In United States v. Brown, No. 24-1227 (2d Cir. Apr. 21, 2026), the Circuit (by Judge Sullivan, joined by Judges Wesley and Park) affirmed the district court’s imposition of a special condition of supervised release authorizing the probation office to conduct constant, suspicionless monitoring of “all activity” on internet-capable devices used by Brown, including those at his place of employment. Brown, represented by Federal Defenders of New York, fraudulently obtained prisoners’ “personally identifiable information” (PII) and then filed tax returns using the PII, obtaining over $130,000 in refunds for himself. He pleaded guilty to fourteen counts of making false claims under 18 U.S.C.S. § 287 and one count of theft of government funds under 18 U.S.C.S. § 641.

 

Brown challenged on appeal a condition of supervision authorizing the probation office to monitor his internet use at all times without suspicion, including on devices he uses for employment. He claimed that this draconian restriction—rarely imposed on defendants not convicted of sex offenses involving sophisticated computer usage—was unreasonably broad and intruded upon his First and Fourth Amendment rights. And because the condition would require him to notify his employer of his conviction (since the employer must know of and consent to probation’s monitoring), it constituted an unlawful occupational restriction under U.S.S.G. § 5F1.5. Because no objection was lodged below, the Circuit reviewed for plain error.

 

The Circuit found no plain error and affirmed.

 

First, the Court found that Brown’s specific history, characteristics, and offense conduct, considered in totality, justified the condition even in this non-sex case. In light of “Brown’s repeated use of electronic devices to engage in unlawful conduct, his continuation of unlawful conduct while on probation for a previous state offense, and his history of lying to probation, we conclude that the computer-monitoring condition is not an unreasonable or excessive deprivation of Brown’s liberty.” Op. 10-11. The Court emphasized that “Brown has a significant criminal history and a documented record of assuming multiple identities and aliases and giving contradictory versions of his biographical information to Probation.” Op. 9.

 

The Court said that “we do not require Probation to employ ‘the least intrusive means’ possible to accomplish the goal” of ascertaining whether Brown is committing a crime (or otherwise violating supervision). Op. 10 (quoting United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004)). But the Circuit has said otherwise regarding suspicionless monitoring conditions like the one here: “In light of the constitutional rights implicated by conditions of supervised release permitting monitoring of computer devices or restricting access to the internet, we have repeatedly emphasized that such conditions must be ‘narrowly tailored’ and ‘robustly supported’ by a district court.” United States v. Oliveras, 96 F.4th 298, 316 n.8 (2d Cir. 2024) (quoting United States v. Eaglin, 913 F.3d 88, 91, 98 (2d Cir. 2019)). Thus, “we have not hesitated to remand monitoring conditions where a less intrusive condition appeared to be a ‘viable option’ and the record ‘d[id] not explain why such [an alternative condition] was insufficient.’ ” Id. (quoting Eaglin, 913 F.3d at 98); see United States v. Davis, 2026 WL 696897, at *3 (2d Cir. Mar. 12, 2026).

 

Second, the Court ruled that the condition, even if it amounted to an employer-notification requirement, “does not bar Brown from a specific occupation, business, or profession” and “does not target a specified occupation, business, or profession”—and thus doesn’t fall under § 5F1.5 as an occupation restriction. Op. 12-13. In the Court’s view, generally requiring a defendant to notify all potential employers of his criminal conviction doesn’t qualify as an occupation restriction because it “does not target ‘a specified occupation, business, or profession.’” Op 13 (quoting U.S.S.G. § 5F1.5(a)) (emphasis in opinion).

The Court acknowledged that this ruling contradicted United States v. Gorychka, 2024 WL 3964287, at *2 (2d Cir. Dec. 28, 2024), which “broadly stated that ‘[w]e have treated . . . employer notification conditions as ‘occupational restrictions.’” Op. 13. But the Court declined to follow Gorychka, claiming that the sole case it cites as authority for this proposition—United States v. Peterson, 248 F.3d 79, 83 (2d Cir. 2001)—doesn’t stand for it and should be read narrowly. Op 12.

 

On this point, we note that several cases beside Gorychka (none mentioned by the Court) hold that an employer-notification condition constitutes an occupational restriction that must satisfy “the special requirements [of § 5F1.5(a)].” Op. 13. See, e.g., United States v. Jenkins, 854 F.3d 181, 187 & 194-95 (2d Cir. 2017); United States v. Lombardi, 727 F. App’x 18, 20-21 (2d Cir. 2018); United States v. Ruff, 795 F. App’x 6, 8-9 (2d Cir. 2019); United States v. Piper, 799 F. App’x 66, 67-68 (2d Cir. 2020); United States v. Salazar, 2025 WL 1554124, at *2 (2d Cir. June 2, 2025).

 

Practice Points: Practitioners should continue to object to conditions permitting suspicionless monitoring of a defendant’s electronic devices, citing, in particular, Oliveras and Lifshitz, as well as the summary orders in United States v. Salazar, 2025 WL 1554124 (2d Cir. June 2, 2025); United States v. Deutsch, 2024 WL 2972810 (2d Cir. June 13, 2024); and United States v. Salazar, 2023 WL 4363247 (2d Cir. July 6, 2023).

 

Brown: (1) can be distinguished as a plain-error case, see Op. 9; and (2) can be limited to its specific facts, which involved: (a) the defendant’s use of the Internet to commit the actus reus of the crime; (b) the defendant’s commission of the crime while on community supervision for a prior state conviction involving a similar scheme; (c) the defendant’s long history of criminal conduct, including convictions for drug and firearm offenses, criminal impersonation, assault, and larceny; and (d) the defendant’s use of multiple identities and aliases and provision of false information to the court, Probation, and law enforcement concerning his identity and history, see Op. 5-6 n.2; Op. 9.