morning good morning your honor just may please the court christofias on behalf of mr peterson one of the main purposes of supervised release is rehabilitation but the internet condition the internet ban the district court imposed here prevents mr peterson from reintegrating into society and following his rehabilitation if it prevents a lot of legal uses that could help him achieve those goals things like going online to find housing certain job scenes registering for social services things like his son but it's it's sort of amazing that people can be you know on these type of cases can seem to be fairly unsophisticated people otherwise but they could be more sophisticated than the courts when it comes to accessing child pornography so if we're talking about this condition it seems that obviously we don't want him to be able to have the capacity to access pornography right  so if if the computer was one that could access her dog or fee even though he wants to look for houses he's going to that one's going to have to be regulated right correct and we're not charged we're not challenging the monitoring condition here he still subject to search he still subject to monitoring and wears them instantly as an appellate panel limit the internet condition to a devices that have the capacity to access pornography or must we were amanda to the district court or i mean how do we you know if we were managed to the district court let's just say you got a point that if everyone agrees well it could be interpreted broadly if we send it back to the district court but we don't have the district court any direction on what would be ok then that there were you know the back and forth back and forth but i understand your honor well i know you love to come for oral argument that that  so what you know how do we i'm assuming you're conceding that he shouldn't be able to have devices where he can look at pornography correct but i mean there is an explicit supervised release condition that says can't access or view child pornography and there's the monitoring and there's the search so i think this court could either remain on with instructions for the district court to impose a condition that is do not use or possess devices that can connect to the internet to access child pornography and the court has reminded in cases like painter morgan is to do those things sort of monitoring he has to have some sort of monitoring if you want to use one of those devices in our are you just saying he doesn't want to be monitored on oh no we're not challenging the monitoring aspect of this at all we're just challenging that the way it's written right now it prohibits him from so many things that are good for him they're going to help him on on supervised release the psychologist talked about how social isolation was really bad for him and it was a risk factor for re offending and so for preventing him from e mailing his son and his sister or like i said getting housing registering for social services reading the newspaper online that's going to make him more and more socially isolated and that's not good for his rehabilitation so we think the monitoring could forgive me if you keep about yes and i apologize i in the reply brief i misquoted to the very non amended judgment but it's really our one hundred and ten no ok as long as we're clear on that then i go back to just callahan's question we've been in a case called narky we tried to define what pornography means of setting that aside f because we all know we can't use that term we've said that's unconstitutionally vague but if we plug in the term the definition used to be for example and then just talk about a condition that says you can't send c you can't use any send receive or possess the definition in your q what would be wrong with that well because i think everything that essentially says you can use any device that can send data over the internet and so we're back to where we are now when i'm using a device i don't know if i asked my daughter whether it's using a modem dedicated connections or cellular networks you know there's the examples i think my fitbit would maybe violate this i agree or but it might but setting that aside it strikes me that it is possible to craft and we could do it so that we don't have to keep telling the district courts to take another try at it particularly where we we know what the district was trying to accomplish here so could you circle back to judge callahan's question which i think you're trying to answer  interrupted you looking at this condition the one more actually imposed what's wrong with saying you can't send or receive then you can't send or receive child pornography i think it's fine that's already that's already accessing the internet to send or receive child pornography i think it has to get at the specific intent intent and the specific content that the district court was concerned about here because saying you're not in challenging the content restriction your challenge right is this function correct saying you can't use an internet enabled device to send or receive child pornography is perfectly fine he has no intention of viewing or accessing child pornography again and again there's a specific condition that says he can't and we're not challenging that we're not challenging the search or the monitoring ok so if  uses one of these internet enabled devices to check c n n online or any of these things he's still subject to monitoring he's still subject to search which is sort of a failsafe that has built in you know if the probation officer wants to check up on him it's his question is the basis for this argument is based upon void for vagueness or is it based upon overbred relationship to the st amendment well we've raised sort of a number of alternative arguments one is that it's so vague that no one of reasonable intelligence would understand least correct and that even if you did understand this it targets absolutely everything under the sun your fit your apple watch your internet t v all of these things and all of the conduct that we engage in every day and that the supreme court said unpacking h everyone especially convicted criminals need to engage in order to foster their reintegration into society you challenged a number of conditions and i think your nd strongest challenge is one i'd like you to address if you would and that's the one about not loitering within two hundred yards of a place where i'm sick children i'm summarizing which children might be present and i think your point was that he shouldn't have to know in advance where kids might be which is a fair point but it struck me that this word leuchter which is the one i think you're concerned about that struck me is protecting him so that if he shows up someplace and there are a bunch of kids there he hasn't why they that he just can't hang out you just can't hang around there what is your response to that well i think that that definition that your honor gave about hanging around certainly not fair to say you can't even go someplace where because you wouldn't know in advance where children might be for act so this strikes me as easier for your client to comply with well my response is the probation officer this is at page seventeen of the p s r tried to clarify this and said that our agency defines loitering as remaining lingering or wandering in public or private private places for the purpose of engaging in any lewd or otherwise illegal conduct for the intent of engaging in any sexual act so there was this intent built into it the probation officer proffered that the district court ignored that narrowing language and kept in this very broad lawyer that doesn't have any of the intent aspects or purpose aspects i see and i think that's one of the problems with this loitering condition the others are the ones that your honor noted where he can't be expected to know who's at a place the primary occupants or users and the other problem is it's not limited in time so he can't go to a park or a pool or a library but there's no limitation that he can't go there when they are frequented by children and so if there is a photography exhibit at the library at six pm when there's unlikely to be a lot of kids there he can attend that he can attend you know a bridge an adult bridge class of the library somehow well in zora this court did say and it's unpublished but this court did remain and to say that this language the plain language of it was at least ambiguous because it didn't say that you couldn't be there when there are primarily children there and i think that was the district court's intent we're not challenging the district court's intent it's just that the way this is worded it's just too broad it captures really everything and again that was are with this court remanded to say you need to clarify the time limitation accounts of this other places primarily frequented by person under the age of eighteen and again in in rudd this court noted in a footnote that that could mean anything that's a movie theater that's a pizza place so we argue that because there is no comma after library that doesn't necessarily  remember there's also the time limitation argument that you know even if that's a place primarily frequented it's not limited to times when they're when it's actually frequented by children ok thank you thank you please the court daniels if on behalf of the united states your honor this court has recognized the strong link between child pornography and the internet and conditions like this one that allow the defendant to use the internet but only in a way that the probation officer can monitor his use of the internet have repeatedly been held to both be recently related to the goals of the supervisor in these and not to deprive a greater liberty than is recently necessary so it's our position that even has written to the condition in this case was not an abuse of discretion on the part of the game let me know in a world that that obviously it's pretty hard now it's sort of like in the old days she didn't need to have a credit card you can't live without a credit card now there's just certain things that if if you use is one of those devices then what what in the condition allows him to still use it for other things the condition allows him to essentially when he's released from custody meet  with his probation officer and get approval for which phone or which computer he wants to use the internet on and then to have monitoring commercial software installed on there to make sure that he's not using that phone or that computer to access child pornography but they have to have the monitoring if they have to be approved by the probation officer and subject to software that they can can monitor so i think the concern that he's going to be restricted from looking for a job or all the other ways that you use the internet it's not that's not going to be a problem here as long as the probation officer approves him to use a phone or a computer but isn't it a problem i predict that it's says that he can use that the the device we're talking about with permission i'm just having a hard time appreciating that he's going to know where they are the going to get this right that that that that because this is that the revise condition that doesn't use the term internet st of all i'm looking at the money o clunky statutory language that the average person is not going to immediately write you know what i mean this is a problem the other conditions that i've seen but what the judge is basically trying to do i have no problem with but but by incorporating this statutory language is where i condition in the context of the other conditions and in the context of what the crime is and what the purpose of the supervisor and he said in your favor opposing counsel is arguing that other conditions say very clearly he can't have pornography  right but the fact remains that this is a child pornography case involving the internet and that the monitoring condition is the very next sentence after that so read together and read with a sort of common sense i would that condition would be not applied to devices that are incapable of accessing the internet in a way that would allow child pornography not to be down but he said again forgive me if you read the device prohibition the the next sentence that the subject to monitoring or common sense reading of that is not going to apply to refrigerators that access the internet that have no way of actually downloading child pornography i mean one of the problems in cases like this is it doesn't say pornography is talk about data here it just talks about data right but then the next anza talks about that the monitoring or the maybe the next condition down the the then has the monitoring condition subject to approval condition right i'm saying if you read the monitoring in combination with the data the common sense reading is that it's not all internet not refrigerators or fits right but things that could conceivably be used to download cases like this the probation officer is an arm of the court and we are operating in a real world here where the defendant is going to be released from custody and is going to meet with his probation officer and talk about these conditions even signing sort of an agreement as to what is going to be monitored and how it's going to be monitored so in our case i did yes your honor to talk today about that very point when we're talking about how to define to pornography and what we're talking about that there is not a definition that is at the end of the day going to have to be interpreted by a probation officer and if there's a problem with interpretation it's going to want to wind up back in court i agree with you absolutely it's just that we're trying to do our best to make should understand right around and i think if this court is inclined to try to clarify it more we w you not hold that the district court abused its discretion and that it was illogical or implausible for the quarter impose it as is but to do as it is the court's not a number of cases and in their key and goddard in queens on just simply offer guidance in the to sort of cabin and say this doesn't have to be read as broadly to cover things like that that it should be read to include things that can only access the internet to access explicit material and on that point i w one recent case the court took that tack in pain and sent it back down and just as your honor recognized the parties tried to work out what the new language would be reimposed the condition and now a notice of appeal has been filed in that case and potentially come back up for a th argument so i think does the best use of everyone's resources in this case if there is a concern is to simply in the opinions try to limit it or or cabinet in the court's interpretation to the order and condition this court has and four or five published opinions affirmed virtually identical loitering conditions in the supervised release context while the term loitering might have vagueness issues as a so don't don't go over ok for me to go to very quick points everyone's talking about the probation officer maybe granting access later but this court in sales and low cost noted that because there's no guarantee that the probation officer is going to grant that access and it could be revoked later this still qualifies as an internet ban because we just don't know if he's going to be granted any of the permissible uses nd as to reading the monitoring condition with this internet condition it doesn't help because i don't think mr peterson i certainly don't know what types of devices can be monitored and why can't anyone can hack into anything it seems which makes me believe that the probation officer can install some sort of software into any number of these devices and determine what he's doing on the internet i think your hon