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########## ########## ### 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 APPEALSFOR THE ELEVENTH CIRCUIT

NO. 90-9108NO. 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 FORTHE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION

BRIEF OF AMICUS CURIAEELECTRONIC FRONTIER FOUNDATION

ERIC M. LIEBERMAN

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NICHOLAS E. POSERRABINOWITZ, BOUDIN, STANDARD,KRINSKY & LIEBERMAN, P.C.

740 Broadway - Fifth FloorNew York, New York 10003(212) 254-1111

HARVEY A. SILVERGLATESHARON L. BECKMANSILVERGLATE & GOODThe Batterymarch Building80 Broad Street - 14th FloorBoston, 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 ANDCORPORATE DISCLOSURE STATEMENT

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

Kent B. Alexander, Assistant United States AttorneySharon L. Beckman, Attorney for Amicus Curiae

Electronic Frontier Foundation

Electronic Frontier Foundation, Amicus Curiae

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

Paul S. Kish, Attorney for defendant-appellant

Eric M. Lieberman, Attorney for Amicus CuriaeElectronic Frontier Foundation

Nicholas E. Poser, Attorney for Amicus CuriaeElectronic Frontier Foundation

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

Robert J. Riggs, defendant-appellant

Harvey A. Silverglate, Attorney for AmicusCuriae Electronic Frontier Foundation

Silverglate & Good, Attorneys for Amicus

Curiae Electronic Frontier Foundation

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___________________________NICHOLAS E. POSER

STATEMENT OF INTEREST OF AMICUSCURIAE ELECTRONIC FRONTIER FOUNDATION

Amicus curiae Electronic Frontier Foundation submits this brief toassist the Court's review of the special condition of the defendant'ssupervised release imposed by the district court prohibiting him fromowning or personally using a computer. Pursuant to Fed. R. App. P. 29,the Foundation submits this brief with the written consent of both thedefendant and the government. The letters of the parties consenting tothe filing of this brief have been contemporaneously submitted to theclerk of the Court.

The Electronic Frontier Foundation believes the condition barringcomputer ownership and personal use substantially infringes FirstAmendment rights of expression and association. The legality of thecondition presents a novel and important question, whose resolution by

this Court will have a profound impact on the development of the law. Asexplained below, the question presented here is precise of the kind whichthe Foundation was established to address and about which it hasconsiderable expertise.

The Electronic Frontier Foundation is a nonprofit organizationestablished in 1990 to promote the public interest in the development ofcomputer-based communication technology.

The founders and directors of the Electronic Frontier Foundationinclude Mitchell Kapor and Steven Wozniak, two of our nation's leadingexperts in the area of computer technology. Mr. Kapor founded the LotusDevelopment Corporation and designed and developed the Lotus 1-2-3spreadsheet software. Mr. Wozniak was one of the co-founders of AppleComputer, Incorporated. These individuals have comprehensive knowledge of

the developing computer-based technologies and the promises and threatsthey present.

The Foundation's goals, as set forth in its mission statement, areas follows:

Engage in and support educational activities which increase popularunderstanding of the opportunities and challenges posed by developments incomputing and telecommunications.

Develop among policy-makers a better understanding of the issuesunderlying free and open telecommunications, and support the creation oflegal and structural approaches which will ease the assimilation of thesenew technologies by society.

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

Encourage and support the development of new tools which will endownon-technical users with full and easy access to computer-basedtelecommunication.

While the Foundation regards unauthorized entry into computer

systems as wrong and deserving of punishment, it also believes thatlegitimate law enforcement goals must be served by means that do notviolate the rights and interest of the users of electronic technology and

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that do not chill use and development of this technology.

The novel question presented in this appeal falls squarely withinthe expertise and interest of the Electronic Frontier Foundation. TheFoundation believes it can be of assistance to the Court in determiningwhether the condition imposing a computer ban infringes rights of speechand 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 ARGUMENTAmicus curiae Electronic Frontier Foundation requests oral

argument in this appeal, which presents the novel question of the legalityof generally prohibiting computer ownership and personal use as acondition of supervised release. Because computers are means ofcommunication and association with others, the prohibition raisesimportant issues under the First Amendment. Amicus has comprehensive

knowledge of computer-based technologies and a deep interest both indeveloping public understanding of those technologies and of the civilliberties implications of governmental restrictions on their use. (SeeStatement of Interest of Amicus at pp. i-iii.) Amicus believes oralargument will assist the court in resolving the legal issue presented bythe computer ban.

TABLE OF CONTENTS

Pages

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

STATEMENT OF INTEREST OF AMICUSCURIAE 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 andDisposition Below ............................ 1

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

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

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

I. THE PROHIBITION ON OWNERSHIP AND

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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

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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

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PERIODICALS

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

Becker, The Liability of Computer BulletinBoard Operators for Defamation Posted

by Others, 22 Conn. L. Rev. (1989) ............... 6,7,9

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

Soma, Smith and Sprague, Legal Analysis ofElectronic 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 UniversityPress, 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 JURISDICTIONThe Court has jurisdiction over this appeal pursuant to 28 U.S.C.

1291.

STATEMENT OF THE ISSUE

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

STATEMENT OF THE CASE

(i) Course of Proceedings and Deposition BelowAppellant Robert J. Riggs pleaded guilty to one count of

conspiracy to defraud (18 U.S.C. 371) of an eight count indictmentreturned in the Northern District of Georgia. He also pleaded guilty toone count of wire fraud (18 U.S.C. 1343) of an eleven count indictmentreturned in the Northern District of Illinois. (FN1)

Pursuant to Fed. R. Crim. Pro. 20, the Illinois case wastransferred to the Northern District of Georgia for entry of the plea andsentencing. 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 himon supervised release for a term of two years. The court ordered that Mr.

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Riggs may not "own personally or directly have control over a computer ofany type for [his] own personal use during the period of supervisedrelease." R3-75.

(ii) Statement of FactsThe 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 followingspecial condition of supervised release:

None of the three of you may own personally or directly have control overa computer of any type for your own personal use during the period ofsupervised release. You may operate computers under your communityservice situation and in employment situations where you are employed by athird person and are being supervised by a third person. I'm simplysaying that during the period of your supervised release, you may notpersonally 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 bycounsel for the government.

(iii) Scope of ReviewThe 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) (reviewof probation condition).

Even if imposition of the condition were not beyondstatutory authority, where, as here, a condition of supervised release (orprobation) restricts constitutional rights, the condition must besubjected 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 alsoUnited States v. Tonry, 605 F.2d 144, 150 (5th Cir. 1979) (applying NinthCircuit's standard to condition infringing First Amendment rights).(FN2)

SUMMARY OF ARGUMENT

The district court placed appellant Robert J. Riggs on supervisedrelease for a period of two years and made a condition of the supervisedrelease that Mr. Riggs neither "personally use nor own a PC [personalcomputer] or any other kind of computer." R3-76. The statute governingconditions of supervised release requires that conditions create nogreater deprivation of fundamental rights than is "reasonably necessary"to achieve specified purposes of the 1984 Sentencing Reform Act. See 18U.S.C. 3583(d). The computer ban cannot meet this standard andthedistrict court's sentence should be modified to eliminate this condition.

The ban on personal ownership and use of computers heavily burdensrights of expression and association protected by the First Amendment.Because of technological advances in computers and telecommunicatons inrecent years, computers have become a major, and in some circumstances theprimary, way that individuals express their views, receive information andideas, and associate with those sharing their interests. Individualsproficient in the new technology now exercise these fundamental rightsthrough 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 rightsof expression and association through these facilities for two years afterhis release from prison.

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A complete ban on computer ownership and personal use is a grosslyoverbroad restriction that is not "reasonably necessary" to accomplishingthe statutory purposes of deterrence, public protection and rehabilitationof the defendant. Just as a complete ban on personal telephone use wouldbe an overbroad condition of supervised release for a defendant convictedof wire fraud by use of the interstate telephone lines or a complete banon 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 andprotecting the public from further crimes. The ban indiscriminatelyprevents 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 beaccomplished throughcomputers, not merely associations with specific individuals who havecommitted computer crimes.

Comparison with narrow discretionary conditions authorized by thestatute demonstrates the inappropriateness and overbreadth of the computer

ban.

I. THE PROHIBITION ON OWNERSHIP AND PERSONALUSE OF COMPUTERS TRENCHES HEAVILY ON RIGHTSRIGHTS OF EXPRESSION AND ASSOCIATION PRO-TECTED BY THE FIRST AMENDMENT

The rise of computer technology, particularly over the past tenyears, has created new and increasingly important means for citizens tocommunicate and associate with one another. For individuals, like RobertRiggs, who have become literate in the forms of communication madepossible by computer technology, a prohibition on ownership and personaluse 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. Asone distinguished scholar has put it:

The technologies used for self-expression, human intercourse, andrecording of knowledge are in unprecedented flux. A panoply of electronicdevices puts at everyone's hand capacities far beyond anything that theprinting press could offer. Machines that think, that bring greatlibraries into anybody's study, that allow discourse among persons ahalf-world apart, are expanders of human culture. They allow people to doanything that could be done with the communications tools of the past, andmany 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 beenexpanded. The owner of a personal computer may, from his or her own home,use electronic bulletin board systems, electronic mail and computernetworks systems. Each of these services offers unprecedented means ofexpression and association.

Electronic bulletin board systems are computer systems whichpermit users to communicate with others in a variety of ways.(FN3) Userscan send or "post" messages, read messages left by others, and hold directconversations. Electronic Soapbox, 39 Fed. Com. L. J. at 217. Electronic

bulletin boards allow electronic conversations, which can occur betweentwo or among hundreds of people. Id. at 218. The boards offer

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a unique way for a group of people to discuss an idea or an event. Oneperson starts the discussion by posting a message. Others read themessage and add their comments. One need not respond immediately -- aperson can carefully prepare a reply and post it later. The peopleinvolved need not be in the same place at the same time and do not have toknow each other. The participants in the discussion do not even have toknow 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, whichcan be unstructured discussions or structured events such as professionalmeetings or press conferences. Computer Bulletin Board Defamation, 22Conn. L. Rev. at 212. Computer networks, like the bulletin boards, offerthe opportunity for numerous individuals to participate in aconference.(FN4) Bulletin boards and networks thus offer not only a forumfor individuals to exercise their rights of free expression, but also aforum for exercise of the right to receive ideas. See, e.g., Kleindienstv. Mandel, 408 U.S. 753, 762-63 (1972), and cases cited therein.

Many electronic bulletin boards and computer networks offer aservice known as electronic mail ("E-mail") by which a subscriber to acomputer system may send correspondence to another user of the system viaa central computer. E-mail is addressed to one or more accounts on acomputer system assigned to specific users, and is typically stored on thesystem until read and deleted or stored again. The privacy of E-mail istypically secured by means of a password so that only individuals withknowledge of an account's password can obtain access to mail sent to thataccount. Thus computer systems provide a method for individuals to engagein private(FN5) conversations with one another. Like the use ofelectronic bulletin boards, use of E-mail is widespread. See ElectronicSoapbox, 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 millionto one billion messages a year are transmitted by E-mail.

Because of the popularity and widespread use of personalcomputers, electronic bulletin boards provide a very significant newchannel of communication. Bulletin Board systems range in size from smallsystems operated by individual using personal computers in their homes tolarger systems operated by commercial organizations. Two of the largestsystems -- Prodigy, operated by IBM and Sears, and CompuServe, operated byH&R Block -- have over 330,00 users and half a million users respectively.See Levy, Macworld 69 (Jan. 1991), Computer Bulletin BoardDefamation, 22Conn. L. Rev. at 204 n.4. Industry estimates indicate there areapproximately 32,000 bulletin board systems in operation in the UnitedStates today. Boardwatch Magazine 8 (May, 1991).

The possibilities for speech and association presented by computerbulletin boards are easily and cheaply available to the public. "If onehas a personal computer, gaining access to a computer bulletin board is aseasy as dialing a phone number." Electronic Soapbox, 39 Fed. Com. L. J.at 218. In fact, in one sense bulletin board systems are simplyextensions of telephone service, since it is usually through a modemconnected to telephone lines that the personal computer user is linked tothe computer operating the board and to other people who themselves are intelecommunication with the board. Id.

The ease and economy with which communications can be made throughboards makes them an increasingly important method for the individualcitizen 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 theexploration and exchange of ideas." Bulletin Board Operator, 54 Ford. L.

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written, but slow moving letter. Finally, anonymity allows the timid toflower: identity, appearance, possibly even personality, becomeunimportant.

Electronic Soapbox, at 224 (footnotes omitted). To deny Mr. Riggs theright to own and to personally use a computer is to deny him his primarymeans 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, itprevents any use of a computer by Mr. Riggs for his own personal speech orassociation. While the district court contemplated Mr. Riggs may usecomputers in his community service work and employment, R3-74-76, thoseefforts will be on behalf of others and will offer him no opportunity toexpress himself, receive information of his choosing or associate withwhom he wishes to communicate.(FN11) The district court's condition willresult in a two-year prohibition on Mr. Riggs' exercise of hisconstitutionally protected rights to communicate and associate with othersthrough electronic means.

II. THE DISTRICT COURT'S PROHIBITION ON MR. RIGGS'OWNERSHIP AND PERSONAL USE OF COMPUTERS AS ACONDITION OF HIS SUPERVISED RELEASE IS IMPROPERBECAUSE IT CREATES A GREATER DEPRIVATION OFLIBERTY THAN IS REASONABLY NECESSARY TO

EFFECTUATE STATUTORY GOALS

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

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

(2) involves no greater deprivation of liberty than is reasonablynecessary 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 statutoryprovisions 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 alsopermit the court to impose other "appropriate" conditions, but only to theextent 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 mustinvolve "no greater deprivation of liberty than is reasonably necessary"to serve the purposes of deterrence ( 3553(a)(2)(B)), public protection (

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3553(a)(2)(C)), and training, care or treatment of the defendant (3553(a)(2)(D)). The concern that civil liberties not be unnecessarilyimpinged 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 ofliberty than is necessary. . . .").

The Sentencing Reform Act of 1984 was intended to codify anapproach to the imposition of conditions in sentencing more protective ofcivil liberties than under prior law, which authorized the imposition ofprobation "upon such terms and conditions as the court deems best." Seeformer 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 thelegislative history of 3563(b), the provision which sets out thediscretionary conditions which may be applied in probation and supervisedrelease:

Unlike current law, subsection (b) specifically states . . . that any

condition that involves a restriction of liberty must be reasonablynecessary to the purposes of sentencing set forth in section 3553(a)(2).This language is designed to allay the fears of such disparate groups asthe ACLU and the Business Roundtable that probation conditions might betoo restrictive in a particular case or might involve more supervisionthan is justified by the case. The judge is limited in imposingconditions of probation to imposing only those that carry out the purposesof sentencing in a particular case. He cannot restrain the liberty of adefendant 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 repeatedlyemphasizes that conditions involving deprivations of liberty or property

must be "reasonably necessary" to the purposes of the statutory sentencingprovisions to be upheld. See, e.g., S. Rep. at 94, 95, 96, 1984U.S.C.C.A.N. at 3277, 3278, 3279.

Because of the significant change in the law, the case law underformer 18 U.S.C. 3651 upholding probation conditions provides the Courtlittle guidance in reviewing conditions imposed under the SentencingReform Act. See United States v. Cothran, 855 F.2d 749, 751 n.2 (11thCir. 1988) (noting change in the law). Whereas previously, conditionsaffecting the exercise of constitutionally protected rights could beupheld if they were "reasonably related" to the purposes of the former 18U.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 ifthey effect no greater deprivation of rights than "reasonably necessary" toachieve statutory purposes.(FN16)

B. The Prohibition On Ownership And Personal UseOf Computers Is A Deprivation Of Liberty NotReasonably Necessary To Carry Out The PurposesOf The Sentencing Statute

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

A fundamental premise of our law is that those subject to thecorrections system retain their constitutional rights except to the extent

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rehabilitation and public protection. Id. at 1383. The court found itsignificant that "Holloway became involved in the scheme only by virtue ofher extended correspondence with inmates," and that Holloway made use ofthe mails in committing her crime. Id.

The district court's second restriction provided that "Hollowaycould 'communicate by mail only with her relatives, legal counsel andother recognized counselors' during the period of her incarceration." Id.

Observing that this prohibition would "forbid Holloway from writingletters to a wide range of persons who had nothing to do with her criminalconduct," the court stated:

The limitation on Holloway's ability to communicate with friends, informaladvisors and holders of public office is sufficiently broad to affectvalues and principles which are undoubtedly at the core of the firstamendment.

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, doesnot bear a logical relationship to the criminal conduct in which Hollowayhas engaged. The restriction is not, therefore, reasonably related toachieving rehabilitation and to protecting the public. Cf. [United Statesv.] 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.2d330, 334 (10th Cir. 1971).

Id. (footnote omitted).

Like the mail restriction struck down in Holloway, the ban oncomputer use is "not carefully drawn" to effectuate statutory purposes and

"because of its breadth, does not bear a logical relationship to thecriminal conduct" in which Mr. Riggs engaged.(FN21) Like the Hollowayban, the computer ban prohibits Mr. Riggs from communicating with a widerange of persons having nothing to do with his criminal conduct. Whilethe fact that Holloway corresponded with inmates as part of her criminalconspiracy could justify a ban on her correspondence with inmates, itcould 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 wholesaleban on his communicating with anyone by computer.

Amicus submits that no rehabilitation is effected by the wholesaleprohibition on personal computer use. Community service work, which iscontemplated in Mr. Riggs' sentence, is a proper means of rehabilitatinghim. Prohibiting development of his skills and isolating him fromlegitimate uses and users of computers is surely not "reasonablynecessary" to his rehabilitation.

2. Discretionary Conditions Specifically AuthorizedBy Statute Or Imposed In Other Contexts Provide NoSupport 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 thanthose specified in the statute. Nor do the conditions in 3563(b)(1)-(10)and (12)-(20) authorize the computer ban. Furthermore, comparison withsome 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

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persons." 18 U.S.C. 3563(b)(7). As the legislative history of thisprovision makes clear, a condition limiting associations must be specific,and tailored to the particular circumstances of the defendant. S. Rep. at97, 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 committedcomputer crimes, but with everyone who uses computers.

Even under prior law, reviewing courts have struck down or

modified probation conditions requiring disassociation which swept toobroadly. The former Court of Appeals for the Fifth Circuit, in a caseinvolving a tax protester's conviction for violating the tax laws,disapproved a condition that the protester "divorce [himself] from anyorganization advocating the willful disobedience of any local, state orfederal 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 prohibitonly association with organizations advocating disobedience to the taxlaws. Id. See also United States v. Patterson, 627 F.2d 760, 761 (5thCir. 1980) (following Smith); United States v. Lawson, 670 F.2d 923,929-30 (10th Cir. 1982) (in order to save condition, court interprets itto 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 everyonewho communicates by computer, and could not withstand scrutiny even underthe analysis of cases decided under prior law.

The prohibition on possession of a computer suggests that thesentencing court had in mind another of the statutory discretionaryconditions -- that the defendant "refrain from possessing a firearm,destructive device, or other dangerous weapon." 3563(b)(9). Any analogybetween firearms and computers is extremely inapt. A computer is not adangerous weapon; rather, it is primarily a means of communication andassociation.

Analogies to revocations of drivers' licenses are also entirelyinappropriate. Unlike a computer, an automobile is not essentially a

means of communication and association. Driving is an activity licensedby the State, while computer use is First Amendment speech which is not andcannot be regulated or licensed by the government.

Finally, the provision of the statute allowing restraints onindividuals from engaging in specified occupations, businesses orprofessions, 18 U.S.C. 3563(b)(6), provides no support for the impositionof the computer ban. There is no constitutional right to engage in aparticular job. For example, it violates no fundamental right to prohibita 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 computerban 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 Statesv. Tonry, 605 F.2d at 150. But in such cases, an individual's commissionof a crime while in public office makes it particularly appropriate toprotect the public by "determining that the very limited activity" ofrunning for or holding public office "should not be accorded him duringprobation. . . ." 605 F.2d at 151.

The condition of restricting employment "should only be used asreasonably necessary to protect the public." United States SentencingGuidelines, 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 thedefendant in Tonry from the "very limited activity" of public office, itis not necessary to bar Mr. Riggs from all personal computer use to protectthe public.

3. This Court Has Authority ToStrike Down The Computer Ban

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It is within this Court's authority to modify the district court'ssentence by eliminating the prohibition on computer ownership and personaluse. See, e.g., United States v. Jimenez, 600 F.2d 1172, 1175 (5th Cir.1979). Amicus submits that because the ban clearly trenches on FirstAmendment rights and is not reasonably necessary to statutory objectivesof 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 courtshould be modified to eliminate the condition of Mr. Riggs' supervisedrelease prohibiting his ownership and personal use of a computer.Dated: May 17, 1991Respectfully submitted,

_____________________________ERIC M. LIEBERMAN

NICHOLAS E. POSERRABINOWITZ, BOUDIN, STANDARD,KRINSKY & LIEBERMAN, P.C.

740 Broadway - Fifth FloorNew York, New York 10003(212) 254-1111

HARVEY A. SILVERGLATESHARON L. BECKMANSILVERGLATE & GOOD

The Batterymarch Building80 Broad Street - 14th FloorBoston, 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 wasrevealed that the property was valued at under $5,000, the statutoryminimum. The government did not make a similar motion as to the wirefraud count because 18 U.S.C. 1343 has no minimum dollar threshold. SeeSentencing Information Filed on Behalf of the Northern District ofIllinois United States Attorney's Office, submitted with the Government'sSentencing Memorandum and S.G. 5K1.1 Motion. R1-50-1-2 and 7-8.

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

FN3. See generally Note, An Electronic Soapbox: Computer Bulletin Boardsand the First Amendment, 39 Fed. Com. L. J. 217 (1987) ("Electronic

Soapbox"), Soma, Smith and Sprague, Legal Analysis of Electronic BulletinBoard Activities, 7 W. New Eng. L. Rev. 571 (1985) (hereinafter"Electronic Bulletin Board Activities"), and Becker, The Liability of

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Computer Bulletin Board Operators for Defamation Posted by Others, 22Conn. 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 oftelephone systems, generally have the technological capability to access

private communications. The privacy of electronic communications isprotected by law. See Electronic Communications Privacy Act, 18 U.S.C.2701 et seq. Some systems operators as a matter of policy or by contractwith 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. at204; Pool, Technologies of Freedom 189.

FN7. As the government noted, one of Robert Riggs' three main objectiveswas to "learn C Programmming". Government's Sentencing Memorandum andS.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-linewedding 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. Riggsdoes not speak well, but "writes very well." R3-38. In fact, inpreparing his case, he communicated with his attorney primarily throughwritten 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 simplyunrealistic to suppose that Mr. Riggs will obtain "supervision" fromprobation personnel or anyone approved by them which would permit him toengage in personal use of a computer.

FN12. Section 3553(a) sets out the factors to be considered in imposinga sentence. The provisions of 3553(a) relevant to a determination under3583(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 vocationaltraining, medical care, or other correctional treatment in the mosteffective manner. . . .

FN13. See "Recommended Conditions of Probation and Supervised Release(Policy Statement)," which set out "standard" and "special" conditionsthat apply to both probation and supervised release. SentencingGuidelines 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.

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FN15. See also United States v. Tonry, 605 F.2d 144, 150 (5th Cir. 1979).This standard was held to facilitate "'an accommodation between thepractical needs of the probation system and the constitutional guaranteesof the Bill of Rights.'" Owens v. Kelley, 681 F.2d at 1366, quotingUnited 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 morerestrictive 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 andthose on supervised release will always be lesser than those forrestricting prisoners. Safeguarding institutional security is a centralobjective of prison administration used to justify intrusions onprisoners' 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 factorsset 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 anyother computer, such as word processing. Yet, the judge's overbroadcondition also prohibits these solitary activities.

FN20. It is a mandatory condition of supervised release that Mr. Riggsnot commit another crime. 18 U.S.C 3583(d). Imposing a discretionarycondition completely barring him from computer ownership and personal useis 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 mailrestriction struck down in Holloway.