########## | ########## | ### | THE DOCUMENT CASE ####### | ####### | A collection of briefs, judgments ### | white papers, rulings, and references of ########## | moment to the issues of law and order on ########## | The Electronic Frontier | ########## | ########## | ### | Document #: 1 ####### | Title: EFF Amicus Brief in U.S. v. Riggs ####### | challenging computer-use prohibition ### | in "hacker" defendant's sentencing ### | Archived/Published to the Net: May 23, 1991 ### | Filename: riggs.brief | ########## | ########## | Anonymous ftp archive maintained by ### | Mike Godwin and Chris Davis at ####### | The Electronic Frontier Foundation (eff.org) ####### | ### | These files are in the "docs" subdirectory ### | of the ftp directory. Related files may be ### | found in the EFF and SJG subdirectories. IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT NO. 90-9108 NO. 90-9129 UNITED STATES OF AMERICA Plaintiff-Appellee, v. ROBERT J. RIGGS Defendant-Appellant. A DIRECT APPEAL OF A CRIMINAL CASE >FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION BRIEF OF AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION ERIC M. LIEBERMAN NICHOLAS E. POSER RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBERMAN, P.C. 740 Broadway - Fifth Floor New York, New York 10003 (212) 254-1111 HARVEY A. SILVERGLATE SHARON L. BECKMAN SILVERGLATE & GOOD The Batterymarch Building 80 Broad Street - 14th Floor Boston, Massachusetts 02110 (617) 542-6663 Counsel for Amicus Curiae Electronic Frontier Foundation ---------------------- United States v. Riggs, Nos. 90-9108 and 90-9129 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Local Rule 26.1 of this Court, it is hereby certified that the following persons and entities have an interest in the outcome of this case or have participated as attorneys or as judges in the adjudication of this case: Kent B. Alexander, Assistant United States Attorney Sharon L. Beckman, Attorney for Amicus Curiae Electronic Frontier Foundation Electronic Frontier Foundation, Amicus Curiae Honorable J. Owen Forrester, United States District Judge, Northern District of Georgia Paul S. Kish, Attorney for defendant-appellant Eric M. Lieberman, Attorney for Amicus Curiae Electronic Frontier Foundation Nicholas E. Poser, Attorney for Amicus Curiae Electronic Frontier Foundation Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., Attorneys for Amicus Curiae Electronic Frontier Foundation Robert J. Riggs, defendant-appellant Harvey A. Silverglate, Attorney for Amicus Curiae Electronic Frontier Foundation Silverglate & Good, Attorneys for Amicus Curiae Electronic Frontier Foundation ___________________________ NICHOLAS E. POSER STATEMENT OF INTEREST OF AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION Amicus curiae Electronic Frontier Foundation submits this brief to assist the Court's review of the special condition of the defendant's supervised release imposed by the district court prohibiting him from owning or personally using a computer. Pursuant to Fed. R. App. P. 29, the Foundation submits this brief with the written consent of both the defendant and the government. The letters of the parties consenting to the filing of this brief have been contemporaneously submitted to the clerk of the Court. The Electronic Frontier Foundation believes the condition barring computer ownership and personal use substantially infringes First Amendment rights of expression and association. The legality of the condition presents a novel and important question, whose resolution by this Court will have a profound impact on the development of the law. As explained below, the question presented here is precise of the kind which the Foundation was established to address and about which it has considerable expertise. The Electronic Frontier Foundation is a nonprofit organization established in 1990 to promote the public interest in the development of computer-based communication technology. The founders and directors of the Electronic Frontier Foundation include Mitchell Kapor and Steven Wozniak, two of our nation's leading experts in the area of computer technology. Mr. Kapor founded the Lotus Development Corporation and designed and developed the Lotus 1-2-3 spreadsheet software. Mr. Wozniak was one of the co-founders of Apple Computer, Incorporated. These individuals have comprehensive knowledge of the developing computer-based technologies and the promises and threats they present. The Foundation's goals, as set forth in its mission statement, are as follows: Engage in and support educational activities which increase popular understanding of the opportunities and challenges posed by developments in computing and telecommunications. Develop among policy-makers a better understanding of the issues underlying free and open telecommunications, and support the creation of legal and structural approaches which will ease the assimilation of these new technologies by society. Raise public awareness about civil liberties issues arising from the rapid advancement in the area of new computer-based communications media. Support litigation in the public interest to preserve, protect, and extend First Amendment rights within the realm of computing and telecommunications technology. Encourage and support the development of new tools which will endow non-technical users with full and easy access to computer-based telecommunication. While the Foundation regards unauthorized entry into computer systems as wrong and deserving of punishment, it also believes that legitimate law enforcement goals must be served by means that do not violate the rights and interest of the users of electronic technology and that do not chill use and development of this technology. The novel question presented in this appeal falls squarely within the expertise and interest of the Electronic Frontier Foundation. The Foundation believes it can be of assistance to the Court in determining whether the condition imposing a computer ban infringes rights of speech and association in a broader manner than is reasonably necessary to achieve the goals of the supervised release statute. Accordingly, the Foundation submits this brief. STATEMENT REGARDING ORAL ARGUMENT Amicus curiae Electronic Frontier Foundation requests oral argument in this appeal, which presents the novel question of the legality of generally prohibiting computer ownership and personal use as a condition of supervised release. Because computers are means of communication and association with others, the prohibition raises important issues under the First Amendment. Amicus has comprehensive knowledge of computer-based technologies and a deep interest both in developing public understanding of those technologies and of the civil liberties implications of governmental restrictions on their use. (See Statement of Interest of Amicus at pp. i-iii.) Amicus believes oral argument will assist the court in resolving the legal issue presented by the computer ban. TABLE OF CONTENTS Pages CERTIFICATE OF INTERESTED PARTIES ..................... C-1 STATEMENT OF INTEREST OF AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION ................. i STATEMENT REGARDING ORAL ARGUMENT ..................... iv TABLE OF CONTENTS ..................................... v TABLE OF AUTHORITIES .................................. vii STATEMENT OF JURISDICTION ............................. xi STATEMENT OF THE ISSUE ................................ 1 STATEMENT OF THE CASE ................................. 1 (i) Course of Proceedings and Disposition Below ............................ 1 (ii) Statement of Facts ........................... 2 (iii) Scope of Review .............................. 2 SUMMARY OF ARGUMENT ................................... 3 I. THE PROHIBITION ON OWNERSHIP AND PERSONAL USE OF COMPUTERS TRENCHES HEAVILY ON RIGHTS OF EXPRESSION AND ASSOCIATION PROTECTED BY THE FIRST AMENDMENT ................................... 5 II. THE DISTRICT COURT'S PROHIBITION ON MR. RIGGS' OWNERSHIP AND PERSONAL USE OF COMPUTERS AS A CONDITION OF HIS SUPERVISED RELEASE IS IMPROPER BECAUSE IT CREATES A GREATER DEPRI- VATION OF LIBERTY THAN IS REASONABLY NECESSARY TO EFFECTUATE STATUTORY GOALS ........... 13 A. The Sentencing Reform Act Requires That Conditions Of Supervised Release Not Impinge Unnecessarily On Liberty Interests ......................... 13 B. The Prohibition On Ownership And Personal Use Of Computers Is A Deprivation of Liberty Not Reason- ably Necessary to Carry Out The Purposes Of The Sentencing ................... 17 1. The Computer Ban Is Far Too Broad To Be Reasonably Necessary To The Statutory Purposes Of Deterrence, Public Protection And Rehabilitation ..... 17 2. Discretionary Conditions Specifically Authorized By Statute Or Imposed In Other Contexts Provide No Support For The Imposition Of The Computer Ban Here ..................................... 22 3. This Court Has Authority To Strike Down The Computer Ban ............. 25 CONCLUSION ............................................ 25 TABLE OF AUTHORITIES Page Bell v. Wolfish, 441 U.S. 520 (1979) .................. 17 Buckley v. Valeo, 424 U.S. 1 (1976) ................... 9 Kleindienst v. Mandel, 408 U.S. 753 (1972) ............ 7 Owens v. Kelley, 681 F.2d 1362 (11th Cir. 1982) ................................. 16 Pell v. Procunier, 417 U.S. 817 (1974) ................ 1...
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