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The New York Court of Appeals heard arguments Wednesday on whether convicted sex offenders have to specifically disclose with the state that they have a Facebook account, and whether not providing that information would justify criminal charges.

The case stems from the indictment of a man in New York's North Country who was charged with one felony account for failing to disclose his Facebook account to the state Division of Criminal Justice Services.

The Essex County District Attorney's Office, which was represented Wednesday by Assistant District Attorney Kathryn Moryl, argued before the court that a Facebook account falls under the definition of an “internet identifier,” which is required to be listed on annual documents filed with the state by sex offenders.

That definition was created when the Legislature passed the Electronic Security and Targeting of Online Predators Act in 2008. The bill was pushed by Gov. Andrew Cuomo when he was the state attorney general at the time to require sex offenders to register their email addresses and online screen names.

Moryl argued that the intention of the law, which was to provide more online accountability over sex offenders, supports their argument that sex offenders must disclose that they have a Facebook account and include the name they use on the website.

“It's appellant's position that in enacting the Electronic Security and Targeting of Online Predators Act, ESTOP, that the intent was made clear that social networking websites and the use of those in the hands of sexual predators create and present a clear and present danger,” Moryl said.

Associate Judge Leslie Stein argued that, in other states, there's an apparent instruction that sex offenders have to disclose their online accounts, like Facebook, as well as their email address and screen names. New York's form, she said, doesn't specify that those accounts are required.

“There's nothing on the form that would make that clear,” Stein said. “So it seems to me if it was so important, either the Legislature or the creator of the form, would make that explicit and an offender that was registering wouldn't have to guess at that.”

The form itself asks sex offenders to list their email addresses, internet providers and screen names. But the word “including” is on the form before those directions. Moryl said that means, while those three are required, any other accounts that could also fit into the law's definition should also be listed.

“The inclusion of the word 'including' before screen names, email accounts, and internet service providers is inclusive and it's not exclusive,” Moryl said.

The case involves a man named Arthur Ellis Jr., a convicted sex offender living in Ticonderoga. He was arrested in 2015 for allegedly failing to register or verify as a sex offender under state law. He had filed his required annual documents with the state, but the Essex County District Attorney's Office indicted him for leaving his Facebook account off the form.

Ellis had argued that the section of state law that requires sex offenders to register annually with the state did not require him to include his Facebook account on those documents. He had provided his email address, screen names and internet provider on the forms, which he argued was the only information required.

He was represented before the Court of Appeals on Wednesday by Noreen McCarthy, a solo practitioner from Keene Valley in Essex County. McCarthy argued that Ellis satisfied the law's requirement when he provided his email address, which he used to access Facebook.

“My understanding is that his email address is what he used to access Facebook. He never hid who he was,” McCarthy said. “He never hid any of this information, and the fact that he had a Facebook account, nothing asked him to disclose that.”

McCarthy said the section of state correction law established by the Legislature in 2008, 168-f, said that someone has to provide their “internet identifier,” but does not say the individual has to explicitly list their Facebook account. His “internet identifier” was, instead, the email address he used to access the site, she said.

Associate Judge Jenny Rivera challenged that argument by referring to the intention of the law when it was approved by the Legislature.

“Isn't the intent and the spirit of the statute to be informed, to have the individual reveal their social media presence, and that would encompass Facebook?” Rivera asked.

McCarthy didn't disagree about what the purpose of the law was, but did push back on whether Ellis was ever required, by statute, to provide his Facebook account to the state. She said, without the litigation facing Ellis, he would have never realized to provide the account.

“I think the purpose of this statute … is clearly to make sure the internet is not used in a predatory fashion,” McCarthy said. “The fact that he had a Facebook account, he was never asked to disclose that.”

The Court of Appeals could hand down a decision in the case later this month.

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