Court Rejects Probation Rules On Teen That Ban Him From Using Social Networks Or Instant Messaging Programs

from the free-speech-ftw dept

Thu, Oct 21st 2010 9:28am — Mike Masnick

We've written a few times about the ridiculousness of courts trying to ban the internet for certain people convicted of various crimes. However, what about specific bans on just part of the internet. Venkat Balasubramani has a post about a teenager ("J.J.") who had received a stolen motorcycle. He was given probation with a variety of restrictions on computer usage:

[J.J.] shall not use a computer that contains any encryption, hacking, cracking, scanning, keystroke monitoring, security testing, steganography, Trojan or virus software.

[J.J.] is prohibited from participating in chat rooms, using instant messaging such as ICQ, MySpace, Facebook, or other similar communication programs.

[J.J.] shall not have a MySpace page, a Facebook page, or any other similar page and shall delete any existing page. [J.J.] shall not use MySpace, Facebook, or any similar program.

[J.J.] is not to use a computer for any purpose other than school related assignments. [J.J.] is to be supervised when using a computer in the common area of [his] residence or in a school setting.

Note that he wasn't accused of any sort of computer crime here. Also, my first reaction that first ban was to wonder what's wrong with encryption software? And, um, how does he know if he's got trojans or viruses on his computer? That said, the rest of the bans also seemed extreme and overly broad -- which was the point that J.J. made in challenging the conditions. Thankfully, a judge agreed and has dumped those conditions as being unreasonable restrictions on free speech:

Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. . . . Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means.

As for the oddities in banning him from using computers with viruses, trojans or keystroke monitors, which he could potentially violate without even knowing it, the court changed the terms to say that he can't knowingly use a computer with any of those things on it. Unfortunately, they still include "encryption" on the list. I find it troubling that the court is okay with demonizing encryption (and, to a lesser extent, "hacking" tools) when there are plenty of legitimate reasons to do so. Does that mean he can't even encrypt his email?

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Filed Under: bans, encryption, internet, probation

54 Comments

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ChurchHatesTucker (profile), 21 Oct 2010 @ 9:46am

Just email?
Could the court order that all his snail-mail be conducted on postcards?
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Anonymous Coward, 21 Oct 2010 @ 9:47am

they still include "encryption" on the list.

Wouldn't that include any SSL enabled web browser?
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Modplan (profile), 21 Oct 2010 @ 9:54am

There's a pretty long history of the Government trying to limit or stop the use encryption...

http://www.cabinetmagazine.org/issues/1/worthington.php

http://wiki.openrightsgr oup.org/wiki/Crypto_Wars
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Anonymous Coward, 21 Oct 2010 @ 9:54am

"[J.J.] is not to use a computer for any purpose other than school related assignments. [J.J.] is to be supervised when using a computer in the common area of [his] residence or in a school setting."

What if his CS class assignment is to make a stealthy encrypted trojan keylogging virus that cracks security testing software? He's screwed. (BTW, that program would require some serious hacking).
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ofb2632 (profile), 21 Oct 2010 @ 9:55am

encryption
They dont want his computer encrypted so when they barge in and search it, they are not bothered by any encryptions. My question is what about passwords. Passwords are a rudimentary encryption. They stop people from going past a certain point.
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Dark Helmet (profile), 21 Oct 2010 @ 9:57am

Pfft....
Here's hoping this poor bastard doesn't transfer to a certain district in Pennsylvania....
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Ima Fish (profile), 21 Oct 2010 @ 10:00am

"Unfortunately, they still include "encryption" on the list."

Apparently, if he's a copyright holder and decides to add DRM to his own content, he's violating the court's order.
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Anonymous Coward, 21 Oct 2010 @ 10:01am

Wait, doesn't every OS (at least Windows and Linux) have some encryption primitives? Does that count as encryption software?
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Anonymous Coward, 21 Oct 2010 @ 10:08am

Re:
"Wait, doesn't every OS (at least Windows and Linux) have some encryption primitives? Does that count as encryption software?"

That's what I was wondering. And OS X includes it, too (FileVault). To me, it seems like saying that you can only use a computer without encryption software is kind of like saying you can only drive a car without wheels.
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John Doe, 21 Oct 2010 @ 10:10am

What about HTTPS?
Can he visit encrypted websites? Even if he doesn't visit encrypted websites, the browser is still capable of encryption.
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Cowardly Annon, 21 Oct 2010 @ 10:16am

So I guess that means he can't use a BlackBerry right? As BBM and Email on the BlackBerry are all encrypted. Or do smart phones not count as computers?
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Anonymous Coward, 21 Oct 2010 @ 10:17am

Re:
There isn't a computer in existence that doesn't "contain any encryption".

encrypt (ɪnˈkrɪpt)

— vb
1. to put (a message) into code
2. to put (computer data) into a coded form
3. to distort (a television or other signal) so that it cannot be understood without the appropriate decryption equipment.
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william (profile), 21 Oct 2010 @ 10:26am

Uhh... what is a "mail exploder"?

is that a spelling mistake?
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Anonymous Coward, 21 Oct 2010 @ 10:26am

Ha - it sounds like his parents wrote up those restrictions.
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Alias (profile), 21 Oct 2010 @ 10:27am

Why?
Exactly WHY did this defendant get internet restrictions imposed by the courts for receiving stolen goods? How are those two domains related in any way? Did this person use the internet to obtain the stolen goods in question?

Personally, it seems like a total reach by the court to impose these restrictions given the context of the article.
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Anonymous Coward, 21 Oct 2010 @ 10:33am

Don't windows, linux, and apple all contain some type of disc encryption capability?
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meski, 21 Oct 2010 @ 10:37am

well...
He was convicted of stealing something. This is his punishment. The idea of punishment is to; and I know this is sometimes considered weird, to punish people.

Now he may have a case under unusual punishment...

Everyone here is trying to split hairs on what this means. But basically the judge handed down the 'you can use the computer to do your homework and that is it' punishment. The rest is legalese to make it so. The judge should have just came out and said that in plain English. However if he had just said 'you can only use the computer for homework' the kid could have turned around and started using it normal but in the name of "homework".

Also the article asks 'Does that mean he can't even encrypt his email? ' Yes the order means just that. Part of a probation is you act the good citizen. Hiding what you are doing tweaks probation officers hairs up.

If this had say been a 50 year old man would anyone have really cared? "but he is just a kid" argument is hogwash. Teenagers are just as capable of committing crimes as everyone else.
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Anonymous Coward, 21 Oct 2010 @ 10:54am

Re: well...
So...If the judge had said "Your punishment is to eat a spoonful of dirt every hour", that would be fine with you? After all, that is "his punishment", the rest is just legalese.
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Zangetsu (profile), 21 Oct 2010 @ 10:57am

Re: well...
I don't know about you, but the last time I went into a bank was 3 years ago for my mortgage. I haven't step foot in one since. Everything is done through banking machines or the Internet, where encryption is used between my browser and my banks servers.

I also do a fair amount of shopping over the Internet, buying items that I cannot normally find up here in Canada. Each site has an SSL certificate that encrypts data.

I have an application on my machine that stores the 150+ different web sites to which I have a userID and password. It stores both in an encrypted file so that it is not exposed to the world.

More crimes are committed with the use of phones (both land lines and cell phones) and yet people do not normally get a prohibition on using their phone. It is considered an "essential" service. With todays world, the Internet and encryption, are also "essential" services. I want to look at my daughters report card? I need to go online to get it through an encrypted link. Various government services are only available online, through an encrypted link. In the province where I live you can apply to any of the Universities and Colleges in the province through a single web site that uses encryption. You can then go to another encrypted web site to apply for a Student Loan. There is a push to take a look at e-voting (through encryption) although people are concerned about the lack of security and non-repudiation involved in the process.

Let the punishment fit the crime. If he received stolen goods make him perform community service so that he can see the impact that crime has had on others. Like one of the other comments listed above, these restrictions seem to have been put in there by his parents, not by the judge.
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Berenerd (profile), 21 Oct 2010 @ 11:02am

Re:
I was going to post a similar more serious response. I had a scripting class, relatively low level Java class that required me to make a "chat" site. its required for my CIS Security major. I wouldn't be able to do it all because I bought a motorcycle that was apparently stolen.

Did he atleast buy it from Craiglist or Ebay? I mean seriously, why ban him from using PCs and the internet?
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Berenerd (profile), 21 Oct 2010 @ 11:05am

Re:
An email exploder is a single email address which siultaneously sends email to a number of locations determined by a file which contains a list of valid email addresses. In the School of Physics several general email exploders exist. They are meant for sending email regarding administrative matters which affect many people. They are not meant for use in sending email about matters which are not concerned with the operation of the School. Some examples of exploders used within the School are here.

Found here: http://www.physics.usyd.edu.au/guides/email.html
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Alias (profile), 21 Oct 2010 @ 11:06am

Re: Re: well...
>>Let the punishment fit the crime. If he received stolen goods make him perform community service so that he can see the impact that crime has had on others.

Right? That's exactly what I was thinking; give him a little public humiliation and watch the behavior change. I've done some things in the past I'm not proud of, and I did community service as my punishment. As I stated above, how do these two arenas (receiving stolen goods and computer usage) relate in any way to each other?

Seems like a disjointed punishment to me.
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Berenerd (profile), 21 Oct 2010 @ 11:11am

Re: well...
if it were a 50yo that got caught buying stolen goods, and he got this punishment, the 50yo would fight the restrictions too. They don't fit the crime. I feel convicted rapists should be forced to have a sex change operation. Putting them in jail doesn't necessarily show them the error in their ways.
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SomeGuy (profile), 21 Oct 2010 @ 11:13am

Re:
Think newsgroup. I don't think they're used any more.
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Anonymous Coward, 21 Oct 2010 @ 11:13am

Oh Come On!
What the hell does the court think it's going to accomplish by limiting JJ's computer usage? And how in the world does one `obtain` a stolen motorcycle? Did it magically land in his driveway?

I'm guessing he used something like Craigslist to find a motorcycle, which he subsequently didn't pay for? Gosh I hope not because this would be stupidity incarnate.

Then again, we're talking about the American justice system, which only caters to the rich pigs.
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SomeGuy (profile), 21 Oct 2010 @ 11:19am

Re: encryption
Password != Encryption*. It's an authentication mechanism, it doesn't actually obscure or transcode data.

*Most password systems encrypt/transcode the password itself, either for local storage (so other users can't discover the passwords) or transmission over a network (so it can't be caught in transit).
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Pontifex (profile), 21 Oct 2010 @ 11:35am

Re: Re: well...
Seeing what tends to happen to rapists in jail, I think the punishment will quite readily show them the error of their ways.
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SomeGuy (profile), 21 Oct 2010 @ 11:40am

Re: well...
He was convicted of stealing something.

No, it would appear he was convicted of "recieving stolen goods." That might sound like "splitting hairs" to you, but I think there's a significant difference, such as the possibility the he didn't know it was stolen when he recieved it, etc.

And no, I don't think anyone is arguing that he needs the computer because he's "just a kid." They're arguing that the punishment doesn't match the crime, or that this is a grossly broad punishment, or that the restrictions miss basic truths about modern computing, or that modern life requires computers for my that just homework or social-networking. You're the only commentor who's even mentioned that he's a kid.
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JohnP, 21 Oct 2010 @ 11:43am

What jurisdiction?
Where is this court?
Does it have local, region or federal jurisdiction?

Can the boy simply move to a different state?

It is clear that most lawyers have very little understanding of computer technology based on those restrictions. Basically, the kid can't use a credit card or ATM under those restrictions or order anything via an online store. Since he doesn't have a bicycle, how will he be able to get food?
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Josh in CharlotteNC (profile), 21 Oct 2010 @ 11:56am

Re: Re: encryption
"it doesn't actually obscure or transcode data"

While a password in and of itself does not constitute encryption, nearly everything on a computer is encrypted or encoded in one way or another.

This is a big problem that archiving data runs into. After a certain time period, file formats and programs that can understand a particular encoding or encryption method are no longer available, even for open and once widely used formats.

Even if you don't accept open formats as encryption, all DRM systems are encryption. Can this guy not listen to old iTunes from a few years ago? Can he not watch DVDs or BRs on a computer? What about on a set-top box, since those are computers in every sense of the word.

All modern web browsers have encryption built-in - otherwise accessing your bank account online or purchasing something from Amazon with your credit card would be problematic. Guess he can't use a smartphone either, as most have web browsers.

This guy couldn't sit down at a hospitality computer where I work. All of our computers' hard drives are (or will be shortly) encrypted with a full disk encryption product. I know, I support it.
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Eugene (profile), 21 Oct 2010 @ 11:58am

Re: Oh Come On!
Maybe it happened like in that Dr. McNinja storyline, where he takes the motorcycle after the previous owner wrecks it in front of his office and is killed. So he assumed a lack of ownership without checking through the proper sources to verify that assumption.

Also the motorcycle is evil.

Also, it's a unicorn.
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pcanton, 21 Oct 2010 @ 11:59am

Unlocked doors
That's like ordering a person they can't lock there doors on their house or car. Just silly!
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SomeGuy (profile), 21 Oct 2010 @ 12:22pm

Re: Re: Re: encryption
Passwords and file formats aren't encryption, but the rest I'll grant you. I wasn't claiming anything more than I stated.
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SomeGuy (profile), 21 Oct 2010 @ 12:25pm

Re: Unlocked doors
Part of a probation is you act the good citizen. Hiding what you are doing tweaks probation officers hairs up.
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nasch (profile), 21 Oct 2010 @ 12:35pm

Re: Re: Unlocked doors
"Not tweaking probation officers' hairs up" should not be a term of probation. Even if I'm on probation, I'm allowed to draw my curtains and have private phone conversations. Why not private email conversations too? How is keeping your communications private not "acting the good citizen"? What is the difference, ethically and legally, between an encrypted email and a letter sent in a security envelope?
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OC, 21 Oct 2010 @ 12:36pm

Can he use an ATM? Or swipe a metro card to get into the subway/bus? How about cell phones?
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Nunya Beeswax, 21 Oct 2010 @ 12:39pm

Re: Unlocked doors
pcanton says:
"That's like ordering a person they can't lock there doors on their house or car. Just silly!"

Actually, I think that's the point. "You can't encrypt your activities, because we want to know where you are and what you're doing at all times."

Didn't say it was right.
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skywire (profile), 21 Oct 2010 @ 12:44pm

Re: well...
If the judge had wanted to sentence him to using a computer only for homework, he could have done so. The sad reality is that the judge simply does not realize the ubiquity of encryption.
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Willy, 21 Oct 2010 @ 5:23pm

shh...
Quiet, guys. It says he can't knowingly use encryption. If he, like the judge, doesn't know the ubiquity of encryption, then he is free to use ATM's and SHTML. Let's hope he doesn't read this article!
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The Mad Hatter (profile), 21 Oct 2010 @ 8:55pm

Encrytpion
Unless the judge defined what he meant by encryption carefully, this poor guy wouldn't be allowed to own any modern computer, and quite a few antiques. According to memory Encryption is built into every Microsoft OS from Windows 95 on (it may be in the older ones too, but I don't remember), all of Mac OS X, all of Linux, all of BSD, all of Solaris, all of Aix (and every other proprietary Unix).

The poor bastard is screwed.
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Anonymous Coward, 21 Oct 2010 @ 9:40pm

[J.J.] shall not use a computer that contains any encryption, hacking, cracking, scanning, keystroke monitoring, security testing, steganography, Trojan or virus software. The guy is clearly banned from Windows due to DRM (encryption + trojan) and all the cancer (viruses) that Windows downloads from the internet.
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jsf (profile), 22 Oct 2010 @ 7:25am

Re:
There isn't an operating system sold today that does not have encryption software of some sort included.

Also he couldn't use any cell phone made in the past 10-15 years either. They are all computers and use encryption on the data they transmit and receive.

He also can't use any gaming consoles, modern automobiles, televisions or cable boxes, DVD or BluRay players, MP3 players, satellite or digital radio, cordless phones, etc. Almost everything electronic today is a computer and the vast majority have some sort of encryption software on them.
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btr1701 (profile), 22 Oct 2010 @ 7:59am

Re: Re: well...
> I think there's a significant difference, such
> as the possibility the he didn't know it was stolen
> when he recieved it

If he didn't know it was stolen, they he wouldn't be guilty of receiving stolen goods, since knowledge is an essential element of the crime and must be proven by the prosecution.
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ethorad (profile), 22 Oct 2010 @ 8:56am

Re: Re:
Plus every operating system includes keystroke monitoring. How else are they to determine what you're typing?

Plus being blocked from computers with scanning or Trojan software means he'll be forced to stop playing DRMed games.
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Anonymous Coward, 22 Oct 2010 @ 11:36am

Re: Re:
Also he couldn't use any cell phone made in the past 10-15 years either. They are all computers and use encryption on the data they transmit and receive. He also can't use any gaming consoles, modern automobiles, televisions or cable boxes, DVD or BluRay players, MP3 players, satellite or digital radio, cordless phones, etc.

Yep, and apparently even the court which reversed the other restrictions found that these remaining restrictions were reasonable.

When legal systems make rulings like this, they have proven themselves to be unjust, and unjust systems have no moral authority. That means that they rule only by virtue of force and violence, and thus the use of force and violence to resist would be morally justified. Not that I'm encouraging anyone to do so, just saying that they would be morally justified if they did.
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Anonymous Coward, 22 Oct 2010 @ 11:39am

Re: Re: Re: Re: encryption
Passwords and file formats aren't encryption,

What part of "a password in and of itself does not constitute encryption" didn't you understand?
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Anonymous Coward, 22 Oct 2010 @ 11:52am

Re: well...
I know you're probably just a troll, but I'll respond anyway.

He was convicted of stealing something. This is his punishment. The idea of punishment is to; and I know this is sometimes considered weird, to punish people.

There are also courts, even today, that are ordering people's hands to be cut off for petty theft and for people to be stoned to death for unmarried sex. I kind of wondered what kind of person could think such sentences to be just. You seem to be an example of just such a person.

But basically the judge handed down the 'you can use the computer to do your homework and that is it' punishment.

And now you're just plain lying. Come on, if you're going to troll, you need to be a little less obvious with the lies.
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Anonymous Coward, 22 Oct 2010 @ 11:59am

Re: Re: Re: well...
If he didn't know it was stolen, they he wouldn't be guilty of receiving stolen goods, since knowledge is an essential element of the crime and must be proven by the prosecution.

Err, no. All the prosecution had to do is convince the court that he *should* have know that it was stolen, not that he actually did. This is one of those situations where naivety can be a crime.
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Anonymous Coward, 22 Oct 2010 @ 12:05pm

Re: Re: Re: Unlocked doors
"Not tweaking probation officers' hairs up" should not be a term of probation. Even if I'm on probation, I'm allowed to draw my curtains and have private phone conversations.

Heh, maybe people on probation should be prohibited from wearing clothes too. They might be hiding something! Also, it would make it much easier for the rest of us "good citizens" to then spot the "criminals" amongst us and thus protect ourselves from them. Yeah, that's the ticket!
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Anonymous Coward, 22 Oct 2010 @ 12:07pm

Re:
Can he use an ATM? Or swipe a metro card to get into the subway/bus? How about cell phones?

Nope. Can't do any of that.
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DEEJ, 22 Oct 2010 @ 6:32pm

Re:
At least the tools are there in some form, the lastest version of Linux I have has pretty much used it by default on the /home folder.
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btr1701 (profile), 23 Oct 2010 @ 9:40am

Re: Re: Re: Re: well...
> All the prosecution had to do is convince the court that he *should*
> have know that it was stolen, not that he actually did.

I can't speak to the law in all 50 states and the U.S. territories but where I live, actual knowledge is a requirement, not constructive knowledge.

If I respond to a "car for sale" Craigslist ad and complete the transaction, I'm not running the risk of prison time if it turns out the seller stole the car.
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nasch (profile), 23 Oct 2010 @ 10:26am

Re: Re: Re: Re: Re: well...
"Knew or should have known" is a common standard of culpability in US law. You can see it appear in a variety of contexts:

http://www.google.com/search?q="knew+or+should+have+known"+legal+standard

Whether it's in this particular law I don't know.
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Bill Stewart, 23 Oct 2010 @ 3:12pm

Yes, it would ban browsers
Every SSL-enabled web browser (which is just about everything newer than lynx or Netscape 1.0), most email programs (the parts that connect to mail servers, plus many popular clients including Microsoft Outlook support message encryption and signature), Microsoft Office and presumably OpenOffice, all of those support encryption.

Furthermore, any web site that uses passwords should be using ssl encryption for the password, even if they don't use it for the page contents itself. So no social networking, no web-based email, no online banking, no onlne purchasing, even though he's no permitted to use social networking.

If they'd wanted to ban him from using EBay and Craigslist, because he might be selling or buying stolen goods there, that could have made sense. But the rest of it's gratuitous overkill.
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