so we'll start with united states of america versus here good morning honors michael to mark appearing on deficit we guarantee computers and computer related devices including cell phones important and essential part of our lives as our lives move from the physical the digital it's only a slight exaggeration to say pretty much everything we do we do with a computer or cell phone or is involved so this  information and our lives are ensconced on these so was that mean for this case here mr gary used email and for that offense he has now faced a whole slew of really onerous and far reaching restrictions mainly the two that i want to talk about today are the restriction of the computer search conditions and the community computer monitoring conditions search condition five is to all computers and computer related devices including specifically named cell phones now that reveals and infringes on a whole host of privacy interests if you search someone cellphone you can find the whole history there chats emails phone calls you can find where they den who they see you can find out if you search the computer you can find out what sites say that says what they're interested in pretty much everything that you do is and then that's a problem for somebody who's on supervised release and otherwise would be in custody and would have no access at all why is that a problem that's a problem because even though he's on supervised release i think conditions aren't limitless they have to be reasonably tailored to look at it if you're in this case for example that doesn't include the employer's computer and in particular it and i'd like you address i think you cite that this is the sales case but my glasses on to make sure i have that right as an example of a case with similar conditions but in fact it seems to be the condition there was very different because that required advance approval by a probation officer in this case it just requires notifying the probation officer what devices have been used so that if and when the probation officer decides that because the circumstances are so different so if there was reason to be suspicious wouldn't it be useful for the prevention officer to know what devices the person has used so that he could determine which devices need to be checked well if you read the condition no reasonable suspicion requirement it's own compassing that's not really the question i asked though i mean i'm sorry the question i asked was wisdom at logic all that the probation officer be able to  what devices have been used and i have we have a little problem with with identifying the device well that's isn't that what this condition speaks to that's the first part of the condition the second part allows both monitoring of all those devices and a search at any time the probation officer show up unannounced at your client's residence pretty much any time decade ago we had lots of cases contesting whether probable cause a reasonable suspicion was necessary and didn't that ultimately play out so that it was an accepted condition if imposed by the court in an appropriate case an acceptable condition for of asian or supervised release yes so but not so the notion that there's there should be these barricades up against searches the reasonable suspicion requirement doesn't generally apply why should it apply here if the person's person can be searched which is much more intrusive without requiring reasonable suspicion what is it about a computer that deserves more protection even a search of a person which is is physically intrusive doesn't reveal as much private information as a search of one cell phone when he stays literally everything not everything but almost everything you do is isn't there and there's there's has to be some reasonable restriction or reasonable connection between just allowing a probation officer access to rummage through everything in your life for no reason and what is the doesn't have to be in the law because there is no reasonable suspicion requirement for the personal search so you're arguing that there should be but i'm i'm not sure why it is a person's device and it's not like you're expecting the patient officer to regularly do that this condition simply requires that the probation officer be advised as to what devices are being used or have been used and then the judge the judgment of the probation officer will lead to whether or not a search is actually conducted an expected and a probation officer has better things to do than to rummage through devices unless he has reason to be concerned so what are your specific concerns with the monitoring condition that was in your case it was condition number eleven again it's just up far greater intrusion into privacy and it's like someone sitting on your shoulder and watching everything you do on your computer you know that certainly will deter crime i guess but so what having the probation officer second your house and what you want for our when you get to us certain conditions that were you thought were had been imposed the specific condition of supervised release says that they should comply the rules and regulations really is they're not necessarily less onerous by the not by the fewer conditions it just means that they're giving less notice to what they're doing the not the real thing the real problem here is the monitoring itself there's there's no if you read this the judge the this record judge doesn't know what what the monitoring does certainly mr garrett could have no idea what this mon there's no disclosure at all this for all we know the monitoring software sits there and records every keystroke and i think it turns a camera on but certainly i guess that's possible only answer brief governments volunteered a greater restriction than that government represents that it simply allows the probation officer to monitor defendants online computer use and cites to a case from our court start but i can't this is like you know this black box that we're giving probation carte blanche and no one's no one's looking over things get to sell this monitoring software no one tells us what it does what it monitors well that you know the surprise really see your client when he gets released he can always go back to the district judge and say these are just too onerous well here's what we need here's what we need to software does and then they can figure out whether that was too onerous or not but it seems that that would be better done in the first instance with the condition should spell out what it does and then we'll please the court my name is sharon peters and i represent represent the united states in this case defendant appellant kelly garrett was convicted of wire fraud his use of e mail was central to his wire fraud scheme and seventeen of the twenty one counts the wires that formed the basis for the counts in the indictment were in fact e mails moreover the specific counsel which the defendant pled guilty involved in email he e mails that defending the  our cause to be sent included false statements to induce investors to invest or to keep their investments in a film production project that project involved the production of videos relating to the boy scouts of america and specifically to merit badge requirements the videos are intended to be marketed to boy scout groups throughout the united states among other things defending falsely represented that he had a licensing agreement with the boy scouts of america he falsely represented that investor money would be spent on the on film production that investor money was being held in a production account in the name of the film production business which was known as g e t entertainment he falls represented that a detailed accounting record of project expenditures could be reviewed by investors upon their request through his efforts in the scheme alone defendant defrauded fifty eight victims of over a million dollars so right there is a beginning point the court doesn't even need to look to the actual conduct of the particular case the court needs to look to whether or not there's a nexus between the applicable thirty five fifty three a factors and the specific conditions that are imposed and i would say to this court that this case actually goes much further than that because in this case the actual offense conduct at its core component involves not only the use of computers but the use  agreed if i may your honor one other part of the record in this case is that the q why will the defendant's ex wife had to inform the probation officer that in two thousand and ten she found a document on her computer that the defendant had crafted that promoted a fictitious film the the biography of enzo ferrari and in that document he had stated  falsely certain things about his wife who supposedly had off of this but she had not had falsely say that the certain things about her career experience and also that the film already had an agreement with universal studios produce all of this heat to computer use i mean he might have used pen and paper in connection with this fraud too and yet there are no conditions that and i've never heard of a condition that says somebody in supervised release can't use pen and paper or can only use pen and paper when reporting to the probation officer i mean the computer we all have in our pockets or our purses devices that are now more powerful than could have been imagined a few years ago why is that the fact that he happened to use a computer along the way justifies the level of intrusion provided by these conditions agreed your honor if i if i may to start with it's not that he's prevented from using the computer or the internet or email there's no one thing that was problematic in some prior cases before this court was that pre authorization was required from the probation officer for example and that's not the case here here only notice is required the defendant needs to advise the probation officer this is the computer i'm i'm using and specifically this is in it it doesn't apply to works like computers for example and so this yes and so in other words are both so he had an ip it's the government's position all this condition means is that he has to tell the probation officer that he has two and so the first of the three condition as your honor stated essentially boils down to to notice the defendant needs to provide notice to the probation officer that these are the computer or computer related provision calls for a computer monitor program and it specifically indicates that there's a maximum cost involved for each device that would be connected to the internet and what is the computer monitoring right and so i think that's one of the things that mr to knock out was referring to right and so there is as i understand it there's a there's monitoring program consist of it my understanding is that it allows for up to essentially keystroke monitoring of the  online computer use and goes on to say it does not authorize the probation office to monitor all of defendants computer activity so they said say are working on a word document and word is installed on his computer do i understand correctly the monitoring program does not reach that that is my understanding on and i and i and i use that is not an understanding you're prepared to let us adopt him and we take the language stated in your br as as gospel for this purpose is the proper interpretation of the conditions before us i understand your honor if if if i may splaying so in my reading of the twelve paragraphs in the two thousand and thirteen version that is not explicitly stated could we could restate it ourselves if we decide that's critical to the to the interpretation of the discrepancy between the announced i think its condition before and the written judgment this is having to do with the language of funds versus investment your honor you know they've got the government is in agreement that  any federal offense can be set the computer related and accordingly especially the search and seizure without any cause some one cell phone ones i