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What's a 'Website,' Anyway?

As a recent Indiana Supreme Court case amply demonstrates, the term "website" is not nearly precise enough for use in our criminal law, and judges and legislators need to stop pretending that it is.

There are many strange things about the Internet and the manner in which it operates. On occasion, our law-makers - legislators and judges - have managed to make law that adapts and conforms, more-or-less, to the new landscape. Other times, not so much; some features of Internet communication continue to mystify them, and terrible law gets made because of those misunderstandings.

On March 28, 2015, thirty-four-year-old Kristopher Weida had sexual intercourse with his sixteen-year-old niece. The State charged him with felony incest, and he pleaded guilty. The trial court sentenced him to three years - one year in prison and two years of probation.

The court imposed a number of probation conditions, two of which Weida challenged as unconstitutional. The first (Condition #8) prohibited him "from accessing or using certain web sites, chat rooms, or instant messaging programs frequented by children." The second (Condition # 26) prohibited him from accessing the Internet "or any other public or private computer network" without the prior approval of his probation officer.

Violation of either of these conditions would, of course, subject Weida to the prospect of re-incarceration.

Weida challenged Condition 8 on the ground that it was unconstitutionally vague.** On the face of it, it looks like he has a good argument. Imagine for the moment that you were told that you could not, on pain of imprisonment, "access or use certain web sites frequented by children." Surely you'd say: "Yes, but which websites?" What does it mean to say that "certain web sites frequented by children" are off-limits without any indication of which ones those might be? And how is one supposed to know whether a website is, or is not, "frequented by children"?

**Weida also challenged both Conditions as unconstitutional abridgements of his First Amendment right to access the Internet. That is a substantial and important claim, but, because I want to focus entirely on the vagueness challenge to Condition 8, I won't discuss his First Amendment claim further here.

The Indiana Supreme Court, in a recent decision [text available here], got this one all wrong, holding (unanimously, no less) that Condition 8 was not unconstitutionally vague. In doing so, the court fell into a deep epistemological hole - the "Illusory Website Boundary Trap."

Here, again, is Condition 8, in full:

"You are prohibited from accessing or using certain web sites, chat rooms, or instant messaging programs frequented by children. You are prohibited from deleting, erasing, or tampering with information on your personal computer with intent to conceal an activity prohibited by this condition.

The court first cleared up that little grammatical peculiarity involving the proscription on accessing "certain web sites ...frequented by children." The court gave Condition 8 a limiting construction: reading it "in context", alongside a number of other provisions limiting Weida's rights to communicate with children, it declared that

"... a person of ordinary intelligence, reading all the probation conditions in context, would understand that Condition 8 forbids him from visiting websites that allow him to contact or communicate with children."

So that's the answer to the question about which websites frequented by children are off-limits: The ones that allow him to contact or communicate with children. This, the court stated, cures the ambiguity; it provides Weida with "fair notice of what is generally proscribed," while still permitting him, "like normal Hoosiers, [to] use the Internet to communicate with adults and complete the myriad everyday online tasks."

But actually, it does no such thing. There are, to start, some pretty serious ambiguities remaining. Does a website allow Weida to "communicate with children" if he can post comments at the site that persons under the age of 18 can access and read? If he can read posts that may have been authored by "children"? Or does "communicate with children" refer only to one-to-one communication of some sort?

But put those objections aside; there is a much more serious, and more far-reaching, problem here. Determining whether a "website" does, or does not, allow users to communicate with children is a task lying somewhere between the unbelievably difficult and the literally impossible. Websites are too big, and the boundaries between different websites are too indistinct, so that one can never tell where Website 1 (which allows users to communicate with children) ends and Website 2 (which doesn't) begins.

For ordinary conversation, those ambiguities don't matter very much. The meaning of "The Volokh Conspiracy has moved to the Reason website," or "The Amalgamated Bank's website finally allows me to check my balance," or "I think they're live-streaming the game at the ESPN website," is clear enough.

But if your ability to avoid prison depends on your ability to determine whether the ESPN (or any other) website allows you to communicate with children - or, for that matter, whether the ESPN website allows you to view pornographic images, or to read terrorist manifestos - these problems are fatal.

To illustrate, suppose Weida does a very "normal Hoosier" thing: he accesses the "Indiana Pacers" page at the ESPN website (located at http://www.espn.com/nba/team/_/name/ind/indiana-pacers ).

Has he violated Condition 8? Has he accessed a website that allows him to contact or communicate with children?

Have a look for yourselves; as far as I can tell, there's nothing at that Indiana Pacers Page that allows Weida to contact or communicate with children, or with anybody else.

But of course the Pacers Page is just a small part of "the ESPN website," and we'll need to look around a bit to see if, elsewhere on that website, such contact/communication is allowed.

Before we do so, let's pause a moment to get our bearings and to consider the scope of the undertaking. [This is the 'unbelievably difficult' portion of the task] The ESPN website - whatever it contains, and wherever it begins and ends - could be a very, very, very large place, consisting of many thousands, or hundreds of thousands, or millions of individual pages. There is no technical limit to the number of pages a website may contain, and many of the better-known Internet websites – Amazon, Youtube, Blogger, Reddit, Yahoo, Facebook, Instagram, LinkedIn, etc. - link together many millions of individual web pages. Saying "you may not access that website if it allows you to communicate with children" is a bit like pointing to a 100,000-story skyscraper and saying: "You may not go into that building if it allows you to buy alcohol." [And we can pass over the illogic inherent in prohibiting "access" to websites that allow you to communicate with children when you need to access a site in order to determine whether it does or does not offer such a capability.]

The Pacers Page has a prominent link to the ESPN "home page" (www.espn.com), which is a good place to start our search; surely that page is part of "the ESPN website."

But again, I don't see any way to communicate with other users, children or adults, on that page either.

Let's keep looking, shall we? The ESPN home page does contain links to a number of what are called "ESPN Sites":

Which (if any) of these are part of "the ESPN website," and which (if any) are different websites? How can you tell?

You and I can shrug our shoulders and say: "Who cares?" or "What difference does it make?" Mr. Weida, of course, cannot. By following the link to "SportsNation," for instance, we might find that we can indeed "communicate with children."* If Sportsnation is part of "the ESPN website," then Weida violates Condition 8 when he accesses the Pacers Page, because the Pacers Page is part of a website (the ESPN website) that allows users to communicate with children.

*"SportsNation"does indeed appear to offer a "chat" feature [http://www.espn.com/sportsnation/chat/archive] allowing users to send and receive messages in real time to/from other users (some of whom I would assume may be under the age of 18). ESPNFC also lets users communicate with other users (some of whom I would assume may be under the age of 18) via their Facebook feeds.

On the other hand, if following the link to SportsNation leads to a different website - call it "the SportsNation website" - the fact that one can communicate with children there is irrelevant to the question whether "the ESPN website" allows such communication.

So which is it? And how can we tell? What should we be looking for to make the determination? What makes a website a website, anyway?

To begin with, notice that the cues we ordinarily use to make determinations like this in real-space have gone missing here. When I went out this morning and bought a tube of toothpaste, a bunch of pencils, and some milk, I made all three purchases at the same store. How did I know it was all the same store? Let's see:

  • The toothpaste, stationery, and food aisles were quite close together - walking time < 30 seconds;
  • they were all under one roof;
  • there were no walls or gates separating the aisles from one another;
  • employees and customers could wander from one aisle to another without impediment;
  • a single entrance and a single exit served all three aisles;
  • there was a big sign over the main entrance that read "CVS";
  • cashiers were available to charge me for anything I took from any of the three aisles.

None of those, however, will help us decide whether the SportsNation page and the Pacers Page are part of a single website. The two pages are "close together" in the sense that one click of the mouse can take you from one to the other and back again, and they're both similarly "close to" the ESPN home page. But in the strange new geometry of the Net, that's true for all pages; everything is one click away from everything else. There are no entrances, exits, roofs, or walls to guide us.

Nor can we fall back on a technical definition of the term, for there doesn't appear to be one. I'm no engineer, so correct me if I'm wrong, but term hardly shows up in the network engineering literature with which I'm familiar. For instance, the Internet Engineering Task Force's compilation of the many thousands of Internet standards and Internet protocols (here) - the fundamental design specifications that define the technical architecture of the Internet (including the World Wide Web) - contains nothing whatsoever about "websites." Web linking, web sockets, web file transmission, web pages, web hosts, web transaction security, .... all are dealt with by various standards and specifications - but not "websites." [And yes - I did check for the two-word phrase "web site," too]

So that leaves us with the ordinary, everyday meaning of the term, which I think is captured pretty well in this defintion (from the American Heritage Dictionary):

A "website" is a set of interconnected webpages, usually including a homepage, generally located on the same server, and prepared and maintained as a collection of information by a person, group, or organization." (emphasis added).

That makes sense. If the same person or entity - ESPN, Inc., say - is responsible for preparing and maintaining both the Sportsnation page and the Pacers Page as part of a "set of interconnected webpages" ("the ESPN website"), then the two pages are both part of that website. If not, they're not.

That's a nice simple rule. The problem, though, is that none of the information needed to make that determination is ascertainable by users. [This is the "literally impossible" portion of our program]

If this were a class on Internet law, I'd give you the following assignment: determine what "person, group, or organization" maintains each of those 10 "ESPN sites" and you'd see what I mean.

Some of those sites prominently (e.g., www.espn.com/doubletruck/ and www.espn.com/insider/) or not-so-prominently (fivethirtyeight.com, www.espn.com/espnw/) display the familiar ESPN logo on their Home Pages, along with a prominent link to the ESPN Home Page. Others don't (e.g., theundefeated.com, xgames.espn.com/xgames/, www.secsports.com). But that doesn't tell you anything about the entities or organizations responsible for those pages; anyone can put a link to the ESPN Home Page on their own Home Page, and ESPN, Inc., like any trademark owner, can license unrelated third parties to use its logo in any number of ways, including in its webpage design.

Nor do the webpage URLs give us the information we need to determine whether the same, or different, organizations are involved in maintaining and operating the various pages. Some of these "ESPN sites" have URLs at the espn.com domain: SportsNation at www.espn.com/sportsnation, "espnW" (www.espn.com/espnW), Doubletruck at www.espn.com/doubletruck, "Insider" at www.espn.com/insider "X Games" at xgames.espn.com, ESPN Deportes at espndeportes.espn.com. Others are located at other domains (fivethirtyeight.com, theundefeated.com, secsports.com, and espnfc.us).

But that, too, provides no information about whether a single entity - ESPN, Inc. - is or is not the party responsible for the pages located at those addresses. It could be that all 10 are owned and operated by ESPN, Inc. – or it could that none of them is. As the owner of the "espn.com" domain, ESPN, Inc. is entirely free to contract with third parties to, in effect, "lease space" at that domain for their own operations,* and, conversely, there is absolutely nothing to prevent the owner of the espn.com domain from purchasing rights to other domains (fivethirtyeight.com, theundefeated.com, etc.) for its own use.

*Many large and successful online businesses operate in this fashion. Wordpress, for instance, is one of many thousands of sites that function as a "hosting service," or "platform," for user-created web pages and blogs; over 70 million pages are served under the wordpress.com domain, covering everything from astronomy (https://10minuteastronomy.wordpress.com/) to local Florida politics (https://clearwaterneighborhoodscoalition.wordpress.com) to bluegrass music (https://tennysonbluegrass.wordpress.com/) to stamp collecting (https://traffordps.wordpress.com/) to everything in between. Are these different blog pages all part of the "Wordpress website," or are they 74 million different websites? If some of them include user-to-user communication functionality, does that mean that the Wordpress website is off-limits to Mr. Weida?

This problem – the impossibility of determining the boundaries of a website that has multiple services within it or linked to it, some of which may be operated independently of one another, others not - is not an abstract or abstruse technical detail regarding the nature of communication on the World Wide Web; it is an inherent consequence of the linking architecture and linking infrastructure that underlies all Web communication. Everyone who spends any time at all on the Web knows the feeling of being unable to determine "where you are" after even a short Web browsing session, as you follow the links that take you from ESPN.com to Fivethirtyeight.com to https://fivethirtyeight.com/features/eclipse-towns-planning/ to https://www.washingtonpost.com/news/speaking-of-science/wp/2017/08/02/august-total-solar-eclipse-gives-scientists-rare-chance-to-study-suns-corona/ to https://www.theguardian.com/world to http://www.100resilientcities.org/ and on and on. Without a reasonable way to determine where one website ends and another begins, Condition 8, even as narrowed by the court, imposes an impossible burden on Weida.

You might think that I'm making a mountain out of a molehill in all this, but I don't think I am, for two reasons. First, there are hundreds of thousands, and quite possibly millions, of people whose access to particular "websites" is restricted in one way or another. That would include many people who are currently incarcerated or, like Weida, subject to parole, probation, supervised release, or other continuing supervision by the criminal justice system. It would also include the many hundreds of thousands of individuals on state sex offender registries; many state registry statutes (even after last Term's decision in Packingham v. North Carolina) either prohibit access to specified categories of "websites," or require registrants to inform law enforcement of the identifiers that they used when accessing particular "websites." So getting rid of the term will have real and substantial real-world consequences, for the better.

And beyond that, one does not have to be Nostradamus to think that we are entering a period in which the regulation of online activity is going to take a more vigorous turn, what with the clamor over Facebook's privacy policies, Cambridge Analytica, the dissemination of fake news, and the rest of it. It would be nice to think that however that turns out, it will at least be based on a more solid semantic foundation than has been the case up to now.

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  • Bored Lawyer||

    "websites that allow him to contact or communicate with children."

    Any website that has a comments section qualifies. This one does -- I have asked questions of some posters and received responses. If any children access this site, then it fits into that definition.

  • BadLib||

    What if the TOS for the web site requires users to be 18 or older to post or read comments?

    Children CAN generally access such sites by lying (and probably do in many cases), but how is Mr. Pedophile to know that they have done so in any particular case when he's carefully read the TOS and determined it's not allowed.

    Also, what if the TOS when a child signed up allowed them to do so but the TOS was later was changed not to prohibit minors but the child never noticed the change (so, didn't even lie to gain access).

  • Kristian H.||

    Re: Websites

    What about, say, browser based games? or MMORPGs / BG games?

    Is Gmail forbidden? It CLEARLY allows communication, and minors have accounts. Youtube? Would a comment on a youtube video count?

    What about linked in?

  • Absaroka||

    Dictionary: "A "website" is ... generally located on the same server"

    That seems a little out of date for anything but the most trivial sites.

    "Condition 8 forbids him from visiting websites that allow him to contact or communicate with children"

    ESPN aside, is the intent to forbid him from using email at all? Because gmail.com certainly fits that definition. Not being able to use email at all would be a pretty severe restriction in this day and age.

  • James Pollock||

    "Not being able to use email at all would be a pretty severe restriction in this day and age."

    Yes, it is. People who are under probation are not yet free.

    Now imagine if the state can tell you when to get up, when to go to sleep, what to eat, where to work, how you may contact other people. All of those restrictions exist in prison, and probation is intended to be more restrictive than freedom, and less restrictive than prison, in part to allow the convict to demonstrate that they can, well, and intend to abide by lawful restrictions on their choice of action(s).

  • gormadoc||

    Minor editorial nit: you mention Indiana in your teaser but you don't mention it in the article until "Indiana Supreme Court," which is well after you say that "the State" charged him. It would be less confusing if you mention Indiana before that or at the same time. I wasn't sure whether it was the Feds or a specific state until I went back to read the teaser.

  • Martinned||

    I agree entirely, but still:

    If I were this guy, I would generally base my behavior on the URL. Anything in the same domain is the same website, anything that links to a different domain is a different website. If I did that and still got in trouble, I'd consider myself unjustly treated.

    Of course, that still doesn't fix the potential first amendment issues, nor does it tell me whether or not I'm allowed to use Gmail, but it at least offers a start of an answer for the main question in the original post.

  • Absaroka||

    "Anything in the same domain"

    Define 'same domain'.

    '.com'
    'foo.com'
    'grownups.foo.com'
    'kids.foo.com'
    'foo.com/kids'
    'foo.com/grownups'
    'foo.com/?contacts=kids'
    'foo.com/?contacts=adults'

  • Martinned||

    In that example: foo.com

  • Absaroka||

    But what's the general rule?

    Are foo.co.uk and bah.co.uk the same web site, because co.uk?

    What about archive.org/web/1234/http://yadda.com? If I'm forbidden from going to yadda.com, can I view it that way?

    Lotsa funny business possible with redirects, url rewriting, etc. A simple rule is going to have problems.

  • Martinned||

    The answer to your first question is: clearly not. That seems like a common-sense extension of what I said before.

    The answer to your second one will probably depend on some of the other issues raised in the OP, such as whether "communicating" includes reading things that others have written. (I suspect it doesn't, since that would cover all of the internet.)

  • KHP54||

    It's the entire Internet, known as '.'.

  • James Pollock||

    " nor does it tell me whether or not I'm allowed to use Gmail, but it at least offers a start of an answer for the main question in the original post."

    If the Probation office says you can use Gmail, you can probably get away with using Gmail. If the probation office says you can't use Gmail, then you probably can't. Yes, there's a lot of discretionary power in the probation office, but people who don't like to be closely supervised should probably think of that BEFORE committing crimes, not after.

  • Greg F||

    A cell phone (smart) is not in his future.

  • Don Nico||

    He can use a flip-phone. Definitely good enough.

  • BadLib||

    What if the person he is calling is using Google Voice and he leaves voice mail there which is accessible from a website (voice.google.com) which children probably access (although hopefully only the very cleverest children can figure out how to access other peoples' voice mail) and communicate through.

  • apedad||

    Yeah, Packingham v. North Carolina immediately came to mind (from reading the Conspiracy or course!).

    While the technical details are different (kids' sites here vs all social media under Packingham), I think the underlying constitutional principles are the same and, if this case goes to the Supreme Court, it will also be unanimously overturned.

  • David Post||

    It's strange that the Indiana court didn't even mention Packingham. Technically, it's not controlling precedent - because Weida is on probation (Packingham was not), and the 1st Amendment rights of probationers and others similarly situated are considerably reduced compared to the rest of us. But you would have thought that the spirit of the Packingham opinion would have at least been worth a mention.

  • Don Nico||

    There are some positives, however; the WaPo and NYTimes sites are forbidden.

  • Sigivald||

    "prohibited him from accessing the Internet "or any other public or private computer network" without the prior approval of his probation officer"

    So, if he had two computers at home, connected to each other, but not to any others on Earth, he can't access them!

    (Private computer networks? The only ones to speak of are corporate or governmental intranets, which ... aren't exactly something even relevant to his offense or probation.

    Boilerplate is dumb and shouldn't be in probation requirements.

    "But computers!!!!" is even dumber.)

  • Scarecrow Repair & Chippering||

    Even simpler, if he puts up a security camera and links it to his phone or home computer, he's toast. WiFi thermostat? Outside security lights? That Ring video doorbell? Weather station?

    Forget it, Jake, it's Network City out there!

  • James Pollock||

    Of course, if he finds the conditions of his probation to onerous, he can simply choose to refuse probation and return to custody of the state...

  • Scarecrow Repair & Chippering||

    And then there are the supermarkets which have bank mini-branches within, or insurance mini-offices. If those constitute difference stores because they have separate cashiers, what about ATMs inside stores? What about delis inside some supermarkets which allow you to pay there?

    Why the probation limits didn't just say "You are forbidden to knowingly communicate with children", I do not know. Maybe that was in some other condition.

  • BillyG||

    You worry about #8, I'm lookin at #26.

    You shall not access the Internet or any other on-line service through use of a computer, cell phone, iPod, Xbox, Blackberry, .... (PDA), pagers, Palm Pilots, televisions, or any other electronic device at any location (including your place of employment) without prior approval of your probation officer. This includes any Internet service provider, bulletin board system, e-mail system or any other public or private computer network. You shall not possess or use any data encryption technique or program.

    Use of an ATM is prohibited as it involves a comptuer network. Using a credit card is prohibited (network/encryption). Going to google or a banking site is prohibited as it inolves using encryption. Heck, using a web browser is prohibited becuase it is an encryption program for handling HTTP/TLS secure websites. The ATMs also use encryption for security. These restrictions are ludicrous in an age where EVERYTHING uses a network and encryption. I'm debating if this would prohibit the use of a phone, including a home phone line, as the phone network is largely madeup of computers now adays.

    Which gets us too...what is a "computer" and what is a "network"? Wireless home phones are computers. They connect over wireless to each other, does is that a network? So having wireless phones at home would be use of a computer network. Also, the wireless is typically scrambled (encrypted) in some manner to prevent eavesdropping too...

  • James Pollock||

    "Wireless home phones are computers."

    Not categorically, they aren't. Some of them aren't even digital. Then, we also tend to identify "computers" as being general purpose computers, which can run whatever program(s) the administrators choose. The other categories is "embedded systems", which run specific programs and no others. . A programmable thermostat has a computer program in it that adjusts the signal to the heating and cooling systems depending on various inputs.

  • BillyG||

    Not categorically, they aren't. Some of them aren't even digital.

    I'd like you to show me a wireless home phone sold now adays that isn't digital. Last I looked in the store, they all were digital (and hence a computer of some form). And your comment on "computer" vs "embedded system" just continues to provide ammunition for "what is a computer". Although trying to say an embedded system doesn't run whatever program(s) the administrators choose...well, I program embedded systems for fun. So the embedded system runs whatever program the administrator (me) chooses. Either way, the statute makes no difference, it just says computers. And I'm against leaving it up to the whim of a prosecutor to determine if the programmable thermostat with LCD screen display and wifi capabilities would get someone jailed or not.

  • James Pollock||

    "I'd like you to show me a wireless home phone sold now adays that isn't digital."

    You're adding a condition "sold now adays", that wasn't present previously. Oversight on your part, or moving goalposts?

    " I'm against leaving it up to the whim of a prosecutor to determine if the programmable thermostat with LCD screen display and wifi capabilities would get someone jailed or not."

    Move to America, then. We don't leave that kind of decision to prosecutors.

  • The Other Bob M||

    And consider the employment restrictions this puts on people. One might not be able to apply for employment, or even state assistance for employment. Lots of places are moving to online-only applications.

  • James Pollock||

    So the job-seeker or state-assistance-seeker would have to check-in with the probation office to get cleared to go on those sites. Probation officers are well-known for their opposition to their clients obtaining gainful employment...

  • Karl_L||

    To make matters worse, a number of websites have search functions. In many cases, these search functions use major search engines such as Google or Yahoo, with parameters restricting the returned results to the website. So using the "search" box on one of these websites is accessing a website that allows communication with others, including children.

  • James Pollock||

    "Websites" not only has a specific definition, it's not even that complicated. A website consists of a set of related computer resources which are accessible via the HTTP and Secure HTTP protocols over a computer network. The "web" part tells you that it's accessible via HTTP and HTTPS, and the "site" part tells you that it's the set of related digital resources.

    My interpretation of condition 8 is that the probation office has a list of websites that are frequented by children, and probationers are prohibited from accessing them if they have this condition applied to their probation. This resolves the problems of "I didn't know this site was frequented by children! I thought all the people I was interacting with were of age!". The key word is "certain", which indicates a (curated) list and not the set of all websites that children can access. It's a fair warning of what TYPES of sites will land on the list, even if a specific one hasn't landed there yet.

  • Daniel R. Grayson||

    Re: "You are prohibited from deleting, erasing, or tampering with information on your personal computer with intent to conceal an activity prohibited by this condition."

    I wonder whether browsing the web in a Chrome Incognito window would be prohibited by this. Presumably not, because deleting, erasing, and tampering are not involved. Rather, the browse refrains from saving the history in the first place.

  • Daniel R. Grayson||

    ... the *browser* refrains ...

  • ReaderY||

    We're in the twenty first century. It should be now be clear that human language is pretty ambigous. Virtually any useful distinction or classification is going to have hard cases. As Justice Holmes put it, day and night have no clear boundary, only shades of gray. So the types kinda of arguments made here could be made about anything. A "but it isn't perfectly clear" vagueness acts something like a universal solvent. What still stands is more a function of what one has chosen to apply it to then what it will work on when applied. And lawyers, like people generally, are quick to complain things they don't like or don't agree with are nonsense.

    For a vagueness argument to be legitimate, we have to compare it to something. Is it in any more vague than things for which vagueness challenges have failed? Is it less vague than things that have succeeded? We have to tolerate some vagueness, so telling us it's vague tells us nothing. How much?

    After all, if laws were clear, why would we need courts to interpret them? Why would people have disputes about what that mean?

    The concept of "website" seems as useful a general term as any, and as capable of being a limited construction as any. To use the analogy to physical "place," it would make more sense for a prohibition on entering a place where alcohol was sold to refer to an immediate vicinity than, say, a city. Here too, one could simply say things clicks away don't count.

    People th

  • David Post||

    ReaderY: We're in the twenty first century. It should be now be clear that human language is pretty ambigous. Virtually any useful distinction or classification is going to have hard cases. As Justice Holmes put it, day and night have no clear boundary, only shades of gray....

    I disagree.
    Sure, human language always leaves ambiguities, and we are surrounded in the law (as elsewhere) by ambiguity all the time, and we muddle through and learn to live with it. We can always split hairs on any word or phrase - the classic "No vehicles in the Park after sunset" (does that cover bicycles? shopping carts? airplanes flying over the Park? skateboards?); but that doesn't mean that all law is unconstitutionally vague.
    I give you that.

    But a prohibition on accessing or using websites that allow users to communicate with children is of a different order entirely. "Vehicles" are not imaginary things; I can tell my client "Walking in the park is ok; driving through in your car is not; pogo stick is hard, but i wouldn't risk it." But a "website that allows users to communicate with children" isn't a "thing," and it isn't a "place" - it's something else. And I honestly do not know how I would counsel my client under the access prohibition, other than by saying: "stay off the Internet entirely." And if Condition 8 means "stay off the Internet entirely," it is unconstitutional - even the Indiana court
    recognizes that. ....

  • David Post||

    ...
    The court that imposed this condition, like the legislators who pass similar kinds of website access prohibitions, are thinking about websites as "places." I get the basic idea: we want to keep these people out of those "places" where they can most easily communicate with children. So we say: you can't go into schools, you can't go into parks, and you can't go into public libraries, because you can easily contact children there.
    I think those prohibitions are ordinarily unwarranted, but that's not my point here; my point here is that you can't just say "And websites, too" and have it make any sense.

    You wrote: For a vagueness argument to be legitimate, we have to compare it to something.

    I agree.

    If we want to stop Mr. Weida from communicating or contacting children, we should prohibit him from doing that. Actually, the probation conditions already contain that very prohibition. And whether or not that prohibition is wise or warranted (I believe it is neither), it is not vague

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