In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-4340

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TODD SCOTT,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 4:1CR40056-001-JPG—J. Phil Gilbert, Judge.

____________

ARGUED DECEMBER 6, 2002—DECIDED JANUARY 21, 2003

____________

Before EASTERBROOK, RIPPLE, and MANION, Circuit

Judges.

EASTERBROOK, Circuit Judge. Following his guilty plea to

fraud, Todd Scott was sentenced to 24 months’ imprisonment, the top of the Guideline range derived from his

conduct and criminal history. Three years’ supervised

release is to follow the imprisonment. Scott does not contest any of this, but he does object to an unusual term of

the supervised release: “The defendant shall be prohibited

from access to any Internet Services without prior approval of the probation officer.” No one suggested such a

condition in advance; the prosecutor first raised the possibility in open court during sentencing. The rationale for

this condition is that a search of the computer in Scott’s
2 No. 01-4340

office turned up a few images of child pornography. Scott

was not convicted of that offense, but the district judge

decided to limit his ability to obtain new images following his release from prison. He contends that he should

have received some notice that this condition was an option, and he adds that the condition is (in his view) too

broad with or without notice. These arguments are related: Notice is helpful only if the defendant could have

offered something pertinent at sentencing, which depends on whether the sweeping no-Internet condition

could have been narrowed.

Scott’s lawyer opposed the condition at sentencing but

did not offer any alternative. This omission does not forfeit his ability to advance alternatives on appeal; the

surprise addition of the Internet-access condition made

it impossible for Scott’s lawyer to formulate proposals in

time. And there were other possibilities. Scott obtained

the pictures from a newsgroup on the Usenet, one of many

services available on the Internet. The district judge

might have prohibited Scott from accessing newsgroups,

as opposed to the entire Internet. Or the judge might

have required Scott to install filtering software that

would block access to sexually oriented sites, and to permit the probation officer unannounced access to verify

that the filtering software was functional. Filtering software is imperfect and may block access to some sites that

lack the attributes sought to be put off limits (that’s a

premise of American Library Ass’n v. United States, 201

F. Supp. 2d 401 (E.D. Pa.) (three-judge court), prob. jur.

noted, 123 S. Ct. 551 (2002)) but is less restrictive than

blocking the whole Internet—and reliance on software

avoids any problem in giving discretion to a probation

officer, whose errors may be greater.

Knowledge that a condition of this kind was in prospect

would have enabled the parties to discuss such options

intelligently. Notice also would have afforded defense
No. 01-4340 3

counsel time to look up, and remind the district judge

about, 18 U.S.C. §3583(d)(2), which says that special

conditions of supervised release must entail “no greater

deprivation of liberty than is reasonably necessary for

the purposes” of sentencing articulated in 18 U.S.C.

§3553(a)(2)(B), (a)(2)(C), and (a)(2)(D). The judge did not

explain how the no-Internet condition could be thought

to entail “no greater deprivation of liberty than is reasonably necessary”. If Scott had used the Internet extensively to commit the crime of conviction, then perhaps

a ban might be justified. See United States v. Paul, 274

F.3d 155 (5th Cir. 2001); United States v. Crandon, 173

F.3d 122 (3d Cir. 1999). But here the only justification was

misbehavior that neither resulted in a conviction nor was

treated as relevant conduct, making an outright ban

difficult to justify. The sort of engagement that would have

been facilitated by notice to Scott’s lawyers could have

averted this problem.

So was notice required? The United States says not. In

the prosecutor’s view, Burns v. United States, 501 U.S. 129

(1991)—which holds that the judge or presentence report

must alert the defense to the possibility of an upward

departure from the Sentencing Guidelines—sets the outer

limit. A special condition of supervised release is not an

upward departure and that, the prosecutor contends, is

that. Yet Scott received the maximum sentence of imprisonment allowed by the Guidelines without a departure.

Making supervised release significantly more onerous

than the norm adds to the severity of punishment and

thus may be seen as a back-door form of departure. If

the Guidelines had permitted the judge to sentence Scott

to 60 months in prison, then a combination of 24 months

in jail plus 36 months of release under conditions no

more severe than imprisonment (prisoners can’t access

the Internet from their cells) would not require special

justification. Judges may choose middle grounds between
4 No. 01-4340

imprisonment and complete freedom. See, e.g., United

States v. Knights, 534 U.S. 112 (2001) (rejecting a challenge to a condition of supervised release requiring consent to search by a probation officer, given that there is

little privacy inside prison and imprisonment was a lawful alternative to conditional release). But what happened

here looks more like a departure, given that Scott received the maximum imprisonment in the prescribed range.

At all events, Burns does not hold or say that notice is

required only if the judge imposes a term of imprisonment that exceeds the Guideline range. Burns interprets

Fed. R. Crim. P. 32(c), which requires the probation officer

to prepare and distribute to the defense before sentencing a report recommending an appropriate disposition.

The Court concluded that Rule 32(c) affords the defendant notice about (and thus an opportunity to address) all

of the important options to be considered at sentencing.

An upward departure from the Guidelines is permissible,

Burns held, only if the defendant has some notice (from

the judge or the presentence report) of this possibility,

and thus can prepare to meet it. Exactly the same may

be said about unusual conditions of supervised release.

United States v. Angle, 234 F.3d 326 (7th Cir. 2000), holds

that Rule 32 requires notice of terms that are out of the

ordinary, and thus unexpected—and the United States

does not contend that Scott should have foreseen that

Internet access would be a subject of discussion at sentencing. So Scott is entitled to a new proceeding, at which

he can offer alternatives to a flat ban and the judge can

consider the application of §3583(d)(2).

When rethinking the terms of Scott’s supervised release, the court should do what is possible to adopt precise

rules. Terms should be established by judges ex ante, not

probation officers acting under broad delegations and

subject to loose judicial review ex post (when the prosecutor proposes to reimprison a person for failure to com-
No. 01-4340 5

ply with the probation officer’s directions). See, e.g., United

States v. Pandiello, 184 F.3d 682, 688 (7th Cir. 1999);

United States v. Ahmad, 2 F.3d 245, 248-49 (7th Cir. 1993).

Courts should do what they can to eliminate open-ended

delegations, which create opportunities for arbitrary

action—opportunities that are especially worrisome when

the subject concerns what people may read. Is the probation officer to become a censor who determines that Scott

may read the New York Times online, but not the version of Ulysses at Bibliomania.com? Bureaucrats acting as guardians of morals offend the first amendment

as well as the ideals behind our commitment to the rule

of law.

The rule of law signifies the constraint of arbitrariness in the exercise of government power. . . . It

means that the agencies of official coercion should,

to the extent feasible, be guided by rules—that

is, by openly acknowledged, relatively stable, and

generally applicable statements . . . . The evils to be

retarded are caprice and whim, the misuse of

government power for private ends, and the unacknowledged reliance on illegitimate criteria of

selection. The goals to be advanced are regularity

and evenhandedness in the administration of justice and accountability in the use of government

power.

John Calvin Jeffries, Jr., Legality, Vagueness and the

Construction of Penal Statutes, 71 Va. L. Rev. 189, 212

(1985). Instead of delegating a standardless power, the

judge should invite the probation officer to recommend

restrictions on Internet access designed to ensure that

Scott does not use his computer to commit additional

crimes while on supervised release. The judge then may

establish terms without a risk of arbitrary application.

Scott wants us to go further and say that limitations on Internet access cannot be justified at all, given
6 No. 01-4340

§3583(d)(2) and the first amendment. That is not a tenable

argument. Computers and the Internet may be used to

commit crimes, of which child pornography and fraud are

only two examples. Inveterate hackers who have used

access to injure others may be ordered to give up the

digital world. If full access posed an unacceptable risk of

recidivism, yet all controls on access were forbidden, then

a judge would have little alternative but to increase

the term of imprisonment in order to incapacitate the

offender. Few defendants would deem that a beneficial

exchange; most would prefer the conditional freedom of

supervised release, even with restrictions on using the

Internet, to the more regimented life in prison.

This is not to gainsay the point of United States v.

Sofsky, 287 F.3d 122, 126-27 (2d Cir. 2002); United States

v. Peterson, 248 F.3d 79, 82-84 (2d Cir. 2001); and United

States v. White, 244 F.3d 1199, 1206 (10th Cir. 2001), that

because the Internet is a medium of communication a

total restriction rarely could be justified. The Internet is

a vast repository, offering books, newspapers, magazines,

and research tools along with smut. A judge who would

not forbid Scott to enter a video rental store (which

may have an adult-video section) also should not forbid

Scott to enter the Internet, even though Disney’s web site

coexists with others offering filthy pictures or audio files

circulated in violation of the copyright laws. See A&M

Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

A judge who would not forbid a defendant to send or

receive postal mail or use the telephone should not forbid

that person to send or receive email or to order books

at Amazon.com. Scott does not have a record of extensive

abuse of digital communications that could justify an

outright ban. As the third circuit recently observed, when

limiting Crandon to situations of that kind, “a total ban

on internet access prevents use of email, an increasingly

widely used form of communication, and other common-
No. 01-4340 7

place computer uses such as getting a weather forecast

or reading a newspaper online. There is no need to cut

off . . . access to email or benign internet usage when a

more focused restriction . . . can be enforced by unannounced inspections of material stored on [the defendant’s]

hard drive or removable disks.” United States v. Freeman,

2003 U.S. App. LEXIS 196 *16-17 (3d Cir. Jan. 6, 2003).

What conditions short of a ban may be appropriate in

this case is a subject for the district judge to address in

the first instance.

VACATED AND REMANDED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-21-03