                           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’ imprison-
ment, 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 con-
test 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 ap-
proval of the probation officer.” No one suggested such a
condition in advance; the prosecutor first raised the possi-
bility 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 follow-
ing his release from prison. He contends that he should
have received some notice that this condition was an op-
tion, and he adds that the condition is (in his view) too
broad with or without notice. These arguments are re-
lated: Notice is helpful only if the defendant could have
offered something pertinent at sentencing, which de-
pends 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 for-
feit 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 per-
mit the probation officer unannounced access to verify
that the filtering software was functional. Filtering soft-
ware 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 reason-
ably necessary”. If Scott had used the Internet exten-
sively 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 impris-
onment 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 chal-
lenge to a condition of supervised release requiring con-
sent to search by a probation officer, given that there is
little privacy inside prison and imprisonment was a law-
ful alternative to conditional release). But what happened
here looks more like a departure, given that Scott re-
ceived 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 imprison-
ment 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 sentenc-
ing a report recommending an appropriate disposition.
The Court concluded that Rule 32(c) affords the defen-
dant 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 sen-
tencing. 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 re-
lease, 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 pros-
ecutor 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 proba-
tion officer to become a censor who determines that Scott
may read the New York Times online, but not the ver-
sion of Ulysses at Bibliomania.com? Bureaucrats act-
ing 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 arbitrari-
    ness 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 unac-
    knowledged reliance on illegitimate criteria of
    selection. The goals to be advanced are regularity
    and evenhandedness in the administration of jus-
    tice 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 limita-
tions 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 unan-
nounced 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
