may not offer a benefit in exchange for a waiver of the right to have conflict-free counsel,130 or the right to a speedy trial,131 because such a waiver may irreparably tip the scales of justice in the go vernment’s favor. Thus, the 2010 ] Court has insisted that there are limits on the waiver of a constitutional right, but has thus far declined to lay down a clear line for determining when that waiver becomes an unconstitutional condition. b. Waiver of Constitutional Rights in Prisoner Cases Just as the Court has set limits on the waiver of constitutional criminal rights, it has also found a prisoner’s ability to waive constitutional rights varies based on the level of incarceration. Like criminal defendants, prisoners subject to harsher punishment have an ascending ability to waive constitutional rights, which gives the government greater power to offer conditions on release. While an incarcerated prisoner retains some constitutional protection, the government may induce an inmate to waive a right where its penological interest in rehabilitation outweighs the impact on a convict’s liberty.132 For example, the government may offer leniency to someone on probation, parole, or supervised release on condition that the convict waive protection against warrantless searches, where the search would likely expose evidence of criminal activity.133 A condition may also be constitutional where the government has a strong interest in mitigating recidivism and using probation to help a prisoner reintegrate into society.134 The prisoner’s limited power to consent does not taint the condition so long as it is assented to freely, and the option to reject the condition and remain in jail is preserved.135 Accordingly, the government’s power to entice waiver of a constitutional right is at its peak when dealing with an incarcerated convict, and decreases as the convict is given additional freedom. The government may also offer a benefit in exchange for a prisoner waiving his right not to speak without creating an unconstitutional condition. In Ohio Adult Parole Authority v. Woodard,136 an incarcerated prisoner faced the difficult choice between foregoing parole by exercising his right to remain silent, or incriminating himself.137 The appellate court found the condition unconstitutional but the Supreme Court reversed, holding the doctrine not violated because the condition ga ve the prisoner a 2010 ] condition also prevents the government from using its advantage to restrict rights for a particular group of citizens, which would create a lower class of rights-holders,197 or enforcing a waiver that harms a third party.198 Consequently, like in the government funding cases,199 a condition’s effect may be satisfactorily narrow where the government offers a benefit in exchange for a condition, within its regulatory powers, that it could instead have imposed directly.200 The third prong is necessary but not sufficient; a condition that has an acceptable effect will not automatically be constitutional, but may be if the condition also passes the coercion and purpose prongs of this Note’s framework. To summarize this Note’s new three-prong framework, a condition is unconstitutional where the government coerces a beneficiary into accepting its offer, or where the government has an improper purpose for pursuing a condition. However, because the government is less likely to act coercively where it has a legitimate motive, and vice-versa, the effect prong judges whether a condition overly restricts protected speech as a backstop for invalid conditions that satisfy the coercion and purpose prongs. While this framework is new, courts have already discussed the theory of unconstitutional conditions in prison and free speech cases. However, courts have not considered the doctrine in hybrid cases where the government offers a convict supervised release with a restriction on computer and Internet access. c. Using This Note’s New Three-Part Framework To Analyze a Supervised Release Condition That Limits Access To Technology Though courts have not so scrutinized a supervised release condition that circumscribes computer and Internet access, this Note posits that such a limitation may present an unconstitutional condition because the government is offering a voluntary benefit conditioned on the waiver of a constitutional right.201 The government benefit comes in the form of an offer of supervised release, which it is not obligated to provide because a criminal conviction forfeits one’s right to liberty until the sentence is completed.202 Moreover, that offer is a benefit because freedom is valuable, and accepting supervised release affords a convict more freedom than incarceration.203 The conditional waiver creates an unconstitutional conditions concern when the government requires that the convict choose between accepting the benefit and retaining the free speech rights to which he is entitled while on supervised release.204 A condition that restricts Internet speech may violate that right where it needlessly prevents a convict from accessing the principal modern means for communication and participation in public life.205 To complete this analysis, Part II reframes the reasoning of courts that assessed the validity of a computer and Internet restriction on other grounds to answer the question not yet asked: does an offer of supervised release with a condition that curbs computer and Internet use create an unconstitutional condition? II. APPLYING THE COERCION-PURPOSE-EFFECT FRAMEWORK: IS A SUPERVISED RELEASE RESTRICTION ON COMPUTER AND INTERNET ACCESS AN UNCONSTITUTIONAL CONDITION? Since the dawn of the Internet, courts have wrestled with how to punish criminals convicted of computer crimes related to child pornography. Many of these cases present similar facts: law enforcement, whether via tip or sting operation,206 catches a male possessing or distributing child pornography.207 Threatened with harsh punishment,208 he pleads guilty and submits himself for sentencing before a judge.209 The trial judge, with input from the Probation Office, prosecutor, and defendant, sentences the convict to serve jail time, followed by a term of super vised release, with a 2010 ] condition that restricts computer and Internet access.210 Then the convict appeals, contending that the trial court abused the discretion allowed by the sentencing guidelines, and asks the appellate body to strike the supervised release condition.211 Building on the discussion of the First Amendment and unconstitutional conditions theory in Part I, Part II analyzes whether a condition of supervised release that restricts computer and Internet access creates an unconstitutional condition. It does so first by analyzing the cases that have considered these conditions, then, second, by recasting these decisions to fit this Note’s three-prong framework to determine whether a condition is unconstitutional. First, Part II.A takes up the coercion prong, considering cases where the government’s conditional offer compelled a convict to waive a constitutional right and where it did not. Next, Part II.B evaluates the purpose prong, discussing where the government’s intent in offering a condition was valid and where it was not. Then, Part II.C assesses the effect prong, explaining where the condition’s consequence was acceptable and where it was overbroad. A. Prong One: When Is a Condition Coercive? This section discusses the divergent views regarding the coerciveness of a condition of supervised release that restricts computer and Internet access. First, it explains that some courts find that the government acts coercively where a convict cannot realistically reject its conditional offer of freedom with limited computer and Internet use. Then, it refashions the reasoning of these courts to fit the coercion prong of this Note’s framework. Next, it explores the opposing view—that the government does not act coercively where a convict voluntarily agrees to accept its conditional offer as the price for liberty, and then again reframes the logic of these latter courts in terms of the coercion prong of this Note’s framework. 1. A Condition May Be Coercive If the Government Leaves a Convict No Choice but To Accept the Offer and Restriction Courts have found that the government may be acting coercively when it offers a convict a condition of supervised release that restricts all access to Internet and computer technology. The government purports to offer the convict a voluntary choice between accepting a lifetime term of supervised release, without computer or Internet access, and spending more time in jail.212 However, courts have rejected such absolute limitations, even where a condition included an exception that allowed computer use for word processing,213 because a convict may be incapable of balancing his 210. See, e.g., United States v. Sofsky, 287 F.3d 122, 12425 (2d Cir. 2002); Paul, 274 F.3d at 15960; see also supra note 201 and accompanying text. 211. See supra note 8 and accompanying text. 212. See Doe v. Marion Cnty., 566 F. Supp. 2d 862, 87879 (S.D. Ind. 2008) . 213. See United States v. White, 244 F.3d 1199, 1205 n.7 (10th Cir. 2001) (finding a modem inside a standard computer may render a restriction absolute). But see Thielemann, inherent liberty interest with the impact of “lifetime cybernetic banishment” that forfeits access to the critical technology that has permeated daily life.214 For example, in United States v. White,215 the U.S. Court of Appeals for the Tenth Circuit overturned a condition that restricted all Internet and computer use because it would have made modern life functionally impossible.216 The court found the condition placed the convict in a no-win situation where he would no longer be incarcerated but would gain freedom in a Potemkin village, without the ability to visit a library, café, or airport.217 Other circuits have followed this reasoning, rejecting a similar condition because it would have rendered life outside of prison “exceptionally difficult” by preventing a convict from filing taxes electronically, engaging in online commerce, and accessing government resources on the Internet.218 Moreover, the length of a term of supervised release magnifies the prohibition’s impact, leading courts to reject a lifetime condition but approve a similar condition of limited duration.219 The prospect of trading a prison term for life without the use of important technology has given courts reason to reject a restrictive condition on supervised release. A condition that completely restricts computer and Internet access may be coercive and fail the first prong of this Note’s framework for unconstitutional conditions. A condition that leaves a convict no functional choice but to accept is the archetype of altered decision making, as few would voluntarily choose to forego access to Internet and computer technology.220 Though the prisoner does get the valuable benefit of freedom in exchange, the state’s threat to keep a convict imprisoned may be sufficiently powerful to entice him to agree to give up the modern day mailbox, telephone, bank, storage cabinet, and key to the world’s combined knowledge.221 This makes the condition arguably similar to pleading guilty to avoid the threat of capital punishment, where a convict cannot rationally weigh the true costs, benefits, and impact of a f undamentally life-altering 2010 ] choice.222 Some courts would likely find that a condition would be unconstitutional where a convict’s will would be overborne by the state’s alluring offer, leaving him powerless to reject a lifetime condition and constructively coerced into accepting it. 2. However, a Condition May Not Be Coercive If a Convict Knowingly and Voluntarily Accepts the Bargain Under other circumstances, courts have upheld the government’s offer of conditional release where the convict made an informed decision about whether to remain incarcerated or accept freedom with a restriction on computer and Internet use. For example, in United States v. Daniels,223 the U.S. Court of Appeals for the Ninth Circuit accepted a lifetime term of release that limited computer and Internet use because the government had offered the convict the choice of either remaining in lockup or gaining freedom with a condition, and the convict expressly, knowingly, and voluntarily accepted.224 The court noted that using contract principles to evaluate a condition would protect a convict because a voluntary agreement would be ineffective unless the government fully informed the convict about the agreement’s details and assent was not forced.225 Moreover, understanding the terms of a condition had put the convict on notice, and vindicated the imposition of a technology condition as punishment for violating more lenient terms of release.226 Other circuits have approved an absolute restriction for a limited duration, finding a convict could reject the benefit because, though “computers and the Internet have become significant and ordinary components of modern life as we know it, they nevertheless still are not absolutely essential to a functional life outside of prison.”227 While a convict could not easily reject the offer of a valuable conditional benefit, courts have found meaningful distinctions between voluntary and coerced acceptance. Recasting the reasoning of courts that have upheld a limit on computer and Internet use in light of this Note’s framework, and relying on contract law, a voluntary waiver would likely pass the coercion prong where a convict has the power to reject the benefit and condition. This would allow the convict to choose the option he deems in his best interest, which could be conditional release, and permits a convict to trade speech rights for liberty while saving taxpayers the cost of incarceration.228 Following this paradigm, the court best protects a prisoner’s rights by ensuring he is fully informed and understands the potential long-term impacts of any agreement. In this vein, a knowledgeable convict who voluntarily chose to accept the benefit of release and corresponding burden may be more like an organization electing to accept conditional federal funds, and the court may determine coercion was not involved.229 This analogy justifies courts that have analyzed a supervised release condition from a contract perspective, and found no coercion in a voluntary agreement between the state and prisoner. B. Prong Two: When Is the Government’s Purpose Improper? Like the coercion issue, courts have split on analyzing the government’s motive for offering a condition of release. This section highlights the decisions of courts that have ruled on the validity of the government’s purpose for offering a condition of supervised release that limits technology access. First, it explains that some courts find the government’s purpose may be improper where a condition is unrelated to the crime and shows the government intends to regulate speech indirectly. Then, it reframes the reasoning of these courts to fit the purpose prong of this Note’s framework. Next, it addresses the opposite view, juxtaposing the position that the government’s purpose may be valid where it acts to boost public safety and offers exceptions to a condition. Finally, it recasts the reasoning of courts that have upheld a condition to fit the second prong of this Note’s unconstitutional conditions framework. 1. The Government May Have an Inappropriate Motive Where It Uses a Condition To Regulate Protected Speech Indirectly Courts have found that the government has an improper purpose for restricting computer and Internet use where the condition regulates activity unrelated to the underlying crime. The government bears a high burden to articulate a legitimate reason for pursuing an expansive condition, and must fully explain the basis for the condition such that it does not leave the convict speculating about the state’s intention.230 Courts ha ve found this 2010 ] standard unmet where there was an insufficient nexus between the condition and the child pornography crime for which it was imposed.231 For example, in United States v. Peterson,232 the U.S. Court of Appeals for the Second Circuit, in a bank larceny case, rejected a condition that prevented a convict from purchasing, using, or possessing a computer because the condition pertained to a previous sex offense.233 The court reasoned that the failure to pursue a condition in an earlier case did not excuse its irrelevance in a later case where it regulated a convict’s employment that was unrelated to the reason for the sentence of supervised release.234 Other circuits have used similar reasoning, finding the government had an improper motive where a supervised release condition given for a child pornography crime sought to limit access to legal adult pornography,235 where technology was not an integral part of the crime,236 or where the ban would prevent the convict from securing employment.237 While the government may pursue supervised release for a variety of reasons, it must narrowly tailor the condition to the crime that gives rise to the particular punishment. A lifetime term of supervised release that limits computer and Internet access but does not include an exception might also show the government has an improper purpose for pursuing the condition. For example, courts have been uncomfortable with a lifelong condition imposed as part of supervised release because of the unknown future consequences and potential to limit the speech of a convict who is later rehabilitated.238 As a result, some courts have found the government evinced an invalid purpose by not including an exception that would allow a probation officer, at her discretion, to grant the convict computer and Internet access in the future.239 Though including a Probation Office exception could create concerns about the court’s power to delegate sentencing,240 it may also show that the government is pursuing the condition in good faith and not seeking to limit speech indirectly.241 Incorporating an exception that allows a convict computer and Internet access may not make a condition per se acceptable, but may ease a court’s reluctance to find the government harbored a valid purpose for pursuing a condition. Recasting the reasoning of courts that have rejected a technology access condition to fit the second prong of this Note’s framework, a condition that restricts activity unrelated to the crime, or lacks an exception, may fail because it indicates an illegitimate government purpose. Such a condition may show that the government seeks to restrict protected speech it could not limit directly, especially where a condition would not be likely to uncover evidence of a crime, or enhance the effectiveness of the prison release system.242 This could make the government’s purpose for promulgating a condition invalid because it would not show a connection between the state interest in the restriction and the crime.243 Likewise, a condition that relates to the crime, or includes an exception, would show that a restriction is constitutional because it is germane to the need for supervised release and not an attempt to censor speech.244 Other courts have found, however, that the state has a valid purpose for a condition that restricts access to technology and enhances public safety. 2. But, the Government’s Intent May Be Valid Where It Offers a Condition To Protect the Public and Provides Exceptions To Allow Computer and Internet Use Some courts have found the government’s purpose is proper where a condition of supervised release is meant to protect the public and assist in a convict’s rehabilitation. For example, a speech-limiting condition has been upheld where it related to the crime and where the government showed how it would enhance public safety or assist reintegration into society.245 Much like the reasoning in Ferber,246 those courts allowed an incidental b urden 2010 ] on the First Amendment because of the damage inflicted on society by child pornography, and the frequency of offender recidivism.247 This danger also justified a lifetime term of release,248 and restricted access to adult pornography, where the government showed a relationship between the offense, the condition, and protecting children.249 Where the government can rationally connect the crime and punishment, it can likely show a valid purpose for offering a condition of supervised release. Courts have also found that the government’s motivation for a condition was proper where it provided an exception to the restriction that limited its scope or duration. For example, the Third Circuit has rejected a lifetime term of supervised release with computer and Internet restrictions, but has accepted a substantially similar condition as part of a shorter term of release.250 The court reasoned that a condition of limited duration left open the possibility that a rehabilitated convict may regain speech rights.251 Additionally, courts have found the government had a proper purpose where it offered an exception that allowed the Probation Office to give prior approval for a convict to use a computer and the Internet, even for a lifetime condition, reasoning that the exception showed that the government did not intend to restrict speech unnecessarily.252 Similar to the Probation Office exception, other courts have supported a condition that allowed a convict to view Internet content that had passed through a filter because the exception showed that the government’s purpose was to restrict inappropriate speech, rather than prevent speech.253 Including an exception to a supervised 247. See United States v. Brigham, 569 F.3d 220, 23235 (5th Cir.), cert. denied, 130 S. Ct. 1013 (2009 ); Crandon, 173 F.3d at 127; cf. McKune v. Lile, 536 U.S. 24, 41 (2002) (weighing rights and preventing recidivism). For a disagreement about the rates of recidivism, see United States v. Russell, 600 F.3d 631, 640 (D.C. Cir. 2010) (Henderson, J., concurring). 248. See United States v. Cope, 527 F.3d 944, 952 (9th Cir.), cert. denied, 129 S. Ct. 321 (2008); United States v. Hayes, 445 F.3d 536, 537 (2d Cir. 2006) . 249. Compare United States v. Thielemann, 575 F.3d 265, 274 (3d Cir. 2009) (noting adult pornography led to contact with minors), cert. denied, 130 S. Ct. 1109 (2010), and United States v. Bee, 162 F.3d 1232, 1235 (9th Cir. 1998) (finding speech condition would curb sexual urges), with United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002) (per curiam) (concluding ban on any pornography was unrelated to child pornography crime); see also supra note 235 and accompanying text. A condition that limits Internet use may relate to the crime even if a computer was not used in its commission. See, e.g., United States v. Moran, 573 F.3d 1132, 113941 (11th Cir. 2009) , cert. denied, 130 S. Ct. 1879 (2010). 250. Compare United States v. Voelker, 489 F.3d 139, 148 (3d Cir. 2007) (rejecting lifetime term of supervision) with Thielemann, 575 F.3d at 27778 (allowing ten-year term) and Crandon, 173 F.3d at 125, 12728 (allowing three-year term). See also United States v. Heckman, 592 F.3d 400, 409 (3d Cir. 2010) (“We do not hold that limited Internet bans of shorter duration can never be imposed as conditions of supervised release for this type of conduct.”). 251. See Thielemann, 575 F.3d at 278. 252. See, e.g., Russell, 600 F.3d at 63839 (surveying Parole Office exception cases); United States v. Stults, 575 F.3d 834, 85556 (8th Cir. 2009) , cert. denied, 130 S. Ct. 1309 (2010); United States v. Rearden, 349 F.3d 608, 62021 (9th Cir. 2003) (collecting earlier cases including Probation Office exception). 253. See, e.g., United States v. Lifshitz, 369 F.3d 173, 193 (2d Cir. 2004) ; United States v. Holm, 326 F.3d 872, 878 (7th Cir. 2003) ; United States v. White, 244 F.3d 1199, 120607 (10th Cir. 2001) . release condition allows the government to show that it is pursuing the condition in good faith to protect the public, rather than regulating protected speech indirectly. Refashioning the reasoning of courts that have upheld a limit on computer and Internet use in light of this Note’s framework, a condition of supervised release promulgated to protect the public, which includes an exception, may indicate valid government intent and satisfy the purpose prong. The government has the authority to regulate activity that harms the public, and it is empowered to maintain the prison release system.254 The government may also add a condition to assist in the regulation of child pornography where it can show it possesses a germane, neutral, and noncensorial interest in the restriction.255 Therefore, where the government acts pursuant to this authority, its purpose is likely proper because its primary intent is not regulating speech. Additionally, the government may harbor multiple bona fide motives for offering supervised release with a technology restriction,256 and the potential for a hidden improper purpose may not automatically render a condition unconstitutional.257 As a result, a condition may be constitutional where the government, by including an exception to permit speech on terms it deems not harmful to the public, demonstrates intent beyond suppressing unpopular speech.258 C. Prong Three: When Is a Condition’s Effect Overly Restrictive? As courts have split on the propriety of the government’s motivation for pursuing a restrictive condition, so too have they diverged on whether a condition limits speech too strictly. This section focuses on the opinions of courts that have discussed when a supervised release condition that limits computer and Internet access has the effect of too broadly restricting speech. It first outlines the view that a condition may be unconstitutional where it indiscriminately limits access to protected speech. Then, it molds the reasoning of courts that have rejected such a condition to fit the effect prong of this Note’s framework. Next, it examines the opposing viewpoint that a condition may be constitutional where it harnesses technology to minimize First Amendment intrusion and protect the public. Finally, it recasts the reasoning of these courts to fit the third prong of this Note’s framework for unconstitutional conditions. 254. See supra notes 3236, 193 and accompanying text. 255. See supra notes 192, 24549 and accompanying text. 256. See, e.g., New York v. Ferber, 458 U.S. 747, 758 & n.9 (1982) (protecting children); Morrissey v. Brewer, 408 U.S. 471, 477 (1972) (saving taxpayer dollars). 257. See United States v. Am. Library Ass’n, 539 U.S. 194, 211 (2003) (plurality opinion) (approving condition where censorship was allegedly intended); Rust v. Sullivan, 500 U.S. 173, 178 (1991) (upholding condition purported to limit abortion access). 258. See supra notes 15859, 252 and accompanying text. 2010 ] 1. A Condition’s Effect May Be Too Restrictive If It Broadly Limits Access to Protected Speech Some courts have held that the effect of a condition of supervised release is too restrictive where it proscribes access to protected speech, especially where the limitation has potentially infinite breadth. As the Tenth Circuit found in United States v. White,259 a condition that restricts computer and Internet access, in order to limit a convict’s access to online child pornography, may also prevent him from obtaining a weather forecast, reading a newspaper, or taking advantage of the Internet’s vast wealth of knowledge.260 Other circuits have found the reasoning in White persuasive, noting that such a condition may slow a convict’s rehabilitation by vitiating his opportunity to engage in appropriate online speech or obtain an education.261 In the extreme, an inartfully worded condition could prevent the convict “from watching any movie on his computer that had children in it . . . [or using] a computer to send his own young relatives birthday cards.”262 Additionally, courts have rejected a condition that restrains access to technology because its scope may expand over time and become unnecessarily harsh as society increases its adoption of Internet and mobile computing technology.263 They have also noted that, following current trends, future content may only be available online and avenues for civic participation would be foreclosed for a convict who cannot access the Internet.264 Moreover, a condition that limits technology because of a child pornography crime may have a relatively more restrictive effect than a similar condition imposed for another crime. For example, where a fraud is committed over the telephone or through the mail, a condition would be invalid where it restricted subsequent use of the telephone or postal service.265 Likewise, where a publication violates an obscenity law, a condition that limited access to printed material would also be invalid because of the impact on free speech;266 as courts have noted, the government may not limit access to online speech any more than it could limit access to speech in the tangible world.267 Where a condition indiscriminately and disproportionately prevents a convict from accessing protected speech, the condition’s effect may be impermissibly broad. An expansive condition that prevented access to a bevy of protected speech without concomitant benefit to public safety would most likely have an overbroad effect and fail the third prong of this Note’s unconstitutional conditions framework. Even where the condition was circumscribed with narrowly tailored restrictions, the effect of a technology restriction may increase as the condition becomes more commonplace and more released convicts accept a world without Internet.268 This would reduce the aggregate amount of online speech and could provide dangerous precedent with potential to harm society’s collective ability to exercise free speech rights,269 minimize exposure to different opinions, and potentially remove controversial viewpoints from the marketplace.270 Moreover, a limit on computer and Internet use could drive a wedge between people excluded from modern technology and those who use it, which could exacerbate differences in living conditions over the duration of the condition.271 Such a restriction may also undermine opportunities to participate in a vibrant online community, whether dedicated to social change, shopping, or simply playing games.272 Where a supervised release condition broadly restricts access to modern technology, a court may find the condition unconstitutional. 265. See, e.g., United States v. Voelker, 489 F.3d 139, 145 & n.3 (3d Cir. 2007) ; Scott, 316 F.3d at 737; United States v. Peterson, 248 F.3d 79, 83 (2d Cir. 2001) (per curiam). But see Russell, 600 F.3d at 640 (Henderson, J., concurring) (comparing computer ban to revocation of driver’s license for vehicular homicide). 266. See, e.g., Voelker, 489 F.3d at 145; United States v. Sofsky, 287 F.3d 122, 126 (2d Cir. 2002); supra notes 4347 and accompanying text (reviewing Miller and speech regulations). 267. See, e.g., Voelker, 489 F.3d at 145; Sofsky, 287 F.3d at 126; Peterson, 248 F.3d at 83; see also supra note 68 and accompanying text (noting coterminous limit on online and printed speech regulation). 268. See supra note 195 and accompanying text. 269. See United States v. Holm, 326 F.3d 872, 878 (7th Cir. 2003) ; supra notes 19598 and accompanying text. 270. See supra notes 15459 and accompanying text (discussing danger of speech suppression). 271. See Holm, 326 F.3d 872, 878 (7th Cir. 2003) ; supra notes 19798 and accompanying text (highlighting constitutional castes). An analogous, though non-invidious, rift occurs as a younger generation adopts new technology that an earlier generation finds difficult to comprehend. 272. See RIDEOUT ET AL., supra note 59 (categorizing online activities); Whitney, supra note 59 (same); supra note 63 and accompanying text (examining political engagement trends). 2010] 2. Nevertheless, a Condition’s Effect May Be Permissibly Restrictive If It Minimally Limits Speech While Enhancing Public Safety Even where a condition constrained a convict’s ability to avail himself of protected speech, courts have found the limitation justified because of the need to protect the public from egregious offenders. For example, in United States v. Paul,273 the U.S. Court of Appeals for the Fifth Circuit explicitly rejected the Tenth Circuit’s reasoning in United States v. White,274 which had held that a condition was invalid where it inhibited access to online news, weather, and research.275 Instead, the Fifth Circuit found that a condition may be acceptable where the convict had used the Internet to solicit physical contact with a minor and the condition’s deterrent effect justified proscribing online content; on balance the public benefit from reduced recidivism and enhanced safety, combined with a sufficient connection between the crime and punishment, outweighed First Amendment concerns.276 Other courts have found the reasoning in Paul persuasive, upholding a limit on computer and Internet access where a convict used those technologies to facilitate direct child exploitation.277 Thus, infringement on First Amendment rights may be permissible where necessary to ensure the public is safe from sex offenders. Courts have also supported a supervised release condition that adopts exceptions to add precision and narrow the scope of its limitations. As discussed earlier, including an exception that authorizes the Probation Office to supervise a convict’s access to the Internet shows good faith while mitigating the heavy-handed effect of a ban and minimizing First Amendment intrusions.278 Going a step further, courts have favored a condition that employed computer-monitoring or Internet-filtering technology to perforate a condition, thereby affording a convict online access without abetting illegal activity.279 In some cases, courts have even required the convict to pay the subsequent monitoring and filtering cost.280 While acknowledging that filtering or monitoring may be no more effective or enforceable than prohibiting Internet access,281 courts have noted that harnessing technology may enhance a condition’s deterrent effect and facilitate a subsequent search of the content he accessed by enabling the government to view and inspect, remotely or in person, a convict’s computer activity.282 Technology could also be used to revise the condition later to ensure it remains effective and narrowly tailored.283 These measures may also help bridge the gap between protecting the public and fostering normal participation in the modern world.284 As Justice John Paul Stevens noted, filters may succeed at “protecting minors from sexually explicit Internet materials as well or better than attempting to regulate the vast content of the World Wide Web at its source, and at a far less significant cost to First Amendment values.”285 Courts favorably view efforts to utilize technology to narrowly tailor a condition’s effect such that it limits encroachment on a convict’s protected speech and prevents electronic excommunication. Recasting the reasoning of courts that have upheld a limit on computer and Internet use to fit this Note’s new framework, the effect prong may be satisfied where a condition utilizes technology to reduce First Amendment infringement, and enhance public safety. A narrowly tailored condition that uses technology to constrain improper activity may be acceptable simply because it strengthens public safety and protects children from exploitation.286 Further, using technology to filter and monitor Internet content may be the most efficient method of restricting content without creating an unconstitutional condition,287 and strikes the optimal balance 2010 ] between ensuring safety and allowing speech.288 Including an exception to allow for future modification of the condition can also prospectively prevent an unconstitutional condition from developing later. Moreover, tailoring in each case could facilitate government evenhandedness that equalizes the ability of convicts and non-convicts to exercise freedom of speech without harming society.289 Finally, instituting a monitoring regime to search a convict’s computer would follow unconstitutional conditions precedent in prisoner cases, where courts have upheld a condition of release that required a convict to consent to a search aimed at exposing evidence of criminal activity.290 A condition of supervised release equipped with measures to minimize potential over-regulation of speech would likely have a restrained effect and satisfy the effect prong of this Note’s framework for unconstitutional conditions. Part II illuminated the cases where courts have ruled on a condition of supervised release that restricted access to technology without discussing unconstitutional conditions theory. Then it recast the reasoning of those courts to evaluate this Note’s framework for unconstitutional conditions, examining in turn the arguments as they corresponded to the coercion, purpose, and effect prongs. Part III takes up this Note’s framework to resolve the conflict in Part II, articulating when a restriction on computer and Internet access, as part of supervised release, is a constitutional condition. III. THE GOVERNMENT MAY OFFER SUPERVISED RELEASE, WITH A CONDITION THAT RESTRICTS TECHNOLOGY ACCESS, WITHOUT CREATING AN UNCONSTITUTIONAL CONDITION A condition of supervised release that restricts computer and Internet access will often pass this Note’s unconstitutional conditions framework. First, rejecting traditional tests for coercion and evaluating it according to contract principles, a condition fulfills the first prong if a convict knowingly and voluntarily accepts the government benefit and the corresponding rights burden. Second, a condition passes the purpose prong if the restriction relates to the crime, and an exception to the condition shows the government’s intent goes beyond regulating speech. Finally, a condition satisfies the effect prong by using defense as good offense; a constitutional condition employs filtering and monitoring technology to minimize First Amendment infringement and enhance the deterrent effect of a condition, rather than limiting technology use. 288. See Kreimer, supra note 22, at 134751. This balance could be struck by modifying a convict’s Internet hardware to make it more like an information appliance than a personal computer. See generally ZITTRAIN, supra note 279, at 5760 (contrasting centralized control and what Professor Zittrain terms generative platforms). 289. See supra notes 19798 and accompanying text. 290. See supra notes 133, 282 and accompanying text; see also United States v. Miller, 594 F.3d 172, 188 n.10 (3d Cir. 2010) (declining to challenge search condition). A. A Condition Fulfills the Coercion Prong, Viewed Through Contract Law, Where a Convict Knowingly and Voluntarily Accepts the Conditional Offer Taking up the first prong of this Note’s framework, the difficulty of discerning when a government offer of a voluntary benefit becomes coercive undermines the value of the analysis. For many years, courts and scholars have sought to delineate when a government offer is unconstitutionally coercive.291 However, despite numerous efforts, there remains no clear test.292 For example, past attempts failed at categorizing a valid condition based on a right/privilege or penalty/nonsubsidy distinction,293 or describing an invalid condition as one that is improperly coercive.294 As a result, the task of demarcating when a convict constructively cannot reject a government offer of supervised release, though he is actually empowered to reject that offer, is exceedingly difficult and unworthy of the effort. Moreover, incorporating a court’s subjective understanding of the underlying ability of a convict to reject an offer creates an opportunity for inconsistency, allowing a judge to identify coercion using Justice Potter Stewart’s famous line for spotting pornography: “I know it when I see it.”295 If that takes place, case law precedent will become more muddled, while a definition for coercion will be no clearer, and judges will still lack a tool for determining when a condition is constitutional. To avoid ends-oriented analysis, and the thorny problem of defining coercion, it is best to evaluate the first prong of this Note’s framework using contract law principles. Though contract theory cannot fully capture the special power imbalance that occurs when the government offers a convict a voluntary benefit, it does offer a cogent and doctrinally consistent lens for viewing the acceptance of an offer.296 Unlike issues with indentifying coercion, there is agreement that a contract is valid where both parties assent knowingly, intelligently, and voluntarily.297 Courts have consistently used contract law to analyze agreements between the government and a criminal, including situations where the government offered a more lenient punishment in exchange for a convict waiving a constitutional right.298 Courts have also used the concepts of knowingness, intelligentness, and voluntariness to separate cases where the government improperly forced a convict to accept an offer from cases where the government merely made it hard for the convict to reject the offer.299 Similarly, courts should have no problem using these principles to evaluate 291. See supra notes 182, 18486 and accompanying text. 292. See supra notes 182, 18486 and accompanying text. 293. See supra notes 17980 and accompanying text. 294. See supra note 181 and accompanying text. 295. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). It was not until Miller that the Supreme Court identified a clear line for obscenity. See supra notes 4347 and accompanying text. 296. See supra note 189 and accompanying text. 297. See, e.g., supra notes 11722, 165 and accompanying text. 298. See supra Part I.B.2 (explicating prisoner case precedent). 299. See supra notes 12022 and accompanying text. 2010 ] whether the government is coercive when it voluntarily offers supervised release in exchange for a convict waiving some of his right to free speech.300 Therefore, contract principles can be applied effectively to evaluate the government’s offer of supervised release and determine when a condition becomes unconstitutionally coercive. Analyzing a condition through the contract paradigm creates a meaningful test for resolving whether the government’s offer of supervised release with a technology restriction presents an unconstitutional condition. As a threshold matter, the government must fully apprise a convict of the consequences of accepting release, including the details and length of a condition, to mitigate the risk that a convict’s wishes will be overborne and decision-making process altered.301 An informed convict is thus empowered to reject any government benefit, no matter how valuable, once he can rationally weigh the options and determine his best interest.302 While the restriction may be harsh, the vast body of contract and unconstitutional conditions case law protects a convict by rendering unenforceable any agreement that harms a third party or where assent was forced.303 Therefore, a condition passes the coercion prong of this Note’s framework where an informed convict knowingly and voluntarily accepts a government benefit and burden. Finally, courts can minimize concerns of an unduly coercive condition by drafting and interpreting a technology-limiting condition to comport with modern life. For example, where the notion of Internet “access” once meant the ability to take one of the relatively few on-ramps to the “information superhighway,” in today’s ubiquitous Wi-Fi world, “access” should mean an actual connection to the Internet. This would resolve the White court’s fears of a convict being restricted from entering a library, coffee shop, or airport, while rejecting the premise that Internet use is a modern convenience that may be restricted merely because it is inessential to life.304 Moreover, modern technology may be powerful, but many people are able to live without convenient access to a computer or the Internet, and a lifetime jail term remains distinguishable from capital punishment.305 A convict should be similarly entrusted to choose to live without such technology by exchanging access to it for increased liberty. However, to bolster protection against the government coercing a convict into accepting a condition that broadly limits technology access, the government must also show it does not seek to regulate speech indirectly. 300. See supra note 189 and accompanying text. 301. See supra notes 18788 and accompanying text. 302. See supra notes 189, 222 and accompanying text. 303. See supra notes 198, 225 and accompanying text. 304. See supra notes 21517, 22627 and accompanying text. 305. See supra notes 28, 5761 and accompanying text. B. A Condition Satisfies the Purpose Prong Where the Government Seeks To Boost Public Safety and Includes Exceptions To Allow Access to Technology A condition that restricts computer and Internet access satisfies the purpose prong of this Note’s unconstitutional conditions framework where the government intends to protect the public rather than indirectly regulate protected speech. There is no doubt that production, distribution, and possession of child pornography inflicts tremendous and lasting harm on children and society.306 The damage is so severe that the Supreme Court held the First Amendment does not protect material that depicts sexual conduct by minors and permitted content regulation outside the Miller obscenity standard.307 Especially as modern technology has made it easier for deviants to spread injurious content, the government deserves deference when it promulgates a condition of supervised release that aims to curb trafficking in such destructive material.308 Accordingly, courts should allow the government to offer a condition which it deems necessary to reduce recidivism by a released convict, a foundational state charge,309 and should presume that a condition that limits access to technology is constitutional where it relates to a child pornography crime that was committed using a computer. Presuming the government acts with a proper purpose squares with the approach taken by courts to date. While some courts have scrutinized the government’s reason for a condition,310 more often courts have made conclusory statements approving a condition because the government said it sought to improve public safety.311 However, by specifically stating that it is deferring to the government because protecting children from online predators is paramount, a court can follow First Amendment precedent related to Internet speech.312 This also allows the court to bless the state’s purpose without giving short shrift to unconstitutional conditions doctrine. However, courts should not operate as a rubber stamp when the government acts with an improper purpose by seeking a condition unrelated to the crime. To minimize potential coercion in these situations, the government should shoulder the burden to articulate some reason why a condition will enhance the safety of the public vis-à-vis a convict released from prison.313 As the Second Circuit has stated, the government will satisfy this burden, and demonstrate it acts with proper purpose, where it can make a logical connection between the condition, public safety, and the child pornography crime.314 Other circuits have found this approach 306. See supra note 17 and accompanying text. 307. See supra notes 4855 and accompanying text. 308. But see supra note 230 and accompanying text. 309. See supra Part I.B.2 (balancing prisoner rehabilitation, early release, and public safety). 310. See supra Part II.B. 311. See supra notes 6993 and accompanying text. 312. See supra notes 4860 and accompanying text. 313. See supra note 230 and accompanying text. 314. See supra notes 23234 and accompanying text. 2010 ] persuasive, adding the important caveat that the government will fail to meet its burden, even where it expresses a public safety rationale, where a condition restricts employment, speech, or association that bears minimal relationship to the crime.315 The government’s purpose will also be suspect where it seeks a condition because of a prior offense, or a crime committed without utilizing the Internet.316 In practice, this will confine the government to pursuing a condition where it has a valid interest in protecting the public or maintaining the prison release system. To ensure a court finds that the government’s desired condition is constitutional, in part because it meets the purpose prong, the government should show good faith by including an exception that affords a convict computer and Internet access in controlled situations. Of course, a court could interpret a condition that restricts access to technology as an attempt by the government to regulate free speech indirectly.317 However, the government can indicate that it aims for more than indirect regulation by authorizing the Probation Office to permit a convict to engage in appropriate online speech,318 limiting the duration of the condition,319 or employing methods of Internet filtering or computer-monitoring to allow reasonable access to technology.320 This hews closely to the Second Circuit’s approach, which protects minors, offers a convict hope for the future, and expands the body of speech available to all Internet users.321 Even if the government has a proper purpose for a condition and does not coerce a convict, its offer must still be evaluated under the third prong of this Note’s framework for unconstitutional conditions. C. A Condition Meets the Effect Prong Where It Protects Children While Using Technology To Maximize Free Speech A condition passes the effect prong where its impact safeguards children from online predators without unnecessarily restricting access to constitutionally protected speech. There is little doubt that a condition that restricts computer and Internet use might inhibit access to legitimate content including online news, weather, and financial data.322 That condition is also apt to restrict a convict from discussing topics unrelated to his crime and reduce his ability to participate in a vibrant forum for modern speech.323 However, a criminal convict forfeits his full complement of constitutional rights and empowers the government to enact regulations to prevent recidivism.324 Given an all-or-nothing choice, courts would be better to continue following the Fifth Circuit’s approach, expressed in 315. See supra notes 23537 and accompanying text. 316. See supra note 234 and accompanying text. 317. See supra notes 24243 and accompanying text. 318. See supra note 252 and accompanying text. 319. See supra note 250 and accompanying text. 320. See supra note 253 and accompanying text. 321. See Correll, supra note 284; supra notes 27985 and accompanying text. 322. See supra notes 25960 and accompanying text. 323. See supra notes 26164 and accompanying text. 324. See supra notes 132, 202 and accompanying text. United States v. Paul: restricting the internet access of an online child pornography convict is a necessary consequence to guarding against another offense.325 This makes the condition pass the third prong because its primary effect provides a prophylactic against illegal activity that outweighs the harm of reduced First Amendment rights. However, the government should simultaneously adopt the Second Circuit’s approach to supervised release by harnessing Internet-filtering technology to minimize the infringing effect of a condition.326 This system could use whitelisting to permit access to news, weather, finance, education, and other valuable websites, and simultaneously blacklist obviously inappropriate content, such as websites that feature underage subjects.327 It could also take advantage of rapidly emerging technologies such as Geo-ID and next generation filtering methods,328 and follow the trend toward appliancization that is changing the online experience.329 This would create an intermediate zone where a convict would have the opportunity to participate in the electronic public square, but the government would simultaneously be able to prevent him from using that access to recidivate.330 The government could update technology as it develops, ensuring that the filters are revised to have the least possible impact on protected speech,331 and tweak the condition as the vagaries of the communications and technology industries play out while the convict is serving his prison term. To complement a content filter, which leaves open the possibility that a convict will ignore or evade a condition,332 the government should follow the Tenth Circuit by requiring a convict to register computer and Internet devices and give prior consent to electronic searches.333 This would allow the government to execute the search in person, or use electronic search technology, and vary the level of intrusiveness depending on the needs of law enforcement.334 Requiring consent would be consistent with the line of unconstitutional conditions cases which permit the government to offer conditions that are likely to uncover evidence of criminal activity.335 Just as parole offers a convict the opportunity to prove he is ready for release 325. See supra notes 27377 and accompanying text. 326. See, e.g., United States v. Johnson, 446 F.3d 272 (2d Cir. 2006) ; United States v. Balon, 384 F.3d 38 (2d Cir. 2004); United States v. Lifshitz, 369 F.3d 173 (2d Cir. 2004) ; United States v. Sofsky, 287 F.3d 122 (2d Cir. 2002); United States v. Peterson, 248 F.3d 79 (2d Cir. 2001) (per curiam). See generally Correll, supra note 284 (noting Second Circuit’s approach). 327. See supra note 279 and accompanying text. 328. See supra note 279 and accompanying text. 329. See supra note 288 and accompanying text. 330. See supra notes 64, 284 and accompanying text. 331. See supra notes 92, 283 and accompanying text. 332. See supra note 281 and accompanying text. 333. See, e.g., United States v. Vinson, 147 F. App’x 763 (10th Cir. 2005); United States v. Walser, 275 F.3d 981 (10th Cir. 2001) ; United States v. White, 244 F.3d 1199 (10th Cir. 2001) . See generally Janik, supra note 284 (describing Tenth Circuit’s approach). 334. See supra note 282 and accompanying text. 335. See supra note 290 and accompanying text. 2010 ] from prison, these exceptions would allow a convict to prove he is capable of abstaining from cavorting in the Internet’s darkest corners.336 Instituting random electronic checks would also add redundancy to the system and facilitate filter revisions.337 While enforcement will be difficult no matter what method is used, affording a convict a supervised means for accessing the Internet is more likely to encourage appropriate use, and discourage the convict from viewing the unfiltered Internet at a library.338 Further, funneling the convict’s Internet access into places where law enforcement can oversee the activity provides real-time feedback to ensure the condition remains tailored to enhance public safety, aid rehabilitation, and ease reintegration—the ultimate goal of supervised release.339 This rejection of broad limits without exception also acknowledges the multifaceted nature of human beings online;340 while sex offenders who remain focused on destroying young lives should be monitored closely and punished severely, others with a divertible interest in a diversity of topics should be allowed to use computers and the Internet to partake in the positive change and previously inconceivable advances that technology has achieved throughout the world. Therefore, implementing a regime of supervised release that builds on technology to allow a convict appropriate access to the Internet without risking the safety of children has a sufficiently limited effect to comply with the third prong of this Note’s framework for unconstitutional conditions. CONCLUSION Modern technology and the Internet have brought the world closer together by providing the means for inexpensive and instantaneous communication. However, the incredible power of these tools has wrought serious consequences—some segments of the Internet have become havens for child pornographers who traffic in the exploitation and victimization of children. As the number of individuals charged with producing, possessing, or distributing this illicit material has increased, courts and law enforcement have more frequently faced difficult questions about how to best protect the next generation of Americans without giving short shrift to the protection of freedom of speech enshrined in the Constitution’s First Amendment. In response, many courts have coupled a harsh prison term with an offer of supervised release, on condition that a convict agrees to give up computer and Internet access while outside of prison. Though the many circuit courts that have addressed challenges to these punishments have not relied on unconstitutional conditions theory in their rulings, the doctrine is relevant in this situation. Unconstitutional conditions theory posits that if the government is not obligated to provide a benefit, viz. supervised release, the government may not offer that benefit 336. See supra notes 17, 30 and accompanying text. 337. See supra note 283 and accompanying text. 338. See supra notes 57, 281 and accompanying text. 339. See supra notes 28185 and accompanying text. 340. See supra note 272 and accompanying text. on condition that the recipient must forfeit a constitutional right, viz. freedom of speech, in order to accept the offer. While courts and commentators have failed to agree on a unified doctrine through which to apply the theory, this Note takes up the challenge and offers an organizational framework to judge the constitutionality of a condition based on its coerciveness, the government’s purpose, and the condition’s effect. When this framework is applied to an offer of supervised release with a condition that limits computer and Internet access, the condition passes as constitutional. Viewing the coercion prong of this framework according to contract principles, a condition passes the test where a convict knowingly and voluntarily agrees to accept a term of supervised release with the concomitant restriction on speech. However, because the government so rarely compels acceptance of supervised release, the purpose prong of this Note’s framework ensures the government is not offering the conditional benefit to regulate speech indirectly, and that a condition that restricts technology actually relates to the child pornography crime. Finally, a condition satisfies the effect prong where the restriction protects minors and harnesses Internet-filtering and computer-monitoring technology to minimize infringement of a convict’s First Amendment rights. Where a condition passes all three elements of this Note’s framework, it is a constitutional condition. A. The Scope and Limits of First Amendment Freedom of Speech ..................................................................................... 222  1 . A Convict 's Enjoyment of First Amendment Speech Rights Depends on His Level of Incarceration ................. 223  2. The Government's Power To Limit Enjoyment of Sexually Explicit Material Depends on the Type of Content .............................................................................. 225  3. Freedom of Speech and the State's Authority To Regulate Sexually Explicit Content Are Evolving in the Internet Age....................................................................... 227 B. The Theory of Unconstitutional Conditions............................... 230  1 . Unconstitutional Conditions “ Doctrine” Arose in Economic Cases and Developed to Encompass Speech and Individual Rights ........................................................ 231  2 . If Not All Fundamental Criminal Protections May Be Waived , When Does Offering Early Release from Prison Create an Unconstitutional Condition? . ................. 233  a. Waiver of Constitutional Rights in Criminal Cases ...... 233 b. Waiver of Constitutional Rights in Prisoner Cases ...... 235 3. Even the Supreme Court Cannot Decide When a Speech Restriction Is an Unconstitutional Condition? . ................. 236  a. Unconstitutional Conditions in Free Speech Cases ...... 236 b. Constitutional Conditions in Free Speech Cases .......... 238 4. Offering a New Framework for Unconstitutional Conditions Analysis: Applying Coercion-PurposeEffect to a Condition That Restricts Access to Technology........................................................................ 239  a. Existing Theories for Understanding Unconstitutional Conditions....................................... 240  b. A New Three-Prong Framework: Coercion-PurposeEffect ........................................................................... 241  c. Using This Note's New Three-Part Framework To Analyze a Supervised Release Condition That Limits Access To Technology ..................................... 243 II. APPLYING THE COERCION-PURPOSE-EFFECT FRAMEWORK : IS A SUPERVISED RELEASE RESTRICTION ON COMPUTER AND INTERNET ACCESS AN UNCONSTITUTIONAL CONDITION?. ............ 244  A. Prong One: When Is a Condition Coercive? . ........................... 245  1 . A Condition May Be Coercive If the Government Leaves a Convict No Choice but To Accept the Offer and Restriction ......................................................................... 245  2. However, a Condition May Not Be Coercive If a Convict Knowingly and Voluntarily Accepts the Bargain ............. 247  B. Prong Two: When Is the Government's Purpose Improper? ... 248 1. The Government May Have an Inappropriate Motive Where It Uses a Condition To Regulate Protected Speech Indirectly............................................................... 248  2. But, the Government's Intent May Be Valid Where It Offers a Condition To Protect the Public and Provides Exceptions To Allow Computer and Internet Use ............ 250 C. Prong Three: When Is a Condition's Effect Overly Restrictive? . ............................................................................ 252  1 . A Condition's Effect May Be Too Restrictive If It Broadly Limits Access to Protected Speech ..................... 253  2. Nevertheless, a Condition's Effect May Be Permissibly Restrictive If It Minimally Limits Speech While Enhancing Public Safety ................................................... 255 III. THE GOVERNMENT MAY OFFER SUPERVISED RELEASE, WITH A CONDITION THAT RESTRICTS TECHNOLOGY ACCESS, WITHOUT CREATING AN UNCONSTITUTIONAL CONDITION . .......................... 257  A. A Condition Fulfills the Coercion Prong, Viewed Through Contract Law, Where a Convict Knowingly and Voluntarily Accepts the Conditional Offer................................................. 258  B. A Condition Satisfies the Purpose Prong Where the Government Seeks To Boost Public Safety and Includes Exceptions To Allow Access to Technology............................ 260 C. A Condition Meets the Effect Prong Where It Protects Children While Using Technology To Maximize Free Speech ..................................................................................... 261 CONCLUSION ............................................................................................. 263  6 . Id. at 268  69 . 7. See id. at 270 (alterations in original) . 8. Opening Brief for Appellant Thielemann at 29 31, Thielemann , 575 F.3d 265 (No. 08- 2335 ). 9. Thielemann, 575 F.3d at 278. 10. See id.; United States v. Harding , 57 F. App 'x 506 , 508 ( 3d Cir . 2003 ); United States v. Crandon, 173 F.3d 122 , 127 - 28 ( 3d Cir . 1999 ). 11 . See United States v. Voelker , 489 F.3d 139 , 144 ( 3d Cir . 2007 ); United States v . Freeman , 316 F.3d 386 , 391  92 ( 3d Cir . 2003 ). 12 . See Recent Case , Criminal Law-Supervised Release-Third Circuit Approves Decade-Long Internet Ban for Sex Offender-United States v . Thielemann , 575 F. 3d 265 (3d Cir . 2009 ), 123 HARV. L. REV. 776 , 779 ( 2010 ) ; see generally Krista L . Blaisdell, Note, Restrictions for Internet Sex Offenders , 43 VAL. U. L. REV. 1155 ( 2009 ) (outlining circuit split on the issue) . 13 . Amir Efrati , Making Punishments Fit the Most Offensive Crimes, WALL ST . J., Oct. 23, 2008 , at A14 (noting cases of child exploitation via computer have more than doubled in five years , to 2211 federal cases in 2008 ); The Steady Stream of Child Porn Sentencings, SENT'G L. & POL'Y (May 2 , 2009 , 12 :13 PM), http://sentencing.typepad.com/sentencing_law_and_policy/ 2009 /05/the-steady -stream-of- pornography) . 14 . See United States v. Stults , 575 F.3d 834 , 855  56 ( 8th Cir . 2009 ); United States v . Perazza-Mercado , 553 F.3d 65 , 69  74 ( 1st Cir . 2009 ); United States v . Sullivan , 451 F.3d 884 , 895 96 ( D.C. Cir . 2006 ); United States v . Balon , 384 F.3d 38 , 43  46 ( 2d Cir . 2004 ); United States v . Granger , 117 F. App 'x 247 , 248  49 ( 4th Cir . 2004 ); United States v . Rearden , 349 F.3d 608 , 620  22 ( 9th Cir . 2003 ); United States v . Taylor , 338 F.3d 1280 , 1284  85 ( 11th Cir . 2003 ); United States v . Holm , 326 F.3d 872 , 877  79 ( 7th Cir . 2003 ); 23 . See STONE ET AL., supra note 21 , at 3 (comparing Justice Hugo Black's absolutist upholding restrictions) . 24 . 416 U.S. 396 ( 1974 ). 25 . See id. at 412 13; see also Thornburgh v. Abbott , 490 U.S. 401 , 408  14 ( 1989 ) (reviewing prison speech regulations under a reasonableness standard) . 26. See Procunier , 416 U.S. at 413  14 . 27. See id. ; see also Thornburgh , 490 U.S. at 403  04 , 415; Turner v. Safley , 482 U.S. 78 , 91  94 ( 1987 ). 28 . See Karen J. Hartman , Prison Walls and Firewalls: H.B. 2376 Arizona Denies Inmates Access to the Internet, 32 ARIZ . ST. L.J. 1423 , 1430 ( 2000 ) ; Titia A . Holtz, Note, Internet , 67 BROOK. L. REV. 855 , 860  66 ( 2002 ) (scrutinizing regulations prohibiting inmate Internet access) . 29 . See , e.g., Michael James, Learning Behind Bars, BALT . SUN, Feb. 12 , 2001 , at C1. (Aug. 13 , 2010 , 4 :21 PM), http://blogs.wsj.com/law/2010/08/13/texas-prison-is-technology- vortex-allen-stanford-says/ . 37. United States v. Reyes , 283 F.3d 446 , 461 ( 2d Cir . 2002 ) (quoting United States v . Cardona , 903 F.2d 60 , 63 ( 1st Cir . 1990 )). 38 . United States v. Lifshitz , 369 F.3d 173 , 181 n. 4 ( 2d Cir . 2004 ) (citing Reyes, 283 F.3d at 461)) . 39 . See Reyes, 283 F. 3d at 455 (recounting the history, structure, and purpose of supervised release); see also 18 U.S.C. §§ 3602  3603 ( 2006 ) (describing appointment and visited Sept . 23 , 2010 ). 40 . See United States v. Reese , 71 F.3d 582 , 588 ( 6th Cir . 1995 ); see also 18 U.S.C. § 3583(d) (listing criteria for imposition of supervised release); Gozlon-Peretz v . United States , 498 U.S. 395 , 407  08 ( 1991 ) (discussing the history of supervised release ). 41. See supra notes 2427, 3436 and accompanying text; cf. Reyes, 283 F.3d at 462 continuum of punishment) . 42 . Ginsberg v. New York, 390 U.S. 629 , 631  33 ( 1968 ). 43 . 413 U.S. 15 , 16 ( 1973 ) (re-examining precedent on “the intractable obscenity problem” (quoting Interstate Circuit, Inc . v. City of Dallas, 390 U.S. 676 , 704 ( 1968 ) (Harlan , J., concurring and dissenting))) . 44 . Id. at 16  18 . 45. Id. at 36 . 46. Id. at 23  24 . 63. See Reno v . ACLU , 521 U.S. 844 , 868 ( 1997 ) (expounding on “the vast democratic INTERNET AND CIVIC ENGAGEMENT 312 ( 2009 ), available at http://www.pewinternet.org/~/media//Files/Reports/2009/The_Internet_and_Civic_ Internet , 27 WM. MITCHELL L. REV. 1797 ( 2001 ) ; Claire Cain Miller, How Obama's Internet Campaign Changed Politics , N.Y. TIMES BITS BLOG ( Nov . 7, 2008 , 7 :49 PM), http://bits.blogs.nytimes.com/ 2008 /11/07/how-obamas -internet-campaign-changed-politics. voting, online or otherwise . See Caron v. United States , 524 U.S. 308 , 316 ( 1998 ). 64 . See Reno, 521 U.S. at 870 ( using “chat rooms, any person with a phone line can LAWRENCE LESSIG , CODE: VERSION 2 .0, at 236 ( 2006 ) (noting the Internet has eroded barriers to publication). 65. LESSIG, supra note 64 , at 237. Though extolling the Internet's virtues , Lessig also believes it can and must be regulated . See id. at 27  28 . 66. Id ., at 275 . 67. See id. at 237  41 . The recent controversy over publication by Wikileaks of Baxter , Lawyers Emerge from Wikileaks Shadows , AM. L. DAILY ( July 26 , 2010 , 7 :58 PM), http://amlawdaily.typepad.com/amlawdaily/2010/07/wikileaks.html. 68 . 5 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 20 .61( n ) (4th ed. 2007 ). 69 . 521 U.S. 844 ( 1997 ). 70 . See id. at 849 . 71. Pub . L. No. 104 - 104 , 110 Stat. 133 (codified as amended at 47 U.S.C. § 223 ( 1994 )). 87 . 542 U.S. 656 ( 2004 ). 88 . Id. at 660  61 . 89. See Ashcroft I , 535 U.S. at 585 86; supra notes 8086 and accompanying text. 90. See Ashcroft II , 542 U.S. at 660  61 . 91. See id. at 669 670; United States v . Am. Library Ass'n , 539 U.S. 194 ( 2003 ) (plurality opinion) . 92 . See Ashcroft II , 542 U.S. at 668  69 . 93. JACK GOLDSMITH & TIM WU, WHO CONTROLS THE INTERNET? ILLUSIONS OF A BORDERLESS WORLD 83 ( 2006 ) (“[T]he problem for government's efforts to control blocked, like artistic expression, sexual education, and news . ”) . 94 . La . Pac. Corp. v. Beazer Materials & Servs., Inc., 842 F. Supp . 1243 , 1248  49 & n.12 (E.D. Cal . 1994 ) ; see also Lynn A. Baker, The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions , 75 CORNELL L. REV. 1185 , 1186 ( 1990 ) (“Despite Sullivan , Unconstitutional Conditions and the Distribution of Liberty , 26 SAN DIEGO L. REV. 327 , 327  30 ( 1989 ) (surveying the leading but flawed theories and proposing an alternative framework) . 95 . Dolan v. City of Tigard , 512 U.S. 374 , 407 n. 12 ( 1994 ) (Stevens , J., dissenting) . 96 . See GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 1598 1608 (6th ed. 2009 ); Consent , 102 HARV. L. REV. 4 , 7  8 (1988); Kathleen M. Sullivan , Unconstitutional Conditions , 102 HARV. L. REV. 1413 , 1421  22 ( 1989 ). 97 . See supra note 96 and accompanying text; cf. United States v . Loy , 237 F.3d 251 , 261 ( 3d Cir . 2001 ) (noting importance of judicial review of conditions of supervised release) . 98 . 87 U.S. ( 20 Wall.) 445 ( 1874 ). 99 . See id. at 450  51 . 100. Doyle v. Cont'l Ins. Co., 94 U.S. 535 , 543 ( 1876 ) (Bradley , J., dissenting). Justice for a bad cause, is not sound .” Id. at 543  44 . 101 . 198 U.S. 45 ( 1905 ). 102 . See Frost & Frost Trucking Co. v. R.R. Comm 'n of Cal ., 271 U.S. 583 , 593  95 ( 1926 ) (collecting cases rejecting state business regulations that required the “surrender of a See generally 2 ROTUNDA & NOWAK , supra note 68, § 15 . 3 (discussing Lochner and economic liberty jurisprudence) . 103 . 357 U.S. 513 ( 1958 ). 104 . Id. at 514  17 . 105. Id. at 517 . 106. See id. at 518 19 (“[T] he denial of a tax exemption for engaging in certain speech speech.”). 107 . See , e.g., Rutan v . Republican Party of Ill., 497 U.S. 62 , 78  79 ( 1990 ) (firing based on political patronage); Lefkowitz v . Cunningham , 431 U.S. 801 , 805  07 ( 1977 ) (retaining position conditioned on waiving right against self-incrimination) . 108 . See Nollan v. Cal. Coastal Comm'n , 483 U.S. 825 , 837 ( 1987 ) (finding right-of-way exaction non-germane to building permit) . 109 . See FCC v. League of Women Voters of Cal ., 468 U.S. 364 , 398  99 ( 1984 ) (limiting editorializing by public grant recipients) . 110 . See , e.g., Thomas v . Review Bd., 450 U.S. 707 , 717  18 ( 1981 ) (striking requirement benefits); Sherbert v . Verner , 374 U.S. 398 , 404 ( 1963 ) (rejecting welfare benefits conditioned on working Saturday) . 111 . See , e.g., Cleveland Bd . of Educ. v. Loudermill, 470 U.S. 532 , 541 ( 1985 ); Perry v. Sindermann , 408 U.S. 593 , 596  97 ( 1972 ). 112 . See South Dakota v. Dole , 483 U.S. 203 , 207 ( 1987 ) (conditioning highway funds on raising state drinking age) . 113 . See FCC , 468 U.S. at 400; Regan v. Taxation with Representation of Wash ., 461 U.S. 540 , 545 ( 1983 ) (upholding spending restrictions on non-profit corporations ). 114 . See Rust v. Sullivan , 500 U.S. 173 , 192 ( 1991 ) (banning use of federal funds for abortion-related activities); Harris v . McRae , 448 U.S. 297 , 312 , 315 ( 1980 ) (prohibiting use of Medicaid funds for abortion) . 115 . See Wyman v. James , 400 U.S. 309 , 326 ( 1971 ). But see Schneckloth v . Bustamonte , 412 U.S. 218 , 288 n. 12 ( 1973 ) (Marshall, J., dissenting) (interpreting consent search and waiver of right to trial as an unconstitutional condition ). 116 . See Bordenkircher v. Hayes , 434 U.S. 357 , 364  65 ( 1978 ). See generally Jason Mazzone , The Waiver Paradox, 97 NW. U. L. REV. 801 ( 2003 ) (questioning dichotomy conditions) . 117 . 513 U.S. 196 ( 1995 ). 118 . Id. at 201; see also Peretz v. United States , 501 U.S. 923 , 936 ( 1991 ) (“The most basic rights of criminal defendants are . . . subject to waiver.”). 119 . See United States v. Ruiz , 536 U.S. 622 , 628  29 ( 2002 ) (citing Boykin v . Alabama, 395 U.S. 238 , 243 ( 1969 )). 120 . See McKune v . Lile , 536 U.S. 24 , 42 ( 2002 ) (listing common choices facing inmates); Mezzanatto, 513 U.S. at 209 10; see also Dada v. Mukasey , 128 S. Ct . 2307 , 2322 ( 2008 ) (Scalia , J., dissenting) ( “Litigants are put to similar voluntary choices between the of certain other remedies.”) . 121 . Brady v. United States , 397 U.S. 742 , 748 ( 1970 ) (internal citations omitted ). 122 . Moran v. Burbine , 475 U.S. 412 , 421 ( 1986 ) (discussing waiver in Miranda warning context) . 123 . 390 U.S. 570 ( 1968 ). 124 . Id. at 571  72 . 125. Pub . L. No. 72 - 189 , 47 Stat. 326 (codified as amended at 18 U.S.C. § 1201 (a) ( 2006 )). 126 . Jackson , 390 U.S. at 571 . 127. Id. at 571  72 (quoting United States v . Jackson , 262 F. Supp . 716 , 718 (D. Conn . 1967 )). The Court later clarified that a guilty plea in the shadow of the death penalty is not intelligently , and voluntarily. See Brady v. United States , 397 U.S. 742 , 747  48 ( 1970 ) (internal citations omitted); supra note 121 and accompanying text . 128 . Jackson , 390 U.S. at 582 . 129. United States v. Mezzanatto , 513 U.S. 196 , 204 ( 1995 ). 130 . See United States v. Gonzalez-Lopez , 548 U.S. 140 , 151  52 ( 2006 ) (citing Wheat v . United States , 486 U.S. 153 , 159  60 ( 1988 )). 131 . See , e.g., Zedner v . United States , 547 U.S. 489 , 500  01 ( 2006 ) ; United States v . Gambino , 59 F.3d 353 , 359  60 ( 2d Cir . 1995 ) (joining other circuits in so holding ). 132 . See McKune v . Lile , 536 U.S. 24 , 36 ( 2002 ) (citing O'Lone v . Estate of Shabazz, 482 U.S. 342 , 348 , 351 ( 1987 )); see also supra notes 2429 and accompanying text. 133 . See Samson v. California , 547 U.S. 843 , 847 ( 2006 ) ; United States v . Knights , 534 U.S. 112 , 119 ( 2001 ); Griffin v . Wisconsin , 483 U.S. 868 , 872  73 ( 1987 ) ; United States v . Reyes , 283 F.3d 446 , 457 ( 2d Cir . 2002 ). 134 . See Samson, 547 U.S. at 849 , 853 (reminding the government that it need not ignore the likelihood of recidivism to protect constitutional rights ); Knights, 534 U.S. at 118 (upholding waiver condition because of state interest in effective probation system ). 135. See Knights , 534 U.S. at 118; Reyes, 283 F.3d at 461. See generally 5 WAYNE R. LAFAVE , SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 10.10(b) (4th ed. 2004 ) (explaining and criticizing the “act of grace” theory granting government absolute power to set release conditions) . 136 . 523 U.S. 272 ( 1998 ). 137 . See Woodard, 523 U.S. at 279 , 28586; see also U.S. CONST. amend. V. (“[N]or shall [a person] be compelled in any criminal case to be a witness against himself . ”) . 197 . See Sullivan, supra note 96 , at 1498  99 . 198. See EPSTEIN , supra note 181, at 6971. 199. See supra note 165 and accompanying text. 200. See supra note 190 and accompanying text. 201 . There is no standard condition, but a common version states that the convict “shall United States v . Paul , 274 F.3d 155 , 160 ( 5th Cir . 2001 ) (alteration in original) (quoting the district court's conditions); see also United States v . Holm , 326 F.3d 872 , 877 (7th Cir. 2003 ) (“[Holm] shall not possess or use a computer that is equipped with a modem, that States v . Peterson , 248 F.3d 79 , 81 ( 2d Cir . 2001 ) (per curiam) (“[Peterson] shall not possess, purchase, or use a computer or computer equipment . . . .”). 202 . Greenholtz v. Inmates of Neb. Penal and Corr. Complex , 442 U.S. 1 , 7 ( 1979 ); United States v . Woods , 547 F.3d 515 , 519 ( 5th Cir . 2008 ) (“It is axiomatic that the (internal citations omitted); see Sullivan , supra note 96 , at 1422 26; supra note 34 and accompanying text. 203. See Greenholtz , 442 U.S. at 9 11 (juxtaposing level and value of liberty in a variety of early release contexts) . 204 . See Sullivan, supra note 96, at 142628; supra notes 41 , 187 88 and accompanying text. 205. See supra notes 62 , 64 66 and accompanying text; Ashcroft v . ACLU ( Ashcroft II ), 542 U.S. 656 , 666 ( 2004 ) (describing potentially permissible restrictions on Internet speech ). 206 . See , e.g., United States v . Thielemann , 575 F.3d 265 , 268 ( 3d Cir . 2009 ), cert. denied , 130 S. Ct . 1109 ( 2010 ); Paul, 274 F.3d at 158. 207. See , e.g., United States v . Freeman , 316 F.3d 386 , 387 ( 3d Cir . 2003 ); Paul, 274 F. 3d at 158; see also supra note 15 (noting men commit most child pornography crimes ). 208 . See Mike Scarcella, Prosecutors in Child Pornography Case To Seize Residence, NAT'L L.J. ( July 7 , 2009 ), http://www.law.com/jsp/article.jsp?id=1202432025815; Eighth (May 26 , 2010 , 12 :24 pm) http://sentencing.typepad.com/ sentencing_law_ and_policy/ 2010 /05/eighth-circuit -affirms-big-real-property-forfeiture-for- child-porn-offense.html (discussing United States v . Hull , 606 F.3d 524 ( 8th Cir . 2010 )). But see United States v . Paull , 551 F.3d 516 , 533 ( 6th Cir . 2009 ) (Merritt , J., dissenting) denied , 130 S. Ct . 187 ( 2009 ) ; Efrati, supra note 13 (reporting on reevaluation of sentencing of Child Porn May Be Too High, Judges Say, NAT'L L.J. ( Sept. 10 , 2009 ), http://www.law.com/newswire/cache/1202433693658.html. 209. See , e.g., Thielemann , 575 F.3d at 269; United States v. Holm , 326 F.3d 872 , 874 (7th Cir . 2003 ); Paul, 274 F.3d at 158. 575 F. 3d at 278 (approving condition that permitted word processing on computer unconnected to the Internet) . 214 . United States v. Voelker , 489 F.3d 139 , 148 & n. 8 ( 3d Cir . 2007 ) (describing controls); see United States v . Silvious , 512 F.3d 364 , 371 ( 7th Cir . 2008 ) (“[A] total ban on supervised release .”); United States v . Scott , 316 F.3d 733 , 736  37 ( 7th Cir . 2003 ) (rejecting complete Internet ban); cf. Doe , 566 F. Supp . 2d at 879 (rejecting illusory choice between consenting to condition and being prosecuted ). 215 . 244 F.3d 1199 ( 10th Cir . 2001 ). 216 . See id. at 1205  06 (reading release condition as absolute). 217. See id . at 1205; Doe, 566 F. Supp . 2d at 879 . 218. United States v. Holm , 326 F.3d 872 , 877  78 ( 7th Cir . 2003 ) ; see , e.g., United States v. Heckman, 592 F.3d 400 , 402 , 408 & n. 10 ( 3d Cir . 2010 ); Scott, 316 F.3d at 736; United States v . Peterson , 248 F.3d 79 , 83  84 ( 2d Cir . 2001 ) (per curiam) . 219 . See , e.g., Heckman, 592 F.3d at 405  09 (distinguishing Third Circuit precedent ); United States v . Walser , 275 F.3d 981 , 985 , 988 ( 10th Cir . 2001 ). 220. See supra notes 18788 and accompanying text; cf. Doe , 566 F. Supp . 2d at 879 . 221. United States v. Lifshitz , 369 F.3d 173 , 183 ( 2d Cir . 2004 ) (emphasizing the multifaceted nature of a computer); see supra notes 18687 and accompanying text. 222. See supra notes 124 , 188 89 and accompanying text. 223 . 541 F.3d 915 ( 9th Cir . 2008 ), cert. denied, 129 S. Ct . 1600 ( 2009 ). 224 . See id. at 923 24; see also Heckman, 592 F. 3d at 407 n.9 (surveying acceptance of lifetime bans in other circuits); United States v . Stolte , 357 F. App 'x 943 , 944 (9th Cir. 2009 ) (citing Daniels, 541 F.3d at 92224) . But see United States v . Voelker , 489 F.3d 139 , 148 ( 3d Cir . 2007 ) (noting that as of 2007, no circuit had, in a precedential opinion, approved a lifetime term of supervised release without computer and Internet access) . 225 . See , e.g., United States v . Cope , 527 F.3d 944 , 949  55 ( 9th Cir . 2008 ), cert. denied, 129 S. Ct . 321 ( 2008 ) ; United States v . Scott , 316 F.3d 733 , 734  36 ( 7th Cir . 2003 ); United States v . Freeman , 316 F.3d 386 , 391 ( 3d Cir . 2003 ) (remanding case where reason for condition not explained) . 226 . See , e.g., United States v . Tome, No. 09 - 16486 , 2010 U.S. App. LEXIS 16239, at * 4 (11th Cir. July 27 , 2010 ); United States v . Yuknavich , 419 F.3d 1302 , 1309  11 ( 11th Cir . 2005 ) (imposing condition after probation violation) . But see United States v . White , 244 F. 3d 1199 ( 10th Cir . 2001 ) (rejecting technology condition imposed after convict violated prior condition barring alcohol consumption) . 227 . United States v. Brigham , 569 F.3d 220 , 234 ( 5th Cir . 2009 ), cert. denied, 130 S. Ct . 1013 ( 2009 ) ; see Scott, 316 F .3d at 73637; United States v. Paul , 274 F.3d 155 , 170 (5th Cir . 2001 ). 228 . See Scott , 316 F.3d at 73637; supra notes 189 , 193 and accompanying text; see also Budget Woes Have States Rethinking Prison Policy , WASH. POST, Dec. 20 , 2009 , at A3. 229. See Daniels, 541 F.3d at 92324; supra notes 16471 and accompanying text. 230 . See United States v. Miller , 594 F.3d 172 , 183  84 , 188 ( 3d Cir . 2010 ); United States v. Voelker, 489 F.3d 139 , 144 ( 3d Cir . 2007 ); United States v . Holm , 326 F.3d 872 , 879 (7th Cir . 2003 ). 231 . See Miller , 594 F.3d at 187 88 (explaining distinctions in Third Circuit cases based Bender , 566 F.3d 748 , 751 ( 8th Cir . 2009 ) (noting Eighth Circuit allows expansive condition pornography) . 232 . 248 F.3d 79 ( 2d Cir . 2001 ) (per curiam) . 233. See id. at 81  83 . 234. See id. at 82 83; see also United States v. T.M., 330 F.3d 1235 , 1240  41 ( 9th Cir . 2003 ) (vacating condition imposed in drug case related to sex crimes committed twenty and forty years prior); United States v . Scott , 270 F.3d 632 , 636 ( 8th Cir . 2001 ) (rejecting condition for bank robbery crime due to convicted rape fifteen years earlier ). 235 . See , e.g., United States v . Perazza-Mercado , 553 F.3d 65 , 76  77 ( 1st Cir . 2009 ); Voelker , 489 F.3d at 15053; United States v. Antelope , 395 F.3d 1128 , 1141  42 ( 9th Cir . 2005 ) ; United States v . Loy , 237 F.3d 251 , 263 , 266 67 ( 3d Cir . 2001 ); see also United States v . Weatherton , 567 F.3d 149 , 154 & n. 4 ( 5th Cir .), cert. denied, 130 S. Ct . 300 ( 2009 ) (clarifying the approach of other circuits); United States v . Wilkinson , 282 F. App 'x 750, 754 ( 11th Cir . 2008 ) (highlighting circuit split on the issue ). 236 . See , e.g., United States v . Silvious , 512 F.3d 364 , 371 ( 7th Cir . 2008 ) (castigating mail); United States v . White , 244 F.3d 1199 ( 10th Cir . 2001 ) (rejecting technology condition imposed when convict violated parole by drinking alcohol ). 237 . See , e.g., United States v . Russell , 600 F.3d 631 , 637 38 ( D.C. Cir . 2010 ) (stressing respectively); United States v . Holm 326 F.3d 872 , 877  78 ( 7th Cir . 2003 ). 238. See Voelker, 489 F.3d at 148; supra notes 214 , 218 19 and accompanying text (describing reasons to reject lifetime conditions) . But see infra notes 24749 , 251 53 and accompanying text (noting approval of lifetime conditions ). 239 . See , e.g., Russell , 600 F. 3d at 638 (emphasizing rarity of approval of unconditional ban); United States v . Sullivan , 451 F.3d 884 , 895 96 ( D.C. Cir . 2006 ) (noting circuit split on need for exceptions) . 240 . See United States v. Pruden , 398 F.3d 241 , 250  51 ( 3d Cir . 2005 ) (noting States v . Scott , 316 F.3d 733 , 736 ( 7th Cir . 2003 ) (highlighting danger that Probation Office exception facilitates censorship) . 241 . See , e.g., United States v . Crandon , 173 F.3d 122 , 127 ( 3d Cir . 1999 ). 242 . See United States v. Knights , 534 U.S. 112 , 118 n. 4 ( 2001 ) (arguing valid condition furthers interest in probation) . 243. See supra notes 193, 23037 and accompanying text. 244. See supra notes 192 , 230 37 and accompanying text. 245. See , e.g., United States v . Weatherton , 567 F.3d 149 , 155 (5th Cir.), cert. denied, 130 S. Ct . 300 ( 2009 ) ; United States v . Paul , 274 F.3d 155 , 170  72 ( 5th Cir . 2001 ); 173 F.3d at 122 , 127  28 . See generally 18 U.S.C. § 3553 (a) ( 2006 ) (listing public safety among valid reasons for supervised release) . 246. See supra notes 4855 and accompanying text . 259 . 244 F.3d 1199 ( 10th Cir . 2001 ); see supra notes 21517. 260. See White , 244 F.3d at 1206; see also United States v . Richards, No. 09 - 10324 , 2010 U.S. App . LEXIS 13133, at *67 (9th Cir . June 25, 2010 ) (striking as invalid under the First Amendment a condition that limited ability to criticize a public official). 261. See United States v . Bender , 566 F.3d 748 , 753 ( 8th Cir . 2009 ) (noting importance of access to learning); United States v . Scott , 316 F.3d 733 , 737 ( 7th Cir . 2003 ); United States v . Freeman , 316 F.3d 386 , 392 ( 3d Cir . 2003 ) ; James, supra note 29 (noting online education for prisoners) . 262 . United States v. Riley , 576 F.3d 1046 , 1048  49 ( 9th Cir . 2009 ) (invalidating condition that convict “shall not access via computer any material that relates to minors” ). 263 . See , e.g., United States v . Russell , 600 F.3d 631 , 636 , 638 (D.C. Cir . 2010 ) United States v . Perazza-Mercado , 553 F.3d 65 , 73 ( 1st Cir . 2009 ); Freeman, 316 F.3d at 392; White, 244 F.3d at 1206; supra notes 57  62 and accompanying text (noting growth of Internet use) . 264. See White , 244 F.3d at 1206; see also Quinn Bowman, Economy, Online Trends Threaten Newspaper Industry , PBS NEWSHOUR EXTRA , ( May 8 , 2009 ), http://www.pbs.org/newshour/extra/features/arts/jan-june09/newspapers_ 05 - 08 .html. For an and Offline , GOOGLE PUB. POL'Y BLOG (Mar . 9, 2010 , 9 :00 AM) http://googlepublicpolicy.blogspot.com/ 2010 /03/newspaper-economics -online-and- offline.html. 273 . 274 F.3d 155 ( 5th Cir . 2001 ). 274. See supra notes 21517, 25960 and accompanying text. 275. See Paul , 274 F.3d at 16770; see also United States v. Brigham , 569 F.3d 220 , 234 (5th Cir.), cert . denied, 130 S. Ct . 1013 ( 2009 ) (following Paul) . 276 . See Paul, 274 F.3d at 170; see also Brigham, 569 F.3d at 234. 277. See United States v. Rearden , 349 F.3d 608 , 620  21 ( 9th Cir . 2003 ); United States v . Zinn , 321 F.3d 1084 , 1092  93 ( 11th Cir . 2003 ) ; supra note 231 and accompanying text. 278. See United States v . Perazza-Mercado , 553 F.3d 65 , 71  72 ( 1st Cir . 2009 ) (approving condition because of ban's limited effect); supra note 252 and accompanying text (addressing Probation Office exception) . 279 . See United States v. Lifshitz , 369 F.3d 173 , 192 ( 2d Cir . 2004 ); United States v . White , 244 F.3d 1199 , 1206 ( 10th Cir . 2001 ) (enumerating content control using a whitelist or blacklist) . See generally GOLDSMITH & WU, supra note 93 , at 58  63 , 65  104 ( 2006 ) control of the Internet and its content); LESSIG , supra note 64, at 54  59 , 253 59 (articulating OF THE INTERNET AND HOW TO STOP IT 10916 ( 2008 ) (detailing methods for Internet surveillance and monitoring) . 280 . See , e.g., United States v . Miller , 594 F.3d 172 , 178 ( 3d Cir . 2010 ); United States v . Heckman , 592 F.3d 400 , 409 & n. 12 ( 3d Cir . 2010 ). 281 . See United States v. Holm , 326 F.3d 872 , 878 ( 7th Cir . 2003 ); United States v . Sofsky , 287 F.3d 122 , 126 ( 2d Cir . 2002 ) ; see also United States v . Johnson , 446 F.3d 272 , 282  83 ( 2d Cir . 2006 ) (suggesting special considerations for restrictions on a tech savvy notes 57 , 166 71 and accompanying text (recognizing Internet use and optional content filters at public libraries) . 282. See Miller, 594 F.3d at 18789; Lifshitz, 369 F.3d at 19192 & nn.910; United States v . Taylor , 338 F.3d 1280 , 1285 ( 11th Cir . 2003 ); Sofsky, 287 F.3d at 126. See Ctr. , Rockville , Md.), Winter 2005 , at 1, available at and probation officers to manage computer use by sex offenders). 283. See United States v . Russell , 600 F.3d 631 , 638 (D.C. Cir . 2010 ); United States v . Perazza-Mercado , 553 F.3d 65 , 73 ( 1st Cir . 2009 ). 284 . See Lifshitz, 369 F.3d at 179; Holm, 326 F.3d at 878; White, 244 F.3d at 1206 . See The Second Circuit's Pragmatic Approach to Supervised Release for Sex Offenders , 49 WM. & MARY L. REV . 681 ( 2007 ) (favoring filtering); Anton L . Janik , Jr., Note, Combating the Search Requirements to Child Pornographers Using Computers, 79 DENV. U. L. REV. 379 ( 2002 ) (praising consent to search); Jane Adele Regina , Comment, Access Denied: Imposing of Probation, 4 SETON HALL CIRCUIT REV . 187 ( 2007 ) (supporting monitoring) . 285 . Ashcroft v. ACLU (Ashcroft II) , 542 U.S. 656 , 674 ( 2004 ) (Stevens , J., concurring) . 286. See supra notes 4855, 200 and accompanying text. 287. See Lifshitz, 369 F.3d at 192; supra notes 16671 and accompanying text.


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Gabriel Gillett. A World Without Internet: A New Framework for Analyzing a Supervised Release Condition That Restricts Computer and Internet Access, Fordham Law Review, 2011,