Art Bowker has over 28 years experience in law enforcement and corrections and is the author of book,The Cybercrime Handbook for Community Corrections: Managing Offender Risk in the 21st Century, (Charles C. Thomas, Publisher, LTD, March 20, 2012). The book is the first and only text specifically for pretrial, probation, and parole officers on supervising defendants/offenders’ computer and Internet use.
Judges are frequently faced with complex sentencing and release decisions. Should they release a defendant pending the final outcome of a criminal proceeding? If so, should the person be supervised with special prerelease conditions? After a guilty finding, do they place an individual on probation or should they sentence him or her to prison and for how long? What special conditions should be imposed while the offender is on probation or after his or her release from custody? Parole authorities frequently confront the same challenging release decisions and consideration of special supervision conditions.
The options can be even more complex when technological conditions (computer and/or Internet monitoring/restrictions) are warranted to manage risk. What impact will the conditions have on the individuals and/or their families? How effective can these conditions be enforced and what will the agency impact be on those charged with insuring their compliance? What are the technological challenges associated with these special conditions? What are the pros and cons associated with each technique for managing cyber-risk? Finally, will the imposition of special conditions withstand legal scrutiny? Understanding all of these issues will help mitigate possible legal challenges to the impo- sition of technological conditions.
RESTRICTIONS
Many supervision conditions are merely obligations to follow while under supervision. Common examples include regular reporting, filing periodic written reports, maintaining employment, reporting all contact with law enforcement, or meeting all financial obligations. However, other supervision conditions are more restrictive in nature. For instance, it has been a long-standing practice that individuals under correctional supervision may not associate with felons or leave the jurisdiction without permission. Following a curfew, refraining from alcohol and/or substance use or places where substances are illegally used are other examples of restrictive conditions. Technological conditions follow a progressive continuum, which includes functional, access, and total computer ban restrictions.
Functional Restrictions
Functional restrictions are those conditions that must be imposed or at least implied for the remaining conditions to be effective. Consider for a moment a case when a court does not order any restrictions on an individual’s computer or Internet usage but does order computer monitoring. To be effective, the individual must be restricted to a monitored computer. Likewise, they can’t be permitted to use a de- vice, such as a gaming console, which can’t accommodate monitoring software or hardware. Allowing such access provides a ready outlet to circumvent the rules without placing themselves in legal jeopardy.
Likewise, if they are subject to a condition requiring periodic computer searches, they must also be restricted to only use devices that have been disclosed. Otherwise, they will provide one laptop for the computer search and keep another concealed. Additionally, monitoring and search conditions will also be ineffective if supervised individ- uals are not prohibited from using software that can defeat the process, such as anti-spyware and data destruction and concealment programs. Once the decision is made to manage computer risk, either via monitoring or periodic computer searches, there must be some functional restrictions imposed to make managing cyber-risk more effective.
Access Restrictions
The next level in the continuum is access restriction conditions, These are directly related to addressing an identified cyber-risk. For instance, a condition that prohibits access to materials for a sex offender, such as pornography, is an example of an access restriction. Other examples of access restrictions are prohibitions against visiting certain websites, social networking sites, chat rooms, or sites that allow minors to join. Some access restrictions may prohibit use of specific software or hardware. For instance, an individual who traded child pornogra- phy or sent obscene images to minors might be prohibited from using peer-to-peer file sharing programs or webcams. Individuals convicted of check fraud or counterfeiting schemes may receive prohibitions against possessing scanners or special high quality printers. More severe access restrictions may prohibit Internet access beyond educa- tion or vocational purposes or during certain times of the day or week.
The most restrictive of these access conditions would be a total Internet ban.
The lines between functional and access restrictions sometimes overlap. Some access restrictions may also be very functional for mon- itoring or other compliance efforts. A special condition that prohibits access to software or hardware that can defeat monitoring or searches is one such example. Other access conditions can actually make mon- itoring and/or searches and enforcement more challenging. For in- stance, a specific website restriction may be rather easy to incorporate with monitoring software that can block specific websites. However, the software will have to be continually updated to keep current if a general ban on particular websites classes, such as all social network- ing sites, is imposed. Prohibiting certain material can also be a prob- lematic if it is only enforced via software that prevents access to certain materials (filtering or blocking software).
Filtering software which relies solely on a list of prohibited or “blacklisted” websites, such as pornography sites, has to be continually updated due to the fluid and often changing nature of the Internet. Additionally, some filtering software will restrict too much material, including legitimate information and some will not restrict enough material. One law enforcement agency deployed “intelligent” software which prohibited employees from accessing any websites in which the word “sex” appeared beyond a predetermined level. This appears great at first glance. Unfortunately, the software also prohibited access to a police department website which contained extensive scholarly material on investigating and preventing sex crimes. Another government agency deployed blocking software that prevented employee access to pornographic websites but could not prohibit access to image previews generated by common search engines such as Google® and Yahoo!
A complete Internet ban can also adversely effect monitoring. Some monitoring software depends upon an Internet connection to either forward information and/or problem alerts. If the supervised in- dividual is not allowed Internet access a different monitoring software may have to be considered. Software that allows an agency’s examiner to access and search an individual’s computer over the Internet (remote searching) will likewise run into issues if the supervised person is prohibited from the Internet.
Sometimes the restriction imposed will require the supervised person not to possess any device that can access Internet. In the past, that was rather simple to remove a modem or even modem card from the computer. However, we now have mobile phones, which are getting harder and harder to find that don’t access the Internet. Gaming consoles also now can easily access the Internet, which provides another reason beyond functional concerns that they may be restricted. There are now cars that access the Internet so drivers and passengers can be in continuous contact with their social networking sites.
Art Bowker (@Computerpo) has over 28 years experience in law enforcement and corrections. Besides his two books he has written numerous law enforcement and corrections articles published by Perspectives, an American Probation and Parole Association (APPA) publication , Federal Probation, and the FBI Law Enforcement Bulletin. Many of these articles focused specifically on cybercrime. On January 14, 2013, Bowker was awarded the APPA Sam Houston State University Award, for work in promoting awareness and knowledge of cybercrime and tools to combat such crimes in the field of community corrections. On November 22, 2013, he was recognized by the Federal Probation and Pretrial Officers Association (FPPOA) with their top honor, the Richard F. Doyle Award, for having made the most significant achievement in, or contribution to, the Federal Probation & Pretrial Services System or the broader field of corrections. Additionally, Bowker received the Thomas E. Gahl, Line Officer of the Year Award (Great Lakes Region Award), which is named in honor of the only U.S. Probation Officer killed in the line of duty. Both awards centered on his contributions and efforts in managing cybercrime risk. Bowker has developed and taught college level courses in corrections and cybercrime. He also writes a regular blog, The Three C’s (Computers, Crime and Corrections). Bowker has an undergraduate and graduate degree in criminal justice and corrections from Kent State University. Additionally, he has completed computer forensic training through the National White Collar Crime Center (NW3C), SEARCH, the Federal Law Enforcement Training Center (FLETC), the FBI, the APPA, and the High Technology Crime Investigation Association (HTCIA). Bowker is also a graduate of the Federal Judicial Center Probation and Pretrial Services Leadership Development Program. He is a lifetime HTCIA member and served in various positions on its Executive Committee, including International President in 2008. Bowker was the 2006 Inductee into the Ohio Chapter of HTCIA Hall of Fame. He is an FPPOA member and an APPA member, serving on its Technology Committee. You can learn more about Art, his work and interest at his website, Computerpo.com.