Academic journal article Ave Maria Law Review

Propriety of Internet Restrictions for Sex Offenders Convicted of Possession of Child Pornography: Should We Protect Their Virtual Liberty at the Expense of the Safety of Our Children?

Academic journal article Ave Maria Law Review

Propriety of Internet Restrictions for Sex Offenders Convicted of Possession of Child Pornography: Should We Protect Their Virtual Liberty at the Expense of the Safety of Our Children?

Article excerpt

Introduction

The Internet has become an indispensable tool in today's society; so much so, that it is almost impossible to imagine what life would be without it. We depend on the Internet to pay our bills and keep track of our financial records, keep in touch with friends and family, find our way around certain locations, and stay connected with what is going on in the world. With the Internet making information readily accessible, while at the same time providing its users with anonymity, it is not hard to imagine how some individuals can abuse its power and use it to harm others. With such a powerful tool comes responsibility and anyone who exploits the Internet at the expense of others should forfeit the privilege of being able to use it.

This is the reality plaguing many sex offenders convicted of using the Internet to receive and distribute pornographic images involving children. The propriety of conditions restricting a convicted sex offender's Internet and computer use, imposed as a condition of supervised release or a conditional release, is a topic of controversy among the federal courts of appeals, which are currently split on this issue. On one end, certain circuits have held that the Internet is such an integral part of our lives that it is unreasonable to impose Internet and computer restrictions on sex offenders convicted of merely possessing child pornography, as opposed to those offenders who use the Internet to prey on children; whereas, other circuits consider these restrictions to be an appropriate measure of protecting the public by preventing sex offenders from using the Internet to perpetuate the victimization of children.

This Note takes the position that Internet restrictions are necessary to fulfill the purpose of the Sentencing Guidelines to protect children from victimization, and to deter convicted sex offenders from engaging in similar conduct during the term of supervised release imposed by the court, but proposes that these restrictions be tailored to the offender's particular circumstances through the use of technology.

Part I provides a historical overview of child pornography, the attempt of the United States to eradicate its proliferation by enacting specific legislation, and the role the Internet plays in promoting it.

Part II discusses the psychological, physical, and social effects that the production and dissemination of these materials have on the victims of child pornography. Part II also discusses the correlation between viewing child pornography and the perpetration of sex-related crimes against children beyond viewing the pornography.

Part III describes the relevant sections of the Sentencing Guidelines that courts rely on to determine the length of a convicted sex offender's sentence and the conditions of probation or supervised release the judges are allowed to impose.

Part IV discusses the different approaches taken by the federal courts of appeals and illustrates the current split among jurisdictions.

Part V addresses the implication of imposing a total restriction on a convicted sex offender's access to the Internet in a world that heavily relies on technology and the Internet to carry out their daily activities. In addition, Part V examines the consequences of a partial Internet ban in the context of the Fourth Amendment.

Lastly, Part VI explains the current surveillance software available for law enforcement personnel to monitor the online activity of sex offenders and discusses which software best serves the goals of the Guidelines.

I. CHILD PORNOGRAPHY

A. Historical Overview of Child Pornography

"Child pornography is a form of child sexual exploitation." (1) The sexual objectification of children is a problem that has persisted throughout the years, along with the production and dissemination of sexually suggestive materials involving children. (2) However, it was not until the mid-nineteenth century, as a result of the invention of the camera and photography that we began to see an emergence of the production, collection, and exchange of pornographic material depicting children. …

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