K.G. VS. NEW JERSEY STATE PAROLE BOARD C.C. VS. NEW JERSEY STATE PAROLE BOARD J.L. VS. NEW JERSEY STATE PAROLE BOARD D.C. VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) (CONSOLIDATED) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-0042-16T2
A-4339-16T1
A-4343-16T4
A-4797-16T3
K.G., APPROVED FOR PUBLICATION
January 24, 2019
Appellant,
APPELLATE DIVISION
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
___________________________________
C.C.,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
___________________________________
J.L.,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
___________________________________
D.C.,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
___________________________________
Argued September 24, 2018 – Decided January 24, 2019
Before Judge Sabatino, Sumners, and Mitterhoff.
On appeal from the New Jersey State Parole Board.
Michael C. Woyce argued the cause for appellants
(Murphy & Woyce, attorneys; Michael C. Woyce, on
the briefs).
Christopher C. Josephson, Deputy Attorney General,
argued the cause for respondent (Gurbir S. Grewal,
Attorney General, attorney; Melissa Dutton Schaffer,
Assistant Attorney General, of counsel in A-0042-16
and A-4339-16; Melissa H. Raksa, Assistant Attorney
General, of counsel in A-4343-16 and A-4797-16;
Gregory R. Bueno, Deputy Attorney General, on the
briefs in A-0042-16 and A-4797-16; Erica R. Heyer,
Deputy Attorney General, on the brief in A-4339-16;
Christopher C. Josephson, on the brief in A-4343-16).
The opinion of the court was delivered by
MITTERHOFF, J.S.C. (temporarily assigned).
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Appellants K.G., C.C., J.L., and D.C. are convicted sex offenders who are
monitored by respondent New Jersey State Parole Board (the "Board") as
offenders who are subject to parole supervision for life ("PSL") under N.J.S.A.
2C:43-6.4. Each appellant challenges certain conditions of PSL that the Board
has imposed upon them. Most of the challenged conditions involve restrictions
on appellants' Internet use. The instant appeals follow in the wake of the New
Jersey Supreme Court's decision in J.I. v. N.J. State Parole Bd., 228 N.J. 204(2017), which addressed the parameters of the Board's authority to impose
conditions restricting Internet access. The four appeals were calendared back-
to-back, and we consolidate them for the purposes of this opinion.
For the reasons that follow, we affirm in part, reverse in part, and remand
in part. In particular, we reach the following major legal conclusions: (1) the
Board's imposition of Internet monitoring conditions upon PSL offenders,
including the use of monitoring software, mandatory password disclosure, and
unannounced device inspections, does not facially violate the constitutional
protections against unreasonable searches or the constitutional rights to privacy;
(2) the Board's use of the terms "Internet-capable device," "social networking
service," "frequenting establishments whose primary purpose is the sale of
alcohol," and "sexually-oriented websites, material, information or data" does
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not violate due process under the void for vagueness doctrine; (3) all conditions
restricting Internet access, including monitoring conditions, should be
reasonably tailored to the circumstances of the individual offender, "taking into
account such factors as the underlying offense and any prior criminal history,
whether the Internet was used as a tool to perpetrate the offense, the
rehabilitative needs of the offender, and the imperative of public safety[,]" J.I.,
228 N.J. at 224; and (4) in the administrative appeals process, PSL offenders are
not entitled to discovery and are only entitled to a hearing when warranted based
on "the timing of and justification for the Internet restriction, the severity and
length of the restriction, whether facts are contested or uncontested, and whether
credibility determinations must be made." Id. at 233.
Table of Contents
I. (Background) .............................................................................................. 5
A. (Background on PSL) ............................................................................ 5
B. (Statutes and Regulations on Internet-Access Conditions) ................... 11
II. (Factual and Procedural Background) ....................................................... 18
K.G. ......................................................................................................... 18
C.C. ......................................................................................................... 21
J.L. .......................................................................................................... 23
D.C. ......................................................................................................... 27
III. (Legal Discussion) .................................................................................. 30
A. (Constitutional Challenges to Monitoring Conditions) ......................... 31
B. (As-Applied Challenges) ..................................................................... 36
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K.G. .................................................................................................... 36
Internet-Access Conditions ............................................................. 36
C.C. .................................................................................................... 40
Internet-Access Conditions ............................................................. 40
Procedural Due Process .................................................................. 41
J.L. ...................................................................................................... 43
Internet-Access Conditions ............................................................. 44
Pornography Condition ................................................................... 45
Alcohol Condition .......................................................................... 47
Void for Vagueness ........................................................................ 48
Procedural Due Process .................................................................. 50
D.C. .................................................................................................... 51
Internet-Access Conditions ............................................................. 52
C. (Summary of Conclusions) .................................................................. 53
I.
(Background)
A.
(Background on PSL)
We begin with a discussion of the PSL statute and of the constitutional
limits on the Board's ability to impose conditions of PSL restricting Internet
access. "Community supervision for life was 'designed to protect the public
from recidivism by defendants convicted of serious sexual offenses.'"
Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 237-38 (2008) (quoting
Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181, 184 (App. Div. 2004),
A-0042-16T2
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certif. granted, 182 N.J. 140 (2004), appeal dismissed, 187 N.J. 487 (2006)). 1
Individuals who have been convicted of certain sexual offenses enumerated in
N.J.S.A. 2C:43-6.4(a) must serve, in addition to any existing sentence, a special
sentence of parole supervision for life commencing upon the offender's release
from incarceration. N.J.S.A. 2C:43-6.4(a) and (b).
PSL offenders remain in the legal custody of the Commissioner of the
Department of Corrections, are supervised by the Division of Parole, and are
"subject to conditions appropriate to protect the public and foster rehabilitation."
N.J.S.A. 2C:43-6.4(b). These conditions include general conditions that are
imposed upon all PSL offenders and special conditions imposed upon individual
PSL offenders that are "deemed reasonable in order to reduce the likelihood of
recurrence of criminal or delinquent behavior." N.J.S.A. 30:4-123.59(b)(1); see
also N.J.A.C. 10A:71-6.12(d) (listing general conditions); N.J.A.C. 10A:71-
6.12(n) ("Additional special conditions may be imposed by the District Parole
Supervisor . . . when it is the opinion that such conditions would reduce the
likelihood of recurrence of criminal behavior."). A violation of a PSL condition
1
In 2003, the Legislature amended N.J.S.A. 2C:43-6.4 to replace all references
to "community supervision for life" with "parole supervision for life" and to
make other substantive changes to the statute. L. 2003, c. 267, § 1 (eff. Jan. 14,
2004). Because appellants were convicted of enumerated offenses after January
14, 2004, they were sentenced to PSL. See N.J.A.C. 10A:71-6.12(a).
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may be prosecuted as a third-degree crime, N.J.S.A. 2C:43-6.4(d), or treated as
a parole violation, N.J.S.A. 2C:43-6.4(b). Additionally, an offender who
violates a PSL condition may be subjected to additional special conditions. See
N.J.S.A. 30:4-123.60(a).
Appellants maintain that the restrictions imposed upon them cannot be
sustained in light of the Supreme Court's decision in J.I. In J.I., a parolee subject
to community supervision for life ("CSL") challenged a special condition that
barred him from using a computer or Internet-capable device unless authorized
by the District Parole Supervisor. Id. at 210-11. After J.I.'s release from
confinement in October 2009, the parole authorities discovered that J.I. had
accessed multiple websites depicting nude minors in January 2010. Id. at 212.
The parole authorities also arrested J.I. for possessing and using a cell phone
with Internet capability in October 2010. Ibid. Thereafter, the Board found that
J.I. had violated conditions of CSL and returned him to confinement at the Adult
Diagnostic and Treatment Center. Ibid.
When J.I. was released from confinement in October 2012, he was
required to adhere to a general condition of supervision that prohibited him from
accessing social-networking websites. Id. at 213. As of December 2013, J.I.
had complied with this condition. Ibid. Nonetheless, in response to J.I.'s request
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to modify the social-networking condition to allow J.I. to access LinkedIn, the
District Parole Supervisor imposed a more stringent Internet restriction barring
"J.I. from accessing the Internet for any purpose other than employment
purposes, subject to his installing monitoring software on his computer." Ibid.
The District Parole Supervisor justified this restriction based on J.I.'s previous
violations of conditions of CSL in January and October 2010. Ibid.
J.I. violated this special condition by visiting seemingly benign, non-
work-related websites. Id. at 214. In a March 2017 meeting, the District Parole
Supervisor stated that J.I. was only permitted to use a computer or access the
Internet with advance approval from the District Parole Supervisor and only for
work-related purposes. Ibid. On administrative appeal, the Board denied J.I's
request for an evidentiary hearing and affirmed this near-total Internet ban,
based on J.I.'s "willful disregard of the prohibition against accessing non -work-
related websites." Id. at 215.
The Supreme Court held that the Internet-use conditions imposed upon
J.I. could not automatically be sustained. Id. at 230. Initially, the Court noted
that "[t]o read our statutory scheme as allowing greater restrictions on the liberty
of CSL offenders than are necessary would needlessly raise questions about its
constitutionality." Id. at 227. In so holding, the Court cited various federal
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court cases limiting Internet restrictions on parolees. See id. at 226-29; United
States v. Albertson, 645 F.3d 191, 199 (3d Cir. 2011) (invalidating condition
that required authorization for all Internet use in a child pornography case,
because the offender did not use the Internet to contact any victims); United
States v. Thielemann, 575 F.3d 265, 277-78 (3d Cir. 2009) (upholding a ten-
year total Internet ban where the offender encouraged a friend in an online
chatroom to sexually abuse a minor on a webcam); United States v. Crandon,
173 F.3d 122, 127-28 (3d Cir. 1999) (upholding a three-year total Internet ban
where the offender used the Internet to solicit sex from a minor). The Court
"agree[d] with the position taken by federal courts that Internet conditions
attached to the supervised release of sex offenders should not be more restrictive
than necessary." J.I., 228 N.J. at 211.
Accordingly, the Court instructed that "Internet conditions should be
tailored to the individual CSL offender, taking into account such factors as the
underlying offense and any prior criminal history, whether the Internet was used
as a tool to perpetrate the offense, the rehabilitative needs of the offender, and
the imperative of public safety." Id. at 224. The Court held on administrative
law grounds that the restriction "denying J.I. access to the Internet for any
purpose unrelated to employment was unreasonable because it was not tied to
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criminal conduct, rehabilitation, or public safety." Id. at 230. The Court
underscored that J.I. had not used the Internet in committing the underlying
offenses and that J.I. had been compliant with supervision for over one year
prior to the imposition of the condition. Id. at 229-30. The Court also found
that the Board had failed to explain why other less restrictive Internet -access
restrictions available under the PSL statute were not acceptable alternatives to
advance the public safety and the offender's rehabilitation. Ibid.
The Supreme Court further held that the imposition of conditions that
restrict Internet use implicates a liberty interest and requires minimal due
process. See id. at 231-34. The Court found that "the level of process required
will depend on a number of variables, including the timing of and justification
for the Internet restriction, the severity and length of the restriction, whether
facts are contested or uncontested, and whether credibility determinations must
be made." Id. at 233. The Court further noted that "[i]n the case of a Board
panel's review of a District Parole Supervisor's imposition of stringent Internet
restrictions, as here, due process will be satisfied by allowing the CSL offender
'the opportunity to respond by letter with supporting attachments, su ch as
certifications or affidavits.'" Ibid. (quoting Jamgochian, 196 N.J. at 247). In the
factual circumstances of J.I.'s case, however, the Court held that J.I. was entitled
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to a hearing before the full Board. Id. at 234. In so holding, the Court
emphasized "circumstances includ[ing] the fact that the parole authorities
imposed more restrictive Internet conditions—amounting to a near-total ban—
after J.I. had been compliant with his CSL conditions for thirteen months and
that J.I.'s underlying conviction was unrelated to the Internet." Ibid.Thus, in J.I., the Court provided specific factors that the Board must
consider in deciding whether Internet-access conditions imposed upon PSL
offenders accord with administrative and constitutional protections. In
resolving the cases before us, therefore, we must apply the precepts established
by the Court in J.I.
B.
(Statutes and Regulations on Internet-Access Conditions)
Before turning to the factual circumstances of each of the four appellants,
we provide an overview of the statutory and regulatory framework governing
the Board's ability to impose conditions of supervision that restrict Internet use .
N.J.S.A. 2C:43-6.4(f) provides that the Board may impose the following
restrictions on Internet access:
(1) Prohibit the person from accessing or using a
computer or any other device with Internet capability
without the prior written approval of the court except
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the person may use a computer or any other device with
Internet capability in connection with that person's
employment or search for employment with the prior
approval of the person's parole officer;
(2) Require the person to submit to periodic
unannounced examinations of the person's computer or
any other device with Internet capability by a parole
officer, law enforcement officer or assigned computer
or information technology specialist, including the
retrieval and copying of all data from the computer or
device and any internal or external peripherals and
removal of such information, equipment or device to
conduct a more thorough inspection;
(3) Require the person to submit to the installation on
the person's computer or device with Internet
capability, at the person's expense, one or more
hardware or software systems to monitor the Internet
use;
(4) Require the person to submit to any other
appropriate restrictions concerning the person's use or
access of a computer or any other device with Internet
capability; and
(5) Require the person to disclose all passwords used
by the person to access any data, information, image,
program, signal or file on the person's computer or any
other device with Internet capability.
[N.J.S.A. 2C:43-6.4(f)(1) to (5).]
See also N.J.S.A. 30:4-123.59(b)(2) (listing identical provisions). Additionally,
a general condition requires PSL offenders to "[r]efrain from using any
computer and/or device to create any social networking profile or to access any
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social networking service or chat room in the offender's name or any other name
for any reason unless expressly authorized by the District Parole Supervisor."
N.J.A.C. 10A:71-6.12(d)(25). 2
While these appeals were pending, the Board proposed and adopted new
regulations regarding the imposition of special conditions restricting Internet
access in response to the Court's decision in J.I. N.J.A.C. 10A:72-14.1 to 14.4;
49 N.J.R. 3408(a) (Oct. 16, 2017) (proposed); 50 N.J.R. 1154(a) (Apr. 16, 2018)
(adopted). The Board sought to "codif[y] the procedures for the imposition of a
special condition prohibiting a community or parole supervision for life offender
from accessing the Internet, including the criteria, procedure, and review
process." 49 N.J.R. 3408(a). The Board adopted the regulations with minor
amendments on April 16, 2018. 50 N.J.R. 1154(a). 3
The regulations adopted after J.I. establish new criteria and procedures for
the imposition of a special condition restricting Internet access. The adopted
2
The regulation provides definitions for the terms "Chat room," "Internet
website or application," "Peer-to-peer network," and "Social networking
service." N.J.A.C. 10A:71-6.12(d)(25)(i) to (iv).
3
The Board received one comment in response to the proposed regulations. 50
N.J.R. 1154(a). In response to the comment, the Board made minor amendments
to the regulations regarding password disclosure and the mandatory annual
review of Internet-access conditions. Ibid., see also N.J.A.C. 10A:72-
14.1(c)(1)(vi) (password disclosure); N.J.A.C. 10A:72-14.4(a) (annual review).
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regulations "appl[y] to the imposition of a special condition prohibiting an
offender access to the Internet[.]" N.J.A.C. 10A:72-14.1(a). Under the
regulations, a District Parole Supervisor may impose an Internet-access
condition if:
1. There is a specific and articulable reason and a clear
purpose for the imposition of the Internet access
condition; and
2. The imposition of the Internet access condition will
act as an aid to the offender's re-entry effort, will
promote the rehabilitation of the offender, is deemed
necessary to protect the public, or will reduce
recidivism by the offender.
[N.J.A.C. 10A:72-14.1(b)(1) to (2).]
Next, the regulations codify the restrictions that may be imposed on a PSL
offender's Internet access:
(c) The Internet access condition shall include, but not
be limited to, the following:
1. The offender is to refrain from the possession
and/or utilization of any computer and/or device
that permits access to the Internet unless
specifically authorized by the District Parole
Supervisor or designee. If the District Parole
Supervisor or designee permits use of a computer
and/or device that is capable of accessing the
Internet, the offender shall be subject to the
following restrictions and conditions:
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i. The offender is to refrain from accessing
the Internet from any computer and/or
device at any time or for any reason unless
authorized by the District Parole
Supervisor or designee;
ii. The offender is prohibited from
possessing or using any data encryption
techniques and/or software programs that
conceal, mask, alter, eliminate, and/or
destroy information, and/or data from a
computer and/or device;
iii. The offender agrees to install on the
computer and/or device, at his or her
expense, one or more hardware or software
system(s) to monitor computer and/or
device use if such hardware or software
system(s) is(are) determined to be
necessary by the District Parole Supervisor
or designee;
iv. The offender agrees to permit the
monitoring of the computer and/or device
activity by a parole officer and/or
computer/device specialist through the use
of electronic means;
v. The offender is subject to periodic
unannounced examinations of the
computer and/or device by a parole officer
or designated computer/device specialist,
including the retrieval and copying of all
data from the computer and/or device and
any internal or external peripherals and
removal of such equipment to conduct a
more thorough inspection; and
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vi. The offender is to disclose all
usernames and passwords used by him or
her to access any computer/device, e-mail
address, and approved social networking
service or chat room, as well as any other
username(s) and password(s) used by him
or her to access any data, information,
image, program, signal, or file on the
computer/device deemed necessary by a
parole officer to ensure compliance with
the conditions of supervision.
[N.J.A.C. 10A:72-14.1(c)(1)(i) to (iv).]
In addition, the regulations detail the procedure for imposing a special
condition restricting Internet access. N.J.A.C. 10A:72-14.2. A District Parole
Supervisor must provide "written notice of the imposition of an Internet access
condition[,] . . . includ[ing] the basis for imposition of the condition." N.J.A.C.
10A:72-14.2(a). The offender must also be "provided with a written
informational statement that details the procedure for the imposition of the
Internet access condition." N.J.A.C. 10A:72-14.2(b). "The offender shall
indicate in writing whether he or she contests the allegations, the conclusions to
be drawn from the allegations, or the justification supporting the imposition of
the Internet access condition." N.J.A.C. 10A:72-14.2(c).4
4
The regulation is silent as to when the offender must indicate in writing
whether he or she contests the imposition of the conditions. We suggest the
regulation be revised to clarify the deadline.
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A contesting offender has "[ten] business days to submit a written
statement or documentation to the District Parole Office to be considered before
the Internet access condition becomes effective." N.J.A.C. 10A:72-14.2(e)(1).
If the offender submits a written statement or documentation within ten business
days, the condition does not become effective until it is reviewed by a Board
panel. N.J.A.C. 10A:72-14.2(e)(3). The Board panel shall review the basis for
the imposition of the condition and the written statement of the offender and
notify the offender and the District Parole Supervisor in writing whether it
affirms or vacates the imposition of the condition. N.J.A.C. 10A:72-14.3(a) to
(c).
Finally, the regulations provide that a District Parole Supervisor will
annually review the Internet-access condition. N.J.A.C. 10A:72-14.4(a). On
review, the following criteria will be considered:
1. There is a reasonable basis to preclude access to the
Internet;
2. Internet use is consistent with the continued
rehabilitation of the offender and will not compromise
public safety;
3. The offender is in compliance with the conditions of
supervision;
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4. The offender has met the goals listed in his or her
Case Plan Agreement and is progressing in a pro-social
manner; and
5. The offender's treatment provider, if the offender is
presently participating in counseling, is of the opinion
that Internet access will promote the rehabilitation of
the offender and assist the offender's re-entry efforts.
[N.J.A.C. 10A:72-14.4(c)(1) to (5).]
If the offender contests the justification for continuation of the condition, the
condition remains in effect pending review by a Board panel. N.J.A.C. 10A:72-
14.4(e).
We note that by adopting these new regulations, the Board has filled some
regulatory gaps and has provided greater protections to PSL offenders than were
available when these appeals were filed. We also reiterate that the statutory and
regulatory scheme governing PSL is tempered by administrative and
constitutional protections afforded to parolees. With these principles in mind,
we now turn to the cases at hand.
II.
(Factual and Procedural Background)
K.G.
On February 15, 2013, K.G. pled guilty of one count of endangering the
welfare of a child, N.J.S.A. 2C: 24-4(a). K.G. had sex with a fifteen-year-old
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neighbor who became pregnant. He did not, however, use the Internet in the
commission of the offense. K.G. was sentenced to PSL, which commenced
immediately upon his conviction because K.G. was not sentenced to a term of
incarceration. K.G. was subjected to general conditions under PSL, including a
condition that he would refrain from using social-networking websites ("social-
networking general condition") and that he was prohibited from leaving the state
without permission.
On August 20, 2015, parole authorities discovered that K.G. had been
using Facebook, Instagram, and Snapchat. The parole authorities seized and
searched K.G.'s cell phone, revealing that K.G. had used the online dating
applications Tinder and Badoo and that K.G. had nude photographs of himself
and other women, some involving sexual acts, on his cell phone. Additionally,
K.G. admitted to traveling out of state without permission on two occasions.
K.G. was arrested for these violations and was detained in jail pending a hearing.
The Board conducted a parole revocation hearing on September 17, 2015,
and concluded that K.G.'s PSL would continue with K.G. being subject to the
Electronic Monitoring Program. K.G. was released on October 12, 2015. On
November 9, 2015, the local parole office imposed a special condition of PSL
prohibiting K.G. from accessing "any computer and/or device that permits
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access to the Internet unless authorized by the District Parole Supervisor" ("no-
Internet special condition"). If authorized to use such a device by the District
Parole Supervisor, K.G. was required to (1) refrain from using any techniques
or programs that concealed or destroyed information on his computers or
devices, (2) install, at his own expense, software that allows for the monitoring
of his computers or devices, if determined necessary by the District Parole
Supervisor, (3) permit the Board to monitor his computers or devices through
electronic means, (4) allow for periodic unannounced examinations of his
computers or devices, and (5) disclose all passwords used to access any data,
information, image, or program on file on his computers or devices ("monitoring
special conditions").
In December 2015, K.G. wrote to the District Parole Supervisor, seeking
rescission of the no-Internet and monitoring special conditions. Alternatively,
K.G. requested permission to use the Internet and electronic devices for ten
specific purposes. In January 2016, the Division of Parole affirmed the
imposition of the special conditions, but authorized K.G. to use the Internet for
nine of the ten requested purposes, except that K.G. was prohibited from using
social-networking websites even for business purposes. The Board required
K.G. to install monitoring software on his devices and to disclose all passwords.
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K.G. administratively appealed the conditions to a Board panel, which
affirmed the conditions. K.G. appealed the panel's decision to the full Board,
which affirmed the conditions in a final agency decision on July 27, 2016. In
its written decision, the Board found that the imposition of the special conditions
was warranted based on K.G.'s failure to adhere to the social-networking general
condition. It noted that "this behavior can be considered high risk and could be
considered a trigger for possible re-offense given the ages of the users are not
always known." Additionally, considering K.G.'s description of his offense in
an October 14, 2015 psychological evaluation, the Board found that "the
opportunistic and exploitive elements of [K.G.]'s crime underscore the concerns
[the Board] has for permitting social networking access."
K.G. appealed the final agency decision.5
C.C.
On January 29, 2007, C.C. pled guilty to attempted sexual assault,
N.J.S.A. 2C:14-2(c)(4), and luring/enticing a child victim by various means,
5
While this appeal was pending, the Board granted K.G.'s requests to use a
Fitbit, a business iPad, and a Nintendo Wii, but denied his requests to use a
Smart TV and to access social media for business purposes. K.G. is required to
install monitoring software on all Internet-capable devices. In September 2018,
the Board granted K.G. permission to use a third party to advertise his business
on social-networking websites, but K.G. is not permitted to access the social-
networking websites that contain those ads.
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N.J.S.A. 2C:13-6. C.C.'s offense involved using an AOL public chat room to
contact an undercover detective posing as a fourteen-year-old girl, sending
sexually explicit photos of himself, and arranging to meet in person to have sex.
C.C. was sentenced to four years' incarceration and was granted parole on
February 5, 2008, subject to PSL. Upon his release, C.C. was subjected to the
social-networking general condition and the no-Internet and monitoring special
conditions.
On December 15, 2015, C.C. was arrested for violating the conditions of
his PSL, including having unsupervised contact with two minors, maintaining a
Facebook account and a personal advertisement on Craigslist, using an iPhone
to access the Internet without permission, and lying to his parole officer about
his employment. On December 15, 2016, C.C. was released under PSL, subject
to the social-networking general condition and the no-Internet and monitoring
special conditions.
On February 27, 2017, C.C. filed an administrative appeal seeking to
vacate the general and special conditions restricting his Internet access. On
March 22, 2017, a Board panel affirmed the imposition of these conditions. On
May 31, 2017, the full Board issued a final agency decision affirming the
imposition of the conditions. In its written decision, the Board found that the
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conditions were justified based on the nature of C.C.'s underlying offense and
his previous violations of conditions of PSL. C.C. appealed the final agency
decision.6
J.L.
In 2009, J.L. pled guilty to endangering the welfare of a child, N.J.S.A.
2C:24-4(a), and was sentenced to two years' probation. 7 The underlying incident
involved J.L. providing beer to minors during a camping trip and having sex
with a fourteen-year-old girl. On February 28, 2013, J.L. pled guilty to one
count of endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and was
sentenced to three years' incarceration and PSL. In the underlying incident, J.L.
friend-requested a fifteen-year-old girl on Facebook and exchanged instant
messages and nude photographs with the girl. J.L. arranged to meet the girl at
6
While this appeal was pending, C.C. again requested that the no-Internet and
monitoring special conditions be rescinded. In response to this request, in
September 2018, the Board revised the special condition to allow C.C. to use
devices to access the Internet, provided that he notify his parole officer of all
Internet-capable devices and comply with the monitoring special conditions on
all devices ("notify-computer special condition").
7
It does not appear that J.L. was sentenced to PSL as a result of this conviction.
A-0042-16T2
23
a movie theater. After meeting at the movie theater, J.L. used his phone to show
the girl pornography and had sex with her. 8
On July l6, 2014, J.L. was granted parole under PSL and was subjected to
special conditions. One special condition prohibited J.L. from purchasing,
possessing, or consuming alcohol and "from frequenting establishments whose
primary purpose is the sale of alcohol (i.e. bars and liquor stores)." ("no-alcohol
special condition"). J.L. was also subject to the no-Internet special condition
and a condition prohibiting him from "purchasing, viewing, downloading,
possessing and/or creating a picture, photograph, negative, film, movie,
videotape, Blu-ray, DVD, CD, CD-ROM, streaming video, video game,
computer generated or virtual image or other representation, publication, sound
recording or live performance that is predominately orientated to descriptions or
depictions of sexual activity." 9
8
The Adult Presentence Report for this conviction states that J.L.'s attorney
provided a memorandum recounting the details of the offense and indicating that
J.L. showed the victim pornography using his cell phone.
9
The condition further specified that materials "shall not be considered
predominately orientated to descriptions or depictions of sexual activity unless
the medium features or contains such descriptions or depictions on a routine
basis or promotes itself based upon such descriptions or depictions."
A-0042-16T2
24
On June 1, 2015, J.L. was arrested for violating conditions of his PSL
regarding out-of-state travel and consuming alcohol. The Board revoked J.L.'s
parole, and J.L. was released from incarceration on May 31, 2016 after serving
a one-year term. Upon his release, the Board re-imposed the no-alcohol special
condition, but did not re-impose the no-Internet or pornography special
conditions.
On September 12, 2016, J.L. submitted an administrative appeal seeking
removal of the no-alcohol condition, as well as the no-Internet and pornography
special conditions, both of which had not actually been re-imposed. In response
to this appeal, the District Parole Supervisor affirmed the no-alcohol special
condition and found that the no-Internet and no-pornography conditions had
never been re-imposed. The District Parole Supervisor instead imposed the
notify-computer special condition, which required J.L. to notify his parole
officer before purchasing, possessing or utilizing any computer or device that
permits access to the Internet and to adhere to the monitoring special conditions
on all devices.10 The District Parole Supervisor additionally imposed a special
10
Counsel informed us at oral argument that J.L. is not currently required to
install monitoring software on his Internet-capable deceives.
A-0042-16T2
25
condition prohibiting J.L. "from accessing any sexually-oriented websites,
material, information or data." 11
In February 2017, J.L. requested the rescission of the social-networking
general condition, the notify-computer special condition, the monitoring special
condition, the special condition restricting access to sexually-oriented materials,
and the no-alcohol special condition. Both a private psychologist and a
treatment center had evaluated J.L. and determined that he did not need
substance abuse treatment. A District Parole Supervisor denied J.L.'s requests
to rescind these conditions.
In March 2017, a Board panel affirmed the conditions. J.L. appealed to
the full Board, which affirmed the conditions in a final agency decision on May
31, 2017. In its written decision, the Board found that the social-networking
11
Unlike the previous restriction on pornography, this new special condition
did not contain the "predominantly oriented" language in defining sexual-
oriented materials. It instead contained the following definition:
For the purposes of this special condition, sexually
oriented material means any videotape, Blu-ray, DVD,
CD, CD-ROM, streaming video, video game, computer
generated or virtual image or other representation,
publication, sound recording or live performance, that
contains a description or depiction of actual or
simulated acts such as, but not limited to, sexual
intercourse, oral sex, anal sex, masturbation, bestiality,
sadism and/or masochism.
A-0042-16T2
26
general condition and the notify-computer special condition were justified based
on J.L.'s use of social-networking websites and the Internet in his underlying
offense. The Board also found that "sexually-oriented materials" was clearly
defined in the language of the special condition and that this special condition
was justified based on the fact that J.L. showed his victim pornography during
the underlying offense. Finally, the Board found that the no-alcohol condition
did not inhibit J.L.'s business and that J.L. had not demonstrated a long enough
period of sobriety to warrant the discharge of this condition.
J.L. appealed the final agency decision.
D.C.
On June 25, 2008, D.C. pled guilty to second-degree sexual assault,
N.J.S.A. 2C:14-2(c)(4), for engaging in sexual acts with a fourteen-year-old girl
with the assistance of her aunt. D.C. did not use the Internet in the commission
of this offense. D.C. was sentenced to three years' incarceration and was
released under PSL on August 31, 2009. Upon his release, D.C. was subject to
the social-networking general condition.
In December 2009, parole authorities found D.C. in possession of a
computer and video gaming console. D.C. admitted that he had been using AOL
Instant Messenger to communicate with friends, had been using X-Chat (a
A-0042-16T2
27
social-networking website) to get technical assistance on his computer's
operating system, and had a YouTube Account. Upon reviewing D.C.'s devices,
the parole authorities did not discover any sexually deviant online activity. On
January 28, 2010, in lieu of charging D.C. with a parole violation, the Board
imposed the no-Internet special condition.
Since 2010, the Board granted D.C. exceptions to the no-Internet special
condition to allow D.C. to use the Internet in relation to his profession as an IT
professional, including allowing D.C. to apply for employment online, create an
online portfolio, use LinkedIn, and purchase a personal laptop computer to use
for job training on web programming. The Board required D.C. to install
monitoring software on his personal laptop.
In December 2016, D.C. appealed the no-Internet and social-networking
conditions to the Board, arguing that as he was employed in the IT field, he may
need to access other people's computers while making repairs and may need to
use blogs, video websites, and social-networking applications to stay up to date
with technology and to network himself. In February 2017, a Board panel
determined that the social-networking restriction would be held in abeyance and
that D.C. would be permitted to access any social-networking service, provided
that D.C. disclosed all user names and passwords for every profile. The panel
A-0042-16T2
28
also relaxed the no-Internet condition, instead imposing the notify-computer
special condition. Additionally, if D.C. chose to use a computer or Internet-
capable device, he was subject to the monitoring special conditions.
D.C. administratively appealed the panel's decision to the full Board,
which affirmed the panel's decision in a final agency decision on May 31, 2017.
In its written decision, the Board found that the monitoring special conditions
were "necessary and appropriate to provide for the safety of the public, and
minors in particular" and that "these provisions are the least restrictive means
by which the Division of Parole can monitor [D.C.] for inappropriate Internet
and social networking use." Further, the Board found that the monitoring special
conditions required that D.C. install monitoring software on a device only when
the District Parole Supervisor deemed it necessary, and that the Division of
Parole had already determined that it was unnecessary to monitor D.C.'s work
devices. The Board concluded "while D.C. has demonstrated a substantial
compliance with supervision in general, the time elapsed during which [D.C.]
has been responsibly using the Internet and social networking is insuf ficient to
allow for the discharge of the monitoring and password requirements at this
time."
D.C. appealed the final agency decision.
A-0042-16T2
29
III.
(Legal Discussion)
"Our review of the Parole Board's determination[s] is deferential in light
of its expertise in the specialized area of parole supervision[.]" J.I., 228 N.J. at
230. We will reverse a decision of the Board only if the offender shows that the
decision was arbitrary or unreasonable, lacked credible support in the record, or
violated legislative policies. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24-
25 (1998); McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App.
Div. 2002). However, "the parole authorities do not have unbridled discretion
to impose unnecessary or oppressive Internet conditions that do not advance a
rational penological policy." J.I., 228 N.J. at 230. Moreover, the Board's actions
may not violate constitutional protections. See J.B. v. N.J. State Parole Bd., 229
N.J. 21, 35 (2017) (considering whether the polygraph testing of PSL offenders
violated constitutional privilege against self-incrimination, constitutional right
to counsel, or constitutional right to privacy); H.R. v. N.J. State Parole Bd., ___
N.J. Super ___, ___ (App. Div. 2018) (slip op. at 2-3) (considering whether the
continuous satellite-based monitoring of sex offenders violated protection
against unreasonable searches in New Jersey Constitution).
A-0042-16T2
30
Guided by this standard of review, we first address the argument advanced
by all appellants that the monitoring special conditions violate the constitutional
protections against unreasonable searches.
A.
(Constitutional Challenges to Monitoring Conditions)
Appellants contend that the monitoring special conditions, including the
use of monitoring software and mandatory password disclosure, violate the
protections from unreasonable searches contained in the Fourth Amendment of
the United States Constitution and Article I, Paragraph 7 of the New Jersey
Constitution. Appellants also argue that these conditions violate the rights to
substantive due process and privacy under the Fourteenth Amendment of the
United States Constitution and Article I, Paragraph I of the New Jersey
Constitution. We reject these arguments.
Constitutional claims made by PSL offenders "must be examined in the
context of their distinctive status as sex offenders who have been released into
the community after serving their custodial sentences, and who are now under
the Parole Board's continued supervision through CSL or PSL." J.B. v. N. J.
State Parole Bd., 433 N.J. Super. 327, 336 (App. Div. 2013). In Samson v.
California, the United States Supreme Court upheld a California statute that
A-0042-16T2
31
allowed for suspicionless searches of parolees. 547 U.S. 843, 857 (2006).
Weighing parolees' diminished expectations of privacy by virtue of their status
as parolees against the State's interest in supervising parolees and reducing
recidivism, the Court concluded that suspicionless searches of parolees did not
offend the Fourth Amendment. Id. at 850-57.
The New Jersey Constitution, however, requires that suspicionless
searches be evaluated under a "special needs" test rather than a general balancing
test. State v. O'Hagen, 189 N.J. 140, 157-58 (2007). The New Jersey Supreme
Court delineated the special needs test as follows:
Under that test we must first consider whether there is
a special governmental need beyond the normal need
for law enforcement that justifies [the search] without
individualized suspicion. If there is a special need, we
must next examine the privacy interests advanced by
defendant and any limitations imposed. Finally, we
must weigh the competing governmental need against
the privacy interests involved to determine whether [the
search] ranks among the limited circumstances in
which suspicionless searches are warranted.
[Id. at 158 (internal quotations omitted).]
Applying this test, we conclude that the State has a special governmental
need justifying the suspicionless searches of PSL offenders' Internet-capable
A-0042-16T2
32
devices.12 The State lacks a special governmental need where "the immediate
purpose [of the suspicionless search] is to gather evidence against the individual
for general crime control purposes." Id. at 160. The State may have a special
government interest, however, where "the core objective of the police conduct
serves a special need other than immediate crime detection." Ibid.In the cases before us, we are mindful that the Legislature enacted the CSL
statute to address the concern that sex offenders recidivate at a relatively high
rate. See Jamgochian, 196 N.J. at 237-38; Doe v. Poritz, 142 N.J. 1, 14-18
(1995). To advance this purpose, PSL offenders are "subject to conditions
appropriate to protect the public and foster rehabilitation." N.J.S.A. 2C:43 -
6.4(b); see also J.I., 228 N.J. at 211 ("Conditions imposed on CSL offenders—
like those imposed on regular parolees—are intended to promote public safety,
reduce recidivism, and foster the offender's reintegration into society."). In this
regard, we find that the monitoring conditions serve two significant purposes
beyond immediate crime detection.
12
As a threshold matter, the monitoring software, unannounced inspection of
devices, and password disclosure conditions constitute searches, because the
Board obtains information by intruding on an area (computer files) in which
individuals have a reasonable expectation of privacy. See Grady v. North
Carolina, 135 S. Ct. 1368, 1369-71 (2015) (holding that GPS monitoring of
registered sex offenders constituted a search).
A-0042-16T2
33
First, the monitoring conditions allow the Board to ensure that PSL
offenders adhere to any restrictions placed on their Internet use. See J.B., 229
N.J. at 41 ("We have acknowledged that the State has a significant interest in
ensuring adherence to the restrictive conditions imposed pursuant to PSL and
CSL to protect the public from recidivism by defendants convicted of serious
sexual offenses." (internal quotation omitted)). Second, the monitoring
conditions may deter PSL offenders from using the Internet to commit new
offenses, particularly in cases where the offender has previously used the
Internet to commit offenses. See H.R., ___ N.J. Super ___ (slip op. at 8) ("An
offender is likely to be deterred from engaging in criminal activity that could be
verified with monitoring data."). These two interests are special governmental
needs beyond "gather[ing] evidence against the individual for general crime
control purposes." O'Hagen, 189 N.J. at 160.
Having determined that the monitoring special conditions serve a special
need, we next examine PSL offenders' offsetting privacy interests. As stated
earlier, PSL offenders' privacy interests are significantly diminished by virtue
of their status as parolees. See Samson, 547 U.S. at 850-52; J.B., 229 N.J. at
40-41. Weighing the State's special interests against PSL offenders' diminished
privacy interests, we find that the State's interests outweigh the offenders'
A-0042-16T2
34
privacy interests. See J.B., 229 N.J. at 41 ("In weighing the competing interests
here, we find that the State's interest in ensuring that parolees adhere to the
conditions of their release pursuant to PSL and CSL outweighs the parolees'
privacy interest in the information obtained during a polygraph examination.");
H.R., ___ N.J. Super. ___ (slip op. at 13-16) (holding that the satellite-based
monitoring of registered sex offenders was an unreasonable search for an
offender not subject to PSL, but was reasonable for an offender subject to PSL).
Therefore, we find that the monitoring special conditions do not facially violate
the protections of the Fourth Amendment of the United States Constitution or
Article I, Paragraph 7 of the New Jersey Constitution.
Similarly, based on the balancing of the relevant interests, we reject
appellants' contention that these conditions infringe upon appellants' rights to
substantive due process and privacy. See J.B., 229 N.J. at 40-43 (holding that
polygraph examinations of PSL and CSL offenders did not violate constitutional
right to privacy). We note, however, that the Board may not impose monitoring
conditions on individual PSL offenders in an arbitrary or unreasonable manner.
J.I., 22 N.J. at 230. In that regard, as with other Internet-use restrictions, the
Board should tailor monitoring conditions to the needs of the individual
offender. See id. at 224. Accordingly, we consider whether the monitoring
A-0042-16T2
35
conditions imposed are arbitrary or unreasonable as applied to each individual
appellant below.
B.
(As-Applied Challenges)
K.G.
K.G. argues that the no-Internet special condition, the monitoring special
conditions, and the social-networking general condition, as applied to him,
violate the constitutional protections of free speech and association and
constitutional protections against unreasonable searches. He also contends that
the conditions were imposed upon him without sufficient due process, as the
Board did not provide discovery or a hearing during the administrative appeal.
K.G. finally argues that the no-Internet special condition violates due process
under the void for vagueness doctrine.
Internet-Access Conditions
Considering the factors discussed in J.I., we find that the no-Internet
special condition, the monitoring special conditions, and the social-networking
general condition are arbitrary, capricious, and unreasonable as applied
individually to K.G. Guided by the Court's decision in J.I., we consider "such
factors as the underlying offense and any prior criminal history, whether the
A-0042-16T2
36
Internet was used as a tool to perpetrate the offense, the rehabilitative needs of
the offender, and the imperative of public safety." J.I., 228 N.J. at 224. As in
J.I., K.G.'s underlying offense did not involve the use of the Internet and K.G's
criminal history does not reveal any misuse of the Internet. See id. at 229.
Indeed, whereas J.I. visited websites depicting nude minors while on parole,
there is no evidence in the record suggesting that K.G. ever visited illegal or
inappropriate websites. See id. at 212. Based on K.G.'s underlying offense and
criminal history, therefore, the need to restrict his Internet use to protect public
safety is diminished. On the other hand, K.G. may have legitimate needs to use
the Internet to reintegrate into society, such as by marketing his business. See
id. at 210 ("Today, the Internet plays an essential role in the daily lives of most
people—in how they communicate, access news, purchase goods, seek
employment, perform their jobs, enjoy entertainment, and function in countless
other ways.").
The Board primarily justified the imposition of these conditions based on
K.G.'s violation of the social-networking general condition in August 2015. We
find, however, that the Board never justified how a total ban on the use of social
networking by K.G. was "reasonably tailored to advance the goals of
rehabilitation or public safety." Id. at 229. The Board reasoned that "the
A-0042-16T2
37
opportunistic and exploitive elements of [K.G.]'s crime underscore the concerns
it has for permitting social networking access. By his own account, [K.G.]
admits to engaging in a conversation that led to a sexual encounter without an
awareness of the victim's age." This rationale, however, is insufficient to
support a total ban on social networking in a case such as K.G. where the
offender has not used social networking or the Internet to contact minors or
otherwise facilitate a sexual offense. Compare Albertson, 645 F.3d at 199(invalidating condition that required authorization for all Internet use in child
pornography case, because the offender did not use the Internet to contact any
victims), with United States v. Love, 593 F.3d 1, 12 (D.C. Cir. 2010) (upholding
Internet ban where the offender downloaded child pornography and used the
Internet to solicit sex with a minor).
We do not condone K.G.'s violations of conditions of PSL and note that
an offender must abide by conditions of PSL until relief is granted. J.I., 228
N.J. at 229. Nonetheless, we cannot ignore that the social-networking restriction
was overbroad when it was initially imposed upon K.G., and that the subsequent
A-0042-16T2
38
imposition of the no-Internet and monitoring special conditions was not
reasonably tailored to public safety or rehabilitative needs. See ibid.13
We acknowledge that the Board has granted K.G. numerous exceptions to
the no-Internet special condition that advance rehabilitative needs.
Nevertheless, these exceptions do not cure conditions that are overbroad to begin
with. See United States v. Holena, 906 F.3d 288, 292-93 (3d Cir. 2018) (holding
that condition of supervised release that barred an offender, who used Internet
to solicit sex from a minor, from accessing the Internet without prior approval
of probation officer was overbroad in scope).
In sum, because K.G. did not use the Internet to commit an offense and
because the Board has advanced no significant public safety concern to justify
these conditions, we cannot conclude that the conditions are reasonably tailored
to the individual offender. See J.I., 228 N.J. at 230. We therefore hold that the
13
We note that the United States Supreme Court held that a state law that
prohibited registered sex offenders from accessing social-networking websites
that could be accessed by minors was unconstitutionally overbroad and violated
the First Amendment. See Packingham v. North Carolina, 137 S. Ct. 1730,
1736-37 (2017). Although Packingham is not on point because that case dealt
with a criminal statute affecting registered sex offenders who were not on parole,
the Court recognized significant First Amendment interests in access to social-
networking websites. See ibid.A-0042-16T2
39
no-Internet special condition, the monitoring special conditions, and social -
networking general condition are arbitrary, capricious, and unreasonable as
applied to K.G. and hereby reverse the Board's imposition of these conditions.14
C.C.
C.C. argues that the social-networking general condition, the no-Internet
special condition, and the monitoring special conditions are arbitrary,
capricious, and unreasonable as applied to him. He also contends that the Board
violated procedural due process by declining to provide him with a hearing and
discovery during the administrative appeal. We reject these arguments.
Internet-Access Conditions
As noted above, while this appeal was pending, the Board relaxed the no-
Internet special condition and instead imposed upon C.C. the notify-computer
special condition. Based on consideration of the factors in J.I., we find that the
social-networking general condition, the notify-computer special condition, and
the monitoring special conditions are reasonable as applied to C.C.
In its final agency decision, the Board cited, among other things, the
following facts as justifications for the imposition of the Internet-use
14
Having reversed the conditions at issue, it is not necessary to address K.G.'s
remaining arguments.
A-0042-16T2
40
restrictions: (1) C.C.'s underlying offense involved the use of the Internet and
social-networking websites to solicit the minor; (2) C.C. consciously violated
his previous Internet-use conditions; (3) C.C. had not yet demonstrated a
substantial period of compliance with conditions of PSL since his release from
custody in December 2016; and (4) C.C. was working at a convenience store
and had not demonstrated the need to use the Internet or social -networking
websites for a professional purpose.
Considering the nature of C.C.'s underlying offense and his history of
violating PSL conditions restricting Internet access, we find that the conditions
imposed upon C.C. are reasonably tailored to advance goals of public safety and
rehabilitation and are not arbitrary, capricious, and unreasonable as applied to
C.C. See, e.g., Crandon, 173 F.3d at 127-28 (upholding condition of supervised
release restricting Internet use where the offender used the Internet to solicit sex
from a minor).
Procedural Due Process
We also reject C.C.'s contention that he was entitled to a hearing before
the Board. In assessing whether C.C. was entitled to a hearing, we consider "the
timing of and justification for the Internet restriction, the severity and length of
the restriction, whether facts are contested or uncontested, and whether
A-0042-16T2
41
credibility determinations must be made." J.I., 228 N.J. at 233. These factors
distinguish C.C.'s case from the circumstances in J.I. that warranted a hearing.
The Board initially imposed the Internet restrictions upon C.C.'s release from
incarceration in 2008 for an offense in which he used the Internet to lure a minor.
Additionally, in 2016, the Board re-imposed the conditions upon C.C.'s release
from incarceration for violating the conditions of his PSL that restricted Internet
access. This timing is distinguishable from J.I., where "J.I. complied for thirteen
months with the Internet conditions set on his release date, and the Parole
District Supervisor justified imposing extreme restrictions based on conduct that
predated his release." Id. at 232. Moreover, C.C. did not allege any factual
disputes in his administrative appeal to the Board. For these reasons, we
conclude that C.C. was not entitled to a hearing to contest the imposition of the
conditions.
We finally reject C.C.'s argument that he was entitled to discovery, as
neither the Court in J.I. nor the Board's regulations establish a right to discovery
in the agency appeals process.
C.C. also claims that he was deprived procedural due process because he
received an entirely redacted copy of the Board panel's decision sheet in March
2017 and therefore could not adequately challenge the specific factual or legal
A-0042-16T2
42
basis for the panel's decision in his appeal to the Full Board. On the facts of this
case, we find that C.C. had sufficient notice of the justification for the
imposition of the special conditions, as the conditions were imposed upon his
release from incarceration for previous violations of conditions of PSL
restricting the use of the Internet and social networking. We note, however, that
the Board should ordinarily provide the offender with an unredacted decision
sheet, unless it has a substantial security or safety need that requires redaction.15
J.L.
J.L. argues that the social-networking general condition and the notify-
computer special condition, as applied to him, violate constitutional protections.
Additionally, J.L. contends that the special condition restricting his access to
sexually-oriented materials and the no-alcohol special condition are arbitrary,
capricious, and unreasonable. J.L. also contends that all of the aforementioned
conditions violate due process under the void for vagueness doctrine. Finally,
J.L. argues that the conditions were imposed upon him without sufficient
procedural due process because he did not receive a hearing or discovery during
the administrative appeal. We address each of these arguments in turn.
15
We also note that the adopted regulations require that the offender be notified
in writing of the Board panel's decision. N.J.A.C. 10A:72-14.3(c).
A-0042-16T2
43
Internet-Access Conditions
We first address the social-networking general condition and the notify-
computer special condition. We again turn to the factors described in J.I. Like
C.C., J.L. used the Internet and social-networking websites to commit the
underlying offense. Thus, the Board's need to restrict J.L.'s Internet use is more
significant than in J.I. See 228 N.J. at 229. Additionally, unlike the no-Internet
condition in J.I., J.L. faces the less restrictive notify-computer special condition
and is not currently required to install monitoring software on his devices.
Under the notify-computer special condition, the Board may authorize J.L.
to access the Internet for purposes conducive to rehabilitative needs. In this
regard, the notify-computer special condition is a "less restrictive alternative[]
. . . [to] achieve the goal of public safety and rehabilitation." Id. at 224.
Considering the Board's interest in ensuring that J.L. does not use the Internet
or social-networking websites to commit new crimes, we find that the social-
networking general condition and the notify-computer special condition are
reasonably tailored to advance public safety and rehabilitative needs and
conclude that these conditions are not arbitrary, capricious, or unreasonable as
applied to J.L.
A-0042-16T2
44
Pornography Condition
We next turn to the condition restricting J.L.'s access to sexually-oriented
materials. Initially, we note that like restrictions on Internet use, this restriction
implicates First Amendment rights. See United States v. Gnirke, 775 F.3d 1155,
1163 (9th Cir. 2015). Nonetheless, given the role of pornography in J.L.'s 2013
offense, we find that a restriction on him accessing pornography is reasonably
related to the goal of protecting the public. See, e.g., United States v. Rock, 863
F.3d 827, 832 (D.C. Cir. 2017) (upholding total ban on pornographic materials
in child pornography case because condition was related to the underlying
offense); Thielemann, 575 F.3d at 277-78 (upholding ban on "sexually explicit"
materials where the offender encouraged a friend in an online chatroom to
sexually abuse a minor on a webcam).
We note, however, that the pornography restriction J.L. currently faces is
significantly broader than the restriction initially imposed in July 2014. As
detailed above, the July 2014 condition barred access to materials that were
"predominantly orientated to descriptions or depictions of sexual activity,"
whereas the current condition bars access to all "sexually-oriented materials."
For example, based on the special condition's definition of "sexually-oriented
materials," a film containing a single depiction of simulated sexual intercourse
A-0042-16T2
45
would be prohibited. See Gnirke, 775 F.3d at 1165 ("Applied literally, the
language of the condition would prevent [the offender] from viewing Oscar-
winning films like American Beauty and Brokeback Mountain, television shows
like The Wire, or sexually explicit works of art that appear in museums; yet such
non-pornographic materials receive full protection under the First Amendment."
(citing Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874 (1997))); United
States v. Simons, 614 F.3d 475, 483-85 (8th Cir. 2010) (holding that condition
prohibiting an offender from possessing any material that depicts nudity
involved a "greater deprivation of liberty than [was] reasonably necessary.").
On the record before us, we unable to conclude that the less restrictive
condition limiting J.L.'s access to materials that are "predominantly orientated
to descriptions or depictions of sexual activity" was insufficient to protect the
public. Therefore, we remand to the Board to consider whether a less restrictive
pornography condition than the one currently imposed upon J.L. can adequately
protect the public safety or to provide a more specific justification for the current
condition.16 We do not necessarily require that the Board hold a hearing on
remand, but the Board should consider the factors described in J.I. to determine
if a hearing is warranted. See J.I., 228 N.J. at 233.
16
The current condition will remain in effect pending this remand.
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Alcohol Condition
We next address whether the no-alcohol special condition is arbitrary,
capricious, and unreasonable as applied to J.L. The record indicates that two
clinical evaluations have deemed that J.L. did not need substance abuse
treatment. Further, although J.L's 2009 offense involved the use of alcohol,
there is no indication in the record that J.L. has subsequently engaged in offenses
involving alcohol or has violated the no-alcohol special condition since June
2015. Moreover, the special condition is broad, prohibiting not only consuming
alcohol, but also purchasing alcohol for others and frequenting establishments
whose primary purpose is the sale of alcohol.
In affirming the no-alcohol special condition, the Board found that the
condition did not inhibit J.L.'s business activities and that J.L. had not
demonstrated a long enough period of sobriety to warrant the discharge of this
condition. In light of the clinical evaluations finding that J.L. did not need
substance abuse treatment, however, we conclude that these justifications are
insufficient to reasonably support such a comprehensive restriction on
consuming alcohol, purchasing alcohol, and attending establishments whose
primary purpose is the sale of alcohol. We therefore find that the no -alcohol
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special condition is arbitrary, capricious, and unreasonable as applied to J.L. and
reverse the Board's imposition of this condition.
Void for Vagueness
We next consider whether the terms of any of the conditions challenged
by J.L. violate due process under the void for vagueness doctrine. Specifically,
J.L. contends that the terms "Internet-capable device," "social networking
service," "frequenting establishments whose primary purpose is the sale of
alcohol," and "sexually-oriented websites, material, information or data" are
unconstitutionally vague and overbroad. We find that none of the challenged
terms violate due process under the void for vagueness doctrine.
"A law is void if it is so vague that persons 'of common intelligence must
necessarily guess at its meaning and differ as to its application.'" State, Twp. of
Pennsauken v. Schad, 160 N.J. 156, 181 (1999) (quoting Town Tobacconist v.
Kimmelman, 94 N.J. 85, 118 (1983)). "The vagueness doctrine requires that
laws that impose criminal penalties or impede First Amendment interests be
strictly scrutinized." Id. at 182. Accordingly, a special condition of parole is
reviewed for vagueness under strict scrutiny. Pazden v. N.J. State Parole Bd.,
374 N.J. Super. 356, 370 (App. Div. 2005). Nonetheless, even under strict
scrutiny, a rule may use "broad terms, provided it is controlled by a sufficient
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basic norm or standard. It need not be minutely detailed to cover every possible
situation." Karins v. City of Atl. City, 152 N.J. 532, 542 (1998). In sum, "[a]
law is void as a matter of due process if it is so vague that persons 'of common
intelligence must necessarily guess at its meaning and differ as to its
application.'" Pazden, 374 N.J. Super. at 370-71 (alternation in original)
(quoting Town Tobacconist, 94 N.J. at 118).
Applying these standards, we conclude that each term challenged by J.L.
"is controlled by a sufficient basic norm or standard." Karins, 152 N.J. at 542.
As to the term "Internet-capable device," common intelligence supports that the
term means any device capable of accessing the Internet, whether it be a
computer, cell phone, wristwatch, or other device. 17 As to the term "social
networking service," the Board's regulations clearly define the terms "Social
networking service," "Chat room," "Internet website or application," and "Peer-
to-peer network." N.J.A.C. 10A:71-6.12(d)(25)(i) to (iv). As to the terms of
the no-alcohol special condition, the second sentence of the provision reads, "I
am to refrain from frequenting establishments whose primary purpose is the sale
of alcohol (i.e. bars and liquor stores)." A plain reading of the provision and the
17
The relevant portion of the special condition states: "I am to refrain from the
possession and/or utilization of any computer and/or device that permits access
to the Internet unless specifically authorized by the District Parole Supervisor."
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example indicates that the prohibition only applies to bars and liquor stores, not
any establishment that sells alcohol. Further, as discussed above, a plain reading
of the term "sexually-oriented materials" and the corresponding definition in the
special condition clearly indicates that the prohibition applies to any medium
that contains any actual or simulated description or depiction of sexual
intercourse, whether it be a movie, television show, novel, or pornographic
website.
For these reasons, we conclude that none of the challenged terms violate
due process under the void for vagueness doctrine. To the extent that any of
these conditions are overbroad as applied to an individual offender, that offender
may seek that the Board grant an exception to the plain meaning of the condition
and may in turn seek judicial review of the Board's decision.
Procedural Due Process
We next address J.L.'s contention that he was deprived procedural due
process because the Board denied him a hearing during the administrative
appeal. Considering the factors in J.I., we find that the circumstances did not
warrant a hearing. Most notably, J.L.'s underlying offense involved using
Facebook to lure a fourteen-year-old girl. J.L. also did not have an extended
period of compliance with the conditions of his supervision prior to the October
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6, 2016 imposition of the special conditions at issue in this appeal. J.L. was
released from a one-year term of incarceration for previous parole violations on
May 31, 2016, so he had roughly a five-month period of compliance prior to the
imposition of the special conditions. In this regard, the Board's delay in
imposing the special conditions is not as egregious as the thirteen-month gap in
J.I. See 228 N.J. at 232. Moreover, J.L. did not allege any factual disputes in
the administrative appeal. For these reasons, we conclude J.L. was not entitled
to a hearing in the administrative appeal.
Finally, as in C.C., we reject J.L.'s contention that he was entitled to
discovery during the administrative appeal. While the Board provided J.L. only
with an entirely redacted copy of the panel's decision sheet, J.L. had sufficient
notice of the justifications for the imposition of the special conditions through
the "Notice of Special Condition" forms he was provided when the conditions
were imposed.
D.C.
D.C. argues that the notify-computer and monitoring special conditions
are both arbitrary and unreasonable, as well as unconstitutional, as applied to
him. He also contends that the conditions were imposed upon him without
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sufficient procedural due process. We agree that the notify-computer and
monitoring special conditions are arbitrary and unreasonable as applied to D.C.
Internet-Access Conditions
Turning to the factors in J.I., we first emphasize that D.C. never used the
Internet to commit any crimes. Additionally, as in K.G., the Board's primary
justification for the imposition of the monitoring conditions is D.C.'s previous
violations of the social-networking general condition in 2009, but the Board
never provided a justification supporting that the social-networking condition
was reasonably tailored when it was initially imposed. Moreover, using the
monitoring software, the parole authorities have not detected any inappropriate
Internet use by D.C. since the monitoring condition was imposed in 2010,
significantly diminishing the need for the Board to continue monitoring D.C.'s
Internet use.
Importantly, D.C. also presented the Board with evidence supporting the
rehabilitative need for unrestricted Internet access based on his profession in the
IT field. In his administrative appeal, D.C. certified, among other things, that:
(1) his prospective work in the IT field would require the use of virtual machines
that allowed access to other people's servers and computers, (2) running the
Board's monitoring software on these machines would create a security risk for
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clients and possibly interfere with the functioning of the virtual machines, and
(3) he would necessarily use encryption software when working for clients .
Although the Division of Parole has not yet required D.C. to install monitoring
software on his work devices, we find that a parole officer's discretion to relax
the monitoring special conditions does not remedy this unnecessary restriction.
In sum, the record reflects that D.C. did not use the Internet to commit an
offense, the Board's monitoring detected no unauthorized Internet use in the
seven years prior to its final agency decision, the Board has advanced no
significant public safety concern to justify these conditions, and D.C. has
presented a rehabilitative need for unrestricted Internet use. For these reasons,
we hold that the notify-computer and monitoring special conditions are arbitrary
and unreasonable as applied to D.C. and reverse the Board's imposition of these
conditions.18
C.
(Summary of Conclusions)
In summary, in K.G., (A-0042-16), we reverse the Board's imposition of
the no-Internet special condition, the monitoring special conditions, and the
18
Having reversed the imposition of the conditions at issue, it is not necessary
to address D.C.'s remaining arguments.
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social-networking general condition. In C.C., (A-4339-16), we affirm the
Board's imposition of all special conditions at issue. In J.L., (A-4343-16), we
affirm the Board's imposition of the social-networking general condition and the
notify-computer special condition, remand for further consideration consistent
with this opinion on the issue of the sexually-orientated materials special
condition, and reverse the Board's imposition of the no-alcohol special
condition. In D.C., (A-4797-16), we reverse the Board's imposition of the
notify-computer special condition and the monitoring special conditions.
We do not retain jurisdiction.
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