The Electronic Frontier Foundation

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###          |   THE DOCUMENT CASE

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#######      |   A collection of briefs, judgments

###          |   white papers, rulings, and references of

##########   |   moment to the issues of law and order on

##########   |   The Electronic Frontier

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###          |  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

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##########   |  

##########   |  Anonymous ftp archive maintained by

###          |  Mike Godwin and Chris Davis at

#######      |  The Electronic Frontier Foundation (eff.org)

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###          |  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.