Gov. Andrew Cuomo. (Photo: Bloomberg)

Responding to a recent decision from the New York Court of Appeals, Gov. Andrew Cuomo is proposing legislation that would require sex offenders to disclose which social media websites they're on and provide the state with their screen names.

Cuomo said over the weekend that he plans to include the measure in his annual State of the State address, which he's scheduled to deliver in Albany in early January.

"Our laws must keep pace with the world around us and with this measure we will help safeguard those using these web sites and apps, and stop those who seek to harm and exploit our children once and for all," Cuomo said.

The proposal comes about six months after the Court of Appeals ruled in June that sex offenders in New York don't have to specifically tell the state they're on Facebook, as long as they've already disclosed their email address and don't use a fake name on the website.

That decision ran contrary to the intent of a law championed by Cuomo when he was New York's attorney general. The Electronic Security and Targeting of Online Predators Act, or e-STOP, required sex offenders to register their "internet identifiers" with the state.

Internet identifiers were defined in e-STOP as "electronic mail addresses and designations used for the purposes of chat, instant messaging, social networking or other similar internet communication."

The case before the Court of Appeals this year questioned whether Facebook could be considered an internet identifier, which would require sex offenders to disclose their accounts on the social media website.

In a unanimous decision, the high court ruled that sex offenders don't need to disclose their Facebook account to the state Division of Criminal Justice Services, so long as they've provided their email address and don't use a fake name online.

Associate Judge Eugene Fahey wrote in the court's opinion that Facebook didn't meet the definition of an internet identifier under e-STOP, and therefore didn't need to be disclosed.

"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," Fahey wrote.

The decision had the potential to allow thousands of sex offenders previously charged for failing to disclose their social media accounts to have those convictions tossed, according to attorneys at the time.

The case was brought before the Court of Appeals by the Essex County District Attorney's Office. It was seeking to reverse a decision from the Appellate Division, Third Department in Albany, which tossed a felony charge brought against a sex offender who didn't disclose his presence on Facebook.

That sex offender was Arthur Ellis  Jr., who was convicted of a qualifying offense by the Essex County District Attorney's Office in 2011. According to the state's registry, Ellis was convicted of promoting a sexual performance by a child, a Class D felony.

Ellis had disclosed to the state his full name and email address, which he used to access Facebook, but hadn't written on the state's disclosure form, specifically, that he used the website.

When the Essex County District Attorney's Office eventually charged him for not disclosing his presence on Facebook, Ellis moved to dismiss the indictment. He argued that the e-STOP law only required him to disclose his name and email address, not his account on each website.

That argument was successful before the Court of Appeals, which said the Legislature would have to take action if prosecutors wanted to bring such a case in New York.

Under the e-STOP law, the state is allowed to release a sex offender's internet identifiers to "authorized internet entities," such as Facebook. Those entities can then use that information to monitor sex offenders for any criminal activity or threats to public safety.

Fahey wrote in the court's opinion that if the Legislature wanted sex offenders to disclose which social media websites they're on, it would have to do so through a new law.

"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," Fahey wrote. "Presently, however, that statute does not require sex offenders to disclose to DCJS the authorized internet entities that they use."

That's essentially what Cuomo's proposal would do if the Legislature agrees to approve it next year.

Sex offenders, under the proposal, would have to disclose their screen name for each social media account, dating application, or gaming application to DCJS. Providing an email address wouldn't be enough—those individuals would have to say which sites they're on.

That information would then be sent by DCJS to each provider the sex offender discloses. The provider would be required to review the data and decide what to do with it.

"Protecting New York's children is our top priority and we cannot let technological advances become entryways that allow dangerous online predators to identify and prey on new victims," Cuomo said.

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