VI. REASONS FOR GRANTING THE WRIT

A. The Court of Appeals for the Ninth Circuit has sanctioned an order involving an important federal question which so far departs from the accepted and usual course of judicial proceedings as to call for an exercise of this Court's supervisory power. Rules of Supreme Court 10(a).

The conditions affirmed by the Court of Appeals in this matter prohibit the Petitioner from engaging in a vast range of expressive and associational conduct protected by the First Amendment of the Constitution where such conduct involves the use of modern communications technology. The ban imposed upon the Petitioner will cripple the Petitioner's ability to exercise fundamental freedoms protected by the First Amendment of the Constitution even where entirely unrelated to the offense of conviction. The Sixth Circuit has held that similar restrictions prohibiting a defendant's use of the mails could not be considered reasonably related to legitimate sentencing purposes due to the fact that it would prohibit communications with persons having nothing to do with her criminal conduct. See United States v. Holloway, 740 F.2d 1372, 1383 (6th Cir. 1984). The Court concluded that, because of its breadth, the restriction, "does not bear a logical relationship to the criminal conduct in which [the defendant] has engaged." Id. The same is true of the instant restrictions.

The imposed restrictions are so expansive as to be essentially arbitrary and, therefore, cannot be considered reasonably related to the purposes of imposing conditions of supervised release. See 18 U.S.C. §§ 3583(d)(1); 3553(a)(1) (consideration of nature and circumstances of offense and history and characteristics of the defendant); (a)(2)(B) (to afford adequate deterrence to criminal conduct) (a)(2)(C) (to protect the public from further crimes of the defendant); (a)(2)(D) (to provide the defendant with needed training, medical care, or other correctional treatment in the most effective manner). Moreover, the conditions involve exceedingly greater deprivations of liberty than are reasonably necessary. 18 U.S.C. §§ 3583(d)(2); 3553(a)(2)(B), (a)(2)(C), (a)(2)(D).

In addition, the wide-ranging occupational restrictions are flagrantly inappropriate. For one, there was no competent evidence that the Petitioner's occupation bore a reasonably direct relationship to the conduct relevant to the offense of conviction. Secondly, the occupational restrictions were clearly not imposed to the minimum extent necessary to protect the public. In fact, they are so austere as to effectively preclude the Petitioner from maintaining virtually any type of employment in today's modern economy. His livelihood cannot, in accordance with law, be universally curtailed in the manner affirmed by the Court of Appeals. U.S.S.G. § 5F1.5.

The conditions here at issue are the modern day equivalent to prohibiting an individual convicted of check forgery from using a pen. As computer networks and related technology assume an ever-increasing role in modern society, the conditions affirmed by the Court of Appeals will effectively, and unnecessarily, serve to excommunicate the Petitioner. The restrictions evidence an irrational fear of technology itself which, if unaddressed by this Court, will serve as a dangerous precedent for the future exercise of First Amendment rights. In short, the restrictions affirmed by the Court of Appeals so far depart from the accepted and usual deference afforded these fundamental rights that this Court is beckoned to exercise its supervisory powers.

B. The United States Court of Appeals for the Ninth Circuit has decided an important question of federal law that has not been, but should be, settled by this Court. Rules of Supreme Court 10(c). Under the affirmed conditions, the Petitioner is prohibited from participating, both personally and through third parties, in all types of communication, expression, association, and commerce via computers systems and their networks, including the Internet. As the "most participatory form of mass speech yet developed" the Internet is entitled to the highest level of protection from governmental intrusion. Reno v. American Civil Liberties Union, __U.S.__; 117 S.Ct. 2329, 2340-44 (1997). This Court has noted that the content on this medium is "as diverse as human thought." Id. Despite the immeasurable utility of this medium, the Court of Appeals decided that it could properly prohibit the Petitioner's ability to use any computer system or network for personal, occupational, or even educational purposes, in order to protect against the possibility of a particular misuse.

The Court of Appeals relied upon United States v. Bolinger, 940 F.2d 478, 480-81 (9th Cir. 1991) in support of its conclusion that the restriction of this Petitioner's First Amendment rights was permissible. The defendant in Bolinger was prohibited from "participating in the activities or to be a member of a motorcycle club, including but not limited to the Dirty Dozen." Id. at 480. The narrow restrictions prohibiting the defendant from associating with specific individuals who the court determined were likely to induce the defendant to engage in illegal activity, are not analogous to the instant case. The restrictions here at issue prohibit the Petitioner from engaging in any communicative or associational activities based upon the mode of communication used, a vastly overbroad and essentially arbitrary standard. Among the activities in which the Petitioner is prohibited from engaging are:

  -sending a letter a Senator via e-mail or using a word processor;
  -playing a video arcade game;
  -calling his family on a cellular telephone;
  -working as a computer printer repairman;
  -writing any type of computer software program (even using merely a pen and paper)
  -accessing a public library's computerized card catalog.

Because computer networks are a "unique" media, "capable of a wide variety of communication and information retrieval methods," it cannot accurately be said that a substitute or alternative to communications using these tools truly exists. Reno v. ACLU, 117 S.Ct. 2329, 2334.

Due to the ever-increasing role of computers in business and commerce, it will be virtually impossible for the Petitioner to secure any type of employment other than simple manual labor under these conditions of supervised release. This case involves an unprecedented restriction on the most fundamental communicative, associational, and occupational liberties protected by the Constitution and, therefore, should be reviewed by this Court.

VII. CONCLUSION

For all the foregoing reasons, Petitioner respectfully submits that the petition for writ of certiorari should be granted.

DATED: August 18, 1998

Respectfully submitted,

By:	RANDOLPH & LEVANAS ___________________________ Donald C. Randolph
	Attorneys for Petitioner Kevin David Mitnick