Free Speech

No "Possess[ing]" "Copyrighted Material" When on Supervised Release

Now that's being tough on crime.

|The Volokh Conspiracy |


A supervised release condition in at least two Northern District of Texas cases involving computer-based sex crimes (emphasis added), though I expect that it's been used in others as well:

In addition the defendant shall: …

not use or possess a web cam or any other hardware that allows for the exchange of video or photographs online;

participate and comply with the requirements of the Computer and Internet Monitoring Program, contributing to the cost of the monitoring in an amount not to exceed $40 per month. The defendant shall consent to the probation officer's conducting ongoing monitoring of his computer/computers. The monitoring may include the installation of hardware and/or software systems that allow evaluation of computer use. The defendant shall not remove, tamper with, reverse engineer, or circumvent the software in any way. The defendant shall only use authorized computer systems that are compatible with the software and/or hardware used by the Computer and Internet Monitoring Program. The defendant shall permit the probation officer to conduct a preliminary computer search prior to the installation of software. At the discretion of the probation officer, the monitoring software may be disabled or removed at any time during the term of supervision;

not use or possess any gaming consoles (including, but not limited to, Xbox, PlayStation, Nintendo), he/she shall not download, possess, and/or install copyrighted material, or devices, without prior permission from the probation officer ….

The problem, of course, as the Fifth Circuit put it last week in U.S. v. Montanez, is that this "would restrict Montanez from purchasing any published book at all." But that's not the half of it: It would require Montanez to get permission to pick up any newspaper or magazine, or possess any recorded music, or hang any print or poster on his wall, or receive virtually any e-mail, or for that matter write virtually any handwritten note to himself. (OK, if you want to be pedantic, Montanez wouldn't need permission to possess really old books that are now in the public domain.) Thankfully, even the prosecution agreed this was invalid, and agreed that the condition "should be narrowed to require [defendant] to obtain permission to play electronic games that allow Internet communication."