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National

NY: Ruling Appears To Give Sex Offenders A Pass On Facebook

[wwnytv.com – 6/29/18]

It’s a case out of Essex County called the People v. Ellis.

“Their decision was that Facebook accounts did not have to be registered if you are a sex offender,” said Leanne Moser, Lewis County District Attorney.

New York state law requires sex offenders to register their Internet providers and any Internet identifiers that they use, but the court in Essex County decided Facebook is not either of those.

Right now, courts in the north country have to follow the ruling, unless there is another contrary ruling here or in the state’s highest court.

For that reason, the decision is being followed in Lewis County.

“Reading this decision, I don’t understand how they got to this decision…I think it would be a public concern that you would want a registered sex offender to register a Facebook account or any other social media account because that is how they reach out to possibly attract victims,” said Moser.

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  1. Sunny

    I thought this was already settled case law following the Packingham v. North Carolina case in which the US Supreme Court unanimously determined that prohibiting registrants from using social media is a violation of our 1st Amendment rights:
    https://en.wikipedia.org/wiki/Packingham_v._North_Carolina

    Although this case differs in that it requires registrants to register their internet identifiers, the Packingham precedent should still be binding because the court has repeatedly ruled that free speech includes the right to anonymous speech (see McIntyre v. Ohio Elections Commission, 1995).

    Upon further research, there has been debate about this exact matter in the lower courts. Here is a WaPo article discussing an Illinois State Supreme Court ruling against a registrant, shortly before the Packingham decision:
    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/31/a-setback-for-first-amendment-protection-for-anonymous-speech/

    ACSOL article reference:
    https://all4consolaws.org/2017/11/il-sex-offender-back-in-court-on-internet-access-issue/

    • AO

      @Sunny – It’s two different things. The case you mentioned was whether or not RC’s could be legally prohibited from using FB at all. They cannot. The NY case is if RC’s had to tell the cops that they’re using FB. Those in states under SORNA (and some others) have to register with the police all internet names they use, but are not prohibited from using the actual websites as long as they’re off paper (while on paper they can impose much stronger restrictions, however, because of the Packingham ruling I do not believe FB can be prohibited). So those sites where instead of using your real name you make one up like Sunny657, you’d have to give that name to the cops. This ruling clarifies that as long as you’re using your real name on FB, you don’t have to register it since your real name is already the initial bases for the registry. The law in general doesn’t have you proved the actual website you’re using to the cops, just your various “names”. The person in the above quotes that doesn’t understand how they came to this ruling clearly doesn’t understand what the law initially required. Some of these people that pass these laws don’t seem to actually understand what they’re passing. An Identifier (your name) isn’t the same thing as a website.

      The interesting thing though with both these cases is that while the highest court in all the land says we can’t be legally barred from using FB, no one has yet ruled that FB and similar cannot bar us as they currently can per their TOS. Technically, FB can bar anyone with red hair or blue eyes or wearing a stripped shirt from using FB. Non of those things are a protected class. And if they did, no one would be surprised that they’d be sued and possibly (and I do mean possibly since they’re a non-government entity) lose in court. But because we’re icky sex offenders, no one bats an eye at that clause in the TOS. It’s just “logical”. Like wise with AirBNB banning us, and a slew of other very real disabilities we suffer because we’re not a protected class. People would be outraged if companies banned people for literally a million other perfectly legal reasons, but not us.

      • Sunny

        @AO – My reasoning was based on the combination of two rulings: The Supreme Court ruled that registrants cannot be barred (by the government) from using social media because it violates our 1st Amendment rights. In separate rulings, the court has found that free speech rights include the right to anonymous speech. Thus requiring that registrants provide all usernames would violate our right to anonymous speech.

        In regards to Facebook’s company policy, private businesses typically have a right to discriminate as long as it’s not against a protected class (race, religion, etc.). There are some broad protections in California (where Facebook also happens to be headquartered).

        California law states, “…use of any information that is disclosed pursuant to [Megan’s Law] for purposes relating to any of the following is prohibited:…Benefits, privileges, or services provided by any business establishment.” I don’t think anyone has challenged Facebook based on this law, however it seems they would be liable and could face penalties if someone did.

        https://www.meganslaw.ca.gov/About_Penalties.aspx

        http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=290.46.&lawCode=PEN

        • steve

          i would think Airbnb would fall to that challenge as well.

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