The Volokh Conspiracy

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Volokh Conspiracy

Court overturns probation condition limiting use of devices that contain 'any encryption … software'


The government has much broader authority over the speech of probationers than it does over ordinary citizens; but even probation conditions are subject to some scrutiny.

Thursday's California appellate decision in In re Mike H. concluded that a ban on the probationer's use of anonymizing tools to access the Internet, and a requirement that he accurately identify himself when setting up any online communications services, was permissible:

The juvenile court could reasonably conclude that requiring Mike to use his true identity online and avoid encryption or hacking tools could help the probation department assess whether Mike was communicating with C.C., in violation [of] other uncontested conditions of his probation. Thus, these conditions may serve to deter future criminality by preventing further contact with the victim…. [B]ecause uncontested probation conditions require Mike to refrain from directly or indirectly contacting, harassing, or stalking C.C. online or through an electronic device, [these conditions] reasonably enable the probation officer to confirm Mike is not breaching those restrictions through anonymous Internet use.

But the ban on using any electronic devices that contain "any encryption … software" was too broad:

Given the ubiquity of encryption technology, [this condition] is overbroad as formulated. … "[E]ncryption is standard-issue on every iPhone and Mac, with Google requiring new Android phones to be encrypted; every web page that begins 'https' uses encryption, including, for instance, every page on, every page on Wikipedia, and every page created by the federal government." "While it may not be apparent to the everyday user, encryption technology is now a fact of everyday life." In recent years, Apple, Google, Facebook, WhatsApp, and Blackberry have all "announced plans to implement end-to-end encryption on a default basis. This means that encryption is applied automatically without a user needing to switch it on." …

As drafted, [this condition] is therefore unconstitutionally overbroad. It is also impermissibly vague, given other probation conditions allowing Internet and smartphone use. "Rather than modify this condition on appeal in an effort to save it based on surmise," we vacate it and invite modification on remand to narrow it to its intended purpose.

Sounds right to me.