of thought my train of thought in this case is what you've got to commit to and so you acknowledge on page eighteen or your brief that some limitation is necessary in this case the question is does the fact that mr blair's underlying conduct involved the use of the internet standing alone justify a blanket ban or blanket restriction on its use of computers and internet devices because that's the only thing the district court considered here she said you know i see  on one of them didn't even vall the second you know the problems that we have here so i'm just trying to get you tell me you're saying some you know sex with a minor that's a serious you know the concerts are good sense that's a serious any use of the computer one can imagine in the second circuit although the underlying conviction was not for using a computer the rationale for imposing the condition was that he had previously violated one of the terms of a supervised release as a result of meeting a woman on a dating website and second the second circuit emphasized that you know there were cases and cases that it was reliable where even where the conduct involved using computer this kind of blanket restriction to her product in a second what i would say is the fact that mr blair downloaded many many many pictures doesn't mean that she can't use the entire internet most of the internet doesn't here where the court says that you can use it the presumption is that he cannot use it if the probation grants prior permission and he may second you know i think what you're sort of getting at is we can't assume that the probation officer is going to grant him some level of permission and the reason we can't just like i let you know in only the district court or this court said that if the condition were read to say the probation officer and its discretion could ban the use of the entire internet that would be a greater deprivation the necessary and that's exactly what this commission does there's nothing that says that the probation office should grant reasonable uses of the internet and in fact that the district court says you know it's up to probation there's no guidance or probation under what circumstances and eight use of the internet implement a total ban that is almost always going to be a greater deprivation unnecessary and that's what we have here a condition that on its face allows the probation office to prohibit mr blair from ever using any computer internet access to this that's where i'm having trouble little bit more complicated but the sort of the language that was being attacked is that the probation office could issue restrictions such prohibitions on internet computer use and this court sad well look you know if we said the probation could could issue a prohibition on all internet use that probably would be a greater deprivation of liberty than necessary to given that probation says that they recognize that he has a right to use the internet and the district court says this is not a prohibition it's merely a restriction we're not going to construe it that way we don't have those other pieces here we simply have the condition that says he can't use the computer or any computer internet access device without probations permission so that so you're drawing a distinction between the negative in the positive in all men you're saying that that it was you well to start with our case in our case you can't use it unless the probation officer allows you to and allman you can use that unless the probation officer prohibits you from using it is that the distinction you're drawing that is in the distance that is an important distinction here but there you're drawing more than that  and so what's the more than that was so the first thing you'd say if going to respond to judge balrog if you're going to have a draft something you would prefer for us to grab something that says you can use that unless the probation officer prohibits or the giraffe other then you can't use it unless they allow it yes the first point and then what's the second point you're addressing the second way is that this is a  the use of a computer and internet has to be limited but it doesn't say for what purposes that's right and so you would you would like some statement trigger prohibitions when there's been a graphic material or something something that makes it clear that the purpose of that restriction is pornographic while roughly and i think this is where it's useful to look the whole way out where the third circuit size the district if you were you see so inclined could say i'm going to use computers do you do the senate deals with political campaigns because i think i don't want you involved in but you're kind of a guy we don't want to participate in political campaigns and that that wouldn't be in violation of the of the of the restriction you're saying we've got to stop that we've got to make it clear that it couldn't be so broadly interpreted that's right this did the courts must tailor the restriction in order to make it on the use of the internet there was no requirement that it be tailored to pornography or anything relating to his particular offense that's and we disagree on that you know the negative positive distinction that i think since almost all it's become that is such a huge part of daily life you know we need some restrictions and another thing i want to address is the idea that you know we that we can delegate probation the the authorities just make these decisions are you know there is there isn't necessarily a common sense or reasonable consensus as to what kinds of this is of the internet a person like mr blair should be allowed to use and that's why i think it's important for the district court to least do some tailoring to say look you know pornography and using your example i asked the probation officer to be able to follow martin income tax you're saying that well the probability is they're going to deny that and it would be  overbroad but it is tailored to the fact that that has nothing to do with tomography your so why would a probation officer deny that a condition is delivered the condition doesn't contain any territory and that serve i think it would be sufficient in this case to provide the probation officer with the directive that in that the restriction should be tailored to not allow him to use internet it's up to the i think the probation office and the district court something maybe one day if you can't i think that the tailoring that we're talking about that's and the purpose of the restrictions for access the child pornography does accommodate the kind of flexibility that will be needed in order to provide or to address that kind of you're the kind of guy we don't want to participate in politics if you're accessing it for politics you can't do it and and that's contrary to the tenth of that the judge what the remedy under the current for of that condition was so you're good so you could go back to the judge at that point and seek modification yes fine now if when you come up with this that is your first an what you would have here would be a violation of his parole and you could be going before drug court for revocation right that's the riveted he's got to be charged with violating it and he has a right to go before the court and  commonsense non technical reading of the conditions of her release we always presumed operation officers will be reasonable now in this case the district corps made it clear in its oral pronouncement that this was not going to be a blanket ban and  not a blanket ban judge said you know the defendant committed this offense via the use of computer electronic devices combined with the use of the internet so that's kind of the starting place so that the portion of the disputed condition does allow for the defendant to request use computers and internet while under supervision the court finds it appropriate that approval of the access the internet should be addressed on a case by case basis so where we're in which you just read it does the does  district judge say this is not a complete prohibition he says this is going to be addressed on a case by case by case of a different than a complete prohibition if we look at the second circuit decision on a case by case basis unless the district of most of the probation office does something in the affirmative the defendant mr blair cannot use any internet device to things about that person i would contrast that sharply with the second circuit decision that was offered as a supplement that already in which in each and every case of probation officer had no doorbells or opening the fridge or either doors or just room temperature that's not what this case was was about this case was downloading hundreds of thousands of images of chop well well well then why and all and did they did did the panel specifically say that the written condition which is essentially the such a substantial equivalent of what we have here would have failed but for the district judges are not pronunciation that this is not a felons and the core read into that being commonsense nontechnical if you can't be in a place where you know that there are convicted felons or illegal drugs going off and i think that's a similar kind of bank here where the court is clearly dissipate he's going to be having access and we're not trying to reach out beyond what the problem was in this case i've also read this condition which is the one that we're focused on number six against other conditions number seven so they must allow a probation officer to install software hardware design in modern computer activities so we have in the same breath the same court that's imposing them for six imposing number seven which presume there will be computers with internet access because you're being ordered to allow probation to install the monitoring software so i i think sort of taking this as a whole  there's no reason to assume that the gore really was intending to shut the door altogether what the court was looking at and i think certainly the discussion based on this is that the law has been moving and the facts on the ground a d obviously in internet access restriction now is going to be much more significant to an individual and i didn't thirty years ago right i mean we all understand that and so what i think we find in this case and other cases that i've seen recently increasing the district courts are saying you know this thing this thing's a moving target this guy's not going to be out for a while in this case the defendant is going to be in till twenty twenty seven i think his  projected release date this is all moving and so we're going to ask for beijing to monitor and tailor this as we go along because by the time this defendant is out we're going to have other issues where they thought at this point  sometimes you do get cases where the delegation is sort of juxtaposed against that we don't have that in this case and that's why we suggested in part of picking up on judge holmes concurrence and with that aspect of your well i think in part the the hypotheticals we've been offered with here are perhaps more hypothetical than that specific requirement for that it had been articulated by the court yeah i think that probably outside this one one thing that all those who do so would a probation officer permit it or not permit it or do we just not i would expect if a probation officer is being reasonable in this context would permit that because we see in other contexts just trying to regulate sexual material for the sake of sexual material without any kind of nexus to you know the offense conduct or the history probably doesn't pass muster what we're trying to do is to prevent child child pornography from being accessed and of course as you do in many of these cases you're trying to put a buffer around that a little bit because we're trying to prevent the access not just punish it after the require filtering software and there are two problems with this so the first that was never asked for below would have an opportunity to ask or to do that and second obviously if that's really a problem could ask the district co advice but the third thing really is that the defendant here now or at the point of release could ask probation put it filtering software so i can access all these other things out by access so i can go  watch appropriate movies i can gauge and political discourse i can do all these other things and so i think that's kind of what the district court was hoping for is that there would be some on the ground practical  question which i don't have a complete answer for and what kind of rule the court would look at a certain amount of delegation i think because of the day to day issues that arise and because technology is a moving target a certain amount of delegation  something like this that you your computer use should be limited due to restriction that is reasonably calculated or that the restriction should be reasonably calculated to prevent the defendant from using his computer or internet to access store produce or send child pornography in any form at first blush it makes a great deal of sense there's a tendency and i do want to draw the internet to access quadrophenia the computer itself once you have tain it whether it's on the external hard drive which mr blair had was a large external hard drive this is stop or flash drives were see wrongs once you tain once you have the computer then you can manipulate it you can view it you can copy it for in preparation for distribution so it's important that internet filtering isn't is it significant part of this it's not the whole story and so some computer regulations