U.S. v Lifshitz

United States v Lifshitz

369 F.3d 173

Brandon Lifshitz was convicted of receiving child pornography via his home computer. He consented to an FBI search of his computer, and both he and his mother confessed to Brandon’s involvement with child pornography. Brandon admitted that he downloaded and disseminated images by posting them on the web. Initially, there were two counts against Lifshitz, the first for receiving child pornography in interstate commerce, and the second for distributing child pornography in interstate commerce. Lifshitz pled guilty to the first count in return for the government dropping the second charge. The plea resulted in a stipulated sentencing guideline range between 27 and 33 months, and a fine between $6,000 and $60,000. Lifshitz claimed diminished capacity in order to reduce his sentence. Defense counsel requested that Lifshitz’s sentence be departed downward to a noncustodial sentence based on his diminished capacity. The court determined that a noncustodial sentence, permitting Lifshitz to live with his grandmother would be appropriate. The court sentenced Lifshitz to three years probation and imposed conditions, which form the basis of Lifshitz’s appeal.
The two conditions imposed were: (1) that defendant shall consent to the installation of systems that will enable the probation office to monitor and filter computer use on a regular basis on any computer owned or controlled by the defendant. (2) that defendant shall consent to unannounced examinations (searches) of any computer equipment owned or controlled by the defendant, which may result in the retrieval of and copying of all data from the computer and any internal or external peripherals, and may involve removal of such equipment for the purpose of conducting a more thorough investigation.
The Chief U.S. Probation Officer wrote that the first condition was inconsistent with the second. He stated that his interpretation was that the probation officer was authorized to monitor Lifshitz’s computer on a regular basis, and that if child pornography was found, the reasonable suspicion standard would be satisfied and would justify a search of Lifshitz’s computer and residence.
The court affirmed the Chief U.S. Probation Officer’s interpretation and defense counsel appealed on the grounds that such monitoring was not based on a reasonable suspicion (Griffin). Defense counsel requested the court amend the condition to require the installation of filtering or blocking, rather than monitoring software.

The lower court sentenced Lifshitz to noncustodial arrest and two conditions (noted above). The lower court adopted the Chief U.S. Probation Officer’s interpretation of the conditions. The appeals court vacated the interpretation and remanded the case.

Is the scope of computer monitoring here overly broad regarding an individual’s privacy rights?

The Fourth Amendment protects individuals against unreasonable searches and seizures. However, the Supreme Court has identified areas in which a lesser level of suspicion may render a search constitutional. Two categories that may apply to this case are probationary and special needs searches.
The court considers that supervision in the probation context is a special need of the state. Thus, an acceptable infringement of privacy rights for an individual on probation would not be constitutional when applied to members of society. However, there is little guidance for the court regarding the validity of search conditions themselves.
The government also argues that reasonable suspicion exists because the monitoring condition is reasonably related to the goals of Lifshitz’s probation. The court disagrees, finding that current law did not support the notion that reasonable suspicion could be based upon the defendant’s status as a sex offender.
The court does consider the scope and efficacy of the condition imposed. It states that an objective to monitoring Lifshitz is to tailor the provision narrowly in order to comply with the Fourth Amendment. One issue that the court addresses is that there is no indication in the record of the type of monitoring the government intends on implementing. The court concludes that because there are so many different programs and levels of monitoring, that the measures implemented will define whether there has been an infringement upon Lifshitz’s privacy. The court also questions whether the monitoring system chosen will be effective. Its reasoning is based upon the ability of many users to circumvent existing monitoring systems.
My take on this case is fairly simple. Because Lifshitz was convicted of a deplorable crime, monitoring his computer use is crucial. Because his crimes were committed with the computer, this has become his “weapon of choice.” Therefore, regardless of whether he is smart enough to circumvent monitoring, he must be monitored. The nature of his crime also relegates his own constitutional expectation of privacy to the bottom of the list. His computer should be monitored by any means necessary in order to prevent him from committing further child pornography offenses. I agree with the interpretation of the Chief U.S. Probation Officer. This intrusive monitoring is for the benefit of society, as well as his own. Otherwise, Lifshitz should serve his time in jail without access to computers.

First condition is vacated and case is remanded to impose a condition consistent with this opinion.

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