International Journal of Law and Information Technology Vol. 19 No.

3 © Oxford University Press 2011; all rights reserved

doi:10.1093/ijlit/ear004 Advance Access published on May 2 2011

Restricting access to the

internet by sex offenders

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Alisdair A. Gillespie*

Abstract
In recent years there has been a debate as to whether access to the internet
can now be considered a human right. If internet access is a human right
then this would raise the question as to whether it is possible to ever re-
strict an individual’s internet access or make it subject to limitations. One
area where individuals are currently the subject of limitations is child sex
offences where some internet offenders have access to the internet either
prohibited or subject to significant limitations. This article considers the
approach and legality of such restrictions by focusing on two jurisdictions;
England and Wales and the United States of America.

Keywords: internet access; human rights; sex offender; monitoring; denial

of access

I Introduction
The internet is a valuable resource that has transformed the way in which
we conduct business, education and social activities. It has an almost ubi-
quitous existence in the developed world1 but its use to facilitate crime
is also increasingly recognised.2 An area that has attracted considerable

* Professor Alisdair A. Gillespie, Professor of Criminal Law and Justice, Department of Law, De Montfort
University, The Gateway, Leicester, LE1 9BH. Telephone : +44(0)116 207 8181. Email: agillespie@dmu.ac.uk.
1
One source estimates that three-quarters of the North American and Western European population
has internet access <www.internetworldstats.com> (last accessed 23.3.11).
2
See, for example, I Walden Computer Crimes and Digital Investigations (OUP, Oxford, 2007) and Y Jewkes
and M Yar Handbook of internet Crime (Willan Publishing, Cullompton, 2009).

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 RESTRICTING ACCESS TO THE INTERNET BY SEX OFFENDERS

attention is the use of the internet to sexually exploit children,3 and re-
cently a discussion has ensued as to whether the harm caused by an indi-
vidual offender4 is such that it may be legitimate to limit the opportunities
for re-offending by restricting an offender’s access to the internet.5
This article considers the legality and human rights implications of
restricting access to the internet by those who commit an offence relating
to the sexual exploitation of children facilitated through the use of Infor-
mation and Communication Technologies. The first part of this article
considers whether a claim can be made that there is a right to access the
internet and, if so, under what human rights principle. The second part of
the article considers the jurisprudence of two jurisdictions to identify the
circumstances in which restrictions are made, the justification for which

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will be critically examined.

2 Internet access: a human right?

The first issue to consider is to what extent access to the internet can
be considered a human right. It may seem that this is an unusual ques-
tion to ask since, to many, it would be considered a classic example of a
private-law issue, but a 2010 BBC survey showed that four in five people
in the world consider internet access to be a fundamental human right.6
Of course the mere fact that people believe it should be a right does not
make it one but the perception of those asked within the survey would
appear to mirror academics and commentators who have begun to discuss
the possibility that access to the internet now amounts to a human right.7
The desire for internet access to be considered a human right is per-
haps representative of the shift in internet usage. Whilst at one time it
was used as a business research and communication tool or a social tool
allowing users to find information, it is gradually being seen as more than

3
See, for example, M Taylor and E Quayle Child Pornography: An internet Crime (Routledge, London,
2003); S Ost Child Pornography and Sexual Grooming: Legal and Societal Responses (Cambridge University
Press, Cambridge, 2009) and AA Gillespie Child Pornography: Law and Policy (Routledge, London, 2011).
4
For a discussion on the harm caused by the downloading and distribution of child pornography see
T Palmer ‘Behind the screen: Children who are the Subject of Abusive Images’ in E Quayle and M Taylor
(eds) Viewing Child Pornography on the internet (Lyme Regis, Russell House Publishing, 2005) 61-74 and Ost
and Gillespie (n 1). For a judicial recognition in England and Wales see R v Beaney [2004] 2 Cr. App. R.
(S) 82. The harm in grooming and solicitation cases are more direct and readily evidenced by the sexual
contact, see, in particular, Ost (n 1).
5
See, for example, R Card, M Hirst and AA Gillespie Sexual Offences (Jordan Publishing, Bristol, 2008)
para 18.49.
6
‘internet access is “a fundamental right”’ BBC News online, 8 March 2010 <http://news.bbc.co.uk/
1/hi/technology/8548190.stm> (last accessed 23.3.11).
7
Much of the recent discussion has concerned the suggestion in some countries to remove internet
access to those who deliberately and persistently infringe copyright. Whilst not strictly relevant to the dis-
cussion here, see for example, Jeremy Phillips ‘“Three Strikes”. . ..and then?’ (2009) 4 J Int P L & Prac
521-523 and Fanny Coudert and Evi Werkers ‘In the Aftermath of the Promusicae Case: How to Strike the
Balance?’ (2010) 18 Int J Law Info Tech 50-71.

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 ALISDAIR A. GILLESPIE

this, with it increasingly being seen as a fundamental part of democratic

society. Klang argues that ‘[t]echnology is making the practical implementation
of theoretical democratic ideas practicable’.8 Klang bases this statement on the
idea that, ‘a core value in democracy is the right of access to the social and demo-
cratic infrastructure’9 and that the internet, and related technologies, are an
intrinsic part of this infrastructure. Certainly there are those who would
agree with Powell and others noting that the internet ‘has become an increas-
ingly basic requirement of social inclusion and economic participation’.10 This fits
into democratic models of accountability that suggest, for example, that
there should be free access to the ‘public sphere’ where the state and its
citizens interact.11
This line of reasoning would seem to owe its origins to the issue of com-

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munication and the move towards recognising access to the internet could
be considered the re-ignition of previous attempts to recognise a general
right to communication.12 A right to communication would not simply
relate to content (which would arguably be better considered under ex-
pression) but would have a wider focus, including providing an obliga-
tion on the State to facilitate communication between society and protect
communication from arbitrary restrictions or control. Throughout the
1980s the issue of the right to communicate became controversial as it
was caught up in the geo-political ideological disputes between the East
and West.13 UNESCO, which had previously been pushing the communi-
cation-rights agenda, dropped the issue and there were concerns that any
right to communicate could be seen as a political instrument. However
the growth of modern communications technologies has reignited this
debate and issues such as access and equality of access14 have begun to be
raised once more.15
Communication and, in this context, communication involving tech-
nology, is considered an important principle. Esler argues, ‘[t]he right to
impart and receive information freely has long been a cornerstone of human rights

8
M Klang Disruptive Technology (Gothenburg University, Gothenburg, 2006) 233.
9
ibid., 161.
10
A Powell, A Byrne and D Dailey ‘The Essential internet: Digital Exclusion in Low-Income American
Communities’ (2010) 2(2) Pol & Int 161-192, 163.
11
Klang (n 8) 163 citing the work of Habermas and also see M Poster ‘Cyberdemocracy: The internet
and the Public Sphere’ in D Trend (ed) Reading digital culture (Blackwell Publishing, Oxford, 2001) 259-
271.
12
For a useful discussion on the history of this see CJ Hamelinks and J Hoffman ‘The State of the
Right to Communicate’ (2008) 7 GMJ 13(1) <http://lass.calumet.purdue.edu/cca/gmj/fa08/gmj-fa08-
hamelink-hoffman.htm> (last accessed 23.3.11).
13
See LB Movius ‘Global Debates on the Right to Communicate’ (2008) 7 GMJ 13(12) <http://lass.
calumet.purdue.edu/cca/gmj/fa08/graduate/gmj-fa08-grad-movius.htm> (last accessed 23.3.11).
14
See, for example, LA Lievrouw ‘Information and Equity’ (2005) 37 ARIST 499-540.
15
That said, some of the discourse still appears to be based on political theories such as social move-
ment and thus the debate has the potential to continue to be divisive at the international level: see Movius
(n 13) 8.

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 RESTRICTING ACCESS TO THE INTERNET BY SEX OFFENDERS

law, and of democratic theory’.16 The reference to imparting and receiving in-
formation has direct resonance with Article 19 of the Universal Declaration
of Human Rights, which provides:
‘Everyone has the right to freedom of opinion and expression; this right includes
the freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media regardless of frontiers’.
The Universal Declaration was written in the immediate aftermath of
World War II but there is general acceptance that it remains relevant
today in the internet era.17 Article 19 of the Universal Declaration is taken
to encompass two rights: the freedom of opinion and the freedom of ex-
pression.18 The freedom of opinion is considered to be an absolute right

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and protects the individual from holding an opinion without interference
from the State.19 The freedom of expression is related to, but distinct from,
the freedom of opinion and is not considered absolute.20 The freedom of
expression within Article 19 is considered to encompass the three modes;
seeking, receiving and imparting information. These modes of expression
demonstrate that the freedom of expression is not just about the idea
of expressing one’s opinions but rather it includes the right to find and
access information that could allow an opinion to be formulated.
Best argues that the wording of Article 19 and, in particular, its refer-
ence to the right to seek, receive and impart information, means that ‘[the]
internet, and thus access to the internet itself[,] has become a human right’.21 This
argument is premised squarely on the wording of Article 19 and the fact
that the internet has become a primary source of information meaning,
according to Best, that access to the internet is required to properly seek
and receive information.22 Certainly if one were to consider the various
uses of the internet it would seem that it could be argued that the internet
does allow a user to seek, receive and impart information. The internet,
particularly after the growth of Web 2.0,23 provides a platform for people
to express their opinions, post blogs or author their own web-pages. The
seeking of information is also easier with most agencies putting consid-
erable information on their website or maintain a presence on a social
network site. News media have taken to the internet considerably and

16
BW Esler ‘Filtering, Blocking and Rating: Chaperones or Censorship?’ in M Klang and A Murray,
Human Rights in the Digital Age (Glasshouse Publishing, London, 2005) 99-111, 99.
17
K Boyle ‘Thought, Expression, Association and Assembly’ in D Moeckli, S Shah and S Sivakimaran
International Human Rights Law (OUP, Oxford, 2010) 257-279, 266.
18
ibid.
19
ibid., 267.
20
ibid., 269.
21
ML Best ‘Can the internet be a Human Right?’ (2004) 4 HR & HW 23-31, 24.
22
ibid., 24.
23
T O’Reilly ‘What is Web 2.0? Design Patterns and Business Models for the Next Generation of Software’
(2007) 65 Communications & Strategies 17-37.

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 ALISDAIR A. GILLESPIE

most provide information ‘on-demand’. The growth of specialist search

engines mean that users find it increasingly easy to navigate the internet
and find complex and disparate information.

2.1 Identifying a positive obligation

Assuming that access to the internet can be considered to fall within Art-
icle 19 there remains a question as to the scope of any right. Rights that
place obligations on the State can ordinarily be divided into two forms;
those that impose a positive obligation and those that impose a negative
obligation.24 Whilst the exact distinction between these is beyond the
scope of this article, a positive obligation can be summarised as one that

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requires a state to take some action to uphold or provide the right, in this
context, ensuring that an individual has access to the internet. A nega-
tive obligation on the other hand obliges the State not to interfere with a
person’s right, in this context meaning that the State should not impede
a person’s access to the internet.
Ordinarily the obligation on the state is to respect a citizen’s rights25
which can be taken to mean that they should not interfere with the right
of a person to go about their legitimate business. Positive obligations or-
dinarily only arise where a person’s human rights could not be secured
without the State taking some positive action to uphold them.26 Whilst
Best would appear to suggest that Article 19 imposes a positive obligation
onto the State no evidence is adduced as to why this should be the case. It
would seem difficult to conceive Article 19 to impose anything other than
a negative obligation in terms of the internet. Whilst the language of the
Article does seem to suggest that the State should not unreasonably pre-
vent a citizen from seeking, accessing or imparting information it would
be a considerable leap to suggest that the State should actively provide the
ability to gain access to the internet. This would involve considerable ex-
pense and, in many countries, a requirement to address socio-economic
factors. It is unlikely that Article 19 was ever intended to compel States to
provide access to communication. Whilst some countries27 have legislated
in a way compatible with a positive obligation, i.e. to provide a legally-
enforceable right, few countries have done so28 and there would be major
obstacles in doing so. Indeed it can be argued that it would be peculiar for
24
F Mégret ‘Nature of Obligations’ in D Moeckli, S Shah and S Sivakimaran International Human Rights
Law (OUP, Oxford, 2010) 124-149.
25
ibid.,130.
26
ibid., 131-32.
27
Most notably Finland (see s.12, Constitution of Finland and related secondary legislation). It is some-
times said that Estonia has a positive right to internet access but in fact the right is to have free access to
information on the internet at public libraries (see Public Information Act and § 44 of the Constitution of
Estonia).
28
Indeed some countries (e.g. France) where it has been suggested that there is a constitutional right to
internet access it would actually seem that it is a negative rather than positive right (Decision No 2009-58 of
the Constitutional Council: An Act furthering the diffusion and protection of creation on the internet).

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 RESTRICTING ACCESS TO THE INTERNET BY SEX OFFENDERS

internet access to be a positive right when, for example, there is no posi-

tive obligation arising to access other communication methods.
What of other human rights instruments? Could a positive obligation
be found here? It will be remembered that Article 19 was premised, inter
alia, on the freedom of expression and perhaps two of the more obvious
alternative instruments would be the First Amendment to the Constitu-
tion of the United States of America and Article 10 of the European Convention
on Human Rights (ECHR). An advantage of both instruments is that they
are legally enforceable29 which contrasts with the Universal Declaration.30
Esler contends that the freedom of speech is without value if it cannot be
heard, ‘the prisoner shouting in his cell, or the hermit shouting on the mountain,
may have much to say, but their words have no impact without an audience’.31 The

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internet is certainly capable of providing people with a voice. It is known
that the internet has been used by, for example, political activists, and it
can be seen as a platform that allows for the evasion of censorship.32
The question then arises whether the First Amendment or ECHR can
be said to provide a positive obligation to secure access to the internet.
Whilst the US Supreme Court has held that the First Amendment does
provide a right of access to certain information33 this is ordinarily under-
stood as allowing the press to act as the fourth estate and not a general
right of access34 and it is perhaps notable that the First Amendment has
never been held to mandate, for example, public libraries,35 a place some
would argue is more obviously a place to seek information. It would seem
therefore that it would be difficult to found a positive right to access to the
internet within the US Constitution. What of the ECHR? It is well known
that the ECHR encapsulates both positive and negative obligations36 but it
does not follow that access to the internet would be considered a positive
right. It is perhaps notable that Article 10 does not, in contrast with Article
19 of the Universal Declaration, expressly provide a right to seek, receive
or impart information and indeed the European Court of Human Rights

29
With both the Federal and individual State governments being bound by the US Constitution and
signatory states being bound by the ECHR. In some countries, e.g. the United Kingdom, the ECHR is also
directly enforceable in domestic courts (Human Rights Act 1998).
30
This was never designed to be legally binding (J Rehman International Human Rights Law (2nd Ed,
Longman Publishing, Harlow, 2010) 79. Whilst the International Covenant on Civil and Political Rights is con-
sidered legally binding it is difficult to argue that it is directly enforceable by an individual (ibid., 108-9)
31
Esler (n 16) 99.
32
See, for example, GC Brenkert ‘Google, Human Rights and Moral Compromise’ (2008) 85 JBE 453-
78.
33
See, for example, Richmond Newspapers v Virginia 448 US 555 (1980).
34
PM Garry The New Media and the First Amendment (1994, Pittsburgh: University of Pittsburgh) 16, 84-94.
35
Indeed the First Amendment cases relating to libraries ordinarily concern not access to a library or
the positive obligation to establish libraries but rather a discussion about their power to censor access to
material contained within it, see for example, Board of Education, Island Trees School Union Free School District
v Pico 457 US 853 (1982) and US v American Library Association 539 US 194 (2003).
36
DJ Harris, M O’Boyle, EP Bates. and CM Buckley. Harris, O’Boyle & Warbrick’s Law of the European Con-
vention on Human Rights (2nd Ed, OUP, Oxford, 2010) 18-21.

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 ALISDAIR A. GILLESPIE

has held that Article 10 does not provide a right of access to information37
which would seem a precursor to any right of access to the internet.
It would seem therefore that it would be difficult to establish a human
right to universal access to the internet. Whilst it is conceded that some
countries have introduced legislation to mandate access, this would seem
to be individual action by countries for domestic reasons rather than a re-
sponse to a human rights obligation.

2.2 Identifying a negative obligation

The mere fact that a positive obligation cannot be identified does not of
course mean that internet access is not a human rights issue since it is

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quite possible and, as seen above, somewhat likely that a negative obliga-
tion may arise. Certainly a negative obligation would seem to exist on the
face of Article 19 of the Universal Declaration but what of the other instru-
ments? The First Amendment to the US Constitution is perhaps most
notable for its application as a negative obligation by preventing public
bodies from seeking to interfere with the right of free speech. This has
included the issue of whether schools and libraries can use filters on com-
puters equipped to the internet to prevent access to, for example, porn-
ography.38 It should be noted that the First Amendment is not considered
to be an absolute right, with the Supreme Court accepting that there are
a number of situations when it would not apply.39 It is also possible to
find a negative obligation within the ECHR. Article 10, as noted above,
provides for the freedom of expression and where, therefore, a restriction
to internet access that prevents an individual from posting information
or using a Social Networking Service would seem to establish a prima facie
breach.40
Whilst the discussion on identifying a right to access the internet has
been based until now on the freedom of expression/speech and, in par-
ticular, concepts relating to the acquisition and dissemination of infor-
mation, other rights may also be engaged. The most obvious right would
be that which affords protection from arbitrary interference by the State.
Within the ECHR this right can be found within Article 841 which provides
for the right to respect for private and family life, home and correspond-
ence. Prohibiting access to the internet could be considered to be an ar-
bitrary interference as ordinarily access is a lawful activity. Article 8 may
be engaged more directly depending on the type of restriction employed.
For example, where the restriction prohibits the offender from accessing

37
See, for example, Leander v Sweden (1987) 9 EHRR 433; Gaskin v United Kingdom (1990) 12 EHRR 36;
Guerra v Italy (1998) 26 EHRR 357.
38
(n 35).
39
See most notably Miller v California 413 US 15 (1973).
40
See Harris and others (n 36) 444-46.
41
Hokkanen v Finland (1994) 19 EHRR 139.

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 RESTRICTING ACCESS TO THE INTERNET BY SEX OFFENDERS

social networks, emails and messenger services then the application of

Article 8 would seem more likely since the Article has been held to in-
clude ‘the right to establish and develop relationships with other human beings
and the outside world’.42 It would not be difficult to show how email, social
networks etc. can be used to facilitate social relationships in this way.
The US Constitution also affords protection from arbitrary interference
although the protection is more limited. The Fourth Amendment states
that US citizens have the right ‘to be secure in their persons, homes, papers and
effects’ which has parallels to the wording of Article 8. However the protec-
tion under the US Constitution is not against arbitrary interference per se
but rather it is against ‘unreasonable searches and seizures’. Where therefore
the arbitrary action does not relate to a search or a seizure43 then the

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Fourth Amendment is not engaged.44
Where both the Fourth Amendment and Article 8 of the ECHR will
be directly engaged is in respect of situations where a person’s activities
are monitored, including situations where a computer is monitored, as
this would amount to an interference against ‘correspondence’ in Article
845 or ‘papers and effects’ within the Fourth Amendment. It will be seen
below that one form of restriction is for an offender’s internet access to be
monitored and subject to search46 and it would seem therefore that both
instruments would be engaged in such circumstances.
Neither Articles 8 and 10 nor the Fourth Amendment are absolute
rights. Articles 8 and 10 of the ECHR are expressly qualified by the word-
ing of Articles 8(2) and 10(2) which provide that interferences can be
justified where they are lawful, necessary, for a legitimate purpose and
proportionate. The Fourth Amendment expressly permits interference
where it is founded on a judicial warrant. However, perhaps more import-
antly the US Supreme Court has held that the Fourth Amendment is not
engaged where a person has reduced expectations of privacy.47 As will be
seen, this can be particularly relevant in this context.48

3 Legal restrictions
The preceding analysis has demonstrated that it can be stated that the re-
striction of an internet constitutes a human rights issue in that the State
has an obligation to not to arbitrarily interfere with access. However it

42
PG v United Kingdom (2001) 46 EHRR 51, [56].
43
For completeness it should also be noted that the Fourth Amendment also restricts the circumstances
under which a person can be arrested but this is not relevant in this context.
44
Cf the position under the ECHR: see most notably Hokannen v Finland (n 41).
45
On this see Copland v United Kingdom (2007) 45 EHRR 37, [41].
46
See 3.2 and 3.3 below.
47
US v Katz 389 US 347 (1967).
48
See also Griffin v Wisconsin 438 US 868 (1987).

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 ALISDAIR A. GILLESPIE

was also noted that this is not an unfettered right and thus the State can,
in appropriate, circumstances provide for restrictions. Two methods of
imposing restrictions have been identified from current cases. The first
relates to a specific order of the court. Whilst other jurisdictions do use
this method49 the focus here is on the law relating to England and Wales
on the basis that its jurisprudence in this area is most developed.50 The
second method of restricting access would be to impose restrictions or
conditions on the terms of an offender’s licence or parole upon release
from prison. Again to provide focus to this discussion, the focus will be on
the law relating to the United States of America51 where the jurisprudence
is developed52 although some other jurisdictions use this method.53
In terms of how the restrictions operate an analysis of the current cases

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would suggest that there are three forms that can be identified:
• Restrictions on the use of the internet or computer equipment that
is capable of connecting to the internet.
• Restrictions that require the use of monitoring software.
• Restrictions that require access by those in authority to the equip-
ment used by an offender.54
The three forms are not mutually exclusive and in many instances a com-
bination of these methods will be used so as to tailor the individual restric-
tions to the offender.

3.1 Restrictions on the use of the internet or computers connected

to the internet
The first type of restriction that has been imposed is the most draconian
and is addressed at preventing offenders from using in whole or in part the
internet. One of the earliest cases to consider restrictions on the internet

49
For example, the State of Western Australia (see s.87, Community Protection (Offender Reporting) Act 2004
and Commissioner of Police v PJC [2010] WADC 135).
50
Sections 104-113, Sexual Offences Act 2003 permits a court to impose a sexual offences prevention order
(SOPO) which is an injunctive order allowing a court to impose prohibitions on an offender, breach of
which amounts to a criminal offence.
51
Only Federal law will be considered here because offences relating to child pornography are mainly
prosecuted under Federal law as this applies where the conduct takes place through the mail, interstate
or foreign commerce (18 USC § 2252A). In US v Hornaday 392 F3d 1306 (11th Cir, 2004) the US Court
of Appeals said ‘the internet is an instrumentality of interstate commerce’ (at 1311)). See also US v Rayl 270 F3d
709 (8th Cir, 2001) at 715. 18 USC § 3583 permits special conditions to be imposed on an order for parole.
52
For example, in none of the Australian cases cited below is the legitimateness of the restriction con-
sidered by the courts, the right of the court to do so is just assumed.
53
For example, New South Wales, Australia (see, for example, The State of NSW v Fisk [2009] NSWSC
778 and State of NSW v Johnson [2010] NSWSC 590) and also the State of Queensland (A-G for the State of
Queensland v PHG [2010] QSC 406).
54
This is not a restriction per se although it could be construed as one since it does, in essence, restrict
the freedom of the offender to use the internet freely as (s)he will always be aware that their browsing
history and downloads will be subject to scrutiny by those in authority.

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was US v Crandon55 where the Third Circuit Court of Appeals was asked to
consider a parole requirement not to ‘possess, procure, purchase or otherwise
obtain access to any form of computer network, bulletin board [or] internet. . .unless
specifically approved by the US Probation Office’.56 The offender was convicted
of receiving child pornography which the court held was reasonably
related57 and whilst they accepted that it could have an impact on his
employment, the Court noted that the First Amendment did not pre-
clude the condition because it was a necessary part of his rehabilitation.58
This was followed shortly afterwards by the decision of the Fifth Circuit in
US v Paul.59 This concerned an offender who was found guilty of possess-
ing child pornography and who was subject to a parole condition that
he was not to possess or have access to ‘computers, the internet, photographic

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equipment. . ..or any item capable of producing a visual image’.60 The Court
accepted that ‘computers and internet access have become indispensible communi-
cation tools. . .and such restrictions. . .would prohibit him from accessing computers
and the internet for legitimate purposes, such as word processing and research’61
but again held that the First Amendment was not engaged although they
noted that the offender had not shown how his life had been impacted,
leaving open the possibility that where impact could be shown a different
result may arise.
Other Circuits have been less prepared to accept that such conditions
are valid. An important case in this regard is US v White62 which also con-
cerned a child pornography offence. The offender was subject to a con-
dition that he ‘shall not possess a computer with internet access throughout his
period of supervised release’ but argued that this was disproportionate be-
cause he was writing a book and the prohibition would therefore breach
his rights under the First Amendment.63 Interestingly the offender did
not argue he should not be subject to any restriction but rather that his
restrictions should be tailored to the risk that he posed, most notably the
fact that he may visit illegal websites. The court noted that the prohibition
as drafted would not prevent the offender from accessing the internet
but rather would capture the possession of equipment that was capable of
accessing the internet64 implying that the District Court had not achieved
what it had intended. The Court of Appeals ultimately decided that the
prohibition could prevent the offender from ‘using a computer at a library to

55
173 F3d 122 (3rd Cir, 1999).
56
ibid., 127.
57
This is an important consideration: conditions on approval are not punitive but are instead rehabili-
tative and thus must be connected to the offence, see US v Peterson 248 F3d 79 (2nd Cir, 2001).
58
173 F3d 122, 128.
59
274 F3d 155 (5th Cir, 2001).
60
ibid., 167.
61
ibid., 168.
62
244 F3d 1199 (10th Cir, 2001).
63
ibid., 1205.
64
ibid.

174
 ALISDAIR A. GILLESPIE

do any research, get a weather forecast, or read a newspaper online’ and that this
meant the condition went further than necessary.65 The Court believed a
more proportionate response would be to use other limitations or restric-
tions, including the use of monitoring software. This decision was followed
by the Second Circuit who similarly agreed that the total prohibition of
internet access could not be readily justified.66
In England & Wales a similar position arose in the early days. One of
the first cases to look at this issue was R v Beaney67 which concerned an
offender who had accessed child pornography and who was made the sub-
ject of an order that prevented him from ‘owning, using, possessing or having
access to any personal computer, laptop, computer or any other equipment capable
of downloading any material from the internet’.68 The prohibition was upheld

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as being necessary although it is to be doubted that a similar condition
would be upheld today as the courts have begun to realise, quite prop-
erly, the importance of the internet and the fact that a blanket ban on its
use would be difficult to justify. In R v Williams69 the Court of Appeal was
asked to consider an order that prohibited the offender from possessing
or using any electronic device that was capable of facilitating access to the
internet. The Court amended the order noting that the prohibition could
prevent the offender from securing most types of employment which
would be disproportionate and arguably harmful to his rehabilitation.70
The courts started to focus on the impact that prohibitions could have
and began to phrase the restrictions in a way that minimised the risk that
legitimate activities would be prohibited. In R v Hemsley71 the Court of
Appeal upheld a prohibition phrased as ‘not to use the internet for any pur-
pose other than seeking employment, study, work, lawful recreation or the purchase
of goods or services’.72 This would seem to be a tighter prohibition but it does
lead to the question about what the point of any such order is. The order
in Hemsley prevents the offender from doing something that does not re-
late to employment, study, work or lawful recreation. The latter term is ex-
tremely wide and could be construed as encompassing all lawful activities,
meaning that the offender is only prohibited from undertaking illegal ac-
tivities. If that is the case then it must be questioned what the point of the
order is. An offender does not need to be restrained from doing illegal
actions, the criminal law should do this. If this is the only risk an offender
poses then it would mean that it may be more appropriate to use alterna-
tive restrictions, for example monitoring.73

65
ibid., 1206.
66
See US v Sofsky 287 F3d 122 (2nd Cir, 2002).
67
[2004] 2 Cr App R (S) 82.
68
ibid., 444.
69
[2009] EWCA Crim 1034.
70
ibid., [12].
71
[2010] EWCA Crim 225.
72
ibid., [11].
73
On this see the decision in R v Mortimer [2010] EWCA Crim 1303 below.

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 RESTRICTING ACCESS TO THE INTERNET BY SEX OFFENDERS

The approach of the English courts to restricting personal use can be

contrasted with the approach in the USA where, for example, the Seventh
Circuit Court of Appeals has upheld a parole condition that targeted only
the personal use of the internet.74 The Court considered the condition
to be proportionate because it did not, for example, interfere with the
offender’s employment and, depending on how the term ‘personal use’
is construed, study. Of course it would raise significant difficulties for an
offender who wishes to, for example, use an ebook reader75 or online
shopping. The US prohibitions usually relate to not using a computer
without the permission of the probation service and of course it could be
thought that this might additional protection since a probation officer
would not prevent an offender from using the internet for a legitimate

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purpose but this is reliant on the probation officer acting reasonably.76
Whilst it must be conceded that the courts in both England & Wales
and the USA have begun to temper their approach as to the total pro-
hibition on use, there does seem to be some inconsistency as to their
approach. Perhaps a better approach would be to tailor the restriction
to the potential harm. Thus where a person is considered to be a risk of
downloading abusive images of children for the purposes of sexual gratifi-
cation a more appropriate restriction (where the necessity can be shown)
would be to prevent the offender from downloading images of children
without the permission of that child’s parent77 or accessing websites that
contain sexualised material relating to children.78 Where the concern is
that an offender has been communicating inappropriately with a child or
attempting to ‘groom’ or ‘lure’ a child then they could be prevented from
using a communications device to contact a child or, if the necessity could
be shown, prevented from using a social networking site or particular type
of communications media. In this way the restrictions are designed spe-
cifically to target the risk of harm an individual poses.
One issue that has been discussed by the courts in England & Wales is
the issue of collateral consequences. In R v Beaney79 the Court of Appeal
was concerned that the original wording of the order could have the im-
pact of preventing the offender’s spouse or children from accessing the
internet.80 This is an important point and one that should be considered
carefully by the courts. Whilst it may be justified to restrict an offender’s
access to the internet, it cannot be justified to restrict the access of those
members of the household who have not committed a crime. Thus where

74
US v Angle 538 F3d 352 (7th Cir, 2010).
75
Which relies on an internet connection to purchase and transfer books.
76
On this see US v Crune 422 F3d 728 (8th Cir, 2005).
77
On this see R v Mortimer [2010] EWCA Crim 1303 at [15].
78
US v Thielemann 575 F3d 265 (3rd Cir, 2009). This may include not only sites that contain photographs
of child pornography but also discussion sites or text-based stories devoted to the sexual abuse of children.
79
(n 67).
80
ibid.447.

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 ALISDAIR A. GILLESPIE

an offender remains in the family home then it is more likely that more
specific restrictions will be required together with the use of monitoring
to ensure compliance.

3.2 Restrictions that require the use of monitoring software

The second form of restrictions is that which relate to the possibility
that the offender’s internet use can be monitored. Whilst it is possible
to monitor a person’s use of certain services covertly81 it will be seen that
most of the restrictions relating to monitoring involve the overt moni-
toring of an offender’s computer, device or use of a particular internet
service. This restriction may be used in conjunction with the first type of

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restriction (in that monitoring could assist in identifying breaches of a
prohibition) or it may be used instead of a restriction on the internet. For
example, where an offender has been convicted of downloading or access-
ing child pornography then it is quite possible that instead of being pro-
hibited from accessing the internet, the offender could have their internet
use monitored so that attempts at reoffending are detected quickly. This
may be particularly helpful if an offender was prevented from accessing
a certain part of the internet (e.g. certain newsgroups or a known child
abuse website) then monitoring could assist in identifying any attempt by
an offender from accessing those services.
There are different ways in which an offender could be the subject of
monitoring. Some forms of software are simply derivatives of filtering or
‘parental control’ software that is commercially available. Other forms
are more tailored. The use of monitoring software in England and Wales
developed in a controlled way, with an initial pilot being conducted by the
Lucy Faithful Foundation, a leading child protection charity, in co-operation
with a private software company and a small number of police and pro-
bation authorities.82 The software used in the pilot was sophisticated and,
along with monitoring their browsing history (which is a common way of
monitoring internet use), would also monitor the use of the keyboard for
pre-defined terms.83 The latter is an interesting use of the software since
technology that focuses solely on an internet browser can be evaded by
other communication technologies, for example, Peer-to-Peer or even so-
cial networking sites. However by monitoring the keyboard, rather than
the browser, then all software is monitored and the emphasis is on what
the offender is typing irrespective of its context. Keyword monitoring
could be considered draconian in that it captures all text that is entered
but the essence of the monitoring is not that all the language is saved

81
AA Gillespie ‘Regulation of internet Surveillance’ [2009] EHRLR 552-65.
82
IA Elliot, D Findlater and T Hughes ‘A review of e-safety remote computer monitoring for UK sex
offenders’ (2010) 16 JSA 237-248.
83
ibid., 239.

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 RESTRICTING ACCESS TO THE INTERNET BY SEX OFFENDERS

and later analysed, but rather that certain key phrases are fed into the
software and if it detects the use of these words then an alert is generated
otherwise the text is ignored. Even when an alert is generated it does not
mean that the offender has breached any restrictive order, merely that
their use of the computer needs to be examined, including as part of a
risk-management strategy.
The pilot was premised on offenders voluntarily agreeing to have the
software installed on their computer84 although after the pilot was com-
pleted consideration has been given to requiring their use85 and Surrey
Police obtained five court orders to do this.86 The Court of Appeal has not
expressly considered the use of such terms although in R v Thompson87 the
Court implicitly approved of their use. However it is questionable whether

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that case provides any real authority since no analysis was made on the
justification for such a term. That said, it is unlikely that the inclusion
of such a term would be problematic in appropriate cases so long as the
necessity and proportionality of the restriction can be satisfied.
A derivative of this type of restriction would be to use the in-built history
or cache contained within the computer or other device. An example of
this can be seen from R v Mortimer88 where the Court of Appeal upheld an
order that prohibited the offender from:
using any computer, iPhone or mobile telephone capable of accessing the internet,
which computer, iPhone or mobile telephone does not have the capacity to retain
and display the history of internet use; and from making any attempt to delete
such history on such device.89
Obviously this is a less onerous restriction than the use of, for example,
full monitoring or filtering software and may be suitable where an offender
poses a lower risk (although the necessity of making an order must still be
shown). Of course it would be relatively easy to evade such a restriction
but it should be remembered that breaching the condition is culpable in
its own right and it is not necessary to detect the offender doing some-
thing illegal. Accordingly where it can be shown that an offender has cir-
cumvented the cache (something that is technically possible using covert
powers90), or has deleted an entry from the history then that would be
culpable in its own right.
The USA has also adopted the position that the use of monitoring
internet access can be justified either in addition, or as an alternative,
to denying access to the internet or part thereof. It will be remembered

84
ibid., 241.
85
ibid., 244.
86
ibid., 246.
87
[2009] EWCA Crim 3258.
88
[2010] EWCA Crim 1303.
89
ibid., [15].
90
See the discussion in Gillespie (n 81).

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 ALISDAIR A. GILLESPIE

from the previous section that the possibility of monitoring an offender’s

access to the internet was one reason why some Federal Court Circuits
had decided that an outright prohibition on accessing the internet could
not be justified.91 A good example of the express approval of the use of
monitoring software can be found in US v Miller92 where a condition of the
licence was to ‘submit to the monitoring of his software and to allow the installa-
tion of any hardware or software which monitors or filters his computer use.’93 The
Third Circuit Court of Appeals accepted its validity as both tailored and
reasonable.94 Certainly implicit within the decision is the fact that it is less
draconian than an absolute prohibition on access.
Some courts have decided that a monitoring condition is less draconian
than a prohibition and that unless an offender poses a particular risk,

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then monitoring should be used first and that a denial of access can only
be justified where the offender seeks to circumvent the monitoring soft-
ware.95 There is an obvious logic behind such an approach as it is easier to
justify a prohibition where a less draconian method has been attempted
initially.
Whilst the use of monitoring software may be less restrictive than pro-
hibiting an individual from the use of some or all of the internet, the
monitoring of a person’s activities could itself act as an interference with
a person’s human rights.96 In US v Goddard97 an interesting question
arose as to which computers should be monitored and to what extent this
allowed the offender free access to the internet. The offender had been
convicted of the possession of child pornography and was in employment
and used a computer at work although he also had a computer at home.
The probation service wanted his internet activity monitored but there
was the question as to how this could be done at work and to what extent
it would be permissible to do this. The Ninth Circuit Court of Appeals
decided that it would not be appropriate to monitor the work computer
and instead imposed a condition on his parole that prohibited him from
using his work computer for personal use.98 Of course this does raise the
question on how the prohibition is to be policed. Where the employer
is informed of the restriction then this is perhaps easier to police as the
employer may decide to check the cache or history file to see whether
there has been personal use. However not every employer will necessarily
know of the restriction or even the offence, especially in countries where

91
See, for example, US v Sofsky (n 66).
92
594 F3d 172 (3rd Cir, 2010).
93
ibid., 185.
94
ibid., 187.
95
See US v Johnson 446 F3d 272 (2nd Cir, 2006) where an offender who refused to comply with a require-
ment that he permitted his usage to be monitored was prohibited from accessing the internet.
96
See the discussion on the place of privacy in this context (n 41) and associated main-body text.
97
537 F3d 1087 (9th Cir, 2008).
98
ibid., 1091.

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 RESTRICTING ACCESS TO THE INTERNET BY SEX OFFENDERS

there is a presumption against disclosing the identity of convicted child

sex offenders. A key issue in future cases will be the risk that an offender
poses. For example, some employers will routinely filter or screen internet
access by employees in which case it is unlikely that an offender will access
illegal or inappropriate images at work. Other factors to consider would
include whether the offender works in an open office where many people
could see what he is doing: again this is likely to minimise his opportunity
to reoffend at work which makes monitoring there less easily justifiable.
The issue of risk assessment is also demonstrated by the case of US
v Lifshitz99 which concerned an offender who had been convicted of re-
ceiving child pornography. Amongst the conditions of his release was
that his internet usage should be monitored and the Second Circuit

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Court of Appeals discussed the various ways that this could be achieved
and held that the more intrusive methods could only be justified where
the risk justified this.100 Of particular interest was the fact that the Court
expressly suggested that this included questioning whether filtering ra-
ther than monitoring would suffice to prevent, for example, an offender
from accessing prohibited material.101 That said, the court also conceded
that the ability of an offender to circumvent filtering or other technolo-
gies must be relevant in deciding what the appropriate condition would
be.102 This decision has not been followed by other Circuits and some
courts note that it has been held that it is not constitutionally necessary
to adopt the least intrusive method,103 with the Supreme Court holding
that responses should be ‘reasonable’.104 The logic of this approach is that
a never-ending argument about which power is least intrusive would lead
‘to inseparable barriers to the exercise of virtually all. . .powers’.105 The same
approach is not adopted in England & Wales where the concept of pro-
portionality inherent within the Human Rights Act 1998 is often to taken to
mean that the restriction should not be merely desirable but go no further
than is necessary.106
US v Goddard107 also raised the important point of not drafting condi-
tions in a way that inevitably leads to breach. The offender in Goddard was
under a restriction to only update software with the prior permission of a
probation officer but as the court noted, this could lead to the offender
unintentionally breaching the condition since some software packages
update automatically without any action on the part of the user.108 The

99
369 F3d 173 (2nd Cir, 2004).
100
ibid. 191.
101
ibid. 193.
102
ibid. 192.
103
Board of Education of Independent School District No 92 of Pottawatome County v Earls 536 US 822 (2002).
104
ibid., 2569.
105
ibid.
106
Harris and others (n 36) 349-359.
107
(n 97).
108
See the discussion at 537 F3d 1087, 1090.

180
 ALISDAIR A. GILLESPIE

reasoning of the probation service was legitimate – to prevent the offender

from loading or updating software onto the computer that would lead to
the circumvention of the monitoring software – but it is important that
prohibitions are capable of being complied with. The solution of the
Court was to construct the condition to mean that an offender could not
deliberately update his computer without the permission of the Probation
Service, i.e. consciously decide to update software or load new software
onto the machine.

3.3 Restrictions that require access to equipment

The third type of restriction relates to requiring an offender to permit

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the inspection of their equipment. The ordinary condition is that the
authorities are permitted to have access to the physical computer equip-
ment to inspect it (including the ability to check the cache or monitoring
software has not been tampered with). In addition to this it will be seen
that some courts have wrestled with the question as to whether there is a
right of entry into a person’s private property in order to gain access to
equipment.
There have been few cases that have discussed access to equipment in
any depth which is perhaps surprising since there have been a number of
cases that have approved the monitoring of internet access.109 In England
& Wales it will be remembered that the monitoring process adopted by
the Lucy Faithful Foundation primarily operated on the basis of consent and
accordingly the agreement that exists with the offender would address
the issue of access. Where monitoring is by order of the court then that
order must identify to what extent the relevant authorities have access
to the computer equipment. An example of when the courts considered
this issue is R v Mortimer,110 a case discussed earlier. The offender was the
subject of an order that prohibited him from using a computer or mobile
telephone that ‘does not have the capacity to retain and display the history of
internet use; and from making any attempt to delete such history on the device; and
from refusing to show a history to a police officer if so requested’.111 The wording
of this prohibition112 thus permits the police the authority to ask to see
the recorded history but it does not expressly give the police any power
to gain access to the equipment other than with the acquiescence of the
offender113 and it is not clear how access is negotiated. For example, whilst
Mortimer requires an offender to provide access to the history could this

109
Discussed in the previous section.
110
(n 82).
111
ibid., [15].
112
Which was approved of by a differently constituted Court of Appeal in R v Joslin [2010] EWCA Crim
2430.
113
Refusing access to the police may amount to breach (which amounts to a criminal offence: s.113,
Sexual Offences Act 2003) but even that does not automatically grant access to the equipment.

181
 RESTRICTING ACCESS TO THE INTERNET BY SEX OFFENDERS

be achieved through appointment or through the offender taking the ma-

chine to the police station rather than the police attending the offender’s
home?
Some courts have attempted to give the police a broader power by, for
example, giving them access to a home by including a prohibition not to
refuse access to the premises.114 The courts have adopted an inconsistent
approach to this power. In R v Lewis115 the Court described such an order
as ‘an intrusive and unjustified condition’116 but in R v Hicks117 the Court of
Appeal approved such an order although this was arguably to do with
the particular circumstances of the case, with the court noting that the
offender posed an extremely high risk of harm.
The latest decisions of the Court of Appeal adopt a sceptical approach

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to a power of entry. The Court is concerned that, in essence, such a re-
quirement confers on the police wide powers of entry, search and seizure;
powers that are considerably greater than that which would ordinarily be
conferred upon them without a warrant.118 This is particularly important
when it is remembered that a sexual offences prevention order lasts a
minimum of five years119 and so an order permitting access to the police
would allow for a long-term power to enter property at will without any
further judicial oversight. It is perhaps this that has caused the greatest
disquiet with the Court of Appeal stating:
‘[Orders] should not create a situation in which police powers of search and
seizure are extended with none of the procedural safeguards which usually and
importantly regulate the exercise of such powers.’120
This is a crucial point. The power as approved in, for example, Hicks
does not state what threshold is required for the police to demand entry
nor does it explain how frequently such entry could be made.121 An issue
that has not yet been specifically addressed by the courts is the fact that an
alternative power does exist for the police where they wish to gain access
to property. Section 96B, Sexual Offences Act 2003 empowers an officer of
at least the rank of Superintendent to make an application to the mag-
istrates’ court for a warrant allowing them to enter the private prem-
ises of a registered sex offender in order to, inter alia, search them. The
grounds for an application under s.96B require that the police have been

114
The ability to gain access has to be framed in the negative since a sexual offences prevention order
can include only prohibitions and not requirements.
115
[2007] EWCA Crim 3393.
116
ibid., [10].
117
[2009] EWCA Crim 733.
118
See, in particular, the comments of the Court of Appeal in R v Thompson [2000] EWCA Crim 3258,
[24].
119
s.107(1)(b), Sexual Offences Act 2003.
120
R v Hemsley [2010] EWCA Crim 225, [5].
121
Although as it would amount to an interference with a person’s rights under Article 8 excessive visits
would be actionable under the Human Rights Act 1998.

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 ALISDAIR A. GILLESPIE

refused access to the premises on at least two occasions. Of course there is

the risk that between the initial refusal of access and the subsequent grant-
ing of a warrant that the offender could delete illegal content or otherwise
cover up his illicit activities. Where there is a substantial risk that this may
occur then it is conceded that the use of a sexual offences prevention
order granting the police permission to enter premises could potentially
be justified. However such occasions will be rare. It will be remembered
that a monitoring requirement will frequently include a prohibition on
modifying the software, switching off the cache or otherwise interfering
with the history function. Such modifications could be detected and the
mere fact that this happens is sufficient for an offender to be in breach of
an order irrespective of whether the specific illicit activity can be detected.

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Save where the offender poses a very high risk it is difficult to see how
s.96B and a direction along the lines of Mortimer would not suffice.
What of the USA? Interestingly there have been fewer cases specifically
relating to access. As noted earlier, any restriction on the use of the internet
is founded on the conditions of an offender’s parole. The ordinary rules
governing the offender’s probation are likely to cover, for example, access
to the offender and potentially his premises. The US Supreme Court
has noted that a person subject to probation has a more limited right to
privacy and this can include, for example, the right of the probation au-
thorities to search premises without a warrant.122 To that extent it could
be argued that the US system is more permissive since, as noted above,
access to an offender’s premises in England & Wales requires either a con-
dition to be expressly placed on the order (which the courts are becoming
increasingly reluctant to do) or a warrant under s.96B, Sexual Offences Act
2003. However this conclusion would not necessarily be fair as the US
provisions do stipulate a threshold for searches. Whilst an offender has
reduced expectations of privacy and therefore probable cause123 need not
be shown a threshold clearly remains:
‘A search. . .[may] be conducted when the officer believes such a search is neces-
sary in the performance of his duties, and must be reasonable in light of the total
atmosphere in which it takes place.’124

The threshold of reasonableness was confirmed by the Second Circuit in

US v Lifshitz125 where the Court of Appeals noted that the Fourth Amend-
ment protected individuals from ‘unreasonable searches and seizures’.
The concept of reasonableness was explained by the Chief Justice of the
Supreme Court in US v Knights:126

122
See, most notably, Griffin v Wisconsin 483 US 868 (1987).
123
The usual threshold for criminal justice action.
124
US v Oakes 2001 WL 30530 (D.Mc.).
125
369 F3d 173, 178
126
534 US 112 (2001).

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 RESTRICTING ACCESS TO THE INTERNET BY SEX OFFENDERS

‘. . .the reasonableness of a search is determined by assessing, on the one hand,

the degree to which it intrudes upon an individual’s privacy and, on the other,
the degree to which it is needed for the promotion of legitimate governmental
interests.’127
Accordingly it is clear that a central feature of reasonableness is the
protection from arbitrary action by the State, at least in terms of searches.
It was seen already that in England & Wales there is a requirement of rea-
sonable suspicion in order to obtain a warrant under s.96B, Sexual Offences
Act 2003 but where the entry/search requirement is included within a
sexual offences prevention order then it would seem that no express
threshold exists for the search and thus an offender may have less protec-

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tion. However the order cannot be considered in isolation and it should
be recalled that an entry or search would amount to an interference with
Article 8 of the ECHR and according the issue of proportionality becomes
important.128
A central feature of proportionality is the mere fact that an action is
lawful does not by itself provide sufficient justification for its use and, in
this context, it would mean that the police would need to show a need to
conduct each entry or search. This would require the police to consider
why they wish to enter the premises, what alternatives there may be (in-
cluding, for example, attempting to arrange access to the equipment by
agreement) and what, if any, evidence exists that leads them to believe it
is necessary to undertake the search. In this way it would seem that even
when the entry requirement is under a sexual offences prevention order
some protection from arbitrary searches exists.

4 Conclusion
Where online criminal conduct causes harm to an individual it can be
questioned whether someone who has breached the criminal law, and who
risks causing further harm by breaching the criminal law again, could have
their internet access curtailed to prevent a reoccurrence of that harm. The
analysis in the first part of this article concluded that it is not currently
possible to identify a positive right to internet access in International law
although it is highly likely that a negative obligation – i.e. preventing a
State from arbitrarily interfering with internet access – does exist. The do-
mestic law of both the USA and England & Wales does appear to replicate
this negative obligation in that the presumption appears to be that access
to the internet is ordinarily a lawful activity. However in both countries
this access can be the subject of restrictions, but it has been seen that how
these restrictions operate is not fully settled in either jurisdiction.

127
ibid., 587.
128
As the police must act in a way compatible with the ECHR: s.6, Human Rights Act 1998.

184
 ALISDAIR A. GILLESPIE

There would seem to be a subtle difference in approaches between

the jurisdictions in terms of how they approach any such restrictions.
It must be conceded, however, that this is in part because the US Fed-
eral Courts system itself adopts an inconsistent approach, with different
Circuits adopting significantly different positions as to any restrictions.
In the USA the general position is that restrictions must be ‘reasonably
related’ to the crime rather than addressed specifically to the conduct of
an offender, and this has meant that restrictions tangential to the crime
have been approved.129 The position in England & Wales is very different.
In England & Wales where it has been held that restrictions are subject to
a strict test of necessity, with the courts striking down restrictions where
they believe that the crime or behaviour does not show their need rather

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than their desirability.130
The early approach of both jurisdictions was to ban offenders not only
from the use of the internet but also access to equipment that is capable
of accessing the internet. It is perhaps understandable that the courts
adopted this approach but it is submitted that it would be difficult to jus-
tify this approach now. The internet has become a ubiquitous part of our
lives now, both socially and at work. A total prohibition on the use of the
internet would make life difficult and even if it was phrased as intentional
access (so as to preclude technical breaches such as where, for example,
a person purchases a rail ticket or other automated transaction that uses
internet capability) it would still lead to the position where many jobs
could not be undertaken or even legitimate study. For example, a student
at my own university would not be able to complete his or her course
without access to the internet since most learning materials and many
journal articles are now accessed by using the internet. Prohibiting access
to equipment capable of accessing the internet would be even more prob-
lematic since this would automatically prevent the offender from owning
any laptop or netbook (which automatically come with wi-fi capabilities)
and most desktop computers. It would also prevent them from using virtu-
ally any modern mobile telephone and possibly even modern digital tele-
vision services, many of which allow access to the internet. Whilst it may
be unwise to say that a prohibition can never be justified (as there may
be certain offenders who pose an extremely high risk) it should be very
much the exception. This appears to be the case in England & Wales but
it was seen that courts on some Circuits of the US Federal system continue
to impose prohibitions on the use of the internet.131 It is submitted that
it would seem inevitable that at some point this will have to be addressed

129
Perhaps a good example of this is US v Paul (n 59) where an offender who was convicted of accessing
child pornography was prohibited from owning a camera even though there is no evidence that he had
ever taken photographs of children.
130
See, for example, R v Collard [2005] 1 Cr App R (S) 34; R v Hammond [2008] EWCA Crim 1358.
131
See, for example, US v Koch 625 F3d 470 (8th Cir, 2010).

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 RESTRICTING ACCESS TO THE INTERNET BY SEX OFFENDERS

by the US Supreme Court who will need to decide the proportionality of

these restrictions in modern society.
It was argued earlier that a better approach would be to tailor any re-
striction to the particular risk an offender poses. Some courts have begun
to do this but there is scope to be more intelligent in how restrictions
are tailored (with particular emphasis on the types of technology and be-
haviour that creates the risk). Realistically prohibiting access, even in a
limited capacity is a very draconian step and thus less intrusive methods
are likely to be more readily justified. In both the USA and England &
Wales attention has increasingly been turning to the use of monitoring
or, in some instances, filtering technologies. Of course a particular issue
with monitoring requirements is the extent to which they can be policed,

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and this was discussed above. It will be remembered that whilst there are
difficulties in this, it is not impossible to monitor internet access, and the
mere fact that something is difficult to police should not mean that more
draconian measures should be justified. That said it must be accepted
that policing the conditions can be problematic and there is an obvious
research gap in ascertaining the feasibility of policing any restrictions.
The possibility of restricting internet access is extremely controversial,
something notable from the current debate surrounding copyright viola-
tions.132 Governments probably believe that there will be less sympathy
where an offender is a sex offender, especially where a real risk of harm
can be shown, but it remains incumbent on countries to act in a propor-
tionate way. Whilst England & Wales and the United States of America
have the most developed system of restrictions, other countries are look-
ing at this issue closely, most recently Canada.133 The debate about the
legitimateness of restrictions would seem likely to continue.

132
(n 7).
133
See Bill C-54 (Protecting Children from Sexual Predators Bill) and in particular see cl.26(2)

186