morning your honour's and may please the court my name is assets of i os and i represent mr michael mr michael asks this court to vacate his conviction under sarna because his prior we're going to fence is not a categorical match for possession of child child abuse in the nd degree it makes it a crime for a person to quote knowingly possess or control or knowingly access with the intent to view efficient recording of sexually explicit conduct involving a child for the purpose of arou satisfying the sexual desires of the person or another has to have a question we've already decided in a case called price that subsection uses a circumstance specific approach which i believe the district court also applies to mr mix cell wouldn't that in the issue here the court in price applied this circumstance specific approach that's intended to ensure coverage of convictions under statutes defining sexual offenses in which the status of the victim is a minor is an element of the offense such as especially to find child molestation or talk prostitution offenses and other friends is prohibited sexual activity underage persons so those definitions accord with the case examples that we have in our brief page twenty each of those involve the defendant engaging in a sexual act while interacting directly with a minor so go feel that in michael's offense doesn't involve kind of sexual activity and conduct that the smart guys tell us i was intended to cover and which talks about possession and production of child pornography it has to mean something in and of itself search we interpret work congress define child pornography for federal purposes and in that statute sexually explicit conduct is much narrower than what the oregon statute allows so at the federal level  i think that when we when you're using the caterpillar approach you have to look i'm the reason serious contacts that the state offense would prohibit and in this case that would be yes showing showing the bare breasts of a teenage girl and that would not fit under the federal definition of the federal generic definition of child pornography so while we may think that that should qualify as child pornography it's not congress  not make its intent clear that and sort and wanted to apply a different definition than what we have in the federal statute prohibiting possession of child pornography and in the smart guidelines also refers to sexually explicit visual depictions as being with what so and i was trying to prohibit and the use of the language sexually explicit there matches the language in twenty to fifty sex so even if the court finds that we shouldn't import twenty to fifty six is directly into sore now we can still use it as a reference point because of the similarities in the language there to define the federal generic offense  what if we apply the circumstance specific to gee do you think you have any plausible defense and this certain in this case i think if we apply the circumstance if we apply the circumstance specific approach we need to know what possession of child pornography means and so if this court finds that this circumstance specific approach applies and gives us that definition then we should remain hands just substitute any whenever a state calls a particular fads into into that slot so the definite when when the store owner refers to possession of child pornography it must have some independent definition and meaning so that's why there should be a separate even if the categorical approach doesn't apply in this circumstance pacific approach does that it should have its own separate meaning and that's why we would say we should rema condition requiring him to participate in the computer and internet monitoring program as a special condition of supervision because it requires a greater deprivation of liberty and that is reasonably necessary so the perpetual monitoring of his internet usage deprives them of more liberty than necessary for a few reasons one is as a supreme court has found in packing him internet usage is integral to st amendment rights and access the internet is critical felt civil counsel packing him was a complete prohibition on the use of a computer and access to the internet and as i understand the conditions here mr maxell would have free access to the internet and there's a monitoring function because this crime involve the use of the internet and it's a five year supervisor lisa's lifetime why is that such a significant deprivation of liberty yeah it's true that he can still use the internet but the constant monitoring of his internet use would reveal all of his personal can communications contemporaneously that would chill his free speech in association rights and that's why it's more of a deprivation that is necessary  recently in this recently this court found in shiraz that not having enough of an explanation why a lesser restrictions couldn't accomplish dislike of a question let's call it what type of restriction would you say is appropriate because it seems to me here the trial court tailored things pretty well in putting a five year limitation on in allowing him to use of the internet he can't go on a non asli but other than that he does have the right to use it so what kind of restriction would you say be reasonable assuming that the conviction is upheld so this occurred actually did impose some other special conditions that we haven't challenged in this appeal that would accomplish the same objectives of protecting the public hands that would appeal or to the defendant's particular characteristics and pass offense using the computer without unduly infringing his rights so specifically conditions alan am authorized  to unannounced random periodic searches without reasonable suspicion of his computer and his internet use so be similar to a random urine screen condition for someone convicted of a drug offen and together with other conditions recurring to submit to a sex offender mental health assessment comply with any sex offender treatment that he's prescribed and submit to polygraph testing to monitor his compliance with the terms of his yes well as excuse me so is it your position that any real time monitoring is a violation of his st amendment rights yes that's my position that if you look at other cases like i'm united states versus jones and riley versus california the court has found that you know accessing a person's cell phone including the internet usage data and conducting want term g p s surveillance of a person's public movements that would infringe on expectations of privacy and part of the reason for that is that law enforcement is not resource constrained so in the past where those kinds of things might were actually require a person i think my time is expired may take  finish in the past when law enforcement would have to do those things in person would be very expensive so they just wouldn't be able to do that but the real time continuous monitoring is sort of opens opens up the possibility of law enforcement abuse of collection of that kind of personal information that you can get from a person's internet interactions and dealing from a computer the court has noted this court's decision in price really puts to rest the greatest extent of the appellant's argument regarding the circumstances specific approach for subsection i and the government would argue that the language in price goes further than that although we acknowledge that the holding in price was limited to subsection i the court's discussion of the reasoning for why this circumstance specific approach applies to  supports the government's position that the circumstance pacific approach also applies to subsections g and h in particular the price court was focused on the distinction between subsections five dollars a little roman numeral one and five a little roman numeral two where subsection two does not contain the word elements and subsection one does they found that very significant and in addition subsection seven overall makes no reference to the term elements the price court cited to the th circuit dodge decision which also added to that list of reasons the fact that the title of subsection seven was an expand all offenses by child predators so that expanded definition was another reason that the court found the circumstance specific a approach would apply to all of subsection seven which would be g h and i and then finally and most importantly in the dodge decision which the price court cited the dutch court made clear that the language in subsection i was the th in the litany of reasons supporting their decision that the correct and you say yes or as well i certainly and so so if we use in that what is the condom what is the con duck that's the against the minor decision below the conduct was really twofold st he possessed the image which was in fact child pornography and secondly the conduct his office conduct involved the sex abuse of a child which again not just child pornography in particular but the oregon statute makes clear that in order to be convicted under that statute it requires sex abuse of a child in the sun and so the old so if what if it was animated and i'm a can be child pornography i contain a full circle of cases it's a cartoons can constitute child pornography so what it would be then the condo up because we don't know whether these images were caught to not do it well i can say is they are not also that st no friends as a question on this record do you know whether this motion picture child pornography was cartoon the only way i can answer that is to say that mr mike sells plea stated that he agreed that the image that he possessed reflected a child cartoons can do that they do it all unfortunately they do it quite a bit in the dark where i would suppose that we wouldn't say that it was a child or a cartoon we were speaking of his  doesn't say so how is that resolve even though the circumstance was iffy how was that conduct against a child how was it caught on the words how does for example you know now we have  artificial intelligence they can show a motion picture and it never happened and it looks like a cartoon it all looks like people really doing it but it's all it's all in the science of motion picture technology technology never was a person at all in front of a camera and a child was it was a near it was in a studio came from a lab photographic lab so so you're saying that that's that is conduct photographs he possessed did depict a child and gates and sexual act and given that the oregon statute requires child abuse in order to be guilty i don't think he could possibly be guilty of the oregon statu e where and image was in fact a cartoon and in our view would not constitute child abuse even if it were a cartoon it would not be child abuse the argan statute says that a person who knowingly possesses or controls a visual recording of sexually explicit conduct involving a child and knows that the creation of the visits really sorry the creation of the visual recording of sexually explicit conduct involved child abuse so i don't think you can have child abuse involving a cartoon that's my so we draw on that you know so we interpret in the organ statute in that regard for a specific certain right and in this case that's my position that the offense chip which he pled guilty given that he said it was a photograph depicting a child involved in a sexual act and where the oregon statute requires that he knows or is aware of or consciously disregards the fact that the creation of the recording of explicit conduct sexual explicit conduct involves child abuse that it would eliminate a cartoon now so well what i'm saying is to connect the dots that the court was asking about regarding whether or not animate could be included in the us i think you have to look at the oregon statute and decide that it could not in this case  it's still to be child pornography if it is job was simply says possession of child pornography right and so our view again is that circumstance specific approach applies to g h and i and for the reasons we've discussed  we believe that this is conduct sufficient to establish that it was possession of child pornography under g it was certainly conduct that by its nature is a sex offense against a minor and regarding the  computer sorry the computer monitoring provisions that the court imposed in this case the government's position i think is sufficiently presented in the brief but our view of course is that the district court in this case did  tailor this condition to the circumstances of this circumstances of this case as judge a g has pointed out it was only a five year term of supervision the defendant does have access to the internet he can speak he can express himself he can disclose his opinions to him ever he pleases he simply subject to the monitoring in this case for the reasons that the court set out and its opinion and in the sorry at the  hearing relating to the nature of this particular defendant's conduct i think it was important in this case regarding the court's decision that mr michael not only had possessed the computer image but had also absconded from supervision not only in oregon but in the western district of virginia in this case by removing his location monitoring device and had as well been previously convicted of failing to register as a sex offender as required  so for all of those reasons in order to protect the public and to address the other goals of supervision the condition in this case was appropriate and we asked the court to a farm judgments decision in that regard  you would agree that just outside of the context of probation that monitoring every activity with a computer is  week i mean out side of the context of someone just an ordinary citizen would you agree that would be an extreme so valence of your st amendment rights you access in your bank account you know you know your friends your political views your fortes your love you hate your crying your every emotion i mean people use the internet when we knew agree that would be an extreme st amendment surveillance or chilling effect if they were absolutely no other connection to any reasoning yes all right so then so did you think that extreme st amendment surveillance is not violated here here because correct because he loses all of those rights it's certainly the case that a person on supervision does not i facto have no th amendment rights i think that's clear from st amendment st students st amendment rights correct but it's also true that i probationer and in this case more significantly a person on supervised release who has served a term of incarceration and has been released has given up substantial amounts of privacy and that regard and our position is simply that in this case the condition that the court imposed does not infringe on his st amendment rights he can say whatever he wants to say you can access the internet i think communicate with people he simply being monitored for the purpose of determining whether or not he's continuing to engage and in sexually criminal way the court expressed it is not exactly how i would express it certainly the monitoring is is taking place consistently but the probation officer is only interested in looking at anything from that monitoring system that might be that might fall within the court's condition prohibiting certain activity so picking up miss laura says example from brief where she compared t camera around the neck of a defendant recording his activities two hundred and forty seven it's really not that at all where the the monitoring is being done for these limited purposes to scrub out the court and at the sentencing hearing and the documents that are associated with the condition as well but that's the you putting on that spin for this purpose it without purpose you would say well if you get on websites that involve children involved pornography the dark where it's not specific at all if you get on there to talk about your health situation let's suppose you you believe you have some symptoms of health and you go on to monitor the mayo clinic or you know i age those things i mean those are very personal things and they have implications in terms of a lot of things the fact that government can look at all of that is that necessary i mean can it be tailored do you think they would be tailored in terms of what we're looking at we want to make sure this person then you know you can't go to a school site you can't google a high school elementary school you can't so that had to be dark web sites it could be all things children museums whatever to something this anchored to the crime and the fear but everything you get on the internet for is monitored and there's no limitation well we're only looking for this but we look at everything know something's wrong about that i had don't think there's anything wrong with what the court did in this case and again they're looking at the remote commons user agreement where it is not to search for view or download and so forth materials that include but are not limited to images of his victim and images related to his crime or similar crimes or images that depict individual similar to his victims children and that tied with the court's remarks that the court's concerned about not the only the fact that he had had a computer but his essentially flaunting the law regarding other regulatory requirements he was subject to clearly in the government's view the court has limited that intrusion to some significant degree and i think further the if i'm not mistaken i think the conditions of were not just in the remote comic remote but the explicit conditions of probation i think make even more clear that the probation officer is searching for evidence related to  so we think the conditions are tailored sufficiently to address the constitutional concerts that mr mi and if there are no further questions the government would rely otherwise on its please  is not enough to protect the public and accomplish the other purposes of supervised release if we look at the remote user agreement in section twenty one it says the defendant has a voluntar any expectation of privacy and for probation parole agencies and other governments responsible for supervision and this rd party company remote com itself and they have to inform others that their device is being monitored and that any communications with lawyers doctors and clergy members should normally be private and confidential would be that they waive any expectation of privacy in that information and there is seems like a chil he talked to a therapist and he's not making progress you know because we're in the area and it's not this case but people spend a long long cynicism is time to get out the most in some time that they can't get out because they're in danger for ever think it particularly in this circumstance where the defendant one of the other conditions is that he undergo sex offender mental health assessments the government already is going to have access to any private information about the difficulties that he's going through with trying to rehabilitate and any further infringement on his rights to communicate with a doctor or a lawyer or clergy it just isn't justified and again we have no explanation from the government why random unannounced suspicion was searches by probation of his computer art are not enough in this case in the nd point i wanted to make was about section g so the cartoon in the and my hypothetical shows whether the material here or we don't actually know if it was animate it could have been animate the definition of visual depiction under the organ statutes that includes a computer generated image or picture produced by electronic mechanical or other means which could certainly compass cartoons and even even the head shows i would go further and say that that shows the difficulty of applying the circumstance specific approach to g e because especially several years after the initial offense has occurred we don't always know all of the details of what exactly was included in the images so it would make more sense going forward for defendants to know the categorical approach applies to g would just make more sense and that also helps show why each and i shouldn't be expanded to as sort of a catch all for for anything that might not fit in the federal generic sense of images was at this much later date we shouldn't we shouldn't assume that we can just catch the offense under each and i even if it doesn't fit categor greet you but know that all of us and each of us appreciate your argument and although we can't physically extend a hand we do so with our hearts today and appreciate your argument well done i'm going to ask