“Is my Furby a computer?”
With five months in jail and eight months of parole behind him, and four years of probation to go, Trevor finds himself contemplating the artificial intelligence of a Furby, and its threat to his future.
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As a registered sex offender, Trevor must abide by a bewildering array of rules, regulations and restrictions. He was introduced to the maze upon parole: He wasn’t supposed to use a computer or the internet, but his parole officer didn’t initially inform him of these constraints. Ironically, he found out his parole conditions online.
Later, during a mandatory polygraph test, a police officer slid a pen and paper toward Trevor, demanding that he write down every username and online alias he has ever had. Trevor, a young, self-identified “freaky queer video/net artist,” found this request laughable and troublingly out-of-touch.
“They didn’t even understand that any time you comment on anything on a site you have to usually create a username, or any of the endless crap you have to create accounts for online,” he said. “They still seem stuck in the mid-90s or something, as if I have one email address and one screen name that I use to talk to pedophiles and minors on the internet, like it works that way.”
This is the state of technology and the law when it comes to registered sex offenders – ignorance, confusion, misinformation and conflicting court decisions.
Trevor ended up scribbling down an abandoned Tumblr account and a fake Gmail address he created after his release from jail. He knew the risks of providing outdated or false internet aliases, but thought that this was preferable to leading the police to real information they could misconstrue and use against him.
Trevor’s paranoia stems from his recent experience with law enforcement. In 2012, he was convicted of “knowingly possessing child pornography,” but maintains his innocence. The police stopped him at the airport after child-porn tracking software led them to a router that he used while house-sitting, leaving Trevor baffled.
His digital camera, MP3 player, external hard drive and two cell phones were confiscated, smashed to pieces and never returned. Trevor also never saw his laptop again, which, as he found out, survived with only a corrupted hard drive and destroyed metadata. Now unable to prove his innocence against the word of law enforcement and facing a potential $80,000 in legal fees and five to 25 years in prison if brought to trial, Trevor, like most other people in similar situations, took a plea deal: one year in jail for one potentially suspicious cached thumbnail image. Even a small chance of extended incarceration wasn’t a risk he was willing to take.
So now Trevor is thinking about his Furby and whether his probation officer thinks it will pose a risk to society. “When it says no computers, I’m just like, well, where’s the line there? Is my Furby a computer? There’s a computer inside essentially everything that’s electronic at this point. I wouldn’t even know where that line is, where they’re considering what’s a computer or not.”
This is the state of technology and the law when it comes to registered sex offenders – ignorance, confusion, misinformation and conflicting court decisions. Every state has its own set of laws about which offenders need to be monitored or banned from using the internet and to what extent. In Trevor’s home state of Maryland, for example, all offenders on the registry “shall send written notice of the new information to the MD State Sex Offender Registry within 3 days of the change . . . if you establish a new email address, computer log-in or screen name or identity, instant-message identity or electronic chat room identity.”
“Yes, $29 deducted from my credit card for the privilege of having my computer monitored.”
Parole and probation officers inconsistently hand out and enforce such restrictions, and the laws differ for those on parole, probation, community supervision and the registries. Maryland’s Division of Parole and Probation mandates internet monitoring “for any sexual offender released from the Division of Correction who is required to register with the Maryland Sexual Offender Registry as a Child Sexual Offender. In addition, computer monitoring is used for any sexual offender whose criminal history includes an offense involving child pornography, or behavior in which access to the victim was accomplished through the use of the internet.”
This confusion has bred companies that profit from computer monitoring and internet surveillance for sex offenders. KBSolutions, for example, provides consultation and surveillance software to parole and probation departments across the country, advising on how to best limit the computer use of sex offenders. Because sex offenders cannot be entirely banished from the internet, the company developed software that helps untrained officers quickly review all images and videos on an offender’s computer and search for sexual phrases and keywords in URL histories, chat logs and emails, with the goal of catching the offender in any behavior that points to re-offense.
With these monitoring practices, all privacy is eliminated; even mundane and legal computer activity becomes open to law enforcement scrutiny. Fear of violating parole or probation could prevent people from seeking help or advice related to their offense, undercutting public safety. Pushing and intimidating offenders off the internet makes it harder for them to find jobs, obtain social support, read the news and function in contemporary society.
Other software, such as Impulse Control, monitors computers in real time while collecting massive amounts of information for later review – taking screenshots as quickly as once every second and allowing law enforcement officers to watch every keystroke, Google search, instant message and email live from their desks.
Sam, a 50-year-old registered sex offender convicted of possessing magazines with child pornography, spent two years in jail after being arrested in 2008. He was sentenced to 10 years of probation and will have monitoring software installed on his home computer for the duration of the 10 years. He is restricted from viewing pornography of any kind, using social media or going into chat rooms, despite the fact that he didn’t use a computer to download illegal images in the first place. He is also barred from owning or using iPads, Apple computers, smartphones, site-based email and gaming systems, such as Xbox and PlayStation.
“The conditions of my internet use indicate that they have the right to look at anything that is on my computer screen, any keystrokes that I enter, any websites that I visit, and they have the right to come to my home and search my computer at any time,” Sam said.
An Indiana ban on social media was overturned, noting that “the goal of deterrence does not license the state to restrict far more speech than necessary to target the prospective harm.”
After a year of unsuccessfully searching for a job and prodding the parole department, he was finally allowed to use LinkedIn, even though law enforcement considers it a social media site. Despite the barriers the software imposes on finding employment and maintaining financial security, Sam must pay out-of-pocket each month for the software. The irony is not lost on him. “Yes, $29 deducted from my credit card for the privilege of having my computer monitored.”
In persuading law enforcement agencies to purchase his company’s services, KBSolutions president Jim Tanner explains how surveillance affects offenders: “Effective computer monitoring . . . sharply increases the offender’s perception of ‘being watched.’ The psychological effect of knowing all computer activity is monitored cannot be understated. Proper computer management is a tangible and daily reminder of the containment in an offender’s life. It enhances community safety simply by its presence.”
But some advocates argue that this psychological effect doesn’t enhance community safety; it merely cripples the lives, opportunities and well-being of sex offenders. Not wanting to push the boundaries of his restrictions, Sam says that he has been “scarred and traumatized by the whole experience.” He adds, “I don’t want to give them any more grounds to make my life harder than has already been the case.”
According to Chrysanthi Leon, a professor and researcher of sex offenders at the University of Delaware, a better approach would be to provide opportunities rather than drain resources through post-release fees and restrictions.
“If we really expect people who are either coming out of prison or are otherwise on community corrections [to try] to do the right thing and make good, if we really expect them to be successful, there are all kinds of worthwhile things they should be doing with their money, and paying for this kind of thing really just erodes their ability to take care of their families and do all the other kinds of much more important things in terms of what we know empirically matters for successful reentry,” Leon said.
There is also concern that laws restricting computer and internet use are unconstitutional.
There is a long history of conflicting rulings about the legality of internet bans for paroled sex offenders. For example, restrictions have been upheld by the Ninth and Eleventh Circuit Courts while also being struck down by the Second and Eighth Circuit Courts.
A San Diego court ruled that one 15-year-old sex offender had a First Amendment right to use social media sites, and a Louisiana court said that the internet restrictions for sex offenders were overly broad, unenforceable and unconstitutionally vague. An Indiana ban on social media was overturned, noting that “the goal of deterrence does not license the state to restrict far more speech than necessary to target the prospective harm.”
Despite these free speech victories, many sex offenders are still targeted, often very publicly, for social media use. Recent headlines include: “Sex offender faces new charges for having social media page,”“Facebook account lands sex offender back in prison” and “Level-three sex offender arrested for not registering Facebook, Gmail accounts with authorities.” In addition, social media sites like Facebook have their own policies that ban sex offenders.
While the ever-shifting nature of these laws destabilizes their authority and provides an opening for critique, the confusion makes them nearly impossible to keep track of.
Michael Risher, a senior staff attorney at the American Civil Liberties Union of Northern California, is creating order out of the chaos in the name of the First Amendment. Along with the Electronic Frontier Foundation, he successfully challenged a provision of California’s Proposition 35 stating that registered sex offenders had to report all internet identifiers and service providers to law enforcement. Risher argues that free speech extends to everyone, and that singling out certain groups for fear and censorship can have unintended consequences.
“Our democracy depends on hearing everybody’s voice, and yes, people who are required to register because they have been convicted of a sex offense are an extremely unpopular group,” Risher said. “And a lot of people don’t necessarily want to hear what they have to say, but they are also the people that are in the best position to tell us about the effect of these laws on them. And if we make it more difficult for them to speak about that, to speak about the problems they face, it makes it more difficult for us to come to rational decisions about how we’re going to allocate our public safety resources.”
Some digital freedom and anti-surveillance advocates warn that restrictions on sex offenders can quickly spread beyond the original scope that is popularly supported. Hanni Fakhoury, senior staff attorney at the Electronic Frontier Foundation, believes that “often times ‘sex offenders’ are the whipping boys for a lot of perceived harms in society and they kind of get picked on because they’re an unpopular group. And what ends up happening is you have situations where the use of one reporting requirement or surveillance or warrantless search exception starts with them.”
Fakhoury’s premonition has already born out in recent law enforcement moves. Government DNA collection has expanded from people convicted of sex offenses and violent crimes to a 10-million sample database that now includes anyone so much as arrested for a crime. Pilot programs for biometrics and face recognition software are being used by law enforcement to keep an eye on sex offenders, and officials have plans to expand its scope.
Activists warn that these tactics could swell to a point where public anonymity is essentially nonexistent, when surveillance cameras can identify every citizen through instantaneous cross-checks with a government-owned facial image database.
As Fakhoury says, “Everybody says ‘oh yeah, we don’t have a problem with that,’ but then what ends up happening is once you start there it starts to expand out and touches on other people [besides sex offenders].”
This might seem like an improbable reality, but there is no debating the popularity of laws against sex offenders and the willingness of the public to allow them to grow. Whether this trend will lead to a full-scale surveillance dystopia out of 1984 is more difficult to predict.
If you want help envisioning the future, though, feel free to ask a Furby. It might know more than you realize.