The People v. Arthur W. Ellis Jr. ( 2019 )

State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.
No. 54
The People &c.,
Appellant,
v.
Arthur W. Ellis Jr.,
Respondent.
Kathryn M. Moryl, for appellant.
Noreen McCarthy, for respondent.
FAHEY, J.:
The People contend that defendant, a level three sex offender, was required to
register his Facebook account as an “internet identifier” pursuant to Correction Law § 168-
f (4). That statute requires that sex offenders register with the Division of Criminal Justice
-1-
-2- No. 54
Services (DCJS) “no later than ten calendar days after any change of address, internet
accounts with internet access providers belonging to such offender, [or] internet identifiers
that such offender uses . . . ” (Correction Law § 168-f [4]).* “Internet identifiers” are
defined as “electronic mail addresses and designations used for the purposes of chat, instant
messaging, social networking or other similar internet communication” (Correction Law §
168-a [18]). Failure to register with DCJS is a class E felony for the first offense and a
class D felony for subsequent offenses (see Correction Law § 168-t).
In 2015, defendant completed his annual “Verification Form” (see Correction Law
§ 168-f [2]). The form required defendant to disclose to DCJS certain “Internet
Information,” including his “service provider,” “screen name[s],” and “email address[es].”
Defendant disclosed information in each of these preprinted sections, including his email
address. Although he disclosed the identifier he used to log into Facebook, and the name
by which he went on Facebook (his real name), he did not disclose the fact that he had a
Facebook account. He was charged with failing to register in violation of Correction Law
§ 168-f (4) on the theory that he failed to disclose this account as an “internet identifier.”
Defendant moved to dismiss the indictment, claiming, among other things, that it
failed to charge a crime or offense, inasmuch as Facebook is not an “internet identifier.”
*
An “[i]nternet access provider” is defined as “any business, organization or other entity
engaged in the business of providing a computer and communications facility through
which a customer may obtain access to the internet, but does not include a business,
organization or other entity to the extent that it provides only telecommunications services”
(Correction Law § 168-a [17]). The parties agree that Facebook does not qualify as an
“internet access provider” and that defendant’s Facebook account was not an “internet
account[] with [an] internet access provider[]” (id. § 168-f [4]).
-2-
-3- No. 54
County Court denied that motion, and defendant pleaded guilty as charged. The court
noted that defendant was not waiving his challenge as to whether there was an extant crime
charged in the indictment. The Appellate Division reversed the judgment and dismissed
the indictment based on its conclusion that although sex offenders must disclose all
“internet identifiers” they use, the statute does not require that they disclose the services
on which they have accounts, and therefore the indictment failed to charge defendant with
a crime, rendering the indictment jurisdictionally defective (162 AD3d 161 [3d Dept
2018]). A Judge of this Court granted the People leave to appeal (32 NY3d 937 [2018]).
We now affirm.
The Appellate Division correctly concluded that a Facebook account is not an
“internet identifier” that defendant must disclose to DCJS 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 internet communication” (Correction Law §
168-a [18]). 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 purposes of
chat, instant messaging, social networking, or other similar internet communication” (id.).
Here, however, there is no dispute that defendant used his real, full name to interact with
other Facebook users.
-3-
-4- No. 54
The People’s contention that defendant was required to disclose the existence of his
Facebook account to DCJS, in addition to any email addresses and designations associated
with that account, cannot be reconciled with the relevant statutes, which aim to provide
Facebook and similar internet services with access to information sufficient to allow them
to detect and curtail the inappropriate use of social networking by sex offenders. The term
“internet identifier” was added to the statutory scheme in 2008 with the enactment of the
“Electronic Security and Targeting of Online Predators Act,” or “e-STOP” (L 2008, ch 67).
The legislative purpose and findings of the law demonstrate that the legislature was
concerned that “[b]ehind a computer screen, convicted sex offenders are able to hide their
identity while attempting to engage children in illicit activity” and that the internet
contained a “promise of anonymity” (L 2008, ch 67, § 1 [emphasis added]). The Senate
Introducer’s Memorandum in Support of e-STOP further confirms that the legislature was
concerned with the ability of sex offenders to interact anonymously with others, including
children, on the Internet (see Senate Introducer’s Mem in Support, Bill Jacket, L 2008, ch
67 at 6-7, 2008 McKinney’s Session Laws of NY at 1740).
To address the specific issue of sex offenders accessing social media platforms
anonymously, e-STOP allowed DCJS to release to “authorized internet entit[ies]” the
“internet identifiers” used by sex offenders in order to enable those authorized internet
entities to “prescreen or remove sex offenders from [their] services” and to “advise law
enforcement and/or other governmental entities of potential violations of law and/or threats
to public safety” (Correction Law § 168-b [10]). An “[a]uthorized internet entity” is
defined as “any business, organization or other entity providing or offering a service over
-4-
-5- No. 54
the internet which permits persons under eighteen years of age to access, meet, congregate
or communicate with other users for the purpose of social networking,” other than “general
e-mail services” (Correction Law § 168-a [16]). Facebook plainly falls within that
definition. Consequently, 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 of law
and/or threats to public safety” (id. § 168-b [10]).
The legislature could have easily included among the mandatory disclosure
provisions of Correction Law § 168-f (4) the “authorized internet entities” that a sex
offender uses, such as Facebook. Presently, however, that statute does not require sex
offenders to disclose to DCJS the authorized internet entities that they use.
For these reasons, the Appellate Division correctly concluded that Facebook is not
an “internet identifier,” and that the existence of a Facebook account—as opposed to the
internet identifiers a sex offender may use to access Facebook or interact with other users
on Facebook—need not be disclosed to DCJS pursuant to Correction Law § 168-f (4). As
the People concede, this was the legal theory upon which the indictment was based. The
indictment therefore accuses defendant of performing acts that “simply do not constitute a
crime” and is jurisdictionally defective (People v Iannone, 45 NY2d 589, 600 [1978], citing
People v Case, 42 NY2d 98 [1977]; see also People v Taylor, 65 NY2d 1, 5 [1985]). In
light of that determination, we do not reach defendant’s remaining arguments.
Accordingly, the order of the Appellate Division should be affirmed.
-5-
-6- No. 54
* * * * * * * * * * * * * * * * *
Order affirmed. Opinion by Judge Fahey. Chief Judge DiFiore and Judges Rivera, Stein,
Garcia, Wilson and Feinman concur.
Decided June 27, 2019
-6-