##########   |##########   |###          |   THE DOCUMENT CASE#######      |#######      |   A collection of briefs, judgments###          |   white papers, rulings, and references of##########   |   moment to the issues of law and order on##########   |   The Electronic Frontier             |##########   |##########   |###          |  Document #: 1#######      |  Title: EFF Amicus Brief in U.S. v. Riggs#######      |  challenging computer-use prohibition###          |  in "hacker" defendant's sentencing###          |  Archived/Published to the Net: May 23, 1991###          |  Filename: riggs.brief             |##########   |##########   |  Anonymous ftp archive maintained by###          |  Mike Godwin and Chris Davis at#######      |  The Electronic Frontier Foundation (eff.org)#######      |###          |  These files are in the "docs" subdirectory###          |  of the ftp directory. Related files may be###          |  found in the EFF and SJG subdirectories.IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUITNO. 90-9108NO. 90-9129UNITED STATES OF AMERICA						   Plaintiff-Appellee,v.ROBERT J. RIGGS						   Defendant-Appellant.A DIRECT APPEAL OF A CRIMINAL CASE>FROM THE UNITED STATES DISTRICT COURT FORTHE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISIONBRIEF OF AMICUS CURIAEELECTRONIC FRONTIER FOUNDATIONERIC M. LIEBERMANNICHOLAS E. POSERRABINOWITZ, BOUDIN, STANDARD,  KRINSKY & LIEBERMAN, P.C.740 Broadway - Fifth FloorNew York, New York 10003(212) 254-1111HARVEY A. SILVERGLATESHARON L. BECKMANSILVERGLATE & GOODThe Batterymarch Building80 Broad Street - 14th FloorBoston, Massachusetts 02110(617) 542-6663Counsel for Amicus Curiae Electronic Frontier Foundation----------------------United States v. Riggs, Nos. 90-9108 and 90-9129CERTIFICATE OF INTERESTED PERSONS ANDCORPORATE DISCLOSURE STATEMENT	Pursuant to Local Rule 26.1 of this Court, it is hereby certifiedthat the following persons and entities have an interest in the outcome ofthis case or have participated as attorneys or as judges in theadjudication of this case:Kent B. Alexander, Assistant United States AttorneySharon L. Beckman, Attorney for Amicus Curiae   Electronic Frontier FoundationElectronic Frontier Foundation, Amicus CuriaeHonorable J. Owen Forrester, United States	District Judge, Northern District of GeorgiaPaul S. Kish, Attorney for defendant-appellantEric M. Lieberman, Attorney for Amicus Curiae	Electronic Frontier FoundationNicholas E. Poser, Attorney for Amicus Curiae	Electronic Frontier FoundationRabinowitz, Boudin, Standard, Krinsky	& Lieberman, P.C., Attorneys for Amicus	Curiae Electronic Frontier FoundationRobert J. Riggs, defendant-appellantHarvey A. Silverglate, Attorney for Amicus	Curiae Electronic Frontier FoundationSilverglate & Good, Attorneys for Amicus	Curiae Electronic Frontier Foundation___________________________     NICHOLAS E. POSERSTATEMENT OF INTEREST OF AMICUSCURIAE ELECTRONIC FRONTIER FOUNDATION	Amicus curiae Electronic Frontier Foundation submits this brief toassist the Court's review of the special condition of the defendant'ssupervised release imposed by the district court prohibiting him fromowning or personally using a computer.  Pursuant to Fed. R. App. P. 29,the Foundation submits this brief with the written consent of both thedefendant and the government.  The letters of the parties consenting tothe filing of this brief have been contemporaneously submitted to theclerk of the Court.	The Electronic Frontier Foundation believes the condition barringcomputer ownership and personal use substantially infringes FirstAmendment rights of expression and association.  The legality of thecondition presents a novel and important question, whose resolution bythis Court will have a profound impact on the development of the law. Asexplained below, the question presented here is precise of the kind whichthe Foundation was established to address and about which it hasconsiderable expertise.	The Electronic Frontier Foundation is a nonprofit organizationestablished in 1990 to promote the public interest in the development ofcomputer-based communication technology.	The founders and directors of the Electronic Frontier Foundationinclude Mitchell Kapor and Steven Wozniak, two of our nation's leadingexperts in the area of computer technology.  Mr. Kapor founded the LotusDevelopment Corporation and designed and developed the Lotus 1-2-3spreadsheet software.  Mr. Wozniak was one of the co-founders of AppleComputer, Incorporated.  These individuals have comprehensive knowledge ofthe developing computer-based technologies and the promises and threatsthey present.	The Foundation's goals, as set forth in its mission statement, areas follows:Engage in and support educational activities which increase popularunderstanding of the opportunities and challenges posed by developments incomputing and telecommunications.Develop among policy-makers a better understanding of the issuesunderlying free and open telecommunications, and support the creation oflegal and structural approaches which will ease the assimilation of thesenew technologies by society.Raise public awareness about civil liberties issues arising from the rapidadvancement in the area of new computer-based communications media.Support litigation in the public interest to preserve, protect, and extendFirst Amendment rights within the realm of computing andtelecommunications technology.Encourage and support the development of new tools which will endownon-technical users with full and easy access to computer-basedtelecommunication.	While the Foundation regards unauthorized entry into computersystems as wrong and deserving of punishment, it also believes thatlegitimate law enforcement goals must be served by means that do notviolate the rights and interest of the users of electronic technology andthat do not chill use and development of this technology.	The novel question presented in this appeal falls squarely withinthe expertise and interest of the Electronic Frontier Foundation.  TheFoundation believes it can be of assistance to the Court in determiningwhether the condition imposing a computer ban infringes rights of speechand association in a broader manner than is reasonably necessary toachieve the goals of the supervised release statute.	Accordingly, the Foundation submits this brief.STATEMENT REGARDING ORAL ARGUMENT	Amicus curiae Electronic Frontier Foundation requests oralargument in this appeal, which presents the novel question of the legalityof generally prohibiting computer ownership and personal use as acondition of supervised release.  Because computers are means ofcommunication and association with others, the prohibition raisesimportant issues under the First Amendment.  Amicus has comprehensiveknowledge of computer-based technologies and a deep interest both indeveloping public understanding of those technologies and of the civilliberties implications of governmental restrictions on their use.  (SeeStatement of Interest of Amicus at pp. i-iii.)  Amicus believes oralargument will assist the court in resolving the legal issue presented bythe computer ban.TABLE OF CONTENTS												PagesCERTIFICATE OF INTERESTED PARTIES .....................	C-1STATEMENT OF INTEREST OF AMICUSCURIAE ELECTRONIC FRONTIER FOUNDATION .................	iSTATEMENT REGARDING ORAL ARGUMENT .....................	ivTABLE OF CONTENTS .....................................	vTABLE OF AUTHORITIES ..................................	viiSTATEMENT OF JURISDICTION .............................	xiSTATEMENT OF THE ISSUE ................................	1STATEMENT OF THE CASE .................................	1 	(i) Course of Proceedings and	    Disposition Below ............................	1    (ii) Statement of Facts ...........................	2   (iii) Scope of Review ..............................	2SUMMARY OF ARGUMENT ...................................	3I.  THE PROHIBITION ON OWNERSHIP AND    PERSONAL USE OF COMPUTERS TRENCHES    HEAVILY ON RIGHTS OF EXPRESSION    AND ASSOCIATION PROTECTED BY THE    FIRST AMENDMENT ...................................	5II. THE DISTRICT COURT'S PROHIBITION    ON MR. RIGGS' OWNERSHIP AND PERSONAL    USE OF COMPUTERS AS A CONDITION OF    HIS SUPERVISED RELEASE IS IMPROPER    BECAUSE IT CREATES A GREATER DEPRI-    VATION OF LIBERTY THAN IS REASONABLY    NECESSARY TO EFFECTUATE STATUTORY GOALS ...........	13     A.  The Sentencing Reform Act Requires         That Conditions Of Supervised         Release Not Impinge Unnecessarily         On Liberty Interests .........................	13     B.  The Prohibition On Ownership And         Personal Use Of Computers Is A         Deprivation of Liberty Not Reason-         ably Necessary to Carry Out The         Purposes Of The Sentencing ...................	17	    1.  The Computer Ban Is Far Too Broad To        	   Be Reasonably Necessary To The		   Statutory Purposes Of Deterrence, 			Public Protection And Rehabilitation .....	17	    2.  Discretionary Conditions Specifically			Authorized By Statute Or Imposed In			Other Contexts Provide No Support For			The Imposition Of The Computer Ban			Here .....................................	22	    3.  This Court Has Authority To			Strike Down The Computer Ban .............	25CONCLUSION ............................................	25TABLE OF AUTHORITIESPageBell v. Wolfish, 441 U.S. 520 (1979) ..................	17Buckley v. Valeo, 424 U.S. 1 (1976) ...................	9Kleindienst v. Mandel, 408 U.S. 753 (1972) ............	7Owens v. Kelley, 681 F.2d 1362	(11th Cir. 1982) .................................	16