RIGHTS-1

########## |
########## |
### | THE DOCUMENT CASE
####### |
####### | A collection of briefs, judgments
### | white papers, rulings, and references of
########## | moment to the issues of law and order on
########## | The Electronic Frontier
|
########## |
########## |
### | Document #: 1
####### | Title: EFF Amicus Brief in U.S. v. Riggs
####### | challenging computer-use prohibition
### | in "hacker" defendant's sentencing
### | Archived/Published to the Net: May 23, 1991
### | Filename: riggs.brief
|
########## |
########## | Anonymous ftp archive maintained by
### | Mike Godwin and Chris Davis at
####### | The Electronic Frontier Foundation (eff.org)
####### |
### | These files are in the "docs" subdirectory
### | of the ftp directory. Related files may be
### | found in the EFF and SJG subdirectories.



IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT


NO. 90-9108
NO. 90-9129


UNITED STATES OF AMERICA

Plaintiff-Appellee,

v.

ROBERT J. RIGGS

Defendant-Appellant.



A DIRECT APPEAL OF A CRIMINAL CASE
>FROM THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION


BRIEF OF AMICUS CURIAE
ELECTRONIC FRONTIER FOUNDATION



ERIC M. LIEBERMAN
NICHOLAS E. POSER
RABINOWITZ, BOUDIN, STANDARD,
KRINSKY & LIEBERMAN, P.C.
740 Broadway - Fifth Floor
New York, New York 10003
(212) 254-1111

HARVEY A. SILVERGLATE
SHARON L. BECKMAN
SILVERGLATE & GOOD
The Batterymarch Building
80 Broad Street - 14th Floor
Boston, Massachusetts 02110
(617) 542-6663

Counsel for Amicus Curiae Electronic Frontier Foundation
----------------------


United States v. Riggs, Nos. 90-9108 and 90-9129


CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT

Pursuant to Local Rule 26.1 of this Court, it is hereby certified
that the following persons and entities have an interest in the outcome of
this case or have participated as attorneys or as judges in the
adjudication of this case:

Kent B. Alexander, Assistant United States Attorney
Sharon L. Beckman, Attorney for Amicus Curiae
Electronic Frontier Foundation

Electronic Frontier Foundation, Amicus Curiae

Honorable J. Owen Forrester, United States
District Judge, Northern District of Georgia

Paul S. Kish, Attorney for defendant-appellant

Eric M. Lieberman, Attorney for Amicus Curiae
Electronic Frontier Foundation

Nicholas E. Poser, Attorney for Amicus Curiae
Electronic Frontier Foundation

Rabinowitz, Boudin, Standard, Krinsky
& Lieberman, P.C., Attorneys for Amicus
Curiae Electronic Frontier Foundation

Robert J. Riggs, defendant-appellant

Harvey A. Silverglate, Attorney for Amicus
Curiae Electronic Frontier Foundation

Silverglate & Good, Attorneys for Amicus
Curiae Electronic Frontier Foundation



___________________________
NICHOLAS E. POSER

STATEMENT OF INTEREST OF AMICUS
CURIAE ELECTRONIC FRONTIER FOUNDATION

Amicus curiae Electronic Frontier Foundation submits this brief to
assist the Court's review of the special condition of the defendant's
supervised release imposed by the district court prohibiting him from
owning or personally using a computer. Pursuant to Fed. R. App. P. 29,
the Foundation submits this brief with the written consent of both the
defendant and the government. The letters of the parties consenting to
the filing of this brief have been contemporaneously submitted to the
clerk of the Court.
The Electronic Frontier Foundation believes the condition barring
computer ownership and personal use substantially infringes First
Amendment rights of expression and association. The legality of the
condition presents a novel and important question, whose resolution by
this Court will have a profound impact on the development of the law. As
explained below, the question presented here is precise of the kind which
the Foundation was established to address and about which it has
considerable expertise.
The Electronic Frontier Foundation is a nonprofit organization
established in 1990 to promote the public interest in the development of
computer-based communication technology.
The founders and directors of the Electronic Frontier Foundation
include Mitchell Kapor and Steven Wozniak, two of our nation's leading
experts in the area of computer technology. Mr. Kapor founded the Lotus
Development Corporation and designed and developed the Lotus 1-2-3
spreadsheet software. Mr. Wozniak was one of the co-founders of Apple
Computer, Incorporated. These individuals have comprehensive knowledge of
the developing computer-based technologies and the promises and threats
they present.
The Foundation's goals, as set forth in its mission statement, are
as follows:

Engage in and support educational activities which increase popular
understanding of the opportunities and challenges posed by developments in
computing and telecommunications.

Develop among policy-makers a better understanding of the issues
underlying free and open telecommunications, and support the creation of
legal and structural approaches which will ease the assimilation of these
new technologies by society.

Raise public awareness about civil liberties issues arising from the rapid
advancement in the area of new computer-based communications media.
Support litigation in the public interest to preserve, protect, and extend
First Amendment rights within the realm of computing and
telecommunications technology.

Encourage and support the development of new tools which will endow
non-technical users with full and easy access to computer-based
telecommunication.

While the Foundation regards unauthorized entry into computer
systems as wrong and deserving of punishment, it also believes that
legitimate law enforcement goals must be served by means that do not
violate the rights and interest of the users of electronic technology and
that do not chill use and development of this technology.

The novel question presented in this appeal falls squarely within
the expertise and interest of the Electronic Frontier Foundation. The
Foundation believes it can be of assistance to the Court in determining
whether the condition imposing a computer ban infringes rights of speech
and association in a broader manner than is reasonably necessary to
achieve the goals of the supervised release statute.

Accordingly, the Foundation submits this brief.


STATEMENT REGARDING ORAL ARGUMENT
Amicus curiae Electronic Frontier Foundation requests oral
argument in this appeal, which presents the novel question of the legality
of generally prohibiting computer ownership and personal use as a
condition of supervised release. Because computers are means of
communication and association with others, the prohibition raises
important issues under the First Amendment. Amicus has comprehensive
knowledge of computer-based technologies and a deep interest both in
developing public understanding of those technologies and of the civil
liberties implications of governmental restrictions on their use. (See
Statement of Interest of Amicus at pp. i-iii.) Amicus believes oral
argument will assist the court in resolving the legal issue presented by
the computer ban.



TABLE OF CONTENTS

Pages

CERTIFICATE OF INTERESTED PARTIES ..................... C-1

STATEMENT OF INTEREST OF AMICUS
CURIAE ELECTRONIC FRONTIER FOUNDATION ................. i

STATEMENT REGARDING ORAL ARGUMENT ..................... iv

TABLE OF CONTENTS ..................................... v

TABLE OF AUTHORITIES .................................. vii

STATEMENT OF JURISDICTION ............................. xi

STATEMENT OF THE ISSUE ................................ 1

STATEMENT OF THE CASE ................................. 1

(i) Course of Proceedings and
Disposition Below ............................ 1

(ii) Statement of Facts ........................... 2

(iii) Scope of Review .............................. 2

SUMMARY OF ARGUMENT ................................... 3

I. THE PROHIBITION ON OWNERSHIP AND
PERSONAL USE OF COMPUTERS TRENCHES
HEAVILY ON RIGHTS OF EXPRESSION
AND ASSOCIATION PROTECTED BY THE
FIRST AMENDMENT ................................... 5

II. THE DISTRICT COURT'S PROHIBITION
ON MR. RIGGS' OWNERSHIP AND PERSONAL
USE OF COMPUTERS AS A CONDITION OF
HIS SUPERVISED RELEASE IS IMPROPER
BECAUSE IT CREATES A GREATER DEPRI-
VATION OF LIBERTY THAN IS REASONABLY
NECESSARY TO EFFECTUATE STATUTORY GOALS ........... 13

A. The Sentencing Reform Act Requires
That Conditions Of Supervised
Release Not Impinge Unnecessarily
On Liberty Interests ......................... 13

B. The Prohibition On Ownership And
Personal Use Of Computers Is A
Deprivation of Liberty Not Reason-
ably Necessary to Carry Out The
Purposes Of The Sentencing ................... 17


1. The Computer Ban Is Far Too Broad To
Be Reasonably Necessary To The
Statutory Purposes Of Deterrence,
Public Protection And Rehabilitation ..... 17

2. Discretionary Conditions Specifically
Authorized By Statute Or Imposed In
Other Contexts Provide No Support For
The Imposition Of The Computer Ban
Here ..................................... 22

3. This Court Has Authority To
Strike Down The Computer Ban ............. 25

CONCLUSION ............................................ 25


TABLE OF AUTHORITIES


Page

Bell v. Wolfish, 441 U.S. 520 (1979) .................. 17

Buckley v. Valeo, 424 U.S. 1 (1976) ................... 9

Kleindienst v. Mandel, 408 U.S. 753 (1972) ............ 7

Owens v. Kelley, 681 F.2d 1362
(11th Cir. 1982) ................................. 16

Pell v. Procunier, 417 U.S. 817 (1974) ................ 17

Porth v. Templar, 453 F.2d 330
(10th Cir. 1971) ................................. 21

Roberts v. United States Jaycees,
468 U.S. 609 (1984) .............................. 11

United States v. Consuelo-Gonzalez, 521 F.2d 259
(9th Cir. 1975) .................................. 3,17

United States v. Cothran, 855 F.2d 749
(11th Cir. 1988) ................................. 3,16

United States v. Holloway, 740 F.2d 1373 (6th Cir.),
cert. denied, 460 U.S. 1021 (1989) ............... 19,20,
21

United States v. Holmes, 614 F.2d 985
(5th Cir. 1980) .................................. 16

United States v. Jalilian, 896 F.2d, 447
(10th Cir. 1990) ................................. 2

United States v. Jimenez, 600 F.2d 1172
(5th Cir. 1979) .................................. 25

United States v. Lawson, 670 F.2d 923
(10th Cir. 1982) ................................. 3,17,
21,23

United States v. Patterson, 627 F.2d 760
(5th Cir. 1980) .................................. 23

United States v. Pierce, 561 F.d 735 (9th Cir. 1982),
cert. denied, 435 U.S. 923 (1978) ................ 16


United States v. Smith, 618 F.2d 280 (5th Cir.),
cert. denied, 449 U.S. 868 (1980) ................ 21,22-
23

United States v. Stine, 646 F.2d 839
(3rd Cir. 1981) .................................. 15

United States v. Tonry, 605 F.2d 144
(5th Cir. 1979) .................................. 3,16,
17,24


COURT RULES

Eleventh Circuit Rule 26.1 ........................... C-1

Fed. R. App. P. 29 ................................... i

Fed. R. Crim. Pro. 20 ................................. 1


STATUTES

18 U.S.C. 371 ...................................... 1

18 U.S.C. 1343 ...................................... 1

18 U.S.C. 2314 ...................................... 1

18 U.S.C. 2701 et seq. .............................. 7

18 U.S.C. 3551 et seq. .............................. 13

18 U.S.C. 3553(a) ................................... 13,14

18 U.S.C. 3553(a)(2)(A) ............................. 18

18 U.S.C. 3563(b) ................................... 14

18 U.S.C. 3563(b)(1)-(10), (12)-(20) ................ 14,22

18 U.S.C. 3563(b)(6) ................................ 24

18 U.S.C. 3563(b)(7) ................................ 22

18 U.S.C. 3563(b)(9) ................................ 23

18 U.S.C. 3563(b)(21) ............................... 14

18 U.S.C. 3583(a) ................................... 13



18 U.S.C. 3583(d) ................................... 3,13,14
19,22

18 U.S.C. 3583(d)(2) ................................ 13,18

18 U.S.C. 3651 ...................................... 15,16

28 U.S.C. 991-998 ................................... 13

28 U.S.C. 1291 ...................................... x


UNITED STATES SENTENCING GUIDELINES

5B1.4 ............................................... 14

5F1.5, Commentary ................................... 24


LEGISLATIVE MATERIALS

S. Rep. No. 225, 98th Cong. 2d Sess.
reprinted in 1984 U.S. Code Cong.
& Ad News 3182 ................................... 14,15,
16,22,24


PERIODICALS

An Electronic Soapbox: Computer Bulletin Boards and
the First Amendment, 39 Fed. Com L. J. (1987) .... passim

Becker, The Liability of Computer Bulletin
Board Operators for Defamation Posted
by Others, 22 Conn. L. Rev. (1989) ............... 6,7,9

Computer Bulletin Board Operator Liability
for User Misuse, 54 Ford. L. Rev. (1985) ......... 6,9,10

Soma, Smith and Sprague, Legal Analysis of
Electronic Bulletin Board Activities,
7 W. New Eng. L. Rev. (1985) ..................... 6


MISCELLANEOUS

Boardwatch Magazine (May 1991) ........................ 8

Brand, The Media Lab (1987) ........................... 8


Levy, Macworld (Jan. 1991) ............................ 8

Pool, Technologies of Freedom (Harvard University
Press, 1983) ..................................... 5,9,11

Talking On the Computer Redefines Human Contact,
The New York Times, May 13, 1990 ................. 10

Tribe, American Constitutional Law (1988) ............. 11


STATEMENT OF JURISDICTION
The Court has jurisdiction over this appeal pursuant to 28 U.S.C.
1291.

STATEMENT OF THE ISSUE

Amicus curiae Electronic Frontier Foundation, with the written
consent of the parties, addresses the following issue on appeal: Whether
the district court erred in imposing a condition of supervised release
prohibiting Appellant from owning or personally using a computer.

STATEMENT OF THE CASE

(i) Course of Proceedings and Deposition Below
Appellant Robert J. Riggs pleaded guilty to one count of
conspiracy to defraud (18 U.S.C. 371) of an eight count indictment
returned in the Northern District of Georgia. He also pleaded guilty to
one count of wire fraud (18 U.S.C. 1343) of an eleven count indictment
returned in the Northern District of Illinois. (FN1)
Pursuant to Fed. R. Crim. Pro. 20, the Illinois case was
transferred to the Northern District of Georgia for entry of the plea and
sentencing. United States District Judge J. Owen Forrester, Northern
District of Georgia, sentenced Mr. Riggs to 21 months imprisonment,
ordered him to pay restitution in theamount of $233,880.00, and placed him
on supervised release for a term of two years. The court ordered that Mr.
Riggs may not "own personally or directly have control over a computer of
any type for [his] own personal use during the period of supervised
release." R3-75.

(ii) Statement of Facts
The conduct with which Mr. Riggs was charged involved unauthorized
accessing and dissemination of data and information maintained on private
computer networks. At the conclusion of the sentencing hearing for Mr.
Riggs and his two codefendants, the district court imposed the following
special condition of supervised release:

None of the three of you may own personally or directly have control over
a computer of any type for your own personal use during the period of
supervised release. You may operate computers under your community
service situation and in employment situations where you are employed by a
third person and are being supervised by a third person. I'm simply
saying that during the period of your supervised release, you may not
personally use or own a PC or any other kind of computer; is that clear?

(R3-75-76). The condition was neither requested nor commented on by
counsel for the government.

(iii) Scope of Review
The district court, in imposing the ban on computer ownership and
personal use, exceeded its authority under the supervised release statute.
De novo review of the legality of the condition is therefore appropriate.
Cf. United States v.Jalilian, 896 F.2d 447, 448 (10th Cir. 1990) (review
of probation condition).
Even if imposition of the condition were not beyond
statutory authority, where, as here, a condition of supervised release (or
probation) restricts constitutional rights, the condition must be
subjected to "special scrutiny." See, e.g., United States v. Lawson, 670
F.2d 923, 930 (10th Cir. 1982), quoting United States v.
Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975) (en banc); see also
United States v. Tonry, 605 F.2d 144, 150 (5th Cir. 1979) (applying Ninth
Circuit's standard to condition infringing First Amendment rights).(FN2)

SUMMARY OF ARGUMENT

The district court placed appellant Robert J. Riggs on supervised
release for a period of two years and made a condition of the supervised
release that Mr. Riggs neither "personally use nor own a PC [personal
computer] or any other kind of computer." R3-76. The statute governing
conditions of supervised release requires that conditions create no
greater deprivation of fundamental rights than is "reasonably necessary"
to achieve specified purposes of the 1984 Sentencing Reform Act. See 18
U.S.C. 3583(d). The computer ban cannot meet this standard andthe
district court's sentence should be modified to eliminate this condition.
The ban on personal ownership and use of computers heavily burdens
rights of expression and association protected by the First Amendment.
Because of technological advances in computers and telecommunicatons in
recent years, computers have become a major, and in some circumstances the
primary, way that individuals express their views, receive information and
ideas, and associate with those sharing their interests. Individuals
proficient in the new technology now exercise these fundamental rights
through electronic bulletin boards, computer networks and electronic mail.
(These facilities are defined infra.) The ban on computer ownership and
personal use will make it impossible for Mr. Riggs to exercise his rights
of expression and association through these facilities for two years after
his release from prison.
A complete ban on computer ownership and personal use is a grossly
overbroad restriction that is not "reasonably necessary" to accomplishing
the statutory purposes of deterrence, public protection and rehabilitation
of the defendant. Just as a complete ban on personal telephone use would
be an overbroad condition of supervised release for a defendant convicted
of wire fraud by use of the interstate telephone lines or a complete ban
on personal use of the mails would be an overbroad restriction for a
defendant convicted of mail fraud, so the computer ban is overly broad.
The computer prohibition is far more sweeping than necessary to
effect such purposes as deterring the defendant from committing and
protecting the public from further crimes. The ban indiscriminately
prevents not just illegal conduct, but all activities on computers,
including wholly legitimate ones involving expression and association.
Similarly, it prevents all associations with others that can be
accomplished through
computers, not merely associations with specific individuals who have
committed computer crimes.
Comparison with narrow discretionary conditions authorized by the
statute demonstrates the inappropriateness and overbreadth of the computer
ban.

I. THE PROHIBITION ON OWNERSHIP AND PERSONAL
USE OF COMPUTERS TRENCHES HEAVILY ON RIGHTS
RIGHTS OF EXPRESSION AND ASSOCIATION PRO-
TECTED BY THE FIRST AMENDMENT

The rise of computer technology, particularly over the past ten
years, has created new and increasingly important means for citizens to
communicate and associate with one another. For individuals, like Robert
Riggs, who have become literate in the forms of communication made
possible by computer technology, a prohibition on ownership and personal
use of computers represents a major restraint on rights of expression and
association protected by the First Amendment.
Advances in electronic communications technology have
revolutionized citizens' abilities to and methods of communicating. As
one distinguished scholar has put it:

The technologies used for self-expression, human intercourse, and
recording of knowledge are in unprecedented flux. A panoply of electronic
devices puts at everyone's hand capacities far beyond anything that the
printing press could offer. Machines that think, that bring great
libraries into anybody's study, that allow discourse among persons a
half-world apart, are expanders of human culture. They allow people to do
anything that could be done with the communications tools of the past, and
many more things too.

Pool, Technologies of Freedom 226 (1983).
For the individual citizen, the personal computer has
been the foremost means by which the ability to communicate has been
expanded. The owner of a personal computer may, from his or her own home,
use electronic bulletin board systems, electronic mail and computer
networks systems. Each of these services offers unprecedented means of
expression and association.
Electronic bulletin board systems are computer systems which
permit users to communicate with others in a variety of ways.(FN3) Users
can send or "post" messages, read messages left by others, and hold direct
conversations. Electronic Soapbox, 39 Fed. Com. L. J. at 217. Electronic
bulletin boards allow electronic conversations, which can occur between
two or among hundreds of people. Id. at 218. The boards offer

a unique way for a group of people to discuss an idea or an event. One
person starts the discussion by posting a message. Others read the
message and add their comments. One need not respond immediately -- a
person can carefully prepare a reply and post it later. The people
involved need not be in the same place at the same time and do not have to
know each other. The participants in the discussion do not even have to
know each other. Those not actually adding to the discussion can benefit
simply by reading the posted comments.

Note, Computer Bulletin Board Operator Liability for User Misuse, 54 Ford.
L. Rev. 439, 440-41 (1985). Boards can be used to hold conferences, which
can be unstructured discussions or structured events such as professional
meetings or press conferences. Computer Bulletin Board Defamation, 22
Conn. L. Rev. at 212. Computer networks, like the bulletin boards, offer
the opportunity for numerous individuals to participate in a
conference.(FN4) Bulletin boards and networks thus offer not only a forum
for individuals to exercise their rights of free expression, but also a
forum for exercise of the right to receive ideas. See, e.g., Kleindienst
v. Mandel, 408 U.S. 753, 762-63 (1972), and cases cited therein.
Many electronic bulletin boards and computer networks offer a
service known as electronic mail ("E-mail") by which a subscriber to a
computer system may send correspondence to another user of the system via
a central computer. E-mail is addressed to one or more accounts on a
computer system assigned to specific users, and is typically stored on the
system until read and deleted or stored again. The privacy of E-mail is
typically secured by means of a password so that only individuals with
knowledge of an account's password can obtain access to mail sent to that
account. Thus computer systems provide a method for individuals to engage
in private(FN5) conversations with one another. Like the use of
electronic bulletin boards, use of E-mail is widespread. See Electronic
Soapbox, at 219 n.10; see also Brand, The Media Lab 23, 24 (1987),
estimating that by 1987, two and a half million homes were linked to
services providing E-mail and related services and estimating 250 million
to one billion messages a year are transmitted by E-mail.
Because of the popularity and widespread use of personal
computers, electronic bulletin boards provide a very significant new
channel of communication. Bulletin Board systems range in size from small
systems operated by individual using personal computers in their homes to
larger systems operated by commercial organizations. Two of the largest
systems -- Prodigy, operated by IBM and Sears, and CompuServe, operated by
H&R Block -- have over 330,00 users and half a million users respectively.
See Levy, Macworld 69 (Jan. 1991), Computer Bulletin BoardDefamation, 22
Conn. L. Rev. at 204 n.4. Industry estimates indicate there are
approximately 32,000 bulletin board systems in operation in the United
States today. Boardwatch Magazine 8 (May, 1991).
The possibilities for speech and association presented by computer
bulletin boards are easily and cheaply available to the public. "If one
has a personal computer, gaining access to a computer bulletin board is as
easy as dialing a phone number." Electronic Soapbox, 39 Fed. Com. L. J.
at 218. In fact, in one sense bulletin board systems are simply
extensions of telephone service, since it is usually through a modem
connected to telephone lines that the personal computer user is linked to
the computer operating the board and to other people who themselves are in
telecommunication with the board. Id.
The ease and economy with which communications can be made through
boards makes them an increasingly important method for the individual
citizen to be heard. "In an age when most forms of mass communication,
and thus public debate, are controlled by a small number of people,
bulletin boards have the potential to play an important role in the
exploration and exchange of ideas." Bulletin Board Operator, 54 Ford. L.
Rev. at 441. Thus, the boards fairly have been analogized to Hyde
ParkCorner, town meetings, the Democracy Wall, or leafletting, and called
the printing presses of the twenty-first century.(FN6)
Electronic bulletin boards permit communication on an unlimited
variety of topics. Boards have been recognized as an effective forum for
individual expression of opinion on matters of public interest and for
public debate of controversial issues. Bulletin Board Operator, 54 Ford.
L. Rev. at 440 and 444. Boards are thus a forum for speech acnowledged to
lie at the heart of the First Amendment. See, e.g., Buckley v. Valeo, 424
U.S. 1, 14 (1976), and cases cited therein.
But electronic bulletin boards also address a wide variety of
other subjects and interests, ranging from business to religion.
Electronic Soapbox, at 222. One common subject is computers themselves.
Id. Individuals accessing a board devoted to computer use can, for
example, ask technical questions about particular computer programs or
seek advice about computer products and their capabilities. See Computer
Bulletin Board Operator, at 440.(FN7)
Denial of access to computers may close off the sole or at least
the primary means of associating with those who share one's interests.
Electronic bulletin boards may be the only place in which issues one is
interested in are being addressed, audiences one wishes to reach can be
found, or information one needs is being offered. Because of the
possibilities for conversation among many people and the enormous
distances that separate individuals interested in a particular topic, use
of an electronic bulletin board may be the only feasible means of
communication on that topic. See, e.g., 'Talking' on the Computer
Redefines Human Contact, The New York Times, May 13, 1990 at 1
("[C]omputer networks often become electronic communities that give people
thousands of miles apart the feeling of being connected in a small
village, with all the intimacy and ease of communication that implies.")
Electronic bulletin boards have also become a means for
individuals to meet and socialize with others who share their interests.
The growth of computer networks is changing how people "find friends [and]
seek entertainment." 'Talking' on the Computer Redefines Human Contact,
The New York Times, May 13, 1990 at 1.(FN8) Therefore, a prohibition on
personal ownership and use of computers can grossly interfere with an
individual's right to associate for personal as well as professional and
political purposes. See Roberts v. United States Jaycees, 468 U.S. 609,
622 (1984) ("[W]e have long understood as implicit in the right to engage
in activities protected by the First Amendment a corresponding right to
associate with others in pursuit of a wide variety of political, social,
economic, educational, religious, and cultural ends") (citations omitted).
The rapid advance of computer technology to this point has
outstripped our legal system's ability to understand the proper place the
new technology should hold in our scheme of constitutional
protections.(FN8) This disjuncture has surfaced in this case, where the
district court's restriction on computer use has swept too broadly,
infringing the freedom of speech and association that the First Amendment
guarantees.
The ban on computer ownership and personal use significantly
impinges on Mr. Riggs' exercise of fundamental rights. Like a growing
segment of our society, Mr. Riggs communicates primarily through the
written rather than the spoken word.(FN10) In his preference for the
written word Mr. Riggs is similar to many who communicate via computer.
It has been recognized that for some people:

[electronic bulletin] boards offer an opportunity to know and be known by
a nationwide circle, a process called "networking." Written conversation
favors the witty turn of phrase, not the loudest voice. The instant
interaction allows board communication to avoid the fate of the well
written, but slow moving letter. Finally, anonymity allows the timid to
flower: identity, appearance, possibly even personality, become
unimportant.

Electronic Soapbox, at 224 (footnotes omitted). To deny Mr. Riggs the
right to own and to personally use a computer is to deny him his primary
means of expressing himself, receiving advice and information, and
associating with others.
The district court's prohibition is extremely broad. It does not
merely prohibit particular, illegal uses of computers. Rather, it
prevents any use of a computer by Mr. Riggs for his own personal speech or
association. While the district court contemplated Mr. Riggs may use
computers in his community service work and employment, R3-74-76, those
efforts will be on behalf of others and will offer him no opportunity to
express himself, receive information of his choosing or associate with
whom he wishes to communicate.(FN11) The district court's condition will
result in a two-year prohibition on Mr. Riggs' exercise of his
constitutionally protected rights to communicate and associate with others
through electronic means.


II. THE DISTRICT COURT'S PROHIBITION ON MR. RIGGS'
OWNERSHIP AND PERSONAL USE OF COMPUTERS AS A
CONDITION OF HIS SUPERVISED RELEASE IS IMPROPER
BECAUSE IT CREATES A GREATER DEPRIVATION OF
LIBERTY THAN IS REASONABLY NECESSARY TO
EFFECTUATE STATUTORY GOALS

A. The Sentencing Reform Act Requires That Con-
ditions Of Supervised Release Not Impinge
Unnecessarily On Liberty Interests

The Sentencing Reform Act of 1984, as amended, 18 U.S.C. 3551 et
seq. and 28 U.S.C. 991-998, provides, in pertinent part, that the
district court which is imposing a term of imprisonment may, and in some
circumstances must "include as a part of the sentence a requirement that
the defendant be placed on a term of supervised release after
imprisonment. . . ." 18 U.S.C. 3583(a). Where a term of supervised
release is imposed, the statute provides that certain conditions must be
imposed and others may be imposed. In pertinent part, the statute
provides that discretionary conditions on supervised release may be
imposed only to the extent that any such condition:

(2) involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C),
and (a)(2)(D). . . .

18 U.S.C. 3583(d).(FN12)
The statute specifies the types of discretionary conditions which
may be imposed on a supervised release by reference to the statutory
provisions listing discretionary conditions of probation. See 18 U.S.C.
3583(d), incorporating 18 U.S.C. 3563(b)(1) through (b)(10) and (b)(12)
through (b)(20).(FN13) The supervised release statutory provisions also
permit the court to impose other "appropriate" conditions, but only to the
extent permitted by the restriction quoted above. 18 U.S.C. 3853(d).
The probation statute contains a similar "wildcard" provision. 18 U.S.C.
3563(b)(21).
As specified in 3583(d)(2), conditions on supervised release must
involve "no greater deprivation of liberty than is reasonably necessary"
to serve the purposes of deterrence ( 3553(a)(2)(B)), public protection (
3553(a)(2)(C)), and training, care or treatment of the defendant (
3553(a)(2)(D)). The concern that civil liberties not be unnecessarily
impinged is reflected in the legislative history of 3583. See S. Rep. No.
225, 98th Cong., 2d Sess. 125, reprinted in 1984 U.S. Code Cong. & Ad.
News 3182, 3307 (hereinafter "S. Rep. at ___, 1984 U.S.C.C.A.N. at ___")
("Whatever conditions are imposed may not involve a greater deprivation of
liberty than is necessary. . . .").
The Sentencing Reform Act of 1984 was intended to codify an
approach to the imposition of conditions in sentencing more protective of
civil liberties than under prior law, which authorized the imposition of
probation "upon such terms and conditions as the court deems best." See
former 18 U.S.C. 3651, repealed by Pub. L. 98-473, Title II, c. II,
212(a)(1),(2), Oct. 12, 1984.(FN14)
The change in approach is unequivocally spelled out in the
legislative history of 3563(b), the provision which sets out the
discretionary conditions which may be applied in probation and supervised
release:

Unlike current law, subsection (b) specifically states . . . that any
condition that involves a restriction of liberty must be reasonably
necessary to the purposes of sentencing set forth in section 3553(a)(2).
This language is designed to allay the fears of such disparate groups as
the ACLU and the Business Roundtable that probation conditions might be
too restrictive in a particular case or might involve more supervision
than is justified by the case. The judge is limited in imposing
conditions of probation to imposing only those that carry out the purposes
of sentencing in a particular case. He cannot restrain the liberty of a
defendant who does not need that level of punishment or incapacitation. .
. .

S. Rep. at 99, 1984 U.S.C.C.A.N. at 3282. The Senate report repeatedly
emphasizes that conditions involving deprivations of liberty or property
must be "reasonably necessary" to the purposes of the statutory sentencing
provisions to be upheld. See, e.g., S. Rep. at 94, 95, 96, 1984
U.S.C.C.A.N. at 3277, 3278, 3279.
Because of the significant change in the law, the case law under
former 18 U.S.C. 3651 upholding probation conditions provides the Court
little guidance in reviewing conditions imposed under the Sentencing
Reform Act. See United States v. Cothran, 855 F.2d 749, 751 n.2 (11th
Cir. 1988) (noting change in the law). Whereas previously, conditions
affecting the exercise of constitutionally protected rights could be
upheld if they were "reasonably related" to the purposes of the former 18
U.S.C. 3651, see, e.g., Owens v. Kelley, 681 F.2d 1362, 1366 (11th Cir.
1982)(FN15), under the current law such conditions may only be upheld if
they effect no greater deprivation of rights than "reasonably necessary" to
achieve statutory purposes.(FN16)


B. The Prohibition On Ownership And Personal Use
Of Computers Is A Deprivation Of Liberty Not
Reasonably Necessary To Carry Out The Purposes
Of The Sentencing Statute

1. The Computer Ban Is Far Too Broad To Be
Reasonably Necessary Or Reasonably Related
To The Statutory Purposes Of Deterrence,
Public Protection And Rehabilitation

A fundamental premise of our law is that those subject to the
corrections system retain their constitutional rights except to the extent
that well-articulated requirements of that system necessitate incursions
into those rights. Since this proposition is true for those who are
incarcerated, see, e.g., Pell v. Procunier, 417 U.S. 817, 822 (1974)
("[An] inmate retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the legitimate . . .
objectives of the corrections system"), it is a fortiori true for
probationers and those on supervised release. See, e.g., United States v.
Tonry, 605 F.2d 144, 150 (5th Cir. 1979).(FN17)
For this reason, "probation conditions that restrict
constitutional rights merit 'special scrutiny.'" United States v. Lawson,
670 F.2d 923, 930 (10th Cir. 1982), quoting United States v.
Consuelo-Gonzales, 521 F.2d 259, 265 (9th Cir. 1975) (en banc). Under
current law, to survive this special scrutiny, a condition impinging
fundamental rights must be "reasonably necessary" to the needs of the
probation or supervised release system. Amicus submits that under the
current standard -- or even under the former "reasonably related" standard
-- the computer ban cannot survive.
The district court acted outside its statutory and discretionary
authority when it imposed the condition that Mr. Riggs may not own or use
for personal reasons any computer during the two years of his supervised
release. As demonstrated in Point I, ante, the court's condition impinges
on Mr. Riggs' First Amendment interests, and therefore the condition must
meet the requirement of 3583(d)(2). The ban on computer ownership and
personal use is grossly overbroad and is not reasonably necessary to
achieve the statutory goals of deterrence, protection of the public, and
rehabilitation.(FN18) Furthermore, it is counterproductive to the purpose
of rehabilitation.
The overbreadth of the ban is most graphically illustrated by
analogy. The condition imposed here is equivalent to a condition
prohibiting an individual convicted of committing wire fraud by means of
interstate telephone calls from owning (or leasing) a telephone and from
making any personal, unsupervised calls. Analogy to telephone calls is
particularly appropriate here, since it is generally by use of telephone
lines that the user of a personal computer communicates with bulletin
boards, networks and other individual computer users. See Electronic
Soapbox, 39 Fed. Com. L. J. at 218. Presumably, it is precisely Mr.
Riggs' ability to "call out" from his computer that the sentencing judge
intended to halt, so that he cannot gain unauthorized access to network
services or data.(FN19) But the ban does not merely prevent Mr. Riggs
>from calling systems he is not authorized to enter. It prohibits him from
calling any system or person. It also prevents him from receiving
communications. A sentencing judge in a wire fraud case would
unquestionably conclude that a complete ban on telephone possession and
personal use would be an impermissibly overbroad means of preventing a
recurrence of the wire fraud. So, too, a ban on personal computer use and
ownership to prevent a repeat of unauthorized accessing of computers is
impermissibly overbroad.(FN20)
The ban on personal computer use is also analogous to a general
prohibition on personal use of the mails as a condition imposed on one
convicted of crimes involving fraudulent use of the mails. One such
condition prohibiting use of the mails was recognized to be an overbroad
restriction on First Amendment rights and was struck down. United States
v. Holloway, 740 F.2d 1373 (6th Cir.), cert. denied, 469 U.S. 1021 (1984).
Holloway involved a prison inmate who was convicted of a
conspiracy with other inmates to file false tax returns. She received a
sentence that included periods of incarceration and probation. The
district court imposed two restrictions on Holloway regarding her
correspondence. One prevented her during the period of her probation from
corresponding with prison inmates. Id. at 1381. The court of appeals
upheld this limited prohibition, finding it served purposes of
rehabilitation and public protection. Id. at 1383. The court found it
significant that "Holloway became involved in the scheme only by virtue of
her extended correspondence with inmates," and that Holloway made use of
the mails in committing her crime. Id.
The district court's second restriction provided that "Holloway
could 'communicate by mail only with her relatives, legal counsel and
other recognized counselors' during the period of her incarceration." Id.
Observing that this prohibition would "forbid Holloway from writing
letters to a wide range of persons who had nothing to do with her criminal
conduct," the court stated:

The limitation on Holloway's ability to communicate with friends, informal
advisors and holders of public office is sufficiently broad to affect
values and principles which are undoubtedly at the core of the first
amendment.

Id. Finding the condition overbroad, the court struck it down:

The present restriction on mailing simply is not carefully drawn to
"serve the dual objectives of rehabilitation and public safety." Rather,
it imposes a restriction on Holloway which, because of its breadth, does
not bear a logical relationship to the criminal conduct in which Holloway
has engaged. The restriction is not, therefore, reasonably related to
achieving rehabilitation and to protecting the public. Cf. [United States
v.] Lawson, 670 F.2d [923,] 929-30 [10th Cir. 1982]; [United States v.]
Smith, 618 F.2d [280,] 282 [5th Cir. 1980]; Porth v. Templar, 453 F.2d
330, 334 (10th Cir. 1971).

Id. (footnote omitted).

Like the mail restriction struck down in Holloway, the ban on
computer use is "not carefully drawn" to effectuate statutory purposes and
"because of its breadth, does not bear a logical relationship to the
criminal conduct" in which Mr. Riggs engaged.(FN21) Like the Holloway
ban, the computer ban prohibits Mr. Riggs from communicating with a wide
range of persons having nothing to do with his criminal conduct. While
the fact that Holloway corresponded with inmates as part of her criminal
conspiracy could justify a ban on her correspondence with inmates, it
could not justify a broader ban on her use of the mails. Similarly, Mr.
Riggs' use of a computer to commit his crime does not justify a wholesale
ban on his communicating with anyone by computer.
Amicus submits that no rehabilitation is effected by the wholesale
prohibition on personal computer use. Community service work, which is
contemplated in Mr. Riggs' sentence, is a proper means of rehabilitating
him. Prohibiting development of his skills and isolating him from
legitimate uses and users of computers is surely not "reasonably
necessary" to his rehabilitation.

2. Discretionary Conditions Specifically Authorized
By Statute Or Imposed In Other Contexts Provide No
Support For The Imposition Of The Computer Ban Here

The computer ban condition is not authorized by the "wildcard"
provision of 3583(d), which permits "appropriate" conditions other than
those specified in the statute. Nor do the conditions in 3563(b)(1)-(10)
and (12)-(20) authorize the computer ban. Furthermore, comparison with
some of the discretionary conditions specified in the statute demonstrates
the inappropriateness and overbreadth of the computer ban.
The statute contemplates that in appropriate cases an individual
may be required to refrain "from associating unnecessarily with specified
persons." 18 U.S.C. 3563(b)(7). As the legislative history of this
provision makes clear, a condition limiting associations must be specific,
and tailored to the particular circumstances of the defendant. S. Rep. at
97, 1984 U.S.C.C.A.N. at 3280. Here the condition in effect prohibits Mr.
Riggs' association not just with individuals known to have committed
computer crimes, but with everyone who uses computers.
Even under prior law, reviewing courts have struck down or
modified probation conditions requiring disassociation which swept too
broadly. The former Court of Appeals for the Fifth Circuit, in a case
involving a tax protester's conviction for violating the tax laws,
disapproved a condition that the protester "divorce [himself] from any
organization advocating the willful disobedience of any local, state or
federal law...." United States v. Smith, 618 F.2d 280, 282 (5th Cir.), cert.
denied, 449 U.S. 868 (1980). The Court modified the condition to prohibit
only association with organizations advocating disobedience to the tax
laws. Id. See also United States v. Patterson, 627 F.2d 760, 761 (5th
Cir. 1980) (following Smith); United States v. Lawson, 670 F.2d 923,
929-30 (10th Cir. 1982) (in order to save condition, court interprets it
to prohibit only tax protester's associating with groups urging
disobedience of, as opposed to disagreement with tax laws.) In this case,
the computer prohibition requires wholesale disassociation with everyone
who communicates by computer, and could not withstand scrutiny even under
the analysis of cases decided under prior law.
The prohibition on possession of a computer suggests that the
sentencing court had in mind another of the statutory discretionary
conditions -- that the defendant "refrain from possessing a firearm,
destructive device, or other dangerous weapon." 3563(b)(9). Any analogy
between firearms and computers is extremely inapt. A computer is not a
dangerous weapon; rather, it is primarily a means of communication and
association.
Analogies to revocations of drivers' licenses are also entirely
inappropriate. Unlike a computer, an automobile is not essentially a
means of communication and association. Driving is an activity licensed
by the State, while computer use is First Amendment speech which is not and
cannot be regulated or licensed by the government.
Finally, the provision of the statute allowing restraints on
individuals from engaging in specified occupations, businesses or
professions, 18 U.S.C. 3563(b)(6), provides no support for the imposition
of the computer ban. There is no constitutional right to engage in a
particular job. For example, it violates no fundamental right to prohibit
a stockbroker who has committed crimes in the course of his or her work
>from selling stock for a period of time. In contrast, again, the computer
ban is a limitless incursion into fundamental First Amendment rights.
In rare circumstances, First Amendment rights do attach to a job
-- for example, the holding of political office. See, e.g., United States
v. Tonry, 605 F.2d at 150. But in such cases, an individual's commission
of a crime while in public office makes it particularly appropriate to
protect the public by "determining that the very limited activity" of
running for or holding public office "should not be accorded him during
probation. . . ." 605 F.2d at 151.
The condition of restricting employment "should only be used as
reasonably necessary to protect the public." United States Sentencing
Guidelines, 5F1.5, Commentary, quoting S. Rep. at 96, 1984 U.S.C.C.A.N.
at 3279. While protection of the public may have necessitated banning the
defendant in Tonry from the "very limited activity" of public office, it
is not necessary to bar Mr. Riggs from all personal computer use to protect
the public.

3. This Court Has Authority To
Strike Down The Computer Ban

It is within this Court's authority to modify the district court's
sentence by eliminating the prohibition on computer ownership and personal
use. See, e.g., United States v. Jimenez, 600 F.2d 1172, 1175 (5th Cir.
1979). Amicus submits that because the ban clearly trenches on First
Amendment rights and is not reasonably necessary to statutory objectives
of deterrence, public protection or rehabilitation, the Court should
strike it down, rather than remand to the district court.
CONCLUSION
For the foregoing reasons, the sentence of the district court
should be modified to eliminate the condition of Mr. Riggs' supervised
release prohibiting his ownership and personal use of a computer.
Dated: May 17, 1991
Respectfully submitted,



_____________________________
ERIC M. LIEBERMAN
NICHOLAS E. POSER
RABINOWITZ, BOUDIN, STANDARD,
KRINSKY & LIEBERMAN, P.C.
740 Broadway - Fifth Floor
New York, New York 10003
(212) 254-1111

HARVEY A. SILVERGLATE
SHARON L. BECKMAN
SILVERGLATE & GOOD
The Batterymarch Building
80 Broad Street - 14th Floor
Boston, Massachusetts 02110
(617) 542-6663

Counsel for Amicus Curiae Electronic Frontier Foundation



FOOTNOTES:

FN1. Riggs pleaded guilty to a second count of the Illinois indictment,
charging interstate transportation of stolen property, 18 U.S.C. 2314,
but the government moved to dismiss the plea as to this count after it was
revealed that the property was valued at under $5,000, the statutory
minimum. The government did not make a similar motion as to the wire
fraud count because 18 U.S.C. 1343 has no minimum dollar threshold. See
Sentencing Information Filed on Behalf of the Northern District of
Illinois United States Attorney's Office, submitted with the Government's
Sentencing Memorandum and S.G. 5K1.1 Motion. R1-50-1-2 and 7-8.

FN2. Because the condition applied in this case burdens First Amendment
rights, the abuse of discretion standard, see, e.g., United States v.
Cothran, 855 F.2d 749, 751 (11th Cir. 1988), is supplanted by a stricter
level of review.

FN3. See generally Note, An Electronic Soapbox: Computer Bulletin Boards
and the First Amendment, 39 Fed. Com. L. J. 217 (1987) ("Electronic
Soapbox"), Soma, Smith and Sprague, Legal Analysis of Electronic Bulletin
Board Activities, 7 W. New Eng. L. Rev. 571 (1985) (hereinafter
"Electronic Bulletin Board Activities"), and Becker, The Liability of
Computer Bulletin Board Operators for Defamation Posted by Others, 22
Conn. L. Rev. 203 (1989) ("Computer Bulletin Board Defamation").

FN4. Some boards and networks provide for instantaneous conversations.

FN5. Operators of electronic bulletin board systems, like operators of
telephone systems, generally have the technological capability to access
private communications. The privacy of electronic communications is
protected by law. See Electronic Communications Privacy Act, 18 U.S.C.
2701 et seq. Some systems operators as a matter of policy or by contract
with users ensure that no one but the intended recipient can read E-mail.

FN6. See, e.g., Computer Bulletin Board Defamation, 22 Conn. L. Rev. at
204; Pool, Technologies of Freedom 189.

FN7. As the government noted, one of Robert Riggs' three main objectives
was to "learn C Programmming". Government's Sentencing Memorandum and
S.G. 5K1. 1 Motion at 11. R1-50-11. The computer ban will cut him off
>from useful sources of information on this subject.

FN8. Stories have been reported of on-line courtships, id., and on-line
wedding receptions and parties. Electronic Soapbox at 219 n.9.

FN9. See Tribe, American Constitutional law 1007 (1988) (quoting Pool,
Technologies of Freedom 7 (1983)).

FN10. As his attorney emphasized at the sentencing hearing, Mr. Riggs
does not speak well, but "writes very well." R3-38. In fact, in
preparing his case, he communicated with his attorney primarily through
written notes and observations. Id.

FN11. It is unclear whether the district court intended to permit
"supervised" personal use of a computer. Even if so, it is simply
unrealistic to suppose that Mr. Riggs will obtain "supervision" from
probation personnel or anyone approved by them which would permit him to
engage in personal use of a computer.

FN12. Section 3553(a) sets out the factors to be considered in imposing
a sentence. The provisions of 3553(a) relevant to a determination under
3583(d)(2) are:

(2) the need for the sentence imposed . . .

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant;
and

(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner. . . .

FN13. See "Recommended Conditions of Probation and Supervised Release
(Policy Statement)," which set out "standard" and "special" conditions
that apply to both probation and supervised release. Sentencing
Guidelines 5B1.4.

FN14. See, e.g., U.S. v. Stine, 646 F.2d 839, 842 (3rd Cir. 1981),
quoting former 18 U.S.C. 3651.

FN15. See also United States v. Tonry, 605 F.2d 144, 150 (5th Cir. 1979).
This standard was held to facilitate "'an accommodation between the
practical needs of the probation system and the constitutional guarantees
of the Bill of Rights.'" Owens v. Kelley, 681 F.2d at 1366, quoting
United States v. Pierce, 561 F.2d 735, 739 (9th Cir. 1977), cert. denied,
435 U.S. 923 (1978).

FN16. The change in statutory language from "as the court deems best" to
"reasonably necessary" unquestionably reflects a change to a more
restrictive standard allowing less intrusion on fundamental rights. Cf.
United States v. Holmes, 614 F.2d 985, 988 (5th Cir. 1980).

FN17. The justifications for restricting the freedoms of probationers and
those on supervised release will always be lesser than those for
restricting prisoners. Safeguarding institutional security is a central
objective of prison administration used to justify intrusions on
prisoners' rights, see, e.g., Bell v. Wolfish, 441 U.S. 520, 546-47
(1979), which has no relevance to individuals living outside the prisons.

FN18. Section 3583(d)(2) notably excludes from consideration the factors
set out in 3553(a)(2)(A), including the "seriousness of the offense" and
"just punishment."

FN19. There is no conceivable justification for a prohibition on Mr.
Riggs' engaging in activities on a personal computer disconnected from any
other computer, such as word processing. Yet, the judge's overbroad
condition also prohibits these solitary activities.

FN20. It is a mandatory condition of supervised release that Mr. Riggs
not commit another crime. 18 U.S.C 3583(d). Imposing a discretionary
condition completely barring him from computer ownership and personal use
is an extremely blunt and unnecessary tool for securing his compliance
with the condition that he commit no crimes to which he is already bound.

FN21. The district court's computer ban is broader than the mail
restriction struck down in Holloway.