At 03:58 PM 12/17/96 -0800, Lile Elam wrote:

I saw this article in the nando.net paper today and was interested in your thoughts on it. It looks like people on probation will be limited in there use of encryption and access to the Internet.

One nit to pick - parole and probation are not the same thing. Probation is a sentence imposed by a judge, and parole is the administrative/executive modification of a sentence. They function in similar ways (e.g., people who have been convicted of a crime are not locked up but subjected to extra rules) but have some legally meaningful differences. The press release from the USPC is online at <http://gopher.usdoj.gov/gopherdata/press_releases/592usp.htm>.

To me, it seems like this could be equated to preventing people on probabtion from using something like a phone. I am having problems with it because I feel these limitations are too severe. I mean, a good way someone on probabtion to make a living is to learn how to use the web and prehaps get a job as a html coder.

This seems like a pretty fact-specific question; but it's not unusual for people convicted of crimes to be restricted from using tools similar to the ones they used to commit crimes, e.g., drivers' licenses are suspended where people are convicted of driving crimes, professional licenses are taken away when people have committed professional misconduct, and so forth. I agree that this can be counterproductive (it doesn't make much sense to seriously handicap someone and then blame them for not doing very well) but I don't think that computers and the Internet are meaningfully different in this way.

There is a hacker I know of (Kevin Poulsen) who is prevented from using computers during his current probation and it really has limited his options alot. I curated and maintain a website for him at URL:

http://www.catalog.com/kevin/

where this issue is dicussed.

My hunch is it didn't make a big difference, but his letter to the judge who accepted his guilty plea and sentenced him seems to suggest that he turns to computer crime out of curiosity, boredom, and obsession - motives which are probably still present. Three years without computers may force him to find some other outlet for his creative and exploratory drives. This seems like a long-term win for him. (I think denying him access to higher education is much worse than denying him access to computers.)

It also seems to me that preventing people on probation from using encryption would be difficult especially when encryption is used in webservers (ie Netscapes Secure Server). One could accidentally access one and not know that he was sending/receiving information via an encrypted channel.

This sounds like a fact issue for a probation/parole revocation hearing, e.g., did the defendant intend to violate the terms of his or her release agreement? Depending on the situation, an unintentional violation of the terms of release might not result in revocation. (I'm inclined to think it never should, but I'm not having much luck finding any relevant caselaw quickly. I'm also handwaving here because different jurisdictions will probably apply different rules.) My impression is that the USPC was bamboozled (by the USDOJ?) into adopting unnecessary regulations - the press release mentions a "surge of how-to information" available on the Net re criminal activity; but I'm skeptical that such a surge has taken place, or that it's especially relevant to people on parole. The action may also have been unnecessary (viz, the restrictions on crypto) because people subject to parole and probation are already subjected to incredibly draconian restrictions - e.g., the terms of probation and parole usually specify that they must allow the supervising officer to search their home at any time, must report where they live and work, cannot form social relationships with people deemed undesirable, cannot quit their job or change residences, must report their income and expenses in considerable detail, must give blood/urine samples on a surprise basis, etc. People who are on parole or probation have no privacy and very little autonomy. It's not much of a stretch to "You must let the probation officer look through your house" to "You must let the probation officer see what's on your hard disk" - in fact, I think the first implies the second. (Obviously, there are a ton of fact-specific issues here (and I've written briefs arguing why parolees/prisoners should get more privacy), but at the "public policy" level, it's pretty clear that probationers and parolees have sharply curtailed Constitutional rights - which is usually OK with them, because they like that better than being locked up. In my perspective, it makes more sense to rethink the goals and methods of the criminal trial/punishment system, rather than focus on minutiae about computer crime. Lots of otherwise apparently decent people are subjected to relatively harsh punishment on a pretty regular basis, and many people think we aren't already mean enough to convicted people. Most of the people who think this have never had someone they cared about subjected to the penal system. But this isn't really C-punks material any more, so I'll stop here.) -- Greg Broiles | US crypto export control policy in a nutshell: gbroiles@netbox.com | http://www.io.com/~gbroiles | Export jobs, not crypto. |