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Where sex offenders don’t socially register

Sex offenders do not have to register Facebook accounts under state Correction Law Section 168, according to a recent New York State Court of Appeals ruling.

At issue in the People v. Arthur W. Ellis Jr., decided late last week, is a clause in the state law that requires sex offenders to register with the state Division of Criminal Justice Services no later than 10 days after any change of address, internet accounts or internet identifiers the sex offender uses. The law defines internet identifiers as email addresses and designations used to chat, instant message, use social networks or other similar internet communications.

Ellis completed the verification form in 2015 and disclosed his service provider, screen name and email addresses. Ellis disclosed the identifier he used to log into Facebook and the name by which he is referred to on Facebook (his real name) but did not include on the form that he had a Facebook account. He was then charged with violating the state statute for failing to disclose an internet identifier.

Ellis moved to dismiss the indictment in his county court, claiming that it failed to charge a crime or offense because Facebook is not an internet identifier. The lower court denied the motion and Ellis pleaded guilty, though he did not waive his right to an appeal. A state appellate court reversed the judgement and dismissed the indictment, concluding that although sex offenders must disclose internet identifiers that does not mean they have to disclose the services on which they have accounts.

“The Appellate Division correctly concluded that a Facebook account is not an ‘internet identifier’ that defendant must disclose to (state Division of Criminal Justice Services) because neither Facebook nor the account is an email address or a ‘designation used for the purposes of chat, instant messaging, social networking or other similar communication,” the court wrote in its decision. “By contrast, the ‘internet identifier’ an offender uses to access the Facebook account must be disclosed to DCJS, and here, defendant disclosed the email address that he uses to access his Facebook account. Similarly, the name one uses to interact with other users on Facebook — such as a screen name, pseudonym or alias — may be an internet identifier that must be disclosed to DCJS if it is a ‘designation used for the purpose of chat, instant messaging, social networking or other similar internet communication.’ Here, however, there is no dispute that defendant used his real, full name to interact with other Facebook users.”

Justices wrote that the state’s “e-STOP” legislation passed in 2008 does not include any requirement for sex offenders to disclose Facebook accounts to the state. The law does seek to give Facebook and other social networking sites enough information to allow them to detect and curtail inappropriate use of social networking by sex offenders. The legislative Memorandum of Support for the “e-STOP” legislation confirmed the state Legislature’s intention was to keep sex offenders from interacting anonymously with others, including children, on the internet. This was accomplished by the law allowing the Division of Criminal Justice Services to release to authorized internet entities the internet identifiers used by sex offenders so that internet entities like Facebook can prescreen or remove sex offenders from their services and to advise law enforcement of potential violations or threats to public safety.

“Currently, e-STOP permits Facebook and other social networking sites to obtain the ‘internet identifiers’ used by sex offenders and, with those internet identifiers, determine whether a sex offender is utilizing their services, prescreen or remove sex offenders from their services and inform law enforcement of ‘potential violations and/or threats to public safety,'” the justices wrote. “The legislature could easily have included the mandatory disclosure provisions … the ‘authorized internet entities’ that a sex offender uses, such as Facebook. Presently, however, that statute does not require sex offenders to disclose to DJCS the authorized internet entities they use.”

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