Our clients convicted of child pornography offenses and certain other offenses in which the internet is case related are restricted in computer access post-release. I mention Quon because of an interesting comment at Sentencing Law & Policy.

I recently had to deal with the Federal Probation Service and the Air Force Clemency & Parole Board about a former now paroled client alleged to have improperly used computers to search for employment. Employment is necessary for parole, and most state funded employment offices, and many employers require applicants to use computers to search for a job or to apply for a job. We resolved the case in the client’s favor and parole was not revoked. The parole and FPS rules do allow computer use in limited circumstances related to seeking employment. The rules are bureaucratic and subject to misunderstanding. Basically the rules require a new “permission” to use a computer each time. So going to Home Depot in the AM and Lowes in the PM requires two permissions. So, here is the SL&P comment on an aspect of Quon.

Though Quon will be of greatest interest to those involved in traditional debates over privacy and police-practices, the opinion for the Court by Justice Kennedy has this notable flourish that could have some broader impact: Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. Relatedly, in a rich and spot-on solo concurrence that takes a variety of swipes at the majority, Justice Scalia concludes by lamenting the legal challenge presented if and when the Court embraces a legal ruling “that requires evaluating whether a given gadget is a necessary instrument for self-expression, even self-identification.” So, what does this have to do with sentencing law and policy in general or sex offender restrictions in particular? Well, I do not think it is much of a stretch for persons to contend in these modern technological times that access to the internet (and maybe even access to a Facebook or Twitter account) is now “essential means or necessary instruments for self-expression, even self-identification.” But, as regular readers know, a fair number of sex offenders these days are facing release conditions that fully or at least significantly restrict their rights to access the internet and/or social networking websites. I suspect that this line from Quon might find its way into a few effort in lower courts to strike down limits placed on some offenders’ use of modern means of digital communication.

CAAF has previously decided some cases about post-release restrictions on military prisoners, but none on this specific restriction. I doubt CAAF would decide an issue of post-release restrictions on the use of computers or the internet. See e.g. United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007)(review of post-trial confinement and release conditions on direct appeal is limited to the impact of such conditions on the findings and the sentence. . . . As a general matter, the collateral administrative consequences of a sentence, such as early release programs, do not constitute punishment for purposes of the criminal law.).

Regular readers of this blog know that I have dropped smart phones in various water graves; twice, in the toilet (don’t ask), and once in a swimming pool, and once in Tampa Bay. In each case, I did my best to dry them out, but, alas, they died a terrible death. Now, LifeHacker informs me that I could have dried them in a bowl of rice, which, because of its ability to soak up moisture, can save wet electronics if applied soon enough. Since my accidents, I have been a lot more careful with my smartphones, so I hope I never have to try this one out. However, if it happens to you, keep this one in your pocket just in case.

Testimonial: Rice Resurrects Even the Most Soaked of Gadgets – Cellphones – Lifehacker.

Here is a link to a New York Times editorial on the Ohio case.

The Ohio Supreme Court has struck an important blow for privacy rights, ruling that the police need a warrant to search a cellphone. The court rightly recognized that cellphones today are a lot more than just telephones, that they hold a wealth of personal information and that the privacy interest in them is considerable. This was the first such ruling from a state supreme court. It is a model for other courts to follow.

However, fourthamendment.com has these items.

The defendant was arrested on drug charges, and the police let him keep his cellphone while they discussed the possibility he would snitch for them. When it became apparent he wouldn’t snitch, they took the cellphone and searched it. It was still incident to the arrest. United States v. Georgiou, 2009 U.S. Dist. LEXIS 114729 (E.D. Pa. December 7, 2009). Accidental accessing of pictures on a cellphone when attempting to turn it off before storage during defendant’s booking revealed child porn pictures. This was not an unreasonable search because it was accidental and resulted in a plain view. Search incident, as argued by the government, would not apply because the phone was not a part of any crime. United States v. Yockey, 2009 U.S. Dist. LEXIS 67259 (N.D. Iowa August 3, 2009), USMJ R&R affirmed, United States v. Yockey, 2009 U.S. Dist. LEXIS 77373 (N.D. Iowa August 28, 2009). Search incident of defendant’s cell phone was reasonable: “The search of Wurie’s cell phone incident to his arrest was limited and reasonable. The officers, having seen the ‘my house’ notation on Wurie’s caller identification screen, reasonably believed that the stored phone number would lead them to the location of Wurie’s suspected drug stash.” The court, however, has doubts about the breadth of cellphone search incident and summarizes the law. United States v. Wurie, 612 F. Supp. 2d 104 (D. Mass. 2009).

In Wurie, the summary begins:

Neither the Supreme Court nor the First Circuit has directly considered the issue of whether a search incident to arrest may include a search of a cell phone’s contents, and if it does, how thorough the search might be. It seems indisputable that a person has a subjective expectation of privacy in the contents of his or her cell phone. See, e.g., United States v. Finley, 477 F.3d 250, 259-260 (5th Cir. 2007) (defendant had a sufficient privacy interest in his cell phone’s call records and text messages to challenge their search; the search of the stored text messages, however, was permissible as incident to a valid arrest). Decisions of district courts and Courts of Appeals (often analogizing cell phones to the earlier pager tecology) trend heavily in favor of finding that the search incident to arrest or exigent circumstances exceptions apply to searches of the contents of cell phones.

United States v. Wurie, 612 F. Supp. 2d 104, 109 (D. Mass. 2009), but see:

The actual facts of Diaz’s case are sufficiently different to warrant a different conclusion. The warrantless search of Diaz’s cellular telephone cannot be justified as a search incident to arrest.

Commonwealth v. Diaz, 26 Mass. L. Rep. 94 (Mass. Super. Ct. 2009).

A quick LEXIS check for “cell-phone” in military cases didn’t find one questioning a cell-phone search. United States v. Huchel, ACM 34824 (A. F. Ct. Crim. App. June 16, 2003) (unpub.) involved a consent search and was resolved on the voluntariness of the consent, and appears primarily related to a house search.