By Benjamin Notterman
For decades, parole officers have imposed restrictions on how people convicted of sex offenses can use the internet. Some of these restrictions made sense; others were just blanket prohibitions that became more and more onerous as the internet and social media became more enmeshed in everyday life.
Last month, a federal court in Jones v. Stanford ordered the New York Department of Corrections and Community Supervision (“DOCCS”) to stop applying a blanket policy of banning many SORA registrants from using the internet. Judge Raymond Dearie’s order followed from his September 2020 decision finding that the policy (known as Directive 9201) likely violated the First Amendment by applying the ban to registrants who had not committed internet-based crimes and who did not pose a significant risk of using the internet to reoffend. The Board of Parole must now provide individualized, concrete reasons for restricting a registrant’s internet access.
DOCCS issued Directive 9201 to implement New York’s Electronic Security and Targeting of Online Predators Act (“e-STOP”). It prohibited people registered as Level Three registrants and people whose crimes involved minors from accessing “commercial social networking sites,” meaning websites that permit a minor to create a webpage or profile and to communicate with adults. This included not only “traditional” social media websites like Facebook, Twitter, and Instagram, but arguably the New York Times, YouTube, LinkedIn, Zoom, and countless others.
But, under the Supreme Court’s 2017 decision in Packingham v. North Carolina, internet restrictions like Directive 9201 must be “narrowly tailored to serve a significant government interest.” While preventing sex crimes is a “significant government interest,” Judge Dearie found that New York’s policy was not “narrowly tailored” to serve that interest.
First, Directive 9201 applied to many people who did not commit internet-based crimes. There was no reason forDOCCS to believe they would use the internet unlawfully in the future.
Second, the expansive definition of “commercial social networking sites” applied to “a broad swath of protected activities unrelated to the sexual abuse of minors.”
For these reasons, Judge Dearie’s 2020 decision found that the Jones plaintiffs would likely succeed in showing that Directive 9201 violated the First Amendment, and so entered a preliminary injunction against DOCCS and the New York State Parole Board. Last month’s ruling makes the injunction permanent. It sets forth a process the Parole Board must use to determine, on an individualized basis, whether internet restrictions are warranted for a particular person.
The ruling in Jones is critical to protecting the First Amendment rights of SORA registrants in New York. As the Supreme Court noted in Packingham, the internet—and particularly social media—house “vast democratic forums,” and active participation in society requires access to these forums. To that end, New York’s ban was both unconstitutional and detrimental to people’s rehabilitation and reentry into society. As the plaintiffs in Jones observed, the ban prevented people from using social media to “participate in online religious classes, view religious and education lectures on YouTube, engage in in political advocacy work, search for employment or housing, communicate with distant family members, hone skills via YouTube, and acquire information about current events.”
Moving forward, registrants who have not used the internet to commit their underlying offense are presumptively entitled to access the internet and social media.
For other registrants, the Parole Board must consider specific factors set forth in Judge Dearie’s order before restricting an individual registrant’s internet access. In particular, Parole must consider “facts indicating the use or threatened use of the internet for unlawful activity” and “credible information that the Registrant is using, or will use, the internet to reoffend in the near future.” The Board must also “consider the importance of internet and social media access to Registrants’ rehabilitation” and, if it determines restrictions are justified, use the “least restrictive means of ensuring compliance[.]” Any restrictions must be explained in writing and provided to the registrant, who may appeal the decision through the DOCCS Parole Grievance Program (“PGP”).
Importantly, the SORA designation process may not stand in for Parole’s independent assessment of each registrant whose internet access it seeks to restrict.