Litigation

Parole Condition Imposing Complete Ban on Parolee's Use of Internet Unconstitutional

Bobby Ross's release on parole was subjected to numerous conditions. Because he was a sex offender, Ross's parole officer imposed on Ross a special condition of parole prohibiting him from possessing or having contact with any computer, electronic device, communication device or any device which was enabled with internet access. Furthermore, under West Virginia's Sex Offender Registration Act, W. Va. Code § 15-12-1seq. (1999), it was a felony for a registered sex offender to fail to inform the West Virginia State Police of any internet account(s) which he or she had.

While he was released on parole, Ross moved in with his girlfriend, who owned a computer with internet access which she kept at the residence that she shared with Ross. Both the computer and the internet account were password protected, and Ross did not know the password to his girlfriend’s computer or her internet account. Seven months after Ross was released on parole, his parole officer learned that Ross’s girlfriend owned a computer. Ross then was arrested and returned to custody for violating the conditions of his parole by possessing or having contact with a computer with internet access.

The West Virginia Parole Board conducted a parole revocation hearing charging Ross with violating his parole by possessing or having contact with a computer with internet access and for failing to inform the State Police of an internet account. At the revocation hearing, Ross's parole officer testified before the Board that she conducted no forensic analysis of the computer to reveal its internet usage history. The State of West Virginia presented no evidence that Ross used his girlfriend’s computer, used or possessed another computer, or had an internet account or username during his parole. The State also failed to refute testimony from both Ross and his girlfriend that he did not know the password to his girlfriend's computer or her internet account. Nevertheless, the Board found sufficient evidence that Ross was guilty of possessing or having contact with a computer and failing to report an internet account. The Board revoked Ross's parole and reinstated his prison sentence.

Ross argued that the special condition of his parole, which prohibited him from possessing or having contact with any computer or electronic device with internet access, was unconstitutional under the First Amendment to the United States Constitution.

The Supreme Court of Appeals of West Virginia found that a government restriction on internet access had to be narrowly tailored so as not to burden more speech than was necessary to further the government's legitimate interests. However, the special condition of Ross's parole restricted more activity than was necessary to protect anyone from misconduct that was a consequence of internet use. Ross's underlying offense did not involve the internet, and he had no history of using the internet to engage in criminal behavior. Moreover, the State of West Virginia provided no explanation as to how a sweeping ban on Ross's internet access would protect anyone from misconduct that might result from his internet use or why the State's legitimate interests could not be furthered through less restrictive means, such as computer monitoring.  Ross was not allowed to use, possess, or have contact with any computer or electronic device with internet access, which necessarily entailed him being prohibited from accessing social media networking websites. Thus, Ross was barred access to sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. Moreover, the special condition of Ross's parole prohibited him from visiting any website, including sites as varied as Amazon.com, Webmd.com, news sites, or job sites. The special condition of Ross's parole also forbade him from receiving an email from an employer or medical provider, paying a bill online, using the internet to check the weather, or using a smartphone. If his special condition of parole prohibited him from being in the same building as a computer with internet access, Ross would potentially be excluded from visiting a library, a school, most brick and mortar stores, and many places of employment. Therefore, the Supreme Court held that, generally, a parole condition imposing a complete ban on a parolee's use of the internet impermissibly restricted lawful speech in violation of the First Amendment. Accordingly, Ross's condition of parole was an overbroad restriction of free speech in violation of the First Amendment.

Furthermore, no evidence was presented which supported the Board's finding that Ross was guilty of failing to report an internet account to the State Police. Therefore, the Board's decision to revoke Ross’s parole on this charge was arbitrary and capricious.

The Supreme Court reinstated Ross to his release on parole.

Lexis subscribers can access the full opinion at:  Mutter v. Ross, 2018 W. Va. LEXIS 187

Lexis Advanced subscribers can access the full opinion at:   Mutter v. Ross, 2018 W. Va. LEXIS 187

 

Author:  Daniel Duncan, Lexis-Nexis Case Law Editor

 

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