Fourth Circuit Update: United States v. Comer

On July 21, 2021, the Court of Appeals for the Fourth Circuit decided Appeal Number 19-4466, United States v. Marysa Renee Comer. Judge Wynn wrote for the Court. Judges Keenan and Thacker joined the opinion. In a sentence, the Court approved a condition of supervised release that prohibited use of social media with permission from the U.S. Probation Office. This decision is notable because it demonstrates the significant impact that conviction can have on one’s life and freedom, even after completion of one’s prison sentence.

The Big Picture

It is common for courts, both state and federal, to restrict defendants’ internet use if they are convicted of crimes involving the internet. This frequently includes sexual offenses committed over the internet but also includes offenses such as hacking and even terrorism. In some states, it is imposed (often categorically) on defendants whose crimes did not involve the internet, although such restrictions are arguably unconstitutional after the Supreme Court’s decision in Packingham v. North Carolina.

We needn’t explain the importance of the internet to modern life. If you are reading this without the ability to access the internet, we imagine that doing so must have been very difficult.  A prohibition on social media use alone would raise many of the same issues as a total internet ban. One would struggle to locate friends and family who have moved since one was incarcerated. One would be restricted from many channels of political information and advocacy. The inability to use LinkedIn could seriously damage one’s employment prospects.

Many federal courts of appeals have restricted the bans on internet use that a district court may impose. In the Fourth Circuit, restrictions on internet use require evidence that the defendant used the internet to commit illegal activity. U.S. v. Ellis, 984 F.3d 1092, 1102-03 (4th Cir. 2021). The Court of Appeals has frequently vacated the imposition of such restrictions where the defendant’s criminal conduct did not involve the internet. Ellis, 984 F.3d at 1102-03; U.S. v. Arbaugh, 951 F.3d 167, 178-79 (4th Cir. 2020); U.S. v. Wroblewski, 781 F. App’x 158, 163-64 (4th Cir. 2019). Even when restrictions on internet usage are appropriate, a total ban is likely to be overbroad. Ellis, 984 F.3d at 1104-05. The Court of Appeals has upheld a ban on any internet use, however, where the U.S. Probation Office could grant exceptions. U.S. v. Hamilton, 986 F.3d 413, 421-23 (4th Cir. 2021).


Our story begins and ends with the internet. In March 2014, when she was only 19, Marysa Comer met David Delay online. The two began a romantic relationship and, at Mr. Delay’s urging, she left North Carolina to join him in Washington. That was a mistake. Mr. Delay abused her, physically and emotionally, and also pimped her out. Page 3.

Ms. Comer’s own prostitution, however, was not the subject of her conviction. Rather, Ms. Comer used dating websites to lure in new victims, whom she forced into sex work through a variety of abusive means. For example, she recruited a developmentally-delayed high school pupil using the dating website MeetMe. She used violence to compel this pupil to have sex for money. When the girl found the strength to leave, Ms. Comer threatened to post – and then posted – sexual pictures on the girl’s Facebook page, locking her out of her account in the process. Page 3.

Proceedings Below

Eventually, Ms. Comer was arrested. She pled guilty to conspiracy to engage in sex trafficking by force, fraud, or coercion. While on bond, awaiting sentencing, Ms. Comer violated many of the conditions of her release. Page 4. Most significantly, she accessed the internet without permission and even used it to order a smartphone. Pages 4, 16-17.

Shortly after completing her sentence, Ms. Comer moved back to North Carolina, where she again violated the conditions of her release. She communicated with “Jordan,” a felon whom she had met on Facebook, despite a prohibition on communicating with felons. She even referred her friends to Jordan to buy drugs. Page 4. She was also required to permit the government to monitor her electronic devices, but she made no payments towards this monitoring (after the installation fee) and tried to evade it entirely with a secret phone, knowing that her probation officer wouldn’t allow it. Pages 4-5, 17.

When the district court found out, it extended her supervised release until June 2024. Page 5. It also imposed a new condition of release, forbidding Ms. Comer to have any social media accounts without the approval of her probation officer. Page 5-6. This condition was the subject of Ms. Comer’s appeal.

The Meaning of “Social Networking Account”

Ms. Comer’s first argument, citing (among other authority) Packingham, was that the condition was unconstitutionally vague. To address this challenge, the Court had to try to understand what Ms. Comer could and couldn’t do without the permission of her probation officer.

The Court understood “social networking account” to mean “an account on a website or app that is primarily intended to facilitate social introductions between two or more persons through the use of personal profiles for the purposes of friendship, meeting others, or information exchanges.” Page 8. The Court found this consistent with the probation officer’s testimony that she would enforce the condition as to Facebook and dating apps but not to news websites. Pages 9-10. Therefore, the term was “truly about social networks—websites and apps designed primarily to allow individuals to meet and communicate.” Page 10. Applying this understanding, Ms. Comer “clearly could not maintain a profile on a dating app (like Bumble or Tinder), but could just as clearly maintain an online account with a news website (like the New York Times) or a shopping website (like Amazon).” Page 10.

The Problem with the Court’s Interpretation

The Court admitted that there was “some gray space on the margins as to what activity the social networking condition restricts.” Page 8. This is something of an understatement. As Justice Alito pointed out in Packingham, Amazon allows users to create a profile and exchange information about products sold on the website. 137 S.Ct. 1730, 1741-42 (2017) (concurring in judgment). Likewise, many news websites allow users to create a profile and post or reply to comments. Id. at 1742. Even WebMD, a health site, has a message board. Ibid. Practically, the Court granted the Probation Office enormous discretion to determine the websites that Ms. Comer would be allowed to access.

Indeed, the Court seemed to admit that such broadness would be impermissible in any other context. See Footnote 9 (pages 13-14). The Court relied heavily on Ms. Comer’s ability to clarify the terms with her probation officer, as well as her immunity from punishment for inadvertent transgressions. Pages 11-12.

For example, although LinkedIn fell within the Court’s “commonsense definition of a social networking account,” the Court would hold Ms. Comer’s probation officer to her statement that Ms. Comer could use LinkedIn “to make herself . . . better for the job world.” Footnote 6 (page 10). It isn’t clear whether the probation officer meant that she didn’t consider LinkedIn “social networking” or that it was “social networking” but she wouldn’t restrict it. Regardless, the probation officer could change her mind and declare LinkedIn off-limits, so long as she provided Ms. Comer with fair notice. Footnote 6. The Court’s response was, effectively, that if this happened then Ms. Comer could challenge her precise restrictions. Page 13.

The Court Finds the Condition Valid

The condition was no more restrictive than necessary.

Some readers may be wondering whether it remains possible to find a date without using an app. Other might think that, after her first experience of online romance, Ms. Comer would not be eager to try it again. Regardless, Ms. Comer argued that she had a liberty interest in finding a romantic partner, which was constitutionally protected by the Due Process Clause. She argued that the restriction on social media use infringed that interest and, more generally, that the condition was too restrictive. Page 14.

The Court of Appeals was not persuaded, stating that even a constitutional right (assuming that Ms. Comer had one) may be restricted on supervised release. Page 15. The Court held that, given her past use of social media (including a dating site) to commit crimes and her history of trying to evade less restrictive conditions, the Court’s order “deprived Comer of no more liberty than was necessary to accomplish these goals—even if it does prevent her from finding a romantic partner online during the period of supervision.” Pages 16-17.

The condition didn’t delegate the court’s authority.

Ms. Comer also argued that the condition was invalid because it delegated the judge’s authority to a probation officer, who would decide what constituted “social networking.” Pages 17-18. The Court cited its decision in U.S. v. Van Donk, 961 F.3d 314, 327-28 (4th Cir. 2020), as showing that “as long as the court orders the broad principle guiding the condition of release and retains the ultimate authority over revoking release, the court may allow the probation officer to fill in many of the details necessary for applying the condition.” Page 19. Applying this principle, the Court held that this delegation was permissible, because the district court had set the core rule and would ultimately determine whether Ms. Comer had violated that rule. Page 19.

The Court found support for its conclusion in decisions from other circuits, rejecting similar challenges to prohibitions on any use of the internet without a probation officer’s permission. Pages 19-20. These cases, however, did not address the specific issue of who decided what “social networking” is. Again, the practical effect of the Court’s decision is to confer great authority upon the Probation Office.

Is There Anything Else?

During the revocation hearing, Ms. Comer’s probation officer had sat with and advised the prosecutors. Page 21. Ms. Comer argued that she was entitled to a new hearing. Because Ms. Comer had not preserved the issue below, the Court applied plain error review. Page 21. Because the Court had not previously ruled on the issue, it found no plain error. Pages 22-23. The Court nevertheless admonished the government against repeating such practice. Pages 2, 23. Given the strictness of plain error review, the outcome might have been different if the defense had properly objected to the issue.

What This Means

The conditions upheld in Comer, at least as the Court understood them, were less restrictive than the total ban upheld in Hamilton. This does not undermine the significant impact that they are likely to have on Ms. Comer’s life. For the rest of us, what’s remarkable about this decision is just how much of a person’s liberty is entirely up to a probation officer.

What remains unclear is what connection between crime and the internet permits a restriction on using the internet. That some internet connection is required doesn’t mean that “any evidence of illegal internet activity always satisfies § 3583(d)(1)’s requirement.” Ellis, footnote 8 (page 1102). In Ellis, for example, the defendant used the internet to legally watch pornography and then lied to his probation officer. 984 D.3d at 1096. Because it was the lying that had violated the conditions of his release, the Court found this did not justify a ban on using the internet. Id. at 1103. It is not clear how close the connection must be, or whether such restrictions may be imposed on a defendant whose offense was offline but who used the internet to violate a condition of release.

By Jonathan Knowles

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