please the court my name is allegro glass hauser and i represent appellant brian rebel you know there's a lifetime of supervised releases in extreme an unusual penalty here mr about was given that unusual sentence and he was also given extreme conditions constant electronic monitoring for the rest of his life probational read every web empty search she does of read every email he sends to indicates how long the supervision really is it is an incredibly long amount of time and in this case the court didn't give a reason for this lifetime supervision at any point of the numerous recent things that mr r y the court at the initial sentencing expressed surprise that probation recommended such a long term but imposed anyway the p s r said that mr bell had a low likelihood to re offend and yet he still has lengthy term of it was this was this was his argument waived in the court has seen this case for recent and sing with directions a couple of times i guess and there's an amended sentence it's been entered and while there was a general ru the amount them supervised release and the fairly restrictive internet access and other similar terms so did the defense bring this up in a timely way that this should be the district court's focus that it required a separate didn't preserve the separate justification of the lifetime of supervised release now that with the conditions the defense did preserve all the objections to the condition themselves but the defense also didn't wave that argument so this  reviewing the lifetime supervised release and plainer it wasn't raised and the court didn't focus on it but it wasn't weight it's just an argument that wasn't discussed below in this court still has the opportunity to review it the district judge of the most resentencing did do a recent saying saying i now recent to this lifetime of supervised release and that's the sentence that the court is reviewing today there is no mention by the district judge about why that lifetime supervise release term was appropriate in particular in the context of the very restrictive conditions that were imposed in those conditions for the electronic monitoring have no limits all of mr  usage will be monitored and that's the type of monitoring that this court has condemned this court has said monitoring these be narrowly tailored and he's beef fit with the crime that it's supposed to address and that's what this court has said probation when the person views contraband or does some sort of activity online that is related to the crime that type of monitoring is ok it's narrowly tailored but here we don't have that probation sees everything with no tailoring at all and that's just not appropriate particularly for mr bell's personal circumstances his only crime of connection was the one that he had here it was a possession offense and he has no other history of any sort of physical or other inappropriate contact with children that distinguishes his case from some of the from browder and as well as you heart so there's no justification for this type of overbroad monitoring on top of that he has these vague pre approval conditions that even the court the district judge says that she does not know what the list of conditions means at sentencing defense counsel says can he watch a movie without getting probations approval can he watch netflix can you download i tunes and the court says who knows this you have an opportunity in any way to challenge the condition in twenty years since the technology changes and monitoring changes and he's twenty years older and he has established a record of one kind or another or is the sentence the sentence and that will be the end of it no i think you come back to court if conditions change and asked for a modification but the conditions right now on today's technology that he is under today are the problem today today he has to comply with these pre approval categories that include downloads free hosting alternative lifestyles i don't know what alternative lifestyles mean i know for a number of definitions in my brief the government doesn't respond district court doesn't know really what downloads covers other than i guess what it means which is almost everything coud going on library of congress or even the sentencing guidelines website to download a document about a an effort to try to narrow to those categories which then are not banned require pre approval to work out some of the details of what is and isn't allowed going forward with probation and their right  not a ban but it is and what's so burdensome about that why is that not tailored to you no defense here no threat any worries don't match the offense so i'm not sure what alternative lifestyles  free hosting website has to do with possession of child pornography they're not related so they're broad categories and so i think i think the district courts effort it seemed like was to try to identify the category where within there there may be types of sites that require some scrutiny and i don't understand what why that's not why that's problematic because broad categories are problematic the court to tailor the conditions to meet the offense that's what the the district court's job is to create conditions that meet the sentencing the purposes of sentencing so when we have a district court saying yes downloads is overbroad because it would include your car registration form that you would have to wait to download ask probation if it's ok wait another three days until probation says ok yes download your car registration form that's  problem the district court is recognizing that the categories are too broad but then imposing them anyway what the court can do is say you need pre approval to download anything that has to do with i don't know say websites that's true that was a separate condition in this case that he could not access those websites so that's already covered by a different condition but the condition here is not only over broad which the district court recognizes it's also a v a so mr bell doesn't know what he can and can't do on the internet until he asked probation which has a chilling effect on his ability to comply with his conditions they'd conditions don't put the defendant on notice of what what he can and cannot do and this court has specifically condemned those who have to know what's allowed and what's not and the district courts comments at sentencing make clear that even she doesn't know when she says who knows then she also delegates further to probation with the treatment provider to determine sort of the whole context of how mr rebel can use the internet and in this context what would a treatment provider be a psychologist and a leader of group my understanding is they're generally clinical social workers who specifically work with people who've been convicted of sex offenses and so i think it's a good question you know that person isn't a st amendment scholar not somebody who necessarily has experience with the internet or anything like that so it's delegating decisions about the internet decisions about mr bell's st amendment rights to somebody who isn't a lawyer isn't a judge and has no particular expertise in that area the person's expertise is on nd no i presume that person will know what could impair him if he looks at it i don't think the court can presume that i have no reason to think that clinical social workers have expertise in internet and what internet usage is appropriate here and in fact it's the judges that have the duty to decide how somebody is st amendment rights can be constrained in this context and balance that constitutional right against whatever the needs are in the sentencing guidelines or the purposes of sentencing the judge can't just delegate to that that to somebody who does not have that authority or any reason to consider mr bell's st amendment rights how would you distinguish this case  ten separate instances of physical sexual abuse of minors in addition to conversations on line with minors the court talks about the very troubling conduct it was  through the p s r and subsequent reports from the therapists that were introduced before the modification and the nd circuit in issuing the decision focuses on those individual characteristics and saying in his circumstance those conditions were appropriate here we have somebody with a completely different set of circumstances other than the fact of the same conviction mr rebel doesn't have any of that separate history of any type of physical sexual abuse of children  while he was on supervised release before all lead to that simple conclusion he needs monitoring and he needs treatment to protect himself and to protect others judge sonia bell fully understood this she went in detail each time that she sentenced him to the concerns that she had about his effect on himself and on others around him as it matter that he was never even accused of touching a child well that's kind right he wasn't accused of touching the child originally at his original sentencing in fact the p s r show that he told the evaluators who were determining his chance of sexual offense among other things that he had never had any attraction to or contact with any minor while he was on supervised release he admitted to his therapist that indeed while he was nineteen he had had sex with a sixteen year old it's not a huge delta in the way of if it were an eight year old but it does show that he was not being forthcoming when he was speaking with his original evaluator in addition while he was on supervised release he told his there pissed when he was asked about do you have sexual attraction to minors that was when he came up with the statement you know i don't believe that there's any problem between adults and twelve or thirteen year olds having sex it's just that society imposes this  ball ban on it which is indicating that he has likely had he has a loathsome opinion but there's no sign that he's ever acted on it well there are signs that he among other things he was having repeated contact and there's no sign that it was sexual but it could have turned that when he was having repeated contact with seventy eight year old girls despite having been specifically instructed by his probation officer when you say contact do so you mean touching or no no contact he was out he wanted to be able to walk her to and from school in addition to that he admitted and he had to it had to be sussed out of him over time as is made clear in violation of court he admitted to over seventy uses of facebook specifically using computers that he knew were unmonitored and that probation couldn't tell what he was doing so there's the bigger problem that nobody knows what it is that he was doing who he was contacting on facebook except that one can draw a pretty negative conclusion about it by virtue of the fact that he does it over seventy times specifically acting to evade detection by the probation off what worries me in this case is that he this is  marry there's a record of his lying to probation can you fill that out sure thing so he lies to probation about material things yes about material facts he lies to probation about among other things this facebook on the computers at the bronx community college where he tells them i'm not using any unauthorized equipment and then the therapist comes to them and says hey he admitted he has a facebook account that seems odd that he has a facebook account since we understand he's not supposed to be going out and you would have let us know so they go to him and this is set forth in the violation report they go to him and at st he says ok i accessed it maybe ten times the press and more maybe ten or fifteen press some more maybe thirty press and more finally ok over seventy times i've been on facebook without you knowing about it and without telling you about it he's told my probation you cannot associate with a seven year old and then he proceeds to in violation report doesn't make clear if it's a separate girl if it's the same girl but he proceeds to accompany a seven or eight year old girl after having been told by probation very specifically this is a relative this is a relative of a friend so not a relative of his and he had explained that to probation he said to friends of mine and she has a young girl and then he was candid with probation about that well he was candid at st he did not then reveal to them that despite their specific instruction not to do this that he continued to do so could you could you help me on the the life time aspect of this term of supervised release i gather he was in his twenty's when i was st imposed we're now he's thirty four and there's a reimposition of a lifetime of supervised release and of course we live in an age where as the supreme court has recognized access to social media access to the internet asked the court to consider in the party's briefs to address whether the prohibitions imposed involve a greater deprivation of liberty than is reasonably necessary and so on which seems to me involves both the terms  his future and whether he'll be able to conform his behavior to our expectations and to the law nonetheless a life time which could be sixty more years is a is a big deal it's a very significant deprivation and i guess i recognise in that he can apply for modifications at different times i don't really have a sense of how easy that is and i wonder whether i would feel more comfortable if the district court and the government considered that aspect of the term of supervised release in a very explicit way the need to have a life time of sixty years potentially or longer of these kind of in the very restrictive conditions imposed could could you address my concern certainly and if i may just split that up into two things to make sure that i'm addressing the right part there's the stream which is what was raised in the appellate briefs of whether it was appropriate to impose a lifetime term of supervised release overall and it sounds like what your honor is getting at instead is putting aside whether it's appropriate to impose a lifetime term of supervised release which was not within the mandate of this court when it sent it back but rather whether the court even in saying you're sentenced to life time supervised release should have put some and did on the computer monitoring program or some wind down on the computer well i would just clarify my saying i think it is part of the mandate because the term as well as the qualities they can be supervised release i think are both part of the calculus whether it is a greater deprivation a necessary to meet the purposes well well respectfully disagree and i would agree as to that nd bucket that is i would agree that that the court could have under the mandate considered should i have some wind down or and do you on the computer monitoring portion of supervise release however for the overall length the problem is that the court said and i quote if the district court just in this was were allowed modification if the district court decides to return all or part of the computer slash internet monitoring program condition or to modify the condition it should explain its reasoning so as to permit appellate review that was part of this court's remained order and so i think that it was pretty clear that that the remained was limited very narrowly to the computer monitoring condition and that's precisely why it was that below the parties briefed in only argue issues dealing with or immediately adjacent to the computer monitoring condition rather than the overall length here and you're quoting  and seventeen order on which i sat as well and the july order that preceded the denying counsel's motion to withdraw had the broader language but it seems to me it it's it's an essential part of and reassessment of a sentence that includes a term that's draconian even if ultimately it turns out to be warranted seems that the government ought to be put to justifying a lifetime term that includes very consideration of the overall term of supervised release and even if it hadn't been an issue that was waived it's reasonable for judge cybill to impose what is frankly a guidelines sentence of supervised release of lifetime supervis release for a number of reasons the st of those is simply that it is a guideline sentence when we can't presume reasonable this this court has said over and over again that when something is within the guidelines that's a pretty good checkmark toward reasonable it's reasonable but if the more it's been more proper to look at all of them together and in the context of them being imposed from life in order to find out whether when the whole thing is reasonable then and that's that's where questions arise well the answer is yes it is proper to consider them all as one that is to take a holistic approach i absolutely agree with you except i think that when you consider them holistically and understand how these conditions interact with one another that's part of what makes it so fundamentally reasonable because each of these conditions that's complained of here interacts with the other conditions in order and they do interact the question is whether they snowball and until they become a reasonable well putting aside for the moment the fact that you were court considering precisely the same conditions offer that a lot of this is dynamic which is necessary considering that you're dealing with the internet which is both vast and dynamic where websites are created to lead it change terms of service or change which i did which point is that cut well that cuts very important toward the fact that this is dynamic in that among other things it allows his access to certain sites to be dictated in part by those the website has the website determine that sex offenders can or cannot access this website right now as was brought up facebook has as a term of service that sex offender i can't imagine a website saying you know sex offenders are invited i mean you basically going to thank for a thing is to say keep away but but that's not what all websites say in fact most web sites don't say that the only two websites that are in the record because they were two websites that were brought up simply as examples of both being owned by facebook were facebook and foursquare and foursquare does are somewhat broad and that's for a reason which is it's difficult to say here are five hundred thousand websites that are existence today that you have to seek pre clearance for and remember this is very important i think this doesn't bar him from going to websites that fall under that it's a this was in reaction to the fact that when these terms were proposed one of the concerns that mr rubella rightly raised was he said you know something there's terms of use there is what would my therapist say as to whether this is a website that i can go to how am i to know that in advance and this is to take the burden off of him you know something you can go to your probation officer and your probation officer will deal with figuring that out and remember the probation officer doesn't have the discretion to simply deny anything he has to either say i have checked all of the categories that judge sydell set forth and you are permitted or you are not within three days and if he doesn't respond within three days go at it that is this is simply a delay mechanism to allow evaluation of determining whether this web site and for the st time that you go onto a website that these aren't even types of websites like there's adult annex access and whatever but these are types of things that you do on the internet as opposed to any kind of substantive instruction or presumably a download site would be and and we also get to be realistic about how the judge is going to determine this going forward the download site isn't going to be something where to take the hypothetical class house or brought up that he's going to go onto the d m v and download car registration form and all of a sudden judge sydell is going to say you should have asked probation before downloading the registration form a intended to permit and facilitate significant downloads that is exactly the types of sites that he was using in order to obtain child pornography and things like bit torrent that are download sites again st of all it's it's it's not a significant burden on him because all he has to do is call or email his probation officer the st time he's going to go to a site that he thinks falls within this and of course you have to intentionally violate the terms of supervised release in order to be held to account for it so again the hypothetical what if he goes on a site that it turns out was created by a free hosting site but there's no way for him to know that there can be no penalty for going onto that because there's no knowing violation of the terms of saying i went on so the concern what happens if there is a site that no reasonable person looking at it would realize that it may fall into one of these categories so he doesn't check with his probation officer and it turns out afterwards that it was created using one of these categories of websites there's not going to be a knowing violation there if on the other hand he's going on to bit torrent which he knows full well is a download site because he's used it in the past to download child pornography at that point he should have asked his probation officer hoopers my guess is with bittorrent he would say i checked with a therapist and therapist can't said you can't go on to a site that's used to download child pornography or for that matter where it says web mail if he calls up and says i'd like to go on g mail that's going to be a real quick answer of course you can go on g mail vs i'd like to go on proton mail which is a web mail specifically designed to evade monitoring and to evade law enforcement presumably the probation officer would say that violates the monitoring condition because we can't monitor proton mail because that's a website that specifically designed to evade monitor and  understanding that twenty years hence when he's fifty he would be able to apply to the court for a revamping of these conditions to reflect current technology and his own mental health and by the way that revamping can also say hey judge the categories that you sent out these are confusing me i'm having a real difficulty figuring out which of these categories i can and cannot go to my probation officer and i'd like some clarification and if the judge says i don't understand that either where we left i'd i'd like to correct one thing because that's not what the judge said that's not the judge didn't say that it was so vague that i don't understand i don't think that and i don't think any judge can understand some of these things out think anybody can understand so well i mean i can't say that i would necessarily understand every single one offhand but i am not somebody who's looking around in certain categories of websites however one thing that's really important that i know that miss grass hauser has relied on is the judge saying i don't know if you can go on netflix i don't know if you could go on i tunes had nothing to do with categories or with vagueness what she was saying is i've never looked at the terms of service of those i've never spoken a therapist i don't know what's available i don't know if never flix just has you know disney movies on it or if you can also get hardcore pornography that your therapist would say you can't go and that actually defines why this system works because to get rid of the system is to require drug sydell to intervene at every single website and make an individual determination her entire full time job would be monitoring and interacting with brian bell which is simply not how the law works poor judge  vagueness of the categories i think the government has put forth some different categories that might not be very like if you were going to go on a bit torrent or a website that is very similar to bit torrent ask probation that seems related to possession of child pornography but that's not what the categories say and the d m v example wasn't something that i thought up that was what the district court judge thought up because she said specifically that would be an example of something he would need to get permission to do so everyone agrees it seems the government agrees to that these categories aren't clear and that they do cover by their terms things that don't relate to sentencing and that no one would have any concern about i don't know how much further we need to go that means that these categories need to be changed that they need to be vacated and sent back for the district court to make categories that make sense that we can all understand are you aware of categories that have been applied in similar cases that you find have adequate clarity well you're either in in ewert there were also categories i directed to those as well but they were more narrow than the categories here nor fewer of them and some of the categories that we've been focusing on like downloads and download media did not appear so i don't think that the that those categories m clarity requirement but they were they were less broad than what we have here so that's the only one that i am aware of but i don't doubt that the parties and the court could come up with something that is more narrowly tailored than what we have here speaking to the lifetime supervised release and how that interacts here st of all the guidelines were five years to life for the supervised release so there's a vast guideline range that the judge could have could have looked to and i i think it's completely right that the judge should make a determination on the record about whether or not lifetime supervised release in the context of these conditions is appropriate in newark which we've been talking about there was only a ten year term of supervised release i believe it was ten years and it was certainly less than life so this is a reason to  district court i also just want to point to some over statements that the government makes about the record this is a case that is clearly different thing cases where anyone has any allegation of contact offens and the violation conduct that brought this case back into court those are all the lowest level violations and none of them had anything to do with any sort of sexual or other inappropriate physical or communication with children so i just want that to be clear that this is nothing like those cases and there's also at the time of the resentencing that the most recent recent unsing mr bell had been in complete compliance with its conditions for over a year so despite past difficulty he had been doing quite well and nonetheless the judge reimposed a term of life time supervised release and impose these exceedingly burdensome internet monitoring conditions all right thank you very much very well argued will take the matter under advisement