MAHONEY: Social media accounts raise complexities for sex offender registry

Joe Mahoney 

New York’s Sex Offender Registration Act has been on the books since July 25, 1995, with a simple purpose — to protect innocent people from known predators and deviants.

Before the statute was enacted, the public had no way of finding out whether high risk sex offenders were living on the next block or the next town down the road.

One year before the law was enacted, a state employee risked his career by leaking then confidential information to me that a convicted sex fiend was about to be released from prison into a leafy suburban neighborhood where no one, other than the man’s sister, was familiar with what he had done.

This was no garden variety parolee. This one had sodomized an 8-year-old boy and used a clothesline to hang the young victim.

As a reporter working the crime beat, I went to the neighborhood in question and knocked on doors to get people’s reaction. React they did, and my story created such a firestorm that the man’s placement had to be shifted. It was quite apparent how important this kind of information is to families. Forewarned, as they say, is forearmed.

The law that went on the books 24 years ago has had updates and spawned a number of requirements for sex offenders.

One of them is that they must disclose to the state Division of Criminal Justice Services the “internet identifiers” that they use when they go online.

The rationale for that is simple to understand since it is so easy for people to use social media accounts to pretend they are someone they are not and attempt to initiate communications with an unsuspecting person.

But how much information must be provided to DCJS is now the subject of a review by New York’s highest court. The Court of Appeals heard arguments June 5 with regard to a registration violation charge lodged against a North Country sex offender named Arthur W. Ellis.

In March 2015, authorities in Essex County arrested Ellis, then 67, at his Ticonderoga home and charged him with a registration violation after they determined he had a Facebook account not mentioned with the information he provided to DCJS.

Ellis had landed on the registry after being convicted of possessing child pornography. He served more than two years in prison, and as a high risk, Level 3 offender, will be on the state registry for life.

But last year, a state appellate court dismissed the registration violation charge, ruling the charge was “jurisdictionally defective” because, in the view of the majority of judges, Ellis met his obligation by providing his email address, and finding that “internet identifier” did not mean the actual Facebook account created by Ellis. The ruling upended one earlier by the Essex County Supreme Court, which sided with the prosecution.

Then the Essex County District Attorney’s Office saw fit to appeal last year’s decision, leading to the Court of Appeals hearing.

The prosecutor’s office, represented by Assistant District Attorney Kathryn Moryl, contends Facebook is indeed an “internet identifier” and as such the sex offenders must register their social media accounts when they complete DCJS reporting forms. The prosecution points out in legal briefs that the Facebook site can be used for chats, instant messaging and for “social networking” and that its reading of the statute is backed up by the legislative history that led to the law.

The legal wrangling comes two years after the U.S. Supreme Court struck down a North Carolina statute that prohibited sex offenders from using Facebook. The justices decided that the law was a violation of the First Amendment.

Meanwhile, Facebook has banned sex offenders from having accounts on the site.

As for the courthouse debate over reporting requirements, I checked with one of New York’s leading experts on the Sexual Offender Registration Act. Laura Ahearn is the director of Parents for Megan’s Law, an advocacy group, as well as a Long Island-based lawyer specializing in representing sexual abuse victims. She said she agrees with the stance of the Essex County district attorney.

“An internet identifier’ is a broad enough term to be inclusive of emails, Twitter accounts, screen names on Facebook or music sites,” Ahearn said. “Whatever a sex offender uses as his identify on line has to be registered. ‘Internet identifier’ means what you do to identify yourself on the internet. I think that’s clear.”

The Court of Appeals is expected to issue a ruling within the next month. If Ellis prevails as he did in the appellate court, then New York will be left with a hole in its safety net for those who rely on the Sexual Offender Registration Act to protect their families.

The repair of that hole would have to be done by state lawmakers.

Joe Mahoney covers the New York Statehouse for CNHI’s newspapers and websites. Reach him at jmahoney@cnhi.com.