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Court strikes down Facebook probation

Social network ban violates First Amendment

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A California appeals court has struck down as unconstitutional probation conditions that barred a 15-year-old convicted of possessing a stolen motorcycle from using a computer or the internet for any purpose other than school-related assignments.

Last week's decision from California's Court of Appeal for the Fourth Appellate District came in the case of a defendant identified only as J.J., who was convicted of receiving a stolen Honda 50cc off-road motorcycle. In addition to being required to complete a drug treatment program, the 15-year-old was ordered to delete any existing MySpace or Facebook pages, prohibited from using any instant messaging program and barred from using a computer for any purpose other than school-related assignment.

The three-judge panel noted that juvenile courts have greater latitude in formulating the terms of minors' probation than courts overseeing adult probationers. Even so, they said constitutional guarantees require terms imposed on minors to be closely tailored to the offense for which they are convicted.

The prohibition against all non-school-related use of computers “is not tailored to J.J.'s conviction for receiving stolen property, his history of drug abuse, or the juvenile court's dual goals of rehabilitation and public safety,” the decision states. “And absent any connection between J.J.'s criminal history and the blanket internet ban, there is no support for the People’s claim that it is properly related to future criminality. Accordingly, we strike the condition as unconstitutionally overbroad.”

The judges went on to strike down the terms barring the use of instant messaging for similar reasons. “There is nothing in the undisputed record to suggest J.J. Used instant messaging or social networking sites to obtain the stolen motorcycle or drugs,” they wrote.

They also vacated an order that said “Minor shall not use a computer that contains any encryption, hacking, cracking, scanning, keystroke monitoring, security testing, steganography, trojan or virus software.” The reason: It is difficult or impossible to know when many trojans and viruses have struck.

“We conclude the condition is unconstitutionally vague because it subjects J.J. to sanctions for violation of probation in circumstances where he could only guess whether the computer he was using contains the prohibited software,” they wrote. “Thus, it is possible that J.J.'s unwitting, technical violation of the probation condition could subject him to penalties at the discretion of his probation office or the court. The ability to selectively punish for innocent action based on a vague condition impermissibly opens the door to arbitrary enforcement in violation of due process rights.” ®

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