s search he makes every e mail he sends his mom every newspaper article he reads this is exactly what this court has prohibited computer computer monitoring must be narrowly tailored but the monitoring here has no limits at all we're not arguing that no monitoring is appropriate some monitoring is appropriate here but unfettered monitoring just isn't allowed no we've never argued that no monitoring is appropriate both below and here we're arguing that some monitoring is appropriate but it has to have limits this court has suggested limits in browder such as a rd party monitoring instead of probation and the rd party only alerting probation if there's some sort of suspicious proposal to the district court for some modification in the terms whatever lines you'd be prepared to agree to there was a proposal in the district court as well i believe to be there yes of the conditions to have just internet monitoring rather than full computer monitoring right that was rejected but now you're saying way that i shouldn't have that was in artful mr you heard has never disagreed that some internet monitoring is appropriate of his electronic you want in this court then what do you want from us i want this court to find that the electronic monitoring condition is overbroad and not narrowly tailored as it did in lipschitz and send it back down for a new monitoring condition to be in place and i'm concerned that i'm confused anyway as to why you're here before us you can make this application to the district court to read to limit it in some way and i gather you've never sent to the district court well we'll agree to this we want to we'd like you not to impose for if it were me i would aspecific way for something like the remedy in lipschitz which resulted in a monitoring condition that only alerted probation if there was something related to child pornography or other suspicious you could do it but the court has already rejected the can the condition is over proj the district court specifically said i do not believe my condition is overbroad i think that unfettered monitoring is the right condition and that does not conform to  the nd circuit's precedence and that's why i'm here in the circuit going back to the district court would just be a fool's errand we've done that already in the district court rejected him are right that there's nothing in the record identifying any websites to which your client has been denied access he's that's true with respect to the pre clearance condition he's required to get preclearance for a whole host of categories of websites and then probation either says yes or no with respect and one of the other issues in prague or the court discussed this writing the opinion that the issue isn't whether or not probation would say yes whether permission would be granted the question is whether or not the district court can have force the defendant to ask probation instead of having the district court set the terms of the supervised release conditions here we have a list of vague additions they're vague and overbroad some of them seem innocuous like free hosting which is just a free website or they're so big that we don't know what they are because the government thinks free hosting means something different than i do and defense counsel did below so those conditions create a situation where there is not notice of what mr yoo heart can and cannot do on the internet without st asking approval from probation and then the rd issue with these conditions is the delegation to probation to make decisions both with respect to what types of websites mr yoo heart can visit and then really with respect to whether or not he can continue to use the internet at all this court has clearly established that the district court cannot delegate the power to probation to decide the contours of what sort of liberty a supervised release can have that's what the court did hear it delegated to probation with the treatment provider together as probation kept saying a treatment team to determine whether mr yoo hearts internet access could be restricted partially or entirely restricting internet access if it is ever allowed is something the district court would have to do that's a st amendment right and to a strict it would clearly restrict somebodies liberty the district court could not delegated to probation website if the district court wishes to restrict internet usage on certain websites then yes the district court should say which websites would be restricted i would argue that wouldn't be necessary at all here with an internet monitoring condition even a more limited one through a rd party for example probation would be notified if there was any suspicious activity it wouldn't need to do a  is not a condition i came up with it was one that wasn't raised in browder and which this court deemed as better than probation looking at somebodies computer in terms of we're now talking about this case in which after all what came up after the initial supervision terms were sad was the hit there too unknown information that your client admitted using social media to contact dozens of minors and that he is sexually abused at least ten children i mean you know to say that the district court should now can see of every website that's out there and specifically say he can be young oh he  be on this he can be on this one he can't be and that is absurd district court doesn't need to do that that's when you just suggested when you said that the district court had to identify the websites he could not beyond as opposed to what i understand is happening now which is that he has to get preclearance from probation by telling them what website you know if you want you can ask the district court whether a new client can show up every morning and tell the district court what websites he wants to be on that day is that what you want right here we have a host of internet conditions that result in pervasive monitoring of everything they overlap on each other the district court doesn't have to undertake to say exactly what websites he can go on the district court could rely on the monitoring condition to alert probation of an anything untoward is happening the district court and the original sentencing court also already knew about the social media accounts nothing that came up later was the result of new conduct mr ewart had been in complete compliance with everything that he was asked to do while in supervised release the only reason anything new came up was due to his interaction with his treatment provider and disclosure which is something that is encouraged through the treatment process this is not an overly burdensome requirement on the district court it just requires the district court to follow this circuit's precedent and to not delegate to probation conditions that will restrict  for the september twenty five order that's the hypothetical would you not be able to go into district court shortly thereafter and make this pitch this argument i'm i'm trying to come with the same question my colleagues raise with you if you were to lose here this is the other side of what do you want from us soon for the argument you lose here you're able to go back to the district court are you not three is this question again i'm not suggesting that you think you would prevail or they would be happy to go back but you would be able to go back is that right in any supervised release situation you can return to the court and ask for a modification i think that that's generally true you were there with a question in part on judicial administration snow i guess at least i'm wondering why as a practical matter it wouldn't be the interest of your client and your own interest to have taxi to the patience of the judge signed by asking her to review your views again your perspective maimane your honor me and them a i am i answer thanks for sure thing may please the court it's important to know that judge sydell did not delegate discretionary authority to the probation office in terms of what the conditions of supervised release were rather she reasonably determined that the terms of supervised release should include a prohibition on mystery word the video or undermining the goals of treatment by  accessing websites that would fundamentally undermine those goals she delegated didn't delegate she said that the treatment provider and if you look very carefully even though ms glasshouse or keep something that probation and the treatment provider jointly have this delegation she said the treatment provider shall determine what will and will not serve the purposes of treatment the probation  officer simply has the duty in the pre clearance method of being able to help mr he worked figure out what it is that he is and is not permitted to do by creating the probation officer as a go between between the treatment provider  so as the representative the probation which i always thought was awkward since probation is part of the court but the you as a representative of the united states have any objection to the proposal of me i do and i do on two levels the st level which is kind of the thirty thousand dollars foot level which is the isn't this what happened to the browser level is that browser didn't set forth a checklist for this is necessary to make a monitoring program work and th isn't rather and browder the monitoring program that they had in place in that case happened to have rd party monitoring and so it was simply that thing that it all i'm saying is when you if you weren't if you didn't feel some sort of an knows there is a particular need for somebody who is personally familiar with mr he worked to be involved in the monitoring and a rd party sitting out in omaha or wherever it is that the man that the rd party monitoring company is doesn't know mr ewart and doesn't know his particularized needs one of the big issues here is that mr the word was specifically locating over and over and over again particular individuals tracking them down and this is something that a  rd party monitor wouldn't know for example if mr it weren't wanted to go on to google and simply tracked down the girl who lived near him to find out more information find out if she had any you tube videos if she had any photos where it is that she lived a rd not a party monitor wouldn't know that the name suzy q means anything and what it notified the probation department the probation department on the other hand being familiar with mr word being familiar with where it is that he lives who it is that he's dealing with who it is that he's not supposed to be dealing with with see suzi q and so you know there's something problematic about that because we know that mr particularly focuses on young girls in the area and we can do a little bit of background check to determine if that's a problem so in this case i would say that with mr who has located individuals repeatedly in the past there would be a real problem with saying we want a generic rd party monitor who doesn't know the particulars of mr he wants needs to be involved the other problem is that here are the treatment providers in every letter that your honor saw in the appendix the special appendix and the attachments to the petition for modification they all said that they thought that mr was a particular danger who needed close monitoring of the internet what does that mean that means that they want that monitoring to be in conjunction with the treatment provider and again simply saying that there will be red flags raised on the basis of generic terms that the rd party treatment provider thinks that your average child sex offender may look at this site or may not look at that site isn't sufficient to satisfy the needs of these treatment providers who keep party monitors which are computer companies software companies that have their own staff to treatment providers and then you have the treatment providers who aren't necessarily computer geniuses don't have monitoring software and what that would do is that would effectively force probation to go out and find if they exist a treatment provider that also provides rd party monitoring software offhand i don't know if that even existing i do know who some of the rd party monitors are and none of them are treatment providers they all have their own companies doing rd party monitoring it would effectively force the probation department to go out there see if something exists and if it doesn't either throw up its hands or try to encourage private companies to come together and create new products  and i just don't think that's something that would be appropriate here just to resolve the appeal that's probation puter or house done it is done by computer so it's done in a few different ways the probation office is able to look at random screen shots that are taken from the phone or the computer usually nowadays the phone is the most important item there and they're able to look at of for example websites visited by the way the labor intensive it is and frankly it's a lot of spot checking your honor it's a lot of spot checking and makes use of the fact that realistically they aren't monitoring it two hundred and forty seven that is they don't have a probation officer who's assigned to be he works monitor who sits there and twenty four seventh's sits in front of a computer and watches everything that he does rather as with anything else the monitoring software allows them to do the spot checking and also allows them to have certain red flags so if the treatment provider says and i'll give a random example of something that might not come up with a generic rd party treatment fight or if the treatment provider says rd party monitor if the treatment provider for example says mr he has a trigger from a foot fetish and so you should be aware of him looking at any shoes sales shoe sales sites because those are going to trigger problems that will end up as collating down the road the probation office can then look for red flags is he going to you know nordstrom shoes so they can go and they speak to the treatment provider and they can speak to you word and see if this is a problem or if it is not this is something where again a generic red flag a rd party provider doesn't do it but they can set up red flags to tell them he has visited x or he has visited y one of the reasons that that the pre clearance condition links not only to treatment treatment provider but also to among other things whether or not applications that are downloaded or web sites that are visited would be consistently monitoring this because another thing that they have to be concerned about is certain web sites that may not be easy for them to monitor or maybe they'd monitoring for example defense counsel brings up the concept of webmail and says shouldn't he be allowed to have e mail and nobody is saying he shouldn't be allowed to have e mail but he should say hey i'm planning on using this webmail site so that way they can go and they can make sure this isn't a web site that is designed to evade monitoring those do exist your honour's and i'm sure that you've seen some of them pop up you hear the word proton mail that is a mail site that is specifically encrypted in design to evade all sorts of monitoring so all the pre approval mechanism is it doesn't give them discretion to say to say i think this is a good site or a bad site but rather is this is a site that conforms with the terms and conditions that judge sydell has set out his term alarms are those terms and conditions include is it consistent with treatment as the treatment provider who is the professional who has the day to day interaction with mystery work has decided is it something that is monitor or ball is it something where the terms of that website bar mr you work from going on to that site and notably the condition say that your probation office is required to approve within three days maximum access to any site unless otherwise violates the terms and conditions here i think that one final thing that two final things that are important to note here are that the defense defense counsel's brief affectively treats the probation officers and bureaucrats who sole job is to determine whether at any given moment mr work has violated the terms of his supervised release or he has not that is not their job they are involved in helping mr you were to rehabilitate and reintegrate into society obviously the endgame here is not to throw mr ewart into jail or impose another condition the endgame here is to come to a world where there are no websites that mr can't get onto without a problem there is his rehabilitation he can go to x website or y website without having problems but they need to be given the ability to do that and what this does is this narrowly tailors the tools to that are necessary to address mr background and does it in a way that probation and the treatment provider are able to look to today to how mr word is doing and the treatment provider can see this is what he needs and this is what he doesn't the alternative would involve every day  mr were showing up at judge side bell's chambers and going through a list of every website that he wants or judge said bell every day looking at the internet and saying fifty thousand dollars websites were set up yesterday let me figure out which ones mr can go on to and which ones can't that's not only his exposure to children limited in that and exhibit b to the petition for modification and then it reaffirmed that if supervised if the it said we don't really see that is that i'm sorry if you if your honor looks at exhibit you think that we have the record before right i do i'm sorry in in my experience usually the petition for modification of the us our request is sent up it's typically sent up under seal because it's not a public  document but if it's not obviously we would be happy to submit it under seal today or tomorrow bottom line this is in case he's going to school every day at three hundred and thirty thank you want to know  what this reduces to that is absolutely right and in fact in the special appendix at page nineteen the treatment provider said if the probation office normally uses g p s in order to closely monitor where somebody is then we think that that would be appropriate and one thing that's really important is that in that letter that i that's attached to the petition at exhibit b they the treatment provider noted that mr claimed that he was now able to control his urges but the reason why it was particular important he said that it was quote because his behavior is now under scrutiny which it was not in the past in other words mr ewart was telling the treatment provider i need somebody to watch me every minute because that is what helps to keep me on the straight and narrow and certainly in light of the believes that he explicitly professed over and over that not only was he attracted to young girls but that he believed that to this day that it was appropriate and if anything necessary for adults to engage in sexual activity with young children in order to help them to bond with one another and in order to help the children develop in light of that in light of his history which included approaching children friending children going to tahiti and posting pictures of himself with children over and over and over it was wholly appropriate for a judge sydell to say maybe the treatment providers right and we need to keep them on the straight and narrow here would you address  here i was at mr rubella hearing as as your honor may recall this was the case where judge sydell incorporated the record of rebel because it was the same lawyers on either side or same offices on either side and issue and well there were a number of issues and the and the ones that are at issue here except for g p s with the same issues and in rebel as well known rebel cases on for argument in early december i forget the p object to because i don't know what it is that they would do but obviously they are entitled under the federal rules of cook criminal procedure to petition for a modification of the terms of supervised release and i think it would be fruitless if they went before her and said we just don't like any of this throw it out for no reason other than we don't like it but if they went to her and said as they could have below we think that this term is too vague we think that this prohibits him from x y and z and we want this modification that's something that judge sidel who's an extremely reasonable judge would take into  modification of the terms of supervised release and i think that if all she did was she said we appeared before you before we'd like you to reconsider on the basis of everything we said before and that's it i don't think that there is there's any new basis argue that the  scope of the limitations violated the st amendment she would be titled to make that argument right as long as she came up with a basis for it i mean in rubella which was incorporated the parties both agree that packing them did not bar these types of conditions and i think that this court made clear i'm sorry state to sara steve i know that i've messed up the pronunciation i apologize that packing them does not specifically apply here although certainly the concerns underlying packing and that is that the internet is nowadays a public fundamentally a form of a public forum that gives rise to st amendment issues we have no argument with that we think that here the restrictions are appropriate and do not violate the  honour's these issues were fully raised to the district court which is why i'm and preserved by defense counsel which is why we're here asking this circuit to reverse on these conditions i'm not clear i did not see that the possibility of  a rd party monitor was raised did i miss that inadvertently you're under the exact remedy of how a new internet condition would not only no small matter because i would think the next question would be who and who's going to pay for it but i did not see any discussion of the possibility of a rd party other than probation doing any monitoring did i miss something you know you're on the rights and that's something that has never been proposed to the district court in this case is that right yes but the court said the conditions weren't overbroad so the court disagreed with any limitation of any sort so to go back and propose limitations when the court has already said unfettered monitoring is what i am imposing is fruitless that takes an order from this court saying unfettered monitoring is fruitless go back to the drawing board hash out what is appropriate which is exactly what happened in lift what else besides a rd party monitoring rather than probation are you saying needs to be done to you know satisfy your client arguments i proposed a few examples in my brief including having safe searches or keyword protections or the alert system and lord knows argued to the district court argued to the district court was that limits needed to be placed right but not those limits didn't get to that stage because the district court did not believe any limits the answer is no because no your honor because the district court thought no limit was appropriate that's what i'm asking  think no limit because nothing is being told to them that can be done and that's my concern here is the district court ask limits or no and it's finds no no no no limits but wasn't told will judge if you do this if you do this if you do this that would narrow it in still capture what you're concerned with none of that has yet been presented to the district who are rights council presented one possible limit which was to have  internet monitoring without any training of the actual computer and the court rejected it the limit he proposed was rejected well you want to argue in favor of that one i mean you want to argue that this client should not have any internet any computer monitoring it was supposed to internet monitoring for monitoring of say just documents he is writing yes i think that was an appropriate suggestion and you want to say that it with district course discretion was placing unlimited computer monitoring and internet monitoring and physical location monitoring while we're at it so it's full monitoring of everything in his life some limits had to be placed i agree that the scope of those limits is appropriately brought in from the district court but to get to that stage this court needs to remain on the case to send it back down and say that limits need to be placed as per browder later in time but that limits needed to be placed in for the district court to consider that in the st instance this court doesn't need to consider exactly the limits the government for the st time is talking about mr you are tracking down people i have never heard of that before i don't see it in the record there is no suggestion in the record that the limits i am bringing to your honor's attention would not be sufficient to deal with all of the court's concern