Court Strikes Probation Condition Against Using a Device Containing Encryption–In re Mike H.
Mike, a minor, pled guilty to committing sodomy on a minor against his girlfriend. The crime had no relationship to the Internet, although Mike and his girlfriend had texted each other and Mike admitted to masturbating to online pornography once a week. Nevertheless, Mike was subjected to probation conditions that “restricted his Internet, social media, and computer use; restricted his access to pornography and sexually explicit content; and limited his anonymous, password-protected, or encrypted Internet or computer use. Other probation conditions facilitated searches of Mike’s electronic devices and Internet browser history.”
The appeals court strikes some of these conditions. For example, the court says the broad restrictions on using the Internet are unconstitutional:
A blanket restriction forbidding Mike from using a computer for anything other than school-related assignments precludes his extracurricular use of a computer to write letters, create art, use software to learn a foreign language, read the news, check sports scores or movie times, research medical information, and obtain other legitimate information wholly unrelated to his criminal conduct in this case. Such a broad restriction is not narrowly tailored or reasonably related to the state’s interest in rehabilitating Mike.
In a footnote, the court adds “With 90 percent of young adults between the ages of 18 and 29 using social media, a blanket ban affects a considerable amount of speech. Social media has affected the way people get and share information about topics as diverse as health, employment, communities, civic life, hobbies, sports, the news, religion, academics, teenage life, parenting, and dating.”
The restrictions on viewing pornography are also unconstitutional: “We conclude restrictions on pornography and sexually explicit content are not reasonably related to the state’s interest in rehabilitating Mike. There is no apparent connection between the crime and Mike’s viewing of Internet pornography or sexually explicit material.” The state can’t save the condition on the grounds of protecting minors from obscene material: “read literally, condition 53 bars him from accessing Internet services like Netflix that contain movies with nudity. Conditions 38 and 56 arguably prohibit him from ‘owning, for instance, a photo of Michelangelo’s David or, of Gauguin’s Two Tahitian Women.'”
While these rulings are interesting, I’m not sure they are novel. In contrast, I don’t recall seeing prior discussion about restrictions on using encryption devices. The applicable restrictions:
Condition 42 prohibits Mike from knowingly using “any tool, site, software, device, or procedure that will tend to hide the minor’s identity or Internet or computer activity, such as Anonymizer, remailers, Zeroknowledge, wipe or file shredder, or similar program.” Condition 43 requires Mike to use his first and last name when sending electronic communications and registering online accounts and prohibits him from knowingly providing false information about his identity to any communications service provider when purchasing, subscribing to, or agreeing to purchase any service that allows electronic communications. Condition 45 prohibits Mike from knowingly using or possessing tools designed to test system security vulnerabilities and from knowingly using or possessing electronic devices that contain “any encryption, hacking, cracking, keystroke monitoring, security testing, or steganography, Trojan or virus software.”
Conditions 42 and 43 are OK as prophylactics to ensure Mike doesn’t contact the victim in violation of other probation conditions, although I wonder about the breadth of condition 42. However, Condition 45 fails (cites omitted):
As Mike notes, “encryption 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 Netflix.com, 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.”…
Here, the juvenile court may have reasonably sought to prevent Mike from concealing his online activity or electronic communications through encrypted programs or applications. However, as formulated, condition 45 effectively prohibits Mike from using the Internet or a smartphone. By virtue of accessing certain websites or even turning his smartphone on, he would risk violating the condition. As drafted, condition 45 is therefore unconstitutionally overbroad. It is also impermissibly vague, given other probation conditions allowing Internet and smartphone use.
The appeals court tells the lower court to try Condition 45 again. It’s nice to see a court recognize that encryption devices are not per se bad technology, and it’s interesting to see how the proliferation of encryption into our everyday affairs makes it impossible to avoid even if we tried.
Case citation: In re Mike H., 2017 WL 1179426 (Cal. App. Ct. Mar. 30, 2017)