CJS-51-08-00005-P Sex Offender Internet Identifiers

12/17/08 N.Y. St. Reg. CJS-51-08-00005-P

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 51

December 17, 2008

RULE MAKING ACTIVITIES

DIVISION OF CRIMINAL JUSTICE SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CJS-51-08-00005-P

Sex Offender Internet Identifiers

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Addition of Part 6057 to Title 9 NYCRR.

Statutory authority:

Correction Law, section 168-b(10)

Subject:

Sex Offender Internet Identifiers.

Purpose:

To establish a fee-based subscription service to provide sex offender internet identifiers to authorized internet entities.

Text of proposed rule:

A new Part 6057 is added to Title 9 NYCRR to read as follows:

Part 6057

Office of Sex Offender Management

Section 6057.1 Purpose. The provisions of this Part shall govern the Division's disclosure of registered sex offender internet identifiers to an authorized internet entity to enable such entity to prescreen or remove sex offenders from its services or advise law enforcement or other governmental entities of potential violations of law or threats to public safety.

Section 6057.2 Definitions. When used in this Part:

(a) The term Authorized internet entity shall mean any business, organization or other entity providing or offering a service over the Internet which permits persons under the age of eighteen to access, meet, congregate or communicate with other users for the purpose of social networking. This definition shall not include general e-mail services.

(b) The term Internet identifiers shall mean e-mail addresses and designations, including, but not limited to, screen names, used for the purposes of chat, instant messaging, social networking or other similar internet communication.

(c) The term Division shall mean the Division of Criminal Justice Services.

Section 6057.3 Requests for Access to Sex Offender Internet Identifiers

(a) An authorized internet entity's request for a subscription to obtain sex offender internet identifiers must be made in writing.

(b) The request must be on official company letterhead displaying the authorized internet entity's name, address and telephone number. The authorized internet entity must also submit to the Division the name of a contact person and his or her e-mail address.

(c) The authorized internet entity must provide the Division with documentation concerning its legal nature and corporate status, and the number of registered users.

Section 6057.4 Grant or Denial of Access to Records

(a) Upon receipt of a request for a subscription to obtain sex offender internet identifiers, the Division shall determine whether the requestor is an authorized internet entity.

(b) If the Division determines that the requestor is an authorized internet entity, it shall grant the request and the subscription to access sex offender internet identifiers shall be provided in a format to be determined by the Division.

(c) If the Division determines that the requestor is not an authorized internet entity, it shall deny the request. The Division shall state, in writing, the reason for the denial of the request.

(d) An authorized internet entity shall not disclose or redisclose any information provided to it by the Division unless necessary to enable the authorized internet entity to prescreen or remove a sex offender from its services or to advise a law enforcement agency or other governmental agency of potential violations of law or threats to public safety. An authorized internet entity may disclose information provided to it by the Division to any person it is seeking to remove from its services or deny access to its services because the authorized internet entity reasonably believes such person is a registered sex offender. An authorized internet entity shall not use the information provided to it by the Division to contact any person unless such contact is necessary to prescreen or remove such person from its services.

(e) If the Division determines there is reasonable cause to believe that an authorized internet entity is engaged in a pattern or practice of misuse of the sex offender internet identifiers, the Division is authorized to terminate an authorized internet entity's subscription to access sex offender internet identifiers.

Section 6057.5 Receipt of information from an authorized internet entity

The Division may accept any information from an authorized internet entity concerning a sex offender or a registered user of an authorized internet entity and may forward that information to any appropriate law enforcement or supervision agency.

Section 6057.6 Fees.

The Division shall charge a fee to an authorized internet entity for a subscription to access sex offender internet identifiers as follows:

(a) If the authorized internet entity has less than five million registered users the fee shall be one hundred dollars per month.

(b) If the authorized internet entity has at least five million registered users but less than fifteen million registered users the fee shall be five hundred dollars per month.

(c) If the authorized internet entity has at least fifteen million registered users but less than thirty million registered users the fee shall be one thousand dollars per month.

(d) If the authorized internet entity has thirty million or more registered users the fee shall be two thousand dollars per month.

In its discretion, the Division may fully or partially waive the fee when an authorized internet entity demonstrates that the fee would be unreasonably burdensome.

Section 6057.7 Liability.

Nothing contained in this part shall impose liability upon the Division or the State for any damages related to a registered sex offender's access to services provided by an authorized internet entity or damages related to any person's denial of service by an authorized internet entity.

Text of proposed rule and any required statements and analyses may be obtained from:

Natasha M. Harvin, Division of Criminal Justice Services, 4 Tower Place, Albany, NY 12203, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority: Correction Law section 168-b(10) as added by Chapter 67 of the Laws of 2008. Correction Law section 168-b(10) requires the Division of Criminal Justice Services to release the internet identifiers of registered sex offenders to authorized internet entities which provide social networking services to users under the age of eighteen. This will allow these internet entities to pre-screen or remove users who are registered sex offenders in order to prevent such sex offenders from using the social networking site to lure potential victims. Correction Law section 168-r grants the Division immunity from liability for damages for any discretionary decision to release relevant and necessary information pursuant to the Sex Offender Registration Act, unless the Division is shown to act with gross negligence or in bad faith. The immunity provided under this section applies to the release of relevant information to other employees or officials or to the general public.

2. Legislative objectives: Chapter 67 of the laws of 2008 was enacted to establish protections against sex offenders so that the public, especially children, can more safely use the internet. The Legislature provided the Division with the power to provide sex offender internet identifiers to social networking sites in order to assist in the protection of children using such sites.

3. Needs and benefits: This rule is necessary to implement Chapter 67 of the Laws of 2008 by establishing a subscription service whereby authorized internet entities can gain access to sex offender internet identifiers. This rule benefits the Division by setting forth the parameters for the subscription service, and benefits authorized internet entities by allowing them access to information needed to deny service to registered sex offenders when such denial is necessary to protect vulnerable minors who use the social networking services provided by the entity. As noted by the sponsor, convicted sex offenders are able to hide their identities on the internet while contacting and befriending children using social networking sites. In 2007, investigations by the Office of the Attorney General ("OAG") confirmed the misuse of the internet by sex offenders and noted that current safety measures are inadequate to protect New Yorkers, particularly children, using online services.

4. Costs:

a. Authorized internet entities will pay a yearly fee for access to sex offender data on a graduated scale based on the number of registered users. For entities with less than five million registered users the fee is one hundred dollars per month. For entities with at least five million registered users but less than fifteen million registered users the fee is five hundred dollars per month. For entities with at least fifteen million registered users but less than thirty million registered users the fee is one thousand dollars per month. For entities with thirty million or more registered users the fee is two thousand dollars per month. Additionally, the fee may be fully or partially waived by the Division if an authorized internet entity demonstrates that the fee is unduly burdensome. This fee schedule is modest enough that it will be affordable to the operator of any social networking site, but takes into account the increasing value of the information to larger entities who gain more advertising revenue by increasing the number of registered users and who will be able to attract a greater number of users by being able to advertise that the entity's site is safer for children because registered sex offenders are denied access to service.

b. The Division has completed the efforts required to maintain this subscription service with existing agency resources. No personnel were hired or equipment was purchased to maintain this service. However, because the existing resources used to support this service were already used to accomplish other Division functions, the Division may request increased funds in the future to ensure that all of the Division's responsibilities, including the subscription service, may be accomplished.

c. The cost analysis is based on information provided by the Division's Office of Sex Offender Management and Office of Justice Information Services.

5. Local government mandates: The rule imposes no mandates on local governments.

6. Paperwork: An authorized internet entity must submit a request for access to sex offender internet information on official company letterhead and must provide documentation concerning the corporate status of the company and the number of registered users of the entity's service. This should be able to be accomplished in a one or two page letter.

7. Duplication: This proposal does not duplicate any other existing State or federal requirements.

8. Alternatives: The Division of Criminal Justice Services considered providing access to sex offender internet identifiers without charging a fee. However, a social networking site which can advertise that it screens registered users to prevent access by sex offenders is likely to attract more users because parents and guardians will feel more confident in allowing children in their care to register on that particular social networking site. Because sites with more users can charge more for advertising, it was determined that a subscriber may actually gain revenue by subscribing to the service. Additionally, the fee is to be deposited in the Criminal Justice Improvement Account to be used for victim services and, therefore, will be used, in part, to assist victims who were contacted through a social networking site. For the foregoing reasons it was determined that a fee should be charged unless charging the fee would unduly burden the subscriber. The Division conducted a web-based conference with interested social networking sites on August 5, 2008. Approximately eight attendees representing four different social networking sites attended, including Classmates, Hi5, FashionFantasyGame and MySpace. Because some attendees commented that the fee contemplated to be charged for a social networking site with the greatest number of users seemed too high, especially if other states began imposing a fee for a similar service, the Division revised the original regulation to halve such fees from $4000 per month to $2000 per month for social networking sites with thirty million or more registered users and from $2000 per month to $1000 per month for social networking sites with at least fifteen million users but less than with thirty million or more registered users.

9. Federal standards: There are no federal standards governing access to sex offender information by authorized internet entities.

10. Compliance schedule: It is anticipated that the Division will be able to provide sex offender internet information to authorized internet entities as soon as this regulation is adopted.

Regulatory Flexibility Analysis

A Regulatory Flexibility Analysis for Small Businesses and Local Governments is not submitted with this rulemaking because the proposed rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments. The proposed rule seeks to establish fee-based subscription service to allow an authorized internet entity providing certain social networking services to access sex offender internet identifiers maintained by the Division of Criminal Justice Services and to establish limits for re-disclosure of such information. No authorized internet entity is required to maintain a subscription to this service. An internet entity choosing to subscribe has no reporting or recordkeeping requirements imposed on it by this rule. Therefore, this rule, by imposing no mandates and providing a subscription service to be used by only those entities which choose to subscribe, clearly does not impose any adverse economic impact on rural areas or reporting, record keeping or other compliance requirements on small businesses or local governments. Further, this rule would have no impact on local governments, adverse or otherwise. The Division has not found any local government which maintains a website offering a social networking service. Moreover, a review of the status of the entities most likely to subscribe to this service revealed that none are small businesses or local governments. Most are headquartered in California. For example, Facebook's founder, Mark Zuckerburg, reported in an employee meeting in January of 2008 that the business employs more than 450 persons and projects revenues of $325 million for the year 2008 and plans to increase the number of employees to 1000. MySpace has 300 employees and is owned by Newscorp. Few social networking sites were found to be headquartered in New York State. AOL and Bebo, which is owned by AOL, may be considered headquartered in New York because AOL is a subsidiary of Time Warner which is headquartered in New York City. Clearly, Time Warner is not a small business. Based on the foregoing it is evident that this rule imposes neither an adverse economic impact nor a recordkeeping requirement and small businesses and local governments in New York State are unaffected by this rule.

Rural Area Flexibility Analysis

A rural area flexibility analysis is not submitted with this rulemaking because the proposed rule will not impose any adverse economic impact on rural areas or reporting, record keeping or other compliance requirements on public or private entities in rural areas. The proposed rule seeks to establish fee-based subscription service to allow an authorized internet entity providing certain social networking services to access sex offender internet identifiers maintained by the Division of criminal Justice Services and to establish limits for re-disclosure of such information. No authorized internet entity is required to maintain a subscription to this service. A subscribing internet entity has no reporting or recordkeeping requirements imposed by this rule. Therefore, this rule, by imposing no mandates and providing a subscription service to be used by only those entities which choose to subscribe, clearly does not impose any adverse economic impact on rural areas or reporting, record keeping or other compliance requirements on public or private entities in rural areas. Further, a search of the corporate location of the entities most likely to subscribe to this service revealed that most are located within urban areas in the State of California. For example, MySpace is headquartered in Beverly Hills, CA and Facebook's headquarters are in Palo Alto, CA. Few social networking sites were found to be headquartered in New York State. AOL and Bebo, which is owned by AOL, may be considered headquartered in New York because AOL is a subsidiary of Time Warner which is headquartered in New York City and not in a rural area. The only New York State based website which has expressed interest in this subscription service, Fashion Fantasy Game, is operated by R. Lilly Tuckerwear which is located in Manhattan. Based on the foregoing, it is evident that this rule imposes neither an adverse economic impact nor a recordkeeping requirement and public and private entities in rural areas of New York State are unaffected by this rule.

Job Impact Statement

The proposed rule seeks to establish fee-based subscription service to allow an authorized internet entity providing certain social networking services to access sex offender internet identifiers maintained by the Division of Criminal Justice Services and to establish limits for re-disclosure of such information. No authorized internet entity is required to maintain a subscription to this service. As such, it is apparent from the nature and purpose of the proposal that it will have no impact on jobs and employment opportunities.