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Appeals Court: Sex Offender’s Failure to Disclose Social Media Account is “not a crime”

Under the Sex Offender Registration Act, registered sex offenders must tell New York State about all “internet accounts with internet access providers” and “internet identifiers that such offender uses.” Does that mean you have to disclose your social media accounts?

Most police and the the State Division of Criminal Justice Services would have said yes. Police agencies routinely scour the internet looking for sex offenders who are on social media but have not properly disclosed their presence. People always thought hiding a social media account was a felony — failure to register under Corrections Law Sec. 168-t.

Turns out it is not.

In People v. Ellis, decided last Thursday, the Third Department Appellate Division (whose decisions are binding statewide, absent contrary authority) ruled that Arthur W. Ellis’s use of Facebook without disclosing it to the state does not amount to a failure to register because the statute does not reach social media accounts. In other words, Facebook and similar services are not “internet access providers,” and, unlike the email used to sign up for Facebook, the Facebook account itself is not an “internet identifier.”

This appears to be news to DCJS, the state agency that runs the registry. The forms that DCJS uses ask for internet service providers, “user/screen names,” and email addresses. But that’s not what the statute calls for; rather, it requires “internet accounts” and “internet identifiers,” including email addresses. According to the Court,  the instructions that DCJS provides to offenders “do not clearly or accurately state what information a sex offender is statutorily required to register” because they “do not include the term ‘[I]nternet identifiers’ or its statutory definition.”

Just because it’s not a crime for sex offenders to go on Facebook without disclosing does not mean that offenders are free to troll social media. Probation and parole restrictions can (and usually do) sharply limit social media use. The felony provision, which is found in Corrections Law Sec. 168-d, was intended to permit social media companies to identify sex offenders using their sites, not to let police make stats by locking people up that they find, harmlessly, using social media, decades after their sex offense prosecution ended.

As a result of last week’s decision, Mr. Ellis’s conviction will be vacated. Kudos to defense attorney Noreen McCarthy, Esq., of Keene Valley for fighting an uphill battle, and winning. It remains to be seen whether the case will have retroactive effect. But if you are currently being prosecuted under SORA for failing to disclose a social media account, your case is likely subject to dismissal. As always, call our office for more information at 212-685-0999.