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New York Appellate Court Discusses Internet Access for Level 3 Sex Offender


People v Ellis

In this case the People assert that the defendant is a level 3 sex offender. Because of this, he was required, pursuant to Corrections Law 168-7(4), to register his Facebook account. The law specifies that it must be done no later than 10 days after a change of address or internet identifiers. Internet identifiers are defined as any electronic mail addresses or designations used to chat, for instant messaging, social media or other internet communication (Corrections Law 168-a[18]. Failure to register is considered a class E felony for the first offense, and the second offense is a class D felony.

The defendant filled out his annual verification form. This form required him to disclose internet information such as his screen name, service provider, and email address. While he disclosed the identifier on his Facebook account, he didn’t disclose that he had a Facebook account. He was charged with a violation of Corrections Law 168-f (4) on the premise that he didn’t disclose the account as an internet identifier.

The defendant moved for a dismissal of the indictment. He argued that it failed to charge him with a crime, because Facebook isn’t deemed an internet identifier. The court denied his motion and the defendant plead guilty. It was noted that the defendant wasn’t waiving his challenge. The Appellate Court reversed and dismissed the indictment. They stated that while sex offenders must disclose internet identifiers, the law doesn’t require that they disclose the services they have on account. Because of this, the indictment failed to charge the defendant with an offense. Therefore, the indictment is jurisdictionally defective (162 AD3d 161 [3d Department 2018]. The court granted leave to appeal (32 NY3d 937 [2018]. This court affirms.

The court was correct in determining that the Facebook account isn’t considered an internet identifier that the defendant must report. Neither Facebook or the account is an email address, or a formal internet designation used for internet communication (Corr. Law 168-a [18].

Pursuant to the law, an internet identifier must be reported to the DCJS. What must be reported is the names used when the defendant is interacting with others on the internet. In this case, the defendant used his full, accurate name when interacting with the Facebook community.

The People have argued that the defendant should have disclosed his Facebook account information to the DCJS. It is necessary to reconcile the purpose of the law with the defendant’s actions. The law requires that the information he provides would allow the DCJS to detect any inappropriate activity by sex offenders.

The term “internet identifier” was added to the law as part of the “Electronic Security and Targeting of Online Predators Act” (e-STOP). The purpose was to gain information behind the computer screen, where sex offenders can hide their identity while engaging in illegal activity. This was also due to the offender’s ability to act anonymously with children.

To address this issue, e-STOP permitted the DCJS to release internet identifiers used by sex offenders to advise law enforcement of any potential violations of law (Corr. Law 168-b [10]. The law defined an “authorized entity” as any business, organization or entity which offers internet service access to meet or communicate with others for the purpose of social networking. Facebook falls into this category. Because of this e-STOP allows Facebook and other sites to obtain internet identifiers to determine if a sex offender is using their platform. They may identify them, remove them, and notify law enforcement of their presence. Presently, the law doesn’t require that sex offenders disclose the internet accounts they are on.

Because of this, the Appellate Court correctly ruled that Facebook isn’t an internet identifier. The presence of a Facebook account doesn’t need to be disclosed, and only internet identifiers that an offender may use to access Facebook are required. Therefore, the indictment accused the defendant of offenses that didn’t constitute an offense (People v Ionne 45 NY2d 589, People v Taylum 65 NY2d 1 [1985]. Appellate decision affirmed.

NY Slip Op. 05183

June 27, 2019

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