In United States v. Victor Kunz, 2d Cir. No. 21-2577-cr (May 23, 2023), Judge Lynch (joined by Judges Livingston and Calabresi) upheld (with one exception) several potentially problematic conditions of supervised release restricting or monitoring Kunz’s computer and Internet usage. Kunz was convicted of CP possession in 2005 and has been on supervised release since 2009 (with several violations (and terms of imprisonment) between then and his current 33-year term of supervision). The Circuit acknowledged that he “raise[d] a number of legitimate concerns” on appeal, but ultimately concluded that “a sensible reading of the restrictions neutralizes the most troubling of those concerns” and thus affirmed the “judgment of the district court as construed in the manner set forth below.” Op. 3.
The relevant conditions / restrictions fall into three categories. Here’s how the Court dealt with them.
Conditions that are “technically vague or unworkable”
Kunz challenged several conditions requiring him to, among other things, notify Probation of “any alterations to computers(s) / connected device(s) and/or passwords / screen names prior to executing [the] change; obtain Probation’s permission prior to “altering” any software or operating systems; and refrain from using “any type of encryption” without prior approval. Op. 23. He claimed that these conditions were “technically vague” or unworkable.”
Kunz offered an expert witness, who explained that “those restrictions ‘would be difficult if not impossible for a user to comply with as they are currently worded.’” For instance, “many programs and operating systems update automatically without the user’s intervention or knowledge” – such “‘alterations to [Kunz’s] computer . . . software’ cannot realistically be cleared in advance.” “Similarly, passwords for many services expire automatically, periodically forcing users of those services to immediately update their credentials upon login.” Finally, “a broad reading of the provision barring the use of ‘any type of encryption’ without prior approval would preclude Kunz from using a machine with preloaded standard encryption, or any of the countless websites with URLs that begin with ‘https,’ because that prefix indicates that the website encrypts information as it is transferred to or from the user.” Op. 23-24.
The Circuit declined to read those conditions “as broadly as Kunz’s expert does.” Rather, the conditions “are obviously and reasonably intended to preclude a defendant’s active attempts to avoid monitoring, not to punish a passive defendant for innocuous day-to-day activities that trigger changes initiated by forces outside of his control.” Op. 24 (emphasis in original). Thus, as the Circuit construes those conditions, Kunz is not required “to notify Probation of automated changes initiated by a vendor or developer.” They only “prohibit Kunz from initiating without prior permission any of the above processes or changes; they do not, nor do we think they could sensibly be read to, compel him to seek prior approval for processes entirely outside of his control and of which he himself has no advance notice.” Op. 25-26 (same).
Regarding encryption, the Court explained that Kunz would not need Probation’s approval “each time he uses common electronic resources or services that happen to employ encryption,” such as accessing a website with the “https” URL. Op. 27. “The clear intention of the condition is to prevent Kunz from hiding behind the veil of encryption any efforts to, for example, access child pornography, make forbidden contact with minors, or engage in any other illegal activity.” There is no violation, the Circuit explained, “so long as no encryption is initiated by or at the behest of Kunz.” Op. 28 (“[W]e construe the encryption restrictions to allow the reasonable use of services and resources that happen to employ encryption in some way.”).
Condition limiting Kunz to one “Internet-capable” device
Kunz challenged a condition of supervised release stating that he “may be limited to . . . one Internet-capable device” at Probation’s discretion. This condition, he claimed, “cannot be reconciled with the district court’s use of the ‘(s)’ device at the end of terms like ‘computer(s), automated service(s), or connected device(s),’ apparently allowing for the possibility that each of those nouns could be plural.” Op. 34. The Circuit was skeptical about this reading, but nonetheless “share[d] the larger concerns lurking within [Kunz’s] argument” in striking this condition.
Here’s the money language revealing the Circuit’s embrace of the Internet Age: “We think a restriction limiting a supervisee to just one internet-connected device would pose a significant burden on his liberty, and therefore would need to be imposed by the court [rather than Probation] and justified by particularized on-the-record findings.” Op. 34-35. “[S]uch a restriction,” the Court noted, “would force Kunz to choose between using a computer and a smart phone, both of which are ‘indispensable to participation in modern society.’” And while “such a severe restraint on internet access” could be warranted in some cases, “it would require particularized justification by the court.” Op. 35.
The Court thus refused to read the condition as “purport[ing] to reserve for Probation the right to restrict Kunz to a single device.” Op. 36. “[A]lthough we affirm the judgment of the district court,” the Court explained, “we do so with the stipulation that Probation may not enforce any provision . . . that purports to authorize the probation officer to limit Kunz to one internet-connected device. . . . Such a harsh restriction would need to be specifically imposed the by the district court and justified by an express, case-specific rationale for imposing it.” Op. 37.
Condition allowing Probation to unilaterally “update” its computer monitoring restrictions
Finally, Kunz challenged language in the judgment requiring him to comply with all restrictions “consistent with the computer monitoring policy in effect by the probation office.” Read literally, Kunz argued, the “‘policy in effect’ phrase appears to vest probation with the power to unilaterally update his [computer-monitoring and restriction] terms — [which] would amount to an impermissible delegation of the district court’s judicial authority.” Op. 37.
The Circuit acknowledged that Kunz’s “reasonable concern” here – that “by greenlighting unilateral [computer monitoring] changes, the district court has empowered Probation to make extrajudicial updates that may meaningfully restrict his liberty,” authority that belongs to the court and not to probation – was “indeed  problematic.” Op. 38. But, once more, the Court diffuses the danger by rejecting Kunz’s reading in a favor of a more limited one:
“[W]e construe the language at issue as permitting Probation to make future unilateral changes to the terms of Kunz’s computer monitoring, much the same as it may make certain unilateral changes to other aspects of his supervised release, but only to the extent that those changes are the sort of ‘minor details of supervised release’ already within Probation’s purview.” Op. 47 (emphasis in original).
And although this reading still creates “a risk” that Probation “will outpace its discretion to ‘execute’ the court’s sentence and instead purport to impermissibly ‘impose’ its own,” that risk “always” exists (in other contexts) and “our precedents provide no basis for us to treat computer monitoring differently from other classes of generalized conditions whose details we permit Probation to manage.” Op. 51.