Court Strikes Probation Restrictions Banning Teen From Using Encryption, Accessing Internet For Personal Reasons

from the not-just-unreasonable,-also-stupid dept

The Appeals Court of California has examined a set of release restrictions imposed on a teen convicted of minor sodomy against his girlfriend. The lower court -- realizing it was being asked to step in and act as a proxy parent for the teen's internet use -- handed down a lengthy list of restrictions supposedly aimed at keeping the teen from committing further criminal acts. This included several restrictions on the teen's internet use, for reasons only apparent to the lower court. (h/t Volokh Conspiracy)

Fortunately, the Appeals Court has struck many of these restrictions, finding most of them overly-broad at best, and unreasonably (and unconstitutionally) restricting at worst. Most of these seem to have stemmed from the teen's admission that he masturbated to internet porn once a week -- something that could be said for a great many US citizens of many ages. That the court connected this to the crime committed appears to be the result of a prudish mindset: one that still believes access to pornography leads to criminal sexual acts, despite a great deal of evidence to the contrary.

Nevertheless, the lower court felt the way to righteousness led through cutting Mike H. (as the court refers to the minor) off from the internet as much as possible. The Appeals Court does some drastic pruning of the lower court's order, starting with bringing the case up to date to establish that the restrictions imposed had very little to do with the criminal act the teen was charged with. From the decision [PDF]:

Mike stated he had anal sex with C.C. because she was his girlfriend; he denied bribing her, telling her not to tell anybody, or keeping her from calling for help. There is no indication Mike used the Internet, a computer, or social media to contact or lure C.C. or otherwise plan his offense. Mike and C.C. communicated by text message, and Mike denied planning or fantasizing about the offense ahead of time.

Afterwards, Mike felt it was the "stupidest thing" he had ever done. The probation officer believed Mike was at "low risk for recidivism"; the psychologist agreed, stating Mike's "[r]isk factors for sexual acting out appear to be low." He had never committed a sex crime before and had not reoffended at the time of sentencing.

This was the "minor sodomy." Mike was 14. His girlfriend was 15. There was some question as to whether the act was wholly consensual, but Mike's plea deal reduced the charges to this single count.

Next, the court addresses the many, many stipulations put in place by the lower court at sentencing. A great many of them are either overly-broad, unconstitutional, or completely ridiculous. All of the restrictions hang on the sheerest of legal connective tissue.

The only connection between Mike's admitted offense of sodomy on a minor and computers or the Internet was Mike's admission to the probation officer he masturbated approximately once per week while viewing Internet pornography on his smartphone. Although the court acknowledged Mike's offense did not involve a computer or the Internet, it found the restrictions warranted because Mike had used his smartphone to access inappropriate websites.

Here are the first four restrictions the Appeals Court found unconstitutional.

Condition 39 prohibits Mike from knowingly accessing the Internet or any online service without supervision by a parent, legal guardian, or teacher. Condition 54 prohibits him from having a social media page or using MySpace, Facebook, or similar social media programs. Condition 58 prohibits Mike from knowingly using any electronic device (such as a computer or smartphone) "for any purpose other than school-related assignments, or legitimate work or personal purposes," as defined by the probation officer, and requires Mike's use of electronic devices to be supervised "by a responsible adult over the age of 21 who is aware that the minor is on probation, is aware of the minor's charges, and is aware of the limits on the minor's computer use." Finally, condition 59 prohibits Mike from using a computer "for any purpose other than school related assignments" and requires supervision of computer use in school and in the common area of his home.

Addressing these in bulk, the court says the restrictions are not only unconstitutional, but serve no purpose whatsoever in terms of rehabilitation and reducing recidivism.

Using a computer or the Internet is not inherently criminal, and the court acknowledged the crime did not involve a computer or the Internet. Mike did not use the Internet, social media, or a computer to communicate with C.C. or otherwise facilitate his offense.

[...]

Here, as in J.B. and Erica R., there is no relationship between the minor's admitted conduct of sodomy of a minor and his use of the Internet or electronic devices. There is little reason to believe broad Internet and electronics use restrictions like the ones imposed here will serve a rehabilitative function by deterring Mike from future criminal activity.

It calls out Condition 59 in particular for being completely unreasonable.

Condition 59 is even more extreme. A blanket restriction forbidding Mike from using a computer for anything other than school-related assignments precludes his extracurricular use of a computer to write letters, create art, use software to learn a foreign language, read the news, check sports scores or movie times, research medical information, and obtain other legitimate information wholly unrelated to his criminal conduct in this case. Such a broad restriction is not narrowly tailored or reasonably related to the state's interest in rehabilitating Mike.

The court also strikes the condition forbidding Mike H. from accessing internet pornography. It notes this imposition plays hell with the First Amendment if not narrowly-crafted. This restriction isn't, so away it goes.

We conclude restrictions on pornography and sexually explicit content are not reasonably related to the state's interest in rehabilitating Mike. There is no apparent connection between the crime and Mike's viewing of Internet pornography or sexually explicit material.

The most ridiculous restriction handed down comes paired with banning Mike H. from creating anonymous social media accounts. The Appeals Court finds the anti-stalking/harassment probation stipulation somewhat justifies preventing Mike H. from obscuring his online identity. But it goes too far when it forbids him from using encryption. As the Appeals Court points out, not only is this stipulation overly-broad, but it's impossible to comply with given the current state of internet-based communications.

Given the ubiquity of encryption technology, condition 45 is overbroad as formulated. As Mike notes, "encryption is standard-issue on every iPhone and Mac, with Google requiring new Android phones to be encrypted; every web page that begins 'https' uses encryption, including, for instance, every page on Netflix.com, every page on Wikipedia, and every page created by the federal government." [...] In recent years, Apple, Google, Facebook, WhatsApp, and Blackberry have all "announced plans to implement end-to-end encryption on a default basis. This means that encryption is applied automatically without a user needing to switch it on."

The Appeals Court points out that banning someone from using encryption is pretty much the same thing as banning them from using the internet… or a smartphone.

Here, the juvenile court may have reasonably sought to prevent Mike from concealing his online activity or electronic communications through encrypted programs or applications. However, as formulated, condition 45 effectively prohibits Mike from using the Internet or a smartphone. By virtue of accessing certain websites or even turning his smartphone on, he would risk violating the condition. As drafted, condition 45 is therefore unconstitutionally overbroad. It is also impermissibly vague, given other probation conditions allowing Internet and smartphone use.

This is the sort of thing that happens when judges (and prosecutors making probation recommendations) don't understand the technology they're dealing with. It only gets worse when the stipulations are predicated on the ridiculous presumption that viewing porn leads to criminal sexual acts. Fortunately, the Appeals Court has eliminated many of the worst probation conditions. What's left in place won't make it much fun to be Mike H. for the next few years, but that's kinda the point. What won't fly are restrictions that stomp all over a person's civil liberties and basically forbid them from accessing the internet.


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  • icon
    Ninja (profile), 6 Apr 2017 @ 8:35am

    "...the teen's admission that he masturbated to internet porn once a week..."

    Lying to a court? If he said 5, 6 times it would still be a lie but at least it would be closer to the truth. Ahem.

    /jk but not too much

    I admit I giggled like a high school boy when I read that.

    reply to this | link to this | view in chronology ]

    • identicon
      Not.You, 6 Apr 2017 @ 10:25am

      Re:

      I thought the same thing. Is he a teenager or an old man? I didn't have the internet when I was a teenager so I can't say with certainty but I am pretty sure I could've done that twice a day at least.

      reply to this | link to this | view in chronology ]

      • identicon
        Bruce C., 6 Apr 2017 @ 12:41pm

        Re: Re:

        You guys need to read the article. He clearly has better options than masturbation:
        Mike stated he had anal sex with C.C. because she was his girlfriend.

        reply to this | link to this | view in chronology ]

  • icon
    hij (profile), 6 Apr 2017 @ 9:27am

    Stay away from MySpace!

    Condition 54 prohibits him from having a social media page or using MySpace, Facebook, or similar social media programs.

    To be fair asking him to stay away from Facebook is probably in his best interests and should be more broadly enacted across the general population. The exclusion from MySpace.... well, yeah, that'll learn him.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2017 @ 9:52am

    I'm confused. What's the crime here?

    Was it non-consensual or is anal sex (still) against the law?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Apr 2017 @ 10:02am

      Re:

      The crime appears to be having anal sex with a minor... even though she was a year older than him at the time.

      However, it also appears that after the fact she regretted the act enough to go public about it. From the details presented, it is unclear whether the court ever got to the point of figuring out whether it was consensual, since it was illegal either way.

      reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 6 Apr 2017 @ 11:29am

        Re: Re:

        > The crime appears to be having anal sex with a minor...
        > even though she was a year older than him at the time.

        Then why wasn't she charged also? (If she was, it's never mentioned in any of the reporting on this case.)

        reply to this | link to this | view in chronology ]

        • icon
          Bergman (profile), 6 Apr 2017 @ 12:17pm

          Re: Re: Re:

          She may have been given immunity from prosecution in exchange for her testimony -- which is something prosecutors regularly do.

          reply to this | link to this | view in chronology ]

          • icon
            btr1701 (profile), 7 Apr 2017 @ 12:55am

            Re: Re: Re: Re:

            > She may have been given immunity from prosecution in exchange for her
            > testimony

            For what purpose? Immunity is given to lesser offenders in order to catch the bigger fish. These are two equal-sized fishes. There's no point to immunity.

            As a minor, he's also a victim of statutory rape every bit as much as she is. He'll have a helluva due process claim against the government if they give his assaulter immunity from prosecution for assaulting him, the victim, for doing nothing more than confessing to her own crime.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 7 Apr 2017 @ 5:28pm

              Re: Re: Re: Re: Re:

              They're both minors, so statutory rape does not apply.

              reply to this | link to this | view in chronology ]

              • icon
                Uriel-238 (profile), 7 Apr 2017 @ 9:28pm

                Statutory rape.

                Statutory rape very much applies if both participants are minors, and prosecutors in some counties have been inclined to try both of them separately as having raped the other.

                This is why most states have Romeo and Juliet laws, which give persons of similar age immunity to statutory rape. (Though if one can claim the other forced or coerced them, you still have a case.

                We've seen incidents in the last decade in which statutory rape still applied, for instance when two underage girls were caught playing around. Lesbian sex was not covered by the state's R&J laws, so the trials happened anyway.

                Yes, when kids get too interested in sex too soon and behave like kids, US society LOVES to ruin their lives for them.

                reply to this | link to this | view in chronology ]

        • icon
          Daniel Audy (profile), 6 Apr 2017 @ 5:42pm

          Re: Re: Re:

          Likely she wasn't guilty of the actual offence. Typically these statutes are worded in a way that only criminalize the penetrating party since they were written by puritanical idiots who assumed that no one would consent to it.

          reply to this | link to this | view in chronology ]

          • icon
            btr1701 (profile), 7 Apr 2017 @ 12:51am

            Re: Re: Re: Re:

            > Typically these statutes are worded in a way that only criminalize the penetrating party

            Well, that would be an Equal Protection violation and would void the law.

            reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 6 Apr 2017 @ 12:16pm

      Re:

      The crime is statutory rape. California has the third strictest laws about underage sex out of all 50 US states, and is one of the states that will happily convict both underage participants of a consensual sexual act for raping each other.

      By law, it doesn't matter if both consented, since someone under 18 cannot give consent to sex in California. The legal system is aware that this is a legal fiction, and distinguishes between statutory rape and forcible (real) rape, at least in California -- there are states that don't make that distinction.

      The case is complicated by the fact that the girl (who likely consented at the time) recanted her consent after the fact, causing prosecutors to react as if the sex was actual rape.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 7 Apr 2017 @ 1:02am

        Two minors in CA having sex is a misdemeanor.

        Statutory rape is a misdemeanor in CA if the ages of the participants are near each other. It's only if there's a wide difference in ages does it become a felony.

        This incident looks clearly like someone was trying to make an example of Mike H. I wonder if there's a social connection between C.C.'s family and acting officials in the legal department.

        Or the DA just didn't like Mike H. and wanted to ruin him.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2017 @ 10:30am

    strange! he's being restricted because of having anal sex with a female, having consent to do so, yet we're expected to take it up the rear all the time from this government, the security services and the courts, without getting our consent and it's ok? something wrong here somewhere, i think!!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Apr 2017 @ 10:36am

      Re:

      "yet we're expected to take it up the rear all the time from this government,"

      That's right! Remember that next time you vote... o wait... you will forget...

      never mind that I said anything! Carry on!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Apr 2017 @ 10:57am

      Re:

      That's exactly the issue. He should have known better! Inappropriate touching and probing of minors is reserved for the TSA.

      reply to this | link to this | view in chronology ]

  • icon
    Ryunosuke (profile), 6 Apr 2017 @ 10:45am

    Mike H. huh...

    it's Hunt, isn't it.

    reply to this | link to this | view in chronology ]

  • identicon
    David Clare, 6 Apr 2017 @ 11:07am

    So this kid had anal sex with his older girlfriend and got busted for sodomy with a minor. And the probation restrictions are the story?

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 6 Apr 2017 @ 12:18pm

      Re:

      If it had happened in a different state it wouldn't have been illegal -- about two thirds of the 50 states wouldn't have considered them underage.

      This is just California being California.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Apr 2017 @ 12:18pm

      Re:

      you can't expect the law to make sense can you?
      After all, a 17 year sending their significant other nudes is guilty of producing child porn

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Apr 2017 @ 1:21pm

      Re:

      Well you are on TECHdirt so...

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Apr 2017 @ 3:30am

        Re: Re:

        And yet we still get chucklefucks complaining about cop videos not counting as tech. Can't please anyone. Granted, the one or few assholes doing the complaining there pretty much have their e-peen aroused every time they troll.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Apr 2017 @ 8:48pm

      Re:

      Like the lower court, Techdirt gravitates to the internet aspect of the story. Unlike the lower court, it's their job.

      reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 6 Apr 2017 @ 12:47pm

    The Lower Court

    The restrictions in the original probation order appear to be typical boilerplate for anyone classified as a sex offender. This is a precedent that could affect a lot of adult probationers as well.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 6 Apr 2017 @ 1:25pm

    Porn causes violence against women.
    Even if she is older, the male is always at fault.
    The courts should parent children.

    Lets spin this another way.
    2 kids decide to experiment with sex. Not bold enough to purchase condoms, they opted for sex that could not result in an oops baby. (Pretty smart)
    She displayed discomfort afterwards drawing the attention of parental figures who got her to admit what happened.
    Being the product of hysteria, not founded in reality about children & sexual experimentation, the police were called.
    The police found a suitable crime to arrest for.
    The police and DA listened intently to the young man, reliving their own teen years. The parent was still engaged in freakout so something must be done!
    A Judge who can't remember being a teen in anything but a hazy B&W movie that for some reason stars him as Amish & always respectful of his parents & the lord decides that the problem thats with a P and that mean PORN!
    Insanity prevails.
    Appeals court has to waste a shit-ton of time & money because parents can't parent.

    What should have happened.
    Parents accepting that teens are STUPID & do stupid things.
    Forbidding them to see each other will end poorly, so in light of whats happened already they need to be supervised when together.
    Parents breathe sigh of relief they aren't going to be grand parents this early.
    Parents agree that this is kids being kids & perhaps it is past time to have the birds and bees talk with them.
    As no one is completely tripped out about putting people in jail, it isn't a forbidden thing that gets even more attention.
    Parents understand that kids will find a way and the responsible thing is to make sure when they do it they are prepared to be safe.

    But then... I'm a sociopath.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 7 Apr 2017 @ 1:14am

      Teen anal sex

      During the Aughts, Bush pushed abstinence-only sex ed hard across the nation. A-O sex-ed often includes a lot of conservative-Christian-values dogma, and in counties that used A-O as a religious inroad to public education, countless kids were taught that if they had sex even once the girl was ruined for life. Even if she was raped.

      (A few rape survivors who have spearheaded an organized activism front to discontinue A-O sex-ed, and oppose public schools from teaching that a woman's value is contingent on her sexual history.)

      In a lot of counties that implemented A-O, teen pregnancy skyrocketed (and in some cases, never recovered).

      And in a lot of cases, girls who were taught to value their virginity above all else (yet who were interested in sexual experimentation) instead would negotiate fellatio and anal with their partners instead of coitus.

      So in a lot of states that are not California, teen anal is still pretty commonplace.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Apr 2017 @ 3:58am

      Re:

      Welcome to Europe. Then again we have the opposite problem with violence and pranks.

      reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 6 Apr 2017 @ 3:03pm

    The lower court -- realizing it was being asked to step in and act as a proxy parent for the teen's internet use -- handed down a lengthy list of restrictions supposedly aimed at keeping the teen from committing further criminal acts. This included several restrictions on the teen's internet use, for reasons only apparent to the lower court.

    Because he is soooooo grounded, dude.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 6 Apr 2017 @ 7:09pm

    Simple

    Rather than cut of his internet use, why not just cut off his penis since it was used in the commission of the crime?

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 7 Apr 2017 @ 1:17am

      We could also...

      register him permanently as a sex offender, and wreck his future in many, many careers.

      Or simply execute him. Rather than ruin lives, why don't we spare everyone the agony of having to continue regarding him.

      You know, a lot of problems would be solved if we just expanded the range of capital crimes.

      reply to this | link to this | view in chronology ]

      • identicon
        David, 7 Apr 2017 @ 6:58am

        Re: We could also...

        We could also... register him permanently as a sex offender, and wreck his future in many, many careers.

        Uh hello? Convictoin for sodomy with a minor? What makes you think that he isn't registered permanently?

        In a few decades we will be at the point where a sex offender registration is a prerequisite for getting a job because otherwise your employer will think you have something to hide and hates dealing with the unknown.

        No sex offense? What are you doing all day? For all that the employer knows, you could be a serial copyright violator and it could bankrupt his business if you succumbed to your dirty inclinations while on the company network.

        reply to this | link to this | view in chronology ]

  • identicon
    Anon, 7 Apr 2017 @ 7:55am

    Really...

    As others point out - what's the point???

    Generally, these laws are there to prevent the exploitation of children by adults. Anyone who thinks *all* 15 year old girls or 14 year old boys are "not having sex" is living in a different world. (IIRC survey says about half have done it by age 15)

    The state is spending tens of thousands of dollars to pursue this case, for what? To teach 14-year-olds to act like mature adults? Oh, wait, mature adults would not be charged for this...

    I would expect Kentucky or Arkansas to be prosecuting this sort of case, no California. (Oh, wait, those ages are probably legal in the backwoods). Youngsters (I won't say "children") engaging in what comes naturally, without force, should not be a crime. Most likely, this is because her parents screamed and yelled. However, being disappointed in your offspring's choices should not result in criminal charges.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Apr 2017 @ 3:55am

      Re: Really...

      I'm not surprised at all. I mean we're talking about the country that tried to create anti-masturbatory breakfast cereals. :)

      Looking back and comparing "adult content" across the globe, on average, the more mechanical and degrading (for both sexes) it is, the more sexually repressed the society. ;D

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2017 @ 9:25am

    He could have used a computer other than at home to do things in violation of his probation, if he knew how to avoid being caught.

    If he was on an ankle braclet, a GPS signal jammer would have prvented the authorities to know he was using the Internet at a friends house.

    Just jam the GPS signal, so his location could not be reported back.

    reply to this | link to this | view in chronology ]


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