U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:20-cv-01332-RJD-SJB

Jones et al v. Stanford et al Assigned to: Judge Raymond J. Dearie Referred to: Magistrate Judge Sanket J. Bulsara Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 03/12/2020 Jury Demand: None Nature of Suit: 950 Constitutional State Statute Jurisdiction: Federal Question

Plaintiff Vernon Jones

represented by Daniel Ross Lambright New York Civil Liberties Union 125 Broad Street Ste 19 New York, NY 10004 212-607-3341 Email: dlambright@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexis Brie Karteron Rutgers Constitutional Rights Clinic 123 Washington Street Newark, NJ 07102 973-353-3239 Fax: 973-353-3397 Email: alexis.karteron@law.rutgers.edu ATTORNEY TO BE NOTICED

Michael Cassidy Prisoners' Legal Services of New York 24 Margaret Street Ste 9 Plattsburgh, NY 12901 518-561-3088 Email: mcassidy@plsny.org ATTORNEY TO BE NOTICED

Molly Knopp Biklen New York Civil Liberties Union 125 Broad Street, Fl 19

Plaintiff Douglas Hyson TERMINATED: 06/02/2020
Plaintiff Vladimir Krull
Plaintiff Thomas Mitchell

New York, NY 10004 212-607-3380 Email: mbiklen@nyclu.org ATTORNEY TO BE NOTICED
represented by Alexis Brie Karteron (See above for address) ATTORNEY TO BE NOTICED
Michael Cassidy (See above for address) ATTORNEY TO BE NOTICED
Molly Knopp Biklen (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Ross Lambright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexis Brie Karteron (See above for address) ATTORNEY TO BE NOTICED
Michael Cassidy (See above for address) ATTORNEY TO BE NOTICED
Molly Knopp Biklen (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Ross Lambright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexis Brie Karteron (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Compton Mohabir
Plaintiff Corydon Umber

Michael Cassidy (See above for address) ATTORNEY TO BE NOTICED
Molly Knopp Biklen (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Ross Lambright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexis Brie Karteron (See above for address) ATTORNEY TO BE NOTICED
Michael Cassidy (See above for address) ATTORNEY TO BE NOTICED
Molly Knopp Biklen (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Ross Lambright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexis Brie Karteron (See above for address) ATTORNEY TO BE NOTICED
Michael Cassidy (See above for address) ATTORNEY TO BE NOTICED
Molly Knopp Biklen (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Tina M. Stanford Esq., in her official capacity as Chairwoman of the New York Board of Parole
Defendant Anthony Annucci in his official capacity as Acting Commissioner of the Department of Corrections and Community Supervision

represented by Bruce Jay Turkle Office of the NYS Attorney General 28 Liberty Street New York, NY 10005 (212)416-8524 Fax: (212)416-6009 Email: bruce.turkle@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Schulze N.Y. State Department of Law 120 Broadway, 24th Floor New York, NY 10271 212-416-6557 Fax: 212-416-6009 Email: dschulze@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Bruce Jay Turkle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Schulze (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/12/202 0
03/16/202 0

# Docket Text
1 COMPLAINT against All Defendants $ 400 Was the Disclosure Statement on Civil Cover Sheet completed -No,, filed by Corydon Umber, Thomas Mitchell, Vernon Jones, Vladimir Krull, Douglas Hyson, Compton Mohabir. (Attachments: # 1 Civil Cover Sheet) (Biklen, Molly) (Entered: 03/12/2020)
Case assigned to Judge Raymond J. Dearie and Magistrate Judge Sanket J. Bulsara. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are

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responsible for providing courtesy copies to judges where their Individual Practices require such. (Barrett, C) (Entered: 03/16/2020)
2 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Barrett, C) (Entered: 03/16/2020)
3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085. pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Barrett, C) (Entered: 03/16/2020)
4 Proposed Summons. Re 1 Complaint, by Douglas Hyson, Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber (Biklen, Molly) (Entered: 03/18/2020)
5 Proposed Summons. Re 1 Complaint, by Douglas Hyson, Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber (Biklen, Molly) (Entered: 03/18/2020)
6 SUMMONS ISSUED as to Anthony Annucci, Tina M. Stanford. (Attachments: # 1 Summons Issued) (Tavarez, Jennifer) (Entered: 03/19/2020)
7 SUMMONS Returned Executed by Corydon Umber, Thomas Mitchell, Vernon Jones, Vladimir Krull, Douglas Hyson, Compton Mohabir. Anthony Annucci served on 3/25/2020, answer due 4/15/2020; Tina M. Stanford served on 3/25/2020, answer due 4/15/2020. (Biklen, Molly) (Entered: 04/14/2020)
8 STIPULATION of Service and Time to Answer by Douglas Hyson, Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber (Biklen, Molly) Modified on 4/28/2020 (to add motion) (Ferrara, Anthony). (Entered: 04/27/2020)
ORDER: The stipulation and motion for extension of time to answer 8 is granted. Defendants shall file an answer or otherwise respond to the Complaint by 6/1/2020. So Ordered by Magistrate

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Judge Sanket J. Bulsara on 4/28/2020. (Ferrara, Anthony) (Entered: 04/28/2020)
9 SCHEDULING ORDER: An initial/telephone conference will be held at 11:30 AM on 6/05/2020 before Magistrate Judge Bulsara. The parties are directed to call the toll-free number 877-336-1274. The access code is 6534420. The parties shall dial in five (5) minutes before the 11:30 AM conference. Counsel are directed to complete the attached Discovery Plan Worksheet and electronically file same with the Court no later than two days before 6/05/2020. Should the parties wish to adopt a plan for discovery different from the structure in the discovery worksheet, they may do so only if they file a letter explaining why such a plan is appropriate in this case. So Ordered by Magistrate Judge Sanket J. Bulsara on 5/1/2020. (Manson, Eddie) (Entered: 05/01/2020)
10 NOTICE of Appearance by Bruce Jay Turkle on behalf of Anthony Annucci, Tina M. Stanford (aty to be noticed) (Turkle, Bruce) (Entered: 05/07/2020)
11 Letter Requesting Pre-Motion Conference for Preliminary Injunction by Douglas Hyson, Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber (Biklen, Molly) (Entered: 05/19/2020)
12 NOTICE of Appearance by Michael Cassidy on behalf of All Plaintiffs (aty to be noticed) (Cassidy, Michael) (Entered: 05/19/2020)
13 NOTICE of Appearance by Alexis Brie Karteron on behalf of All Plaintiffs (aty to be noticed) (Karteron, Alexis) (Entered: 05/20/2020)
14 Letter in response to plaintiffs' May 19, 2020 letter requesting premotion conference by Anthony Annucci, Tina M. Stanford (Turkle, Bruce) (Entered: 05/26/2020)
ELECTRONIC SCHEDULING ORDER: re 14 Letter filed by Tina M. Stanford, Anthony Annucci, responding to request for pre motion conference. 11 Letter filed by Vladimir Krull, Vernon Jones, Douglas Hyson, Thomas Mitchell, Corydon Umber, Compton Mohabir, requesting a pre motion conference. Counsel are advised that a Telephonic Pre Motion Conference is scheduled for Tuesday June 2, 2020 at 11:00am. Dial in toll free number: 888-684-8852. Access code: 3850449. So Ordered by Judge Raymond J. Dearie on 5/27/2020. (Mulqueen, Ellen) (Entered: 05/27/2020)

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15 MOTION to Adjourn Conference scheduled for June 2, 2020 by Anthony Annucci, Tina M. Stanford. (Turkle, Bruce) (Entered: 05/27/2020)
ELECTRONIC ORDER granting 15 Motion to Adjourn Pre Motion Conference. Court has been advised that all parties are available on Wednesday June 3rd. Accordingly, the telephonic conference currently scheduled for June 2, 2020 is rescheduled to June 3, 2020 at 11:00am before the undersigned. The dial in number and access code remain as previously posted. So Ordered by Judge Raymond J. Dearie on 5/27/2020. (Mulqueen, Ellen) (Entered: 05/27/2020)
16 NOTICE of Voluntary Dismissal by Douglas Hyson (Biklen, Molly) (Entered: 06/01/2020)
17 AMENDED COMPLAINT on consent against Anthony Annucci, Tina M. Stanford, filed by Corydon Umber, Thomas Mitchell, Vernon Jones, Vladimir Krull, Compton Mohabir. (Biklen, Molly) (Entered: 06/01/2020)
18 Letter regarding voluntary dismissal of plaintiff Hyson's claims by Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber (Biklen, Molly) (Entered: 06/01/2020)
19 STIPULATION Of Dismissal: Pursuant to Federal Rule of Civil Procedure 41(a)(1)A)(i), this action is hereby dismissed without prejudice as to Douglas Hyson. The Clerk of the Court is directed to terminate plaintiff Douglas Hyson. Party Douglas Hyson terminated.SO Ordered by Judge Raymond J. Dearie on 6/2/2020. (Tavarez, Jennifer) (Entered: 06/02/2020)
20 NOTICE of Appearance by Daniel Schulze on behalf of Anthony Annucci, Tina M. Stanford (aty to be noticed) (Schulze, Daniel) (Entered: 06/03/2020)
Minute Entry for telephonic pre motion conference held on 6/3/2020 before Judge Raymond J. Dearie: Following counsel on line: Molly Biklen and Alexis Karteron for plaintiffs. Bruce Turkle and Daniel Schulze for defendants. Discussion held, re: plaintiffs' request for preliminary injunction. Counsel Bruce Turkel will follow up in writing on or before 6/17/2020, as to the issues discussed. Thereafter, if motion practice moves forward, parties will agree on a briefing schedule and advise Court in writing. (Court Reporter Holly Driscoll.) (Mulqueen, Ellen) (Entered: 06/03/2020)
21 Letter enclosing joint Proposed Discovery Plan by Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber

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(Attachments: # 1 Proposed Discovery Plan) (Biklen, Molly) (Entered: 06/03/2020)
ORDER: The initial conference scheduled for 6/5/2020 before Magistrate Judge Sanket J. Bulsara is adjourned sine die, pending resolution of the Plaintiffs' motion for preliminary briefing. So Ordered by Magistrate Judge Sanket J. Bulsara on 6/4/2020. (Manson, Eddie) (Entered: 06/04/2020)
22 Defendants' ANSWER to 17 Amended Complaint by Anthony Annucci, Tina M. Stanford. (Turkle, Bruce) (Entered: 06/15/2020)
23 Letter concerning "e-STOP" condition of parole by Anthony Annucci, Tina M. Stanford (Turkle, Bruce) (Entered: 06/17/2020)
24 Letter regarding Defendants' e-STOP Response by Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber (Biklen, Molly) (Entered: 06/23/2020)
25 Letter proposing briefing schedule for preliminary injunction by Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber (Biklen, Molly) (Entered: 07/03/2020)
ORDER re 25 Letter filed by Vladimir Krull, Vernon Jones, Thomas Mitchell, Corydon Umber, Compton Mohabir. The Court adopts the parties' proposed briefing schedule. Motion due by 7/13/2020, Response due by 8/13/2020, Reply due by 8/25/2020, Motion fully briefed 8/25/2020. So Ordered by Judge Raymond J. Dearie on 7/6/2020. (Bakst, Laura) (Entered: 07/06/2020)
26 Letter regarding service of motion for preliminary injunction by Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber (Biklen, Molly) (Entered: 07/13/2020)
27 Letter to Plaintiffs' counsel enclosing Defendants' papers in opposition to motion for a preliminary injunction by Anthony Annucci, Tina M. Stanford (Turkle, Bruce) (Entered: 08/13/2020)
28 MOTION for Preliminary Injunction of social media ban by Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Molly K. Biklen, # 3 Declaration of Vernon Jones, # 4 Declaration of Vladimir Krull, # 5 Declaration of Thomas Mitchell, # 6 Declaration of Compton Mohabir, # 7 Declaration of Corydon Umber) (Biklen, Molly) (Entered: 08/25/2020)

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29 AFFIDAVIT/DECLARATION in Opposition re 28 MOTION for Preliminary Injunction of social media ban Geh Decl. with exhibit filed by Anthony Annucci, Tina M. Stanford. (Attachments: # 1 Exhibit 1 (parole conditions)) (Turkle, Bruce) (Entered: 08/25/2020)
30 AFFIDAVIT/DECLARATION in Opposition re 28 MOTION for Preliminary Injunction of social media ban DuPlessy Decl. with exhibit filed by Anthony Annucci, Tina M. Stanford. (Attachments: # 1 Exhibit 1 (parole conditions)) (Turkle, Bruce) (Entered: 08/25/2020)
31 AFFIDAVIT/DECLARATION in Opposition re 28 MOTION for Preliminary Injunction of social media ban Domenech Decl. with exhibit filed by Anthony Annucci, Tina M. Stanford. (Attachments: # 1 Exhibit 1 (Parole conditions)) (Turkle, Bruce) (Entered: 08/25/2020)
32 AFFIDAVIT/DECLARATION in Opposition re 28 MOTION for Preliminary Injunction of social media ban Osouna Decl. with exhibits filed by Anthony Annucci, Tina M. Stanford. (Attachments: # 1 Exhibit 1 (e-STOP Condition), # 2 Exhibit 2 (notice vacating eSTOP Condition)) (Turkle, Bruce) (Entered: 08/25/2020)
33 AFFIDAVIT/DECLARATION in Opposition re 28 MOTION for Preliminary Injunction of social media ban Gomez Cox Decl. with exhibit filed by Anthony Annucci, Tina M. Stanford. (Attachments: # 1 Exhibit 1 (parole conditions)) (Turkle, Bruce) (Entered: 08/25/2020)
34 MEMORANDUM in Opposition to Plaintiffs' motion for a preliminary injunction filed by Anthony Annucci, Tina M. Stanford. (Turkle, Bruce) (Entered: 08/25/2020)
35 REPLY in Support re 28 MOTION for Preliminary Injunction of social media ban filed by Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber. (Biklen, Molly) (Entered: 08/25/2020)
36 Letter requesting scheduling conference by Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber (Attachments: # 1 Proposed Case Management Plan) (Biklen, Molly) (Entered: 08/26/2020)
SCHEDULING ORDER: An initial/telephone conference will be held at 12:00 PM on 9/04/2020 before Magistrate Judge Bulsara. The parties are directed to call the toll-free number 877-336-1274. The access code is 6534420. The parties shall dial in five (5) minutes

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before the 12:00 PM conference. So Ordered by Magistrate Judge Sanket J. Bulsara on 8/27/2020. (Manson, Eddie) (Entered: 08/27/2020)
Minute Entry And Order for proceedings held before Magistrate Judge Sanket J. Bulsara: An initial conference was held on 9/4/2020, all parties were present via telephone. The parties shall submit a joint certification that discovery has been completed by 4/26/2021. Deadlines set based on parties' submitted joint discovery worksheet and are as follow: All fact discovery shall be completed by 1/27/2021; completion of all discovery by 4/26/2021; the last date to take the first step in dispositive motion practice shall be 5/26/2021. A status conference will take place on 1/22/2020 at 4:00 PM before Magistrate Judge Sanket J. Bulsara. The parties are directed to call the toll-free number 877-336-1274. The access code is 6534420. The parties shall dial in five (5) minutes before the 4:00 PM conference. So Ordered by Magistrate Judge Sanket J. Bulsara on 9/4/2020 (AT&T Log #12:0112:15.) (Manson, Eddie) (Entered: 09/08/2020)
37 MEMORANDUM and ORDER: Plaintiffs' motion for a preliminary injunction 28 is granted. e-STOP and Directive 9201 are preliminarily enjoined as to registrants who have not used the internet to facilitate the commission of their underlying sex offense. SO Ordered by Judge Raymond J. Dearie on 9/9/2020. (Tavarez, Jennifer) (Entered: 09/09/2020)
38 MOTION to Stay re 37 Order on Motion for Preliminary Injunction, by Anthony Annucci, Tina M. Stanford. (Schulze, Daniel) (Entered: 09/17/2020)
39 NOTICE of Appearance by Daniel Ross Lambright on behalf of Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber (aty to be noticed) (Lambright, Daniel) (Entered: 09/18/2020)
40 RESPONSE in Opposition re 38 MOTION to Stay re 37 Order on Motion for Preliminary Injunction, filed by Vernon Jones, Vladimir Krull, Thomas Mitchell, Compton Mohabir, Corydon Umber. (Biklen, Molly) (Entered: 09/21/2020)
ORDER granting 38 Motion to Stay: Under the circumstances, the Court grants Defendants' modest request to stay compliance with the aspect of the Court's September 9, 2020 Order granting relief beyond the party-plaintiffs until October 9, 2020. So Ordered by Judge Raymond J. Dearie on 9/22/2020. (Baltimore, Molly) (Entered: 09/22/2020)

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41 MOTION for Extension of Time to File proposed Plan to implement Order and to extend stay by Anthony Annucci, Tina M. Stanford. (Turkle, Bruce) (Entered: 10/08/2020)
ORDER granting 41 Motion for Extension of Time to File. Given counsel's representations as to the need for one more week, the application is granted. So Ordered by Judge Raymond J. Dearie on 10/9/2020. (Baltimore, Molly) (Entered: 10/09/2020)

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 Case 1:20-cv-01332 Document 1 Filed 03/12/20 Page 1 of 22 PageID #: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

VERNON JONES, DOUGLAS HYSON, VLADIMIR KRULL, THOMAS MITCHELL, COMPTON MOHABIR, and CORYDON UMBER,
Plaintiffs,

CIVIL ACTION Case No.: 1:20-cv-1332
COMPLAINT

vs.

TINA M. STANFORD, Esq., in her official capacity as Chairwoman of the New York Board of Parole; ANTHONY ANNUCCI, in his official capacity as Acting Commissioner of the Department of Corrections and Community Supervision,

Defendants.

INTRODUCTION

1.

This action is a constitutional challenge to the State of New York’s bans on internet

and social media access for all people on parole or post-release supervision who are required to

register under the Sex Offender Registration Act, regardless of whether they were ever convicted of

a sex offense involving the internet.

2.

The New York State Department of Corrections and Community Supervision

(“DOCCS”) imposes a release condition that completely bans all internet access for every registrant

on parole or post-release supervision. Additionally, New York’s Electronic Security and Targeting of

Online Predators Act (“e-STOP”) mandates the imposition of a social media ban on certain

categories of registrants under community supervision. DOCCS goes even further and applies this

social media ban to all individuals on the registry under community supervision. These bans apply to

individuals who have never used the internet or social media to commit an offense. As a result of

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being unable to use the internet and social media, the plaintiffs struggle with the heavy burden of

trying to navigate day-to-day life in a technology-dependent society.

3.

Over the last two decades the internet—especially social media—has become an

integral part of American life. Many Americans shop for necessities, search for housing, apply for

jobs, take college courses, and stay connected to family members and friends via the internet. As of

2019, approximately 90 percent of American adults use the internet, while 69 perc ent use the social

media platform Facebook and 73 percent use YouTube.

4.

The internet is also an essential forum for political information and speech.

Politicians and governmental entities use social media sites to disseminate information. Both New

York Governor Andrew Cuomo and DOCCS have active social media accounts. President Donald

J. Trump frequently uses the social media site Twitter to announce military, diplomatic, and

domestic policy. Not only do these forums provide information to the public, they also allow people

to communicate directly with their lawmakers by commenting on their social media posts. As New

York’s official policy on the state’s use of social media declares, “New York State engages New

Yorkers through many digital outlets, including NY.gov and Governor.NY.gov. Communicating

with the State through social media enables you to contact us in a direct and meaningful way.”

5.

Recognizing the importance of the internet and social media for free speech, the

United States Supreme Court held in Packingham v. North Carolina, 137 S. Ct. 1730 (2017), that “to

foreclose access to social media altogether is to prevent the user from engaging in the legitimate

exercise of First Amendment rights.”

6.

However, the State of New York is cutting off the rights of thousands of people

convicted of sex offenses to access these vital forums without any individualized assessment of

whether they pose a risk to recidivate by using the internet. The plaintiffs in this case are individuals

who are required to register as sex offenders under New York’s Sex Offender Registration Act and

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who are released on parole or post-release supervision, collectively referred to as “community

supervision.” They have never used the internet or social media to commit a sex offense, but as a

result of New York State’s blanket policies, are banned from meaningful access to these forums. The

plaintiffs cannot look at family photographs posted on Facebook, search for gainful employment

online, comment on pending legislation, or even look up facilities that provide mental health

treatment. They have been cut off from the modern world.

7.

The plaintiffs in this action seek declaratory and injunctive relief enjoining

defendants from enforcing the unconstitutional provisions of e-STOP and the DOCCS Directives

banning internet and social media access.

PARTIES

Plaintiffs

8.

Plaintiff VERNON JONES resides in Brooklyn, New York. He is currently serving

a term of post-release supervision until 2022. His release conditions bar him from accessing social

media and the internet.

9.

Plaintiff DOUGLAS HYSON resides in Schenectady, New York. He is currently on

parole and will be on parole until 2022. His release conditions bar him from accessing social media

and the internet.

10. Plaintiff VLADIMIR KRULL resides in Yonkers, New York. He is currently serving

a term of post-release supervision until 2025. His release conditions bar him from accessing social

media and severely restrict his access to the internet.

11. Plaintiff THOMAS MITCHELL resides in Brooklyn, New York. He is currently

serving a term of post-release supervision until 2028. His release conditions bar him from accessing

social media and the internet.

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12. Plaintiff COMPTON MOHABIR resides in Richmond Hill, New York. He is currently serving a term of post-release supervision until 2024. His release conditions bar him from accessing social media and the internet.
13. Plaintiff CORYDON UMBER resides in Pottersville, New York. He is currently on parole and will be on parole until 2022. His release conditions bar him from accessing social media and the internet.
Defendants 14. Defendant TINA M. STANFORD is the Chairwoman of the New York State Board of Parole (the “Parole Board”). She is responsible for the administrative functions and daily operations of the Board and its staff, including the imposition of conditions on individuals required to register under the Sex Offender Registration Act on parole or on supervised release, and the social media ban required by e-STOP. Ms. Stanford is sued in her official capacity. 15. Defendant ANTHONY ANNUCCI is the Acting Commissioner of the New York Department of Corrections and Community Supervision. Mr. Annucci is responsible for overseeing the imposition and enforcement of conditions on Registrants on parole or supervised release, including the internet and social media bans. Mr. Annucci is sued in his official capacity.
FACTS The Internet is a Pervasive Part of Everyday Life 16. Frequent engagement in online activities is an indispensable part of modern life. According to the Pew Research Center, as of 2019, nearly 90 percent of American adults use the internet on a daily basis. 17. On a typical day, American adults rely on the internet to read the news and check the weather; to send messages and make online calls to friends and family; to share their opinions with their elected officials and other members of the public; to look for jobs, housing, or community and
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support groups; to shop for and rate products; to make payments and manage finances; to look up directions; to make appointments; and to search for answers to all types of questions.
18. Today’s job market uses the internet as a platform for job postings, networking opportunities, and informational and training materials of a wide and extensive nature. Many jobs require the use of online applications.
19. Even assuming that a person can find a job without the internet, almost all jobs today require internet use in one form or other. Whether the job requires internet access through work email or an online timeclock, inability to access the internet greatly hinders job opportunities.
20. Social media websites began as a way for people to reconnect with old acqua intances, to keep in touch with family and friends, and to network professionally – but have since become equally important for civic and political engagement. Much political discourse takes place on online news outlets and social media platforms such as Facebook. Politicians regularly communicate with their constituents on Twitter and other social media platforms, sometimes replacing the more traditional platforms like town halls with these modern methods of reaching the public.
21. Similarly, government agencies use the internet and social media to provide access to services, engage with the public, and livestream hearings or other activities. For example, the New York State Court System’s internet portal provides a variety of resources for accessing services, legal help, and information about the legal system. The court system also uses social media to interact with the public. As it explains, “The New York State Unified Court System offers a variety of social media platforms to stay in the loop on court-related news — whether it’s emergency weather closings, the latest decisions from the courts, timely podcasts on pressing issues, videos or snapshots.”
22. Over half of American adults followed and engaged with politics on social media in 2018, and over 69 percent of American adults consider social media an important tool for getting
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elected officials to pay attention to issues and for creating sustained movements for social change. Indeed, several important movements like #BlackLivesMatter and #MeToo have been amplified on social media.
23. Social media also provides a powerful, low-cost way for small business owners to market their businesses and interact with customers on the internet. It is estimated that more than 75 percent of small businesses used social media in 2018.
Background on Community Supervision 24. In New York, an individual sentenced to an indeterminate term of imprisonment can be released from prison to parole supervision by the Parole Board after serving a certain amount of their sentence. On the other hand, those serving determinate sentences must be released after serving a certain portion of their sentence, at which point many will begin serving a term of postrelease supervision. In New York, both parole and post-release supervision are referred to as “community supervision.” 25. Many individuals released to community supervision are subject to both general and special conditions of release. General conditions of release are conditions that are imposed on all people released to community supervision, such as curfews and bans on the use of illicit drugs. The Parole Board and DOCCS can also impose special conditions of release either prior to an individual’s release date or afterwards. The individual must be provided a written copy of all special conditions imposed. 26. Individuals who were convicted of certain statutorily enumerated sex offenses are required to register as “sex offenders” pursuant to New York’s Sex Offender Registration Act (SORA) upon release to community supervision (“Registrants”). These offenses cover a wide range, from misdemeanors to serious felonies. For example, someone convicted of N.Y. Penal Law § 255.25 for marrying their adult relative must register as a “sex offender.”
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27. Prior to registration, these individuals must have judicial hearings to determine their risk level. The risk level adjudicated is supposed to correlate to the individual’s risk to recidivate sexually. Level One marks the lowest risk to recidivate. Levels Two and Three are moderate and high-risk levels, respectively.
28. Each level comes with differing restrictions and registration requirements. All Registrants are subject to community notification, a process by which law enforcement can go to the neighbors of a Registrant and inform them of his or her presence in the neighborhood. Registrants adjudicated as Level Two and Three are placed on the public registry where their picture, physical description, and home address are posted on the internet. Level One offenders, while not on the public registry, are on a registry kept by local law enforcement. Additionally, Level Three offenders are subject to New York’s statutory residency and movement restrictions prohibiting them from knowingly entering within 1,000 feet of school grounds.
29. Currently, 41,949 individuals are “registered sex offenders” in New York State, and thousands are under community supervision. In 2019, for example, over 1,600 individuals required to register as sex offenders were released to community supervision.
30. While it is commonly believed that people who commit sex offenses recidivate at high rates, this is simply false. After conducting a study of over 9,000 people convicted of sex offenses, the U.S. Department of Justice found that only 5.3 percent of these people committed another sex offense within 3 years of their release from prison.1
31. A study of 160,000 people involving 170,000 arrests for sex offenses in New York between 1986 and 2006 revealed that over 94 percent were first-time offenders.2 Of all people
1 5 Percent of Sex Offenders Rearrested For Another Sex Crime Within 3 Years of Prison Release, available at https://www.bjs.gov/content/pub/press/rsorp94pr.cfm . 2 Jeffrey C. Sandler et al., Does a Watched Pot Boil? A Time Series Analysis of New York State’s Sex Offender Registration and Notification Law, Psychology, Public Policy and Law (Nov. 2008).
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convicted of offenses, people convicted of sex offenses are among the least likely to be rearrested for committing the same offense.3
DOCCS’s Policy and Practice of Banning Internet Access for All Registrants. 32. DOCCS imposes a special condition banning internet access on all Registrants on community supervision through its Directive 9202: “Management of Sex Offender Use of Computer Related Materials and Electronic Devices.” 33. The condition imposed by Directive 9202 (referred to in the Directive as GES SC 40 A-F) provides that an individual under community supervision “not own, possess, purchase or have control of any computer, computer related material, electronic storage devices, communication devices and/or the internet unless [they] obtain written permission from [their] Parole Officer.” 34. The complete internet ban is imposed on “any registered sex offender in its entirety before release” without any consideration of whether the individual has a history of abusing the internet. This means that all Registrants are banned from accessing the internet from the moment they are released from confinement. 35. Under Directive 9202, Registrants proactively must obtain written permission from their parole officer if they seek to use the internet. The Registrant’s parole officer then must obtai n approval from their supervising parole officer to allow any access. 36. Although Directive 9202 includes a list of 12 factors for the parole officer to consider, the list is non-exhaustive and parole officers may consider any factor they deem relevant in determining whether to allow internet access. The factors are also vague, and provide no guidance on when an individual must be permitted to use the internet for a legitimate purpose. For example, parole officers can consider “confirmed or suspected behavior while on supervision” and any “other
3 BJS Fuels Myths about Sex Offense Recidivism, Contradicting its Own New Data, available at https://www.prisonpolicy.org/blog/2019/06/06/sexoffenses/.
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relevant case specific factors.” Further, the factors also fail to give guidance to parole officers on how much internet activity to allow if they decide to grant an exception. Instead, parole officers have unconstrained and unfettered discretion to prohibit Registrants from using large swaths of the internet.
37. Directive 9202 also fails to set forth a time frame in which a parole officer must consider and decide on a Registrant’s request for internet access and does not require that the reasons for denying access be in writing.
38. Directive 9202 does not provide any information about how someone under community supervision can challenge a refusal to permit internet access.
39. Upon information and belief, per Directive 9202, DOCCS overwhelmingly denies Registrants’ requests for internet access and does not allow Registrants to utilize the internet for legitimate First Amendment purposes.
40. Even in the rare circumstances where DOCCS grants an exemption to the internet ban, these exemptions are narrow and prohibit significant legitimate activity. For example, at least one Registrant was told that he could go to a particular library during specific times to use a computer to search for housing but was not allowed any other computer or internet use.
41. Further, these narrow exemptions to the internet ban are often made orally and not memorialized in writing, creating confusion and fear for Registrants who aim to comply wi th their parole conditions.
e-STOP and DOCCS’ Bans on Social Media 42. In 2008, the New York State Legislature enacted e-STOP, which: (1) requires people on the registry to register their internet accounts and identifiers with the state Division of Criminal Justice Services’ (“DCJS”) New York State Sex Offender Registry ; (2) authorizes DCJS to release all internet identifiers to social networking websites in order to prohibit registrants from accessing
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those websites; and (3) requires the Board of Parole to impose mandatory conditions prohibiting certain Registrants from accessing “commercial social networking websites.” N.Y. Exec. Law § 259c(15). This action challenges only the third provision barring access to commercial social networking websites.
43. A “commercial social networking website” is defined as a website that offers access to people under eighteen years of age and permits users to: (1) create a public or user-accessible webpage or profile about themselves; (2) interact with other users over the age of eighteen; and (3) engage in direct or real time communication with other users.
44. e-STOP’s ban applies to the biggest social media platforms that people use to communicate, including Facebook, Twitter, LinkedIn, and Instagram.
45. e-STOP’s definition of a “commercial social networking website” also covers a large number of websites not typically considered social media. For example, the New York Times’ website allows United States users ages thirteen and older to create accounts and comment on news articles in real-time.
46. e-STOP mandates that the special condition barring access to commercial social networking websites applies, without exception, to any Registrant on community supervision: (1) deemed a Level Three sex offender; or (2) who committed an underlying offense involving a minor; or (3) who used the internet to facilitate the underlying offense. The statute does not provide for any individualized assessment of whether a blanket ban on social media access is appropriate.
47. DOCCS Directive 9201 is an administrative policy promulgated by DOCCS for the purpose of implementing e-STOP’s social media ban. Directive 9201 requires that DOCCS impose the social media ban on the three categories of people subject to the e-STOP statute. In accordance with e-STOP, Directive 9201 requires DOCCS to impose the social media ban on Registrants without first conducting an individualized assessment of whether it is reasonable or necessary.
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48. The special condition imposed pursuant to Directive 9201 provides that the Registrant “will not use the internet to . . . access a commercial social networking site” and includes the definition of “commercial social networking site” used in e-STOP. DOCCS applies the ban to Registrants under community supervision who fall within all three categories of people specified in the statute.
49. DOCCS also imposes the social media ban condition on Registrants not covered by e-STOP. For example, DOCCS imposes the social media ban on Level One Registrants without offenses against children and who did not use the internet to offend or offend against a child. Upon information and belief, DOCCS imposes this condition on all Registrants under community supervision.
Restrictions on Plaintiffs’ Social Media and Internet Access Vernon Jones
50. Vernon Jones is a 55-year-old resident of Brooklyn, New York. Mr. Jones is the father of two sons and is currently unemployed. He is currently serving a term of post -release supervision and will remain under supervision until February 16, 2022. His release conditions bar him from accessing social media and the internet.
51. In 2006, Mr. Jones was convicted of attempted rape in the first degree. He had previously been convicted of rape in 1993. For the 2006 offense, Mr. Jones received a sentence of 13 years’ imprisonment and 5 years of post-release supervision. Both of his convictions did not involve minors and the internet was not used to facilitate the crimes.
52. Upon release from prison in 2017, Mr. Jones was designated a risk Level Three. He is currently enrolled in a sex offender treatment program.
53. As a Level Three, e-STOP’s social media ban was imposed upon Mr. Jones as a release condition, even though he has never committed a crime involving a computer, the internet,
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or social media. Additionally, in accordance with its practice of prohibiting internet access for Registrants, DOCCS imposed a ban on internet access.
54. The social media and internet bans infringe Mr. Jones’s right to free speech and restrict his ability to participate in politics. Mr. Jones works with a local community-based organization to advocate for the rights of homeless individuals. He participates in meetings concerning affordable housing and attends leadership classes on a dvocacy strategy and local government. As a result of the social media and the internet bans, his ability to follow the work of the organization and participate in their advocacy efforts is severely limited. He cannot follow their activities on Facebook, Twitter, or other popular social media platforms. Moreover, the social media and internet bans create barriers to accessing news that is relevant to his advocacy efforts, as well as other political interests.
55. Mr. Jones is a devout Muslim who is actively involved in religious discourse and volunteer work to support his local Islamic community. He is currently unable to use the internet and social media platforms to discuss his faith, find and attend local mosques, or connect with others who seek to build a support network that provides religious-based care packages for Muslims in local hospitals.
56. Further, Mr. Jones struggles to pursue higher education due to the bans on social media and internet access. Mr. Jones has completed 31 credits towards a Bachelors of Arts degree, however, he cannot use the internet to pursue his education online.
57. In addition, the internet and social media bans have hindered his ability to pursue employment opportunities. For example, he has gone to apply for jobs in person and been re quired to complete an on-line application, which he is not permitted to access.
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Douglas Hyson 58. Douglas Hyson is a 64-year-old resident of Schenectady, New York. He is an entrepreneur who previously owned a contracting business for home restoration services. Mr. Hyson is a father of two children and one grandchild. He is currently on parole and will remain on parole until December 6, 2022. His release conditions bar him from accessing social media and the internet. 59. In 1979, when he was 23-years-old, Mr. Hyson was convicted of criminal sexual conduct in the first degree and kidnapping involving a minor. This offense did not utilize the internet, which was not publicly available at the time. He was sentenced to a maximum term of 30 years’ imprisonment, of which he served 23 years. Mr. Hyson was released in 2002 at the age of 47. 60. As a result of this conviction, Mr. Hyson is required to register as a “sex offender.” He is currently designated a risk Level Three. In 2014, Mr. Hyson was convicted of burglary. This offense did not involve the internet. Mr. Hyson was released on parole in 2019. 61. Upon release, DOCCS imposed both the social media and internet bans on Mr. Hyson. DOCCS imposed these bans even though Mr. Hyson is on parole for burglary and not a sex offense. DOCCS appears to have imposed these bans on Mr. Hyson in accordance with its practice of banning social media and internet access on any parolee who has ever been convicted of a sex offense regardless of how many years have passed since the conviction. 62. Mr. Hyson has verbally requested internet access from his parole officer multiple times. These requests have either been immediately denied or ignored. 63. The social media and internet bans have severely burdened Mr. Hyson’s daily life. For 10 years Mr. Hyson successfully operated a business that employed 13 people. Without the ability to use the internet, Mr. Hyson can no longer operate that business, or start a new one; he is
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not be able to market his services, create a website for the company, or even pay employees through an online payroll program.
64. Additionally, the social media and internet bans make it difficult to apply for healthcare, and manage his medical appointments, as well as maintain contact with his daughter and grandson who live in Tennessee. Finally, Mr. Hyson was very involved in his local political party and without the internet and social media he feels as though he is completely left in the dark about its current activities.
Vladimir Krull 65. Vladimir Krull is a 42-year-old resident of Yonkers, NY. From 1996 to 1999, Mr. Krull was employed as a computer technician for the NYC Board of Education. Afterwards, he served in the United States Marine Corps until 2004, when he received an honorable discharge. Mr. Krull then joined the New York City Police Department where he rose to the rank of sergeant. While on the police force, Mr. Krull received his BA from John Jay College of Criminal Justice. His term of post-release supervision will end in 2025. His original release conditions barred him from accessing social media and the internet. 66. In 2017, Mr. Krull was convicted of committing a criminal sexual act in the second degree and second-degree rape. While this offense involved a minor, it was never alleged that the internet was used in the commission of the crime. He was sentenced to three years’ imprisonment and five years of post-release supervision. His conviction is still on appeal. Mr. Krull is adjudicated a risk Level Two. 67. Because the convicted offense involved a minor, e-STOP’s social media ban was imposed upon Mr. Krull as a release condition, even though he has never committed a crime involving a computer, the internet, or social media. Additionally, in accordance with its practice of prohibiting internet access for Registrants, DOCCS imposed a ban on internet access.
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68. Shortly after being released Mr. Krull requested internet access so that he could buy medical supplies for his ailing father. After not receiving a response, Mr. Krull made several subsequent requests for internet access until his finally his parole officer met with her supervisor out of the presence of Mr. Krull. Upon returning, she granted him limited internet access to order medical supplies for his father, do legal research, and use email, only after she has confirmed that he has bought and installed an internet monitoring software on his computer. This decision was made orally and she provided no reasons for why she, or her supervisor, allowed him this limited internet access. Mr. Krull bought and installed the required software, but as of the date of filing, she has not confirmed the software, and thus he is still banned from using the internet.
69. The restrictions placed on Mr. Krull are having a severe impact on his life. Mr. Krull is the sole caretaker of his wheelchair-bound, diabetic father. His father recently had several strokes, and the internet and social media restrictions has made it harder for Mr. Krull to do simple caretaking tasks for his father. Further, because Mr. Krull is his father’s only caretaker, and can no longer work in the police department, he needs a job that will allow him to work from home. Given that he has experience with information technology, he would like to go back into that field, however the internet and social media restrictions make this impossible.
70. Further, Mr. Krull is unable to engage with his Eastern Orthodox Christian religion online and stay politically active. Prior to arrest, Mr. Krull’s love of scuba diving led him to be involved in environmental causes. He used social media to help with beach clean-ups and discussed environmental issues online. Mr. Krull also used social media to seek out veteran support groups and advocate for those who served in the military. As part of his advocacy work, the ability to contact politicians directly and stream governmental meetings was very important to him. With the social media and internet restrictions, Mr. Krull is unable to engage meaningfully in political advocacy about the issues he cares most about.
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Thomas Mitchell 71. Thomas Mitchell is a 55-year-old resident of Brooklyn, NY. Mr. Mitchell has a large family consisting of his fiancée, several children, and many grandchildren. Mr. Mitchell is serving a term of post-release supervision until 2028. His release conditions bar him from accessing social media and the internet. 72. In 2011, Mr. Mitchell pled guilty to course of sexual conduct against a child in the first degree. The internet was not utilized to commit the offense. Mr. Mitchell had no prior convictions for sex offenses. He was sentenced to a term of seven years’ imprisonment and ten years of post-release supervision. 73. While in prison, Mr. Mitchell completed sex offender treatment and counseling. He was released in 2018 and has continued to go to counseling. He recently graduate d from one of his treatment programs. Mr. Mitchell is a risk Level Two. 74. Because the convicted offense involved a minor, e-STOP’s social media ban was imposed upon Mr. Mitchell as a release condition, even though he has never committed a crime involving a computer, the internet, or social media. Additionally, in accordance with its practice of prohibiting internet access for Registrants, DOCCS imposed a ban on internet access. 75. The internet and social media bans have severely burdened Mr. Mitchell’s ability to reintegrate into society. Recently, on a home visit, Mr. Mitchell’s parole officer confiscated his cellphone because it had internet capabilities. Mr. Mitchell’s previous parole officer orally gave him permission to have an internet-capable cellphone, nonetheless his current parole officer still confiscated the phone and ordered him to buy a less advanced one. Ever since this incident, Mr. Mitchell has been phoneless. 76. Additionally, given that Mr. Mitchell has to comply with New York’s onerous housing restrictions for certain Registrants, finding compliant housing without using the internet has
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been extremely difficult for him. He has also struggled to look up treatment facilities and figure out how to get back and forth to these locations.
77. Mr. Mitchell is also distressed by the isolation from his family members. Since people now share the most important moments of their lives on social media, Mr. Mitchell often misses these special occasions. For example, he cannot view images of his grandchild’s birth because they are posted on Facebook.
Compton Mohabir 78. Compton Mohabir is a 42-year-old chef who resides in Queens, NY. Mr. Mohabir immigrated to New York from Guyana when he was six years old with his mother and brother. He later joined the United States Naval Reserve for four years before receiving a general discharge. After leaving the military, Mr. Mohabir trained to become a chef and worked as an executive chef before he was incarcerated. Mr. Mohabir is currently under post-release supervision until 2024. His release conditions bar him from accessing social media and the internet. 79. In 2011, Mr. Mohabir was convicted of sexual abuse in the first degree. He had no prior sex offenses and this offense did not involve a minor. The offense also did not involve the internet or social media. Mr. Mohabir was sentenced to seven years’ imprisonment and five years of post-release supervision. 80. While incarcerated, Mr. Mohabir completed 13 months of sex offender treatment. In June 2019, Mr. Mohabir was released and is currently serving a term of post-release supervision. Upon release, Mr. Mohabir was adjudicated a risk Level One. He continues to attend treatment. 81. Despite the fact that he is designated a Level One and his crime did not involve the internet or a minor, Mr. Mohabir has been subjected to the social media ban. Additionally, in accordance with its practice of prohibiting internet access for Registrants, DOCCS imposed a ban on internet access.
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82. The conditions severely burden Mr. Mohabir’s ability to reintegrate into society. Mr. Mohabir has family in other states that he cannot communicate with easily due to the social media and internet bans. Additionally, he struggles to pursue his trained profession as a chef. He cannot post his resume online, nor can he continue his food blog where he used to display the skills that he acquired in culinary school.
Corydon Umber 83. Corydon “Cory” Umber is a 51-year-old-man who resides in Pottersville, NY. Mr. Umber is employed in the restaurant industry. He has three children and several grandchildren. Mr. Umber is currently released on parole. His release conditions bar him from accessing social media and the internet. 84. In 1996, Mr. Umber was convicted of third-degree rape involving a minor. He was released from prison in 1997. Later that year he was convicted of assault in the third degree and rape in the first degree for an incident involving his then 32-year-old girlfriend. Neither of these offenses utilized the internet. He received a maximum sentence of 25 years’ imprisonment and was released on parole in 2018. Prior to being released Mr. Umber received his GED and completed sex offender treatment. Mr. Umber is adjudicated a risk Level Three. 85. Given that Mr. Umber is a risk Level Three, the social media ban has been imposed as a condition of Mr. Umber’s parole. In accordance with its practice of prohibiting internet access for Registrants, DOCCS imposed a ban on internet access on Mr. Umber. 86. Mr. Umber has sought permission to use the internet by making verbal requests to his parole officer on several occasions. His parole officer has immediately denied these requests without providing any substantive justification or rationale. 87. Given that Mr. Umber served most of the last two decades in prison, he has limited knowledge of how to use the internet. However, because he is now banned from having internet
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access, he is unable to become digitally literate, making it difficult for Mr. Umber to apply for jobs and reintegrate into a technology-dependent society. He has had difficulty maintaining his personal finances, because he cannot bank online and his bank charges for paper documents. And he has a hard time accessing information about his healthcare and governmental benefits, many of which use online portals to access services.
JURISDICTION AND VENUE 88. Plaintiffs bring this action to enforce their rights under the First Amendment to the United States Constitution. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 1983 because this lawsuit alleges violations of the U.S. Constitution a nd raises questions of federal law. Jurisdiction is also based upon 28 U.S.C. § 1343(3) because the lawsuit seeks relief for the deprivation of Plaintiffs’ constitutional rights under color of state law. 89. Defendants are public officials of the State of New York. Defendants perform official duties within the State of New York. This Court, accordingly, has personal jurisdiction over Defendants. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) and § 1391(c)(2). Defendants, who have statewide authority, perform their official duties in this District, and a substantial part of the events or omissions giving rise to Plaintiffs’ claims have occurred or will occur in this District.
LEGAL CLAIMS Count One: DOCCS Directive 9202 Banning Internet Access is Unconstitutional.
90. All preceding paragraphs are hereby incorporated by reference as if fully set forth herein.
91. The ban on internet access imposed on Registrants pursuant to DOCCS Directive 9202 violates the First Amendment to the United States Constitution and 42 U.S.C. § 1983.
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Count Two: e-STOP’s Social Media Ban is Unconstitutional. 92. All preceding paragraphs are hereby incorporated by reference as if fully set forth herein. 93. The ban on social media use imposed by e-STOP violates the First Amendment to the United States Constitution and 42 U.S.C. § 1983. Count Three: DOCCS Directive 9201’s Social Media Ban is Unconstitutional. 94. All preceding paragraphs are hereby incorporated by reference as if fully set forth herein. 95. The ban on social media use imposed on Registrants by DOCCS Directive 9201 violates the First Amendment to the United States Constitution and 42 U.S.C. § 1983.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Honorable Court: 1. Accept jurisdiction over this case; 2. Declare that the internet ban in DOCCS Directive No. 9202 is unconstitutional and violates the First Amendment of the United States Constitution; 3. Declare that N.Y. Exec. Law § 259-c(15)’s ban on social media is unconstitutional and violates the First Amendment of the United States Constitution; 4. Declare that social media ban in DOCCS Directive No. 9201 is unconstitutional and violates the First Amendment of the United States Constitution; 5. Enjoin the defendants from enforcing the unconstitutional DOCCS Directive 9202, which bans internet access; 6. Enjoin the defendants from enforcing the unconstitutional provisions of e-STOP, N.Y. Exec. Law § 259-c(15), which imposes a ban on social media websites;
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7. Enjoin the defendants from enforcing the unconstitutional DOCCS Directive 9201, which imposes a ban social media websites;
8. Award the plaintiffs’ attorneys costs and fees incurred in this action pursuant to 42 U.S.C. § 1988 and other applicable authority; and
9. Enter judgment in the plaintiffs’ favor; and 10. Grant such other and further relief that the Court deems just and proper.

Dated: March 12, 2020

Respectfully submitted,
NEW YORK CIVIL LIBERTIES UNION FOUNDATION
By: /s/ Molly K. Biklen MOLLY K. BIKLEN DANIEL R. LAMBRIGHT* 125 Broad Street, 19th Floor New York, New York 10004 212-607-3300 mbiklen@nyclu.org dlambright@nyclu.org
RUTGERS CONSTITUTIONAL RIGHTS CLINIC
By: /s/ Alexis Karteron ALEXIS KARTERON, Esq. S.I. Newhouse Center for Law and Justice 123 Washington Street Newark, NJ 07102 973-353-3239 alexis.karteron@law.rutgers.edu
On the brief: Emma Pallarino, Emahunn Campbell, and Julia Burzynski

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Case 1:20-cv-01332 Document 1 Filed 03/12/20 Page 22 of 22 PageID #: 22 PRISONERS LEGAL SERVICES OF NY By: /s/ Michael E. Cassidy MICHAEL E. CASSIDY, Esq. JAMES BOGIN, Esq.** KAREN L. MURTAGH, Esq. 41 State Street, Suite M112 Albany, NY 12207 mcassidy@plsny.org jbogin@plsny.org kmurtagh@plsny.org Counsel for Plaintiffs
*Application for admission pending **pro hac vice application forthcoming
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JS 44 (Rev. /1 ) Case 1:20-cv-01332 DoCcuImVeILnt C1-O1 VFEilRedS0H3/E12E/2T0 Page 1 of 3 PageID #: 23

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

(b) County of Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorneys (Firm Name, Address, and Telephone Number)

County of Residence of First Listed Defendant
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THE TRACT OF LAND INVOLVED.
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II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

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3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

1

1 Incorporated or Principal Place

4

4

of Business In This State

2 U.S. Government Defendant

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Citizen of Another State

2

2 Incorporated and Principal Place

of Business In Another State

5

5

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

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3

Foreign Country

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3 Foreign Nation BANKRUPTCY

6

6

OTHER STATUTES

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
& Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted
Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise
REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

PERSONAL INJURY 310 Airplane 315 Airplane Product
Liability 320 Assault, Libel &
Slander 330 Federal Employers’
Liability 340 Marine 345 Marine Product
Liability 350 Motor Vehicle 355 Motor Vehicle
Product Liability 360 Other Personal
Injury 362 Personal Injury -
Medical Malpractice CIVIL RIGHTS
440 Other Civil Rights 441 Voting 442 Employment 443 Housing/
Accommodations 445 Amer. w/Disabilities -
Employment 446 Amer. w/Disabilities -
Other 448 Education

PERSONAL INJURY 365 Personal Injury -
Product Liability 367 Health Care/
Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability
PRISONER PETITIONS Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate Sentence 530 General 535 Death Penalty Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee Conditions of Confinement

625 Drug Related Seizure of Property 21 USC 881
690 Other
LABOR 710 Fair Labor Standards
Act 720 Labor/Management
Relations 740 Railway Labor Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Employee Retirement
Income Security Act
IMMIGRATION 462 Naturalization Application 465 Other Immigration
Actions

422 Appeal 28 USC 158 423 Withdrawal
28 USC 157
PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark
SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff
or Defendant) 871 IRS—Third Party
26 USC 7609

375 False Claims Act 376 Qui Tam (31 USC
3729(a)) 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and
Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/
Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information
Act
896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes

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2 Removed from State Court

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4 Reinstated or Reopened

5 Transferred from
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6 Multidistrict Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

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JUDGE

MAG. JUDGE

Local Arbitration RCulea8s3.ep1ro:v2id0es-tchavt-Cw0iEt1h R3ce3rTta2iInFexIDcCeopAtcioTunsmI, OacetNinontsO1seF-e1kiAngRFmoBilneIeyTddRa0mA3ag/Te1sI2oOn/l2yN0in EanPLamaIoGguneItBn2oItLionIfeTx3cYesPs oafg$1e5I0D,000#, : 24
exclusive of interest and costs, are eligible for compulsory arbitration. The amount of damages is presumed to be below the threshold amount unless a certification to the contrary is filed.
I, __________________________________________, counsel for____________________________, do hereby certify that the above captioned civil action is ineligible for compulsory arbitration for the following reason(s):
monetary damages sought are in excess of $150,000, exclusive of interest and costs, the complaint seeks injunctive relief, the matter is otherwise ineligible for the following reason
DISCLOSURE STATEMENT - FEDERAL RULES CIVIL PROCEDURE 7.1
Identify any parent corporation and any publicly held corporation that owns 10% or more or its stocks:

RELATED CASE STATEMENT (Section VIII on the Front of this Form)
Please list all cases that are arguably related pursuant to Division of Business Rule 50.3.1 in Section VIII on the front of this form. Rule 50.3.1 (a) provides that “A civil case is “related” to another civil case for purposes of this guideline when, because of the similarity of facts and legal issues or because the cases arise from the same transactions or events, a substantial saving of judicial resources is likely to result from assigning both cases to the same judge and magistrate judge.” Rule 50.3.1 (b) provides that “ A civil case shall not be deemed “related” to another civil case merely because the civil case: (A) involves identical legal issues, or (B) involves the same parties.” Rule 50.3.1 (c) further provides that “Presumptively, and subject to the power of a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to be “related” unless both cases are still pending before the court.”
NY-E DIVISION OF BUSINESS RULE 50.1(d)(2)

1.) Is the civil action being filed in the Eastern District removed from a New York State Court located in Nassau or Suffolk

County?

Yes

No

2.) If you answered “no” above:

a) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in Nassau or Suffolk

County?

Yes

No

b) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in the Eastern

District?

Yes

No

c) If this is a Fair Debt Collection Practice Act case, specify the County in which the offending communication was received:______________________________.

If your answer to question 2 (b) is “No,” does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau or Suffolk County, or, in an interpleader action, does the claimant (or a majority of the claimants, if there is more than one) reside in Nassau or Suffolk County?___________________________________
(Note: A corporation shall be considered a resident of the County in which it has the most significant contacts).

BAR ADMISSION

I am currently admitted in the Eastern District of New York and currently a member in good standing of the bar of this court.

Yes

No

Are you currently the subject of any disciplinary action (s) in this or any other state or federal court?

Yes (If yes, please explain

No

I certify the accuracy of all information provided above. Signature: _________/s_/_M__o_lly__K_._B_i_k_le_n______________________________

Case 1:20-cv-01332 Document 1-1 Filed 03/12/20 Page 3 of 3 PageID #: 25
Attachment to Civil Cover Sheet – Jones, et al. v. Stanford, et al.
I(a) – Defendants
TINA M. STANFORD, Esq., in her official capacity as Chairwoman of the New York Board of Parole; ANTHONY ANNUCCI, in his official capacity as Acting Commissioner of the Department of Corrections and Community Supervision.
I(c) – Petitioners’ Attorneys
• Molly K. Biklen The New York Civil Liberties Union Foundation 125 Broad St., 19th Fl. New York, NY 10004 212 607 3300
• Daniel R. Lambright The New York Civil Liberties Union Foundation 125 Broad St., 19th Fl. New York, NY 10004 212 607 3300
• Alexis Karteron Rutgers Constitutional Rights Clinic S.I. Newhouse Center for Law and Justice 123 Washington Street Newark, NJ 07102 973 353 5687
• Michael E. Cassidy Prisoners Legal Services of NY 41 State Street, Suite M112 Albany, NY 12207 518 445 6050
• James Bogin Prisoners Legal Services of NY 41 State Street, Suite M112 Albany, NY 12207 518 445 6050
• Karen L. Murtagh Prisoners Legal Services of NY 41 State Street, Suite M112 Albany, NY 12207 518 445 6050

 
 Case 1:20-cv-01332-RJD-SJB Document 17 Filed 06/01/20 Page 1 of 20 PageID #: 60

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

VERNON JONES, VLADIMIR KRULL, THOMAS MITCHELL, COMPTON MOHABIR, and CORYDON UMBER,
Plaintiffs,
vs.

CIVIL ACTION Case No.: 20-cv-1332
AMENDED COMPLAINT

TINA M. STANFORD, Esq., in her official capacity as Chairwoman of the New York Board of Parole; ANTHONY ANNUCCI, in his official capacity as Acting Commissioner of the Department of Corrections and Community Supervision,

Defendants.

INTRODUCTION

1.

This action is a constitutional challenge to the State of New York’s bans on internet

and social media access for all people under community supervision who are required to register

under the Sex Offender Registration Act, regardless of whether they were ever convicted of a sex

offense involving the internet.

2.

The New York State Department of Corrections and Community Supervision

(“DOCCS”) imposes a release condition that completely bans all internet access for every registrant

under community supervision. Additionally, New York’s Electronic Security and Targeting of

Online Predators Act (“e-STOP”) mandates the imposition of a social media ban on certain

categories of registrants under community supervision. DOCCS goes even further and applies this

social media ban to all individuals on the registry under community supervision. These bans apply to

individuals who have never used the internet or social media to commit an offense. As a result of

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being unable to use the internet and social media, the plaintiffs struggle with the heavy burden of

trying to navigate day-to-day life in a technology-dependent society.

3.

Over the last two decades the internet—especially social media—has become an

integral part of American life. Many Americans shop for necessities, search for housing, apply for

jobs, take college courses, and stay connected to family members and friends on the internet. As of

2019, approximately 90 percent of American adults use the internet, while 69 percent use the social

media platform Facebook and 73 percent use YouTube.

4.

The internet is also an essential forum for political information and speech.

Politicians and governmental entities use social media sites to disseminate information. Both

Governor Cuomo and DOCCS have active social media accounts. President Donald J. Trump

frequently uses the social media site Twitter to announce military, diplomatic, and domestic policy.

Not only do these forums provide information to the public, they also allow people to communicate

directly with their lawmakers by commenting on their posts. As New York’s official policy on the

state’s use of social media declares, “New York State engages New Yorkers through many digital

outlets, including NY.gov and Governor.NY.gov. Communicating with the State through social

media enables you to contact us in a direct and meaningful way.”

5.

Recognizing the importance of the internet and social media for free speech, the

United States Supreme Court held in Packingham v. North Carolina, 137 S. Ct. 1730 (2017), that “to

foreclose access to social media altogether is to prevent the user from engaging in the legitimate

exercise of First Amendment rights.”

6.

However, the State of New York is cutting off the rights of thousands of people

convicted of sex offenses to access these vital forums without any individualized assessment of

whether they pose a risk to recidivate by using the internet. The plaintiffs in this case are individuals

who are required to register as sex offenders under New York’s Sex Offender Registration Act and

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who are released on parole or post-release supervision, collectively referred to as “community

supervision.” They have never used the internet or social media to commit a sex offense, but as a

result of New York State’s blanket policies, are banned from meaningful access to these forums. The

plaintiffs cannot look at family photographs posted on Facebook, search for gainful employment

online, comment on pending legislation, or even look up facilities that provide mental health

treatment. They have been cut off from the modern world.

7.

The plaintiffs in this action seek declaratory and injunctive relief enjoining

defendants from enforcing the unconstitutional provisions of e-STOP and the DOCCS Directives

banning internet and social media access.

PARTIES

Plaintiffs

8.

Plaintiff VERNON JONES resides in Brooklyn, New York. He is currently serving

a term of post-release supervision until 2022. His release conditions bar him from accessing social

media and the internet.

9.

Plaintiff VLADIMIR KRULL resides in Yonkers, New York. He is currently serving

a term of post-release supervision until 2025. His release conditions bar him from accessing social

media and severely restrict his access to the internet.

10. Plaintiff THOMAS MITCHELL resides in Brooklyn, New York. He is currently

serving a term of post-release supervision until 2028. His release conditions bar him from accessing

social media and the internet.

11. Plaintiff COMPTON MOHABIR resides in Richmond Hill, New York. He is

currently serving a term of post-release supervision until 2024. His release conditions bar him from

accessing social media and the internet.

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12. Plaintiff CORYDON UMBER resides in Pottersville, New York. He is currently on parole and will be on parole until 2022. His release conditions bar him from accessing social media and the internet.
Defendants 13. Defendant TINA M. STANFORD is the Chairwoman of the New York State Board of Parole (the “Parole Board”). She is responsible for the administrative functions and daily operations of the Board and its staff, including the imposition of conditions on individuals required to register under the Sex Offender Registration Act on parole or on supervised release, and the social media ban required by e-STOP. Ms. Stanford is sued in her official capacity. 14. Defendant ANTHONY ANNUCCI is the Acting Commissioner of the New York Department of Corrections and Community Supervision. Mr. Annucci is responsible for overseeing the imposition and enforcement of conditions on Registrants on parole or supervised release, including the internet and social media bans. Mr. Annucci is sued in his official capacity.
FACTS The Internet is a Pervasive Part of Everyday Life 15. Frequent engagement in online activities is an indispensable part of modern life. According to the Pew Research Center, as of 2019, nearly 90 percent of American adults make use of the internet on a daily basis. 16. On a typical day, American adults rely on the internet to read the news and check the weather; to send messages and make online calls to friends and family; to share their opinions with their elected officials and other members of the public; to look for jobs, housing, or community and support groups; to shop for and rate products; to make payments and manage finances; to look up directions; to make appointments; and to search for answers to all types of questions.
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17. Today’s job market uses the internet as a platform for job postings, networking opportunities, and informational and training materials of a wide and extensive nature. Many jobs require the use of online applications.
18. Even assuming that a person can find a job without the internet, almost all jobs today require internet use in one form or other. Whether the job demands internet access through email or a timecard software, inability to access the internet greatly hinders job opportunities.
19. Social media websites began as a way for people to reconnect with old acquaintances, to keep in touch with family and friends, and to network professionally – but have also become important for civic and political engagement. Much political discourse takes place on online news outlets and social media platforms such as Facebook. Politicians regularly communicate with their constituents on Twitter and other social media platforms, sometimes replacing the more traditional platforms like town halls with these modern methods of reaching the public.
20. Similarly, government agencies use the internet and social media to provide access to services, engage with the public, and livestream hearings or other activities. For example, the New York State Court System’s internet portal provides a variety of resources for accessing services, legal help, and information about the legal system. The court system also uses social media to interact with the public. As it explains, “The New York State Unified Court System offers a variety of social media platforms to stay in the loop on court-related news — whether it’s emergency weather closings, the latest decisions from the courts, timely podcasts on pressing issues, videos or snapshots.”
21. Over half of American adults followed and engaged with politics on social media in 2018, and over 69 percent of American adults consider social media an important tool for getting elected officials to pay attention to issues and for creating sustained movements for social change.
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Indeed, several important movements like #BlackLivesMatter and #MeToo have been amplified on social media.
22. Social media also provides a powerful, low-cost way for small business owners to market their businesses and interact with customers on the internet. It is estimated that more than 75 percent of small businesses used social media in 2018.
Background on Community Supervision 23. In New York, individuals sentenced to an indeterminate term of imprisonment can be released from prison by the Parole Board after serving a certain amount of their sentence. On the other hand, those serving determinate sentences must be released after serving a certain portion of their sentence, at which point many will begin serving a term of post-release supervision. In New York, both parole and post-release supervision are referred to as “community supervision.” 24. Many individuals released to community supervision are subject to both general and special conditions of release. General conditions of release are conditions that are imposed on all people released to community supervision, such as curfews and bans on the use of illicit drugs. The Parole Board and DOCCS can also impose special conditions of release either prior to an individual’s release date or afterwards. The individual must be provided a written copy of all special conditions imposed. 25. Individuals who were convicted of certain statutorily enumerated sex offenses are required to register as “sex offenders” pursuant to New York’s Sex Offender Registration Act (SORA) upon release to community supervision (“Registrants”). These offenses cover a wide range, from misdemeanors to serious felonies. For example, someone convicted of N.Y. Penal Law § 255.25 for marrying their adult relative must register as a “sex offender.” 26. Prior to registration, these individuals must have judicial hearings to determine their risk level. The risk level adjudicated is supposed to correlate to the individual’s risk to recidivate
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sexually. Level One marks the lowest risk to recidivate. Levels Two and Three are moderate and high-risk levels respectively.
27. Each level comes with differing restrictions and registration requirements. All Registrants are subject to community notification, a process by which law enforcement can go to the neighbors of a Registrant and inform them of his or her presence in the neighborhood. Registrants adjudicated as Level Two and Three are placed on the public registry where their picture, physical description, and home address are posted on the internet. Level One offenders, while not on the public registry, are on a registry kept by local law enforcement. Additionally, Level Three offenders are subject to New York’s statutory residency and movement restrictions prohibiting them from knowingly entering within 1,000 feet of a school ground.
28. Currently, 41,949 individuals are “registered sex offenders” in New York State, and thousands are under community supervision. In 2019, for example, over 1,600 individuals required to register as sex offenders were released to community supervision.
29. While it is commonly believed that people who commit sex offenses recidivate at high rates, this is simply false. After conducting a study of over 9,000 people convicted of sex offenses, the U.S. Department of Justice found that only 5.3 percent of these people committed another sex offense within 3 years of their release from prison.1
30. A study of 160,000 people involving 170,000 arrests for sex offenses in New York between 1986 and 2006 revealed that over 94 percent were first-time offenders.2 Of all people
1 5 Percent of Sex Offenders Rearrested For Another Sex Crime Within 3 Years of Prison Release, available at https://www.bjs.gov/content/pub/press/rsorp94pr.cfm. 2 Jeffrey C. Sandler et al., Does a Watched Pot Boil? A Time Series Analysis of New York State’s Sex Offender Registration and Notification Law, Psychology, Public Policy and Law (Nov. 2008).
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convicted of offenses, people convicted of sex offenses are among the least likely to be rearrested for committing the same offense.3
DOCCS’s Policy and Practice of Banning Internet Access for All Registrants. 31. DOCCS imposes a special condition banning internet access on all Registrants on community supervision through its Directive 9202: “Management of Sex Offender Use of Computer Related Materials and Electronic Devices.” 32. The condition imposed by Directive 9202 (referred to in the Directive as GES SC 40 A-F) provides that an individual under community supervision “not own, possess, purchase or have control of any computer, computer related material, electronic storage devices, communication devices and/or the internet unless [they] obtain written permission from [their] Parole Officer.” 33. The complete internet ban is imposed on “any registered sex offender in its entirety before release” without any consideration of whether the individual has a history of abusing the internet. This means that all Registrants are banned from accessing the internet from the moment they are released from confinement. 34. Under Directive 9202, Registrants proactively must obtain written permission from their parole officer if they seek to use the internet. The Registrant’s parole officer then must obtain approval from their supervising parole officer. 35. Although Directive 9202 includes a list of 12 factors for the parole officer to consider, the list is non-exhaustive and parole officers may consider any factor they deem relevant in determining whether to allow internet access. The factors are also vague, and provide no guidance on when an individual must be permitted to use the internet for a legitimate purpose. For example, parole officers can consider “confirmed or suspected behavior while on supervision” and any “other
3 BJS Fuels Myths about Sex Offense Recidivism, Contradicting its Own New Data, available at https://www.prisonpolicy.org/blog/2019/06/06/sexoffenses/.
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relevant case specific factors.” Further, the factors also fail to give guidance to parole officers on how much internet activity to allow if they decide to grant an exception. Instead, parole officers have unconstrained and unfettered discretion to prohibit Registrants from using large swaths of the internet.
36. Directive 9202 also fails to set forth a time frame in which a parole officer must consider and decide on a Registrant’s request for internet access and does not require that the reasons for denying access be in writing.
37. Directive 9202 does not provide any information about how someone under community supervision can challenge a refusal to permit internet access.
38. Upon information and belief, per Directive 9202, DOCCS overwhelmingly denies Registrants’ requests for internet access and does not allow Registrants to utilize the internet for legitimate First Amendment purposes.
39. Even in the rare circumstances where DOCCS grants an exemption to the internet ban, these exemptions are narrow and prohibit significant legitimate activity. For example, at least one Registrant was told that he could go to a particular library during specific times to use a computer to search for housing but was not allowed any other computer or internet use.
40. Further, these narrow exemptions to the internet ban are often made orally and not memorialized in writing, creating confusion and fear for Registrants who aim to comply with their parole conditions.
e-STOP and DOCCS’ Bans on Social Media 41. In 2008, the New York State Legislature enacted e-STOP, which: (1) requires people on the registry to register their internet accounts and identifiers with the state Division of Criminal Justice Services’ (“DCJS”) New York State Sex Offender Registry; (2) authorizes DCJS to release all internet identifiers to social networking websites in order to prohibit registrants from accessing
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those websites; and (3) requires the Board of Parole to impose mandatory conditions prohibiting certain Registrants from accessing “commercial social networking websites.” N.Y. Exec. Law § 259c(15). This action challenges only the third provision barring access to commercial social networking websites.
42. A “commercial social networking website” is defined as a website that offers access to people under eighteen years of age and permits users to: (1) create a public or user-accessible webpage or profile about themselves; (2) interact with other users over the age of eighteen; and (3) engage in direct or real time communication with other users.
43. e-STOP’s ban applies to the biggest social media platforms that people use to communicate, including Facebook, Twitter, LinkedIn, and Instagram.
44. e-STOP’s definition of a “commercial social networking website” also covers a large number of websites not typically considered social media. For example, the New York Times’ website allows United States users ages thirteen and older to create accounts and comment on news articles in real-time.
45. e-STOP mandates that the special condition barring access to commercial social networking websites applies, without exception, to any Registrant on community supervision: (1) deemed a Level Three sex offender; or (2) who committed an underlying offense involving a minor; or (3) who used the internet to facilitate the underlying offense. The statute does not provide for any individualized assessment of whether a blanket ban on social media access is appropriate.
46. DOCCS Directive 9201 is an administrative policy promulgated by DOCCS for the purpose of implementing e-STOP’s social media ban. Directive 9201 requires that DOCCS impose the social media ban on the three categories of people subject to the e-STOP statute. In accordance with e-STOP, Directive 9201 requires DOCCS to impose the social media ban on Registrants without first conducting an individualized assessment of whether it is reasonable or necessary.
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47. The special condition imposed pursuant to Directive 9201 provides that the Registrant “will not use the internet to . . . access a commercial social networking site” and includes the definition of “commercial social networking site” used in e-STOP. DOCCS applies the ban to Registrants under community supervision who fall within all three categories of people specified in the statute.
48. DOCCS also imposes the social media ban condition on Registrants not covered by e-STOP. For example, DOCCS imposes the social media ban on Level One Registrants without offenses against children and who did not use the internet to offend. Upon information and belief, DOCCS imposes this condition on all Registrants under community supervision.
Restrictions on Plaintiffs’ Social Media and Internet Access Vernon Jones
49. Vernon Jones is a 55-year-old resident of Brooklyn, New York. Mr. Jones is the father of two sons and is currently unemployed. He is currently serving a term of post-release supervision and will remain under supervision until February 16, 2022. His release conditions bar him from accessing social media and the internet.
50. In 2006, Mr. Jones was convicted of attempted rape in the first degree. He had previously been convicted of rape in 1993. For the 2006 offense, Mr. Jones received a sentence of 13 years’ imprisonment and 5 years of post-release supervision. Both of his convictions did not involve minors and the internet was not used to facilitate the crimes.
51. Upon release from prison in 2017, Mr. Jones was designated a risk Level Three. He is currently enrolled in a sex offender treatment program.
52. As a Level Three, e-STOP’s social media ban was imposed upon Mr. Jones as a release condition, even though he has never committed a crime involving a computer, the internet,
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or social media. Additionally, in accordance with its practice of prohibiting internet access for Registrants, DOCCS imposed a ban on internet access.
53. The social media and internet bans infringe Mr. Jones’s right to free speech and restrict his ability to participate in politics. Mr. Jones works with a local community-based organization to advocate for the rights of homeless individuals. He participates in meetings concerning affordable housing and attends leadership classes on advocacy strategy and local government. As a result of the social media and the internet bans, his ability to follow the work of the organization and participate in their advocacy efforts is severely limited. He cannot follow their activities on Facebook, Twitter, or other popular social media platforms. Moreover, the social media and internet bans create barriers to accessing news that is relevant to his advocacy efforts, as well as other political interests.
54. Mr. Jones is a devout Muslim who is actively involved in religious discourse and volunteer work to support his local Islamic community. He is currently unable to use the internet and social media platforms to discuss his faith, find and attend local mosques, or connect with others who seek to build a support network that provides religious-based care packages for Muslims in local hospitals.
55. Further, Mr. Jones struggles to pursue higher education due to the bans on social media and internet access. Mr. Jones has completed 31 credits towards a Bachelors of Arts degree, however, he cannot use the internet to pursue his education online.
56. In addition, the internet and social media bans have hindered his ability to pursue employment opportunities. For example, he has gone to apply for jobs in person and been required to complete an on-line application, which he is not permitted to access.
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Vladimir Krull 57. Vladimir Krull is a 42-year-old resident of Yonkers, NY. From 1996 to 1999, Mr. Krull was employed as a computer technician for the NYC Board of Education. Afterwards, he served in the United States Marine Corps until 2004, when he received an honorable discharge. Mr. Krull then joined the New York City Police Department where he rose to the rank of sergeant. While on the police force, Mr. Krull received his BA from John Jay College of Criminal Justice. His term of post-release supervision will end in 2025. His original release conditions barred him from accessing social media and the internet. 58. In 2017, Mr. Krull was convicted of committing a criminal sexual act in the second degree and second-degree rape. While this offense involved a minor, it was never alleged that the internet was used in the commission of the crime. He was sentenced to three years’ imprisonment and five years of post-release supervision. His conviction is still on appeal. Mr. Krull is adjudicated a risk Level Two. 59. Because the convicted offense involved a minor, e-STOP’s social media ban was imposed upon Mr. Krull as a release condition, even though he has never committed a crime involving a computer, the internet, or social media. Additionally, in accordance with its practice of prohibiting internet access for Registrants, DOCCS imposed a ban on internet access. 60. Shortly after being released Mr. Krull requested internet access so that he could buy medical supplies for his ailing father. After not receiving a response, Mr. Krull made several subsequent requests for internet access until his finally his parole officer met with her supervisor out of the presence of Mr. Krull. Upon returning, she granted him limited internet access to order medical supplies for his father, do legal research, and use email, only after she has confirmed that he has bought and installed an internet monitoring software on his computer. This decision was made orally and she provided no reasons for why she, or her supervisor, allowed him this limited internet
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access. Mr. Krull bought and installed the required software, but as of the date of filing, she has not confirmed the software, and thus he is still banned from using the internet.
61. The restrictions placed on Mr. Krull are having a severe impact on his life. Mr. Krull is the sole caretaker of his wheelchair-bound, diabetic father. His father recently had several strokes, and the internet and social media restrictions has made it harder for Mr. Krull to do simple caretaking tasks for his father. Further, because Mr. Krull is his father’s only caretaker, and can no longer work in the police department, he needs a job that will allow him to work from home. Given that he has experience with information technology, he would like to go back into that field, however the internet and social media restrictions make this impossible.
62. Further, Mr. Krull is unable to engage with his Easter Orthodox Christian religion online and stay politically active. Prior to arrest, Mr. Krull’s love of scuba diving led him to be involved in environmental causes. He used social media to help with beach clean-ups and discussed environmental issues online. Mr. Krull also used social media to seek out veteran support groups and advocate for those who served in the military. As part of his advocacy work, the ability to contact politicians directly and stream governmental meetings was very important to him. With the social media and internet restrictions, Mr. Krull is unable to engage meaningfully in political advocacy about the issues he cares most about.
Thomas Mitchell 63. Thomas Mitchell is a 55-year-old resident of Brooklyn, NY. Mr. Mitchell has a large family consisting of his fiancée, several children, and many grandchildren. Mr. Mitchell is serving a term of post-release supervision until 2028. His release conditions bar him from accessing social media and the internet. 64. In 2011, Mr. Mitchell pled guilty to course of sexual conduct against a child in the first degree. The internet was not utilized to commit the offense. Mr. Mitchell had no prior
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convictions for sex offenses. He was sentenced to a term of seven years’ imprisonment and ten years of post-release supervision.
65. While in prison, Mr. Mitchell completed sex offender treatment and counseling. He was released in 2018 and has continued to go to counseling. He recently graduated from one of his treatment programs. Mr. Mitchell is a risk Level Two.
66. Because the convicted offense involved a minor, e-STOP’s social media ban was imposed upon Mr. Mitchell as a release condition, even though he has never committed a crime involving a computer, the internet, or social media. Additionally, in accordance with its practice of prohibiting internet access for Registrants, DOCCS imposed a ban on internet access.
67. The internet and social media bans have severely burdened Mr. Mitchell’s ability to reintegrate into society. Recently, on a home visit, Mr. Mitchell’s parole officer confiscated his cellphone because it had internet capabilities. Mr. Mitchell’s previous parole officer orally gave him permission to have an internet-capable cellphone, nonetheless his current parole officer still confiscated the phone and ordered him to buy a less advanced one. Ever since this incident, Mr. Mitchell has been phoneless.
68. Additionally, given that Mr. Mitchell has to comply with New York’s onerous housing restrictions for certain Registrants, finding compliant housing without using the internet has been extremely difficult for him. He has also struggled to look up treatment facilities and figure out how to get back and forth to these locations.
69. Mr. Mitchell is also distressed by the isolation from his family members. Since people now share the most important moments of their lives on social media, Mr. Mitchell often misses these special occasions. For example, he cannot view images of his grandchild’s birth because they are posted on Facebook.
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Compton Mohabir 70. Compton Mohabir is a 42-year-old chef who resides in Queens, NY. Mr. Mohabir immigrated to New York from Guyana when he was six years old with his mother and brother. He later joined the United States Naval Reserve for four years before receiving a general discharge. After leaving the military, Mr. Mohabir trained to become a chef and worked as an executive chef before he was incarcerated. Mr. Mohabir is currently under post-release supervision until 2024. His release conditions bar him from accessing social media and the internet. 71. In 2011, Mr. Mohabir was convicted of sexual abuse in the first degree. He had no prior sex offenses and this offense did not involve a minor. The offense also did not involve the internet or social media. Mr. Mohabir was sentenced to seven years’ imprisonment and five years of post-release supervision. 72. While incarcerated, Mr. Mohabir completed 13 months of sex offender treatment. In June 2019, Mr. Mohabir was released and is currently serving a term of post-release supervision. Upon release, Mr. Mohabir was adjudicated a risk Level One. He continues to attend treatment. 73. Despite the fact that he is designated a Level One and his crime did not involve the internet or a minor, Mr. Mohabir has been subjected to the social media ban. Additionally, in accordance with its practice of prohibiting internet access for Registrants, DOCCS imposed a ban on internet access. 74. The conditions severely burden Mr. Mohabir’s ability to reintegrate into society. Mr. Mohabir has family in other states that he cannot communicate with easily due to the social media and internet bans. Additionally, he struggles to pursue his trained profession as a chef. He cannot post his resume online, nor can he continue his food blog where he used to display the skills that he acquired in culinary school.
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Corydon Umber 75. Corydon “Cory” Umber is a 51-year-old-man who resides in Pottersville, NY. Mr. Umber is employed in the restaurant industry. He has three children and several grandchildren. Mr. Umber is currently released on parole. His release conditions bar him from accessing social media and the internet. 76. In 1996, Mr. Umber was convicted of third-degree rape involving a minor. He was released from prison in 1997. Later that year he was convicted of assault in the third degree and rape in the first degree for an incident involving his then 32-year-old girlfriend. Neither of these offenses utilized the internet. He received a maximum sentence of 25 years’ imprisonment and was released on parole in 2018. Prior to being released Mr. Umber received his GED and completed sex offender treatment. Mr. Umber is adjudicated a risk Level Three. 77. Given that Mr. Umber is a risk Level Three, the social media ban has been imposed as a condition of Mr. Umber’s parole. In accordance with its practice of prohibiting internet access for Registrants, DOCCS imposed a ban on internet access on Mr. Umber. 78. Mr. Umber has sought permission to use the internet by making verbal requests to his parole officer on several occasions. His parole officer has immediately denied these requests without providing any substantive justification or rationale. 79. Given that Mr. Umber served most of the last two decades in prison, he has limited knowledge of how to use the internet. However, because he is now banned from having internet access, he is unable to become digitally literate, making it difficult for Mr. Umber to apply for jobs and reintegrate into a technology-dependent society. He has had difficulty maintaining his personal finances, because he cannot bank online and his bank charges for paper documents. And he has a hard time accessing information about his healthcare and governmental benefits, many of which use online portals to access services.
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JURISDICTION AND VENUE 80. Plaintiffs bring this action to enforce the First Amendment to the United States Constitution. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 1983 because this lawsuit alleges violations of the U.S. Constitution and raises questions of federal law. Jurisdiction is also based upon 28 U.S.C. § 1343(3) because the lawsuit seeks relief for the deprivation of Plaintiffs’ constitutional rights under color of state law. 81. Defendants are public officials of the State of New York. Defendants perform official duties within the State of New York. This Court, accordingly, has personal jurisdiction over Defendants. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) and § 1391(c)(2). Defendants, who have statewide authority, perform their official duties in this District, and a substantial part of the events or omissions giving rise to Plaintiffs’ claims have occurred or will occur in this District.
LEGAL CLAIMS Count One: DOCCS Directive 9202 Banning Internet Access is Unconstitutional.
82. All preceding paragraphs are hereby incorporated by reference as if fully set forth herein.
83. The ban on internet access imposed on Registrants pursuant to DOCCS Directive 9202 violates the First Amendment to the United States Constitution and 42 U.S.C. § 1983.
Count Two: e-STOP’s Social Media Ban is Unconstitutional. 84. All preceding paragraphs are hereby incorporated by reference as if fully set forth herein. 85. The ban on social media use imposed by e-STOP violates the First Amendment to the United States Constitution and 42 U.S.C. § 1983.
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Count Three: DOCCS Directive 9201’s Social Media Ban is Unconstitutional. 86. All preceding paragraphs are hereby incorporated by reference as if fully set forth herein. 87. The ban on social media use imposed on Registrants by DOCCS Directive 9201 violates the First Amendment to the United States Constitution and 42 U.S.C. § 1983.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Honorable Court: 1. Accept jurisdiction over this case; 2. Declare that the internet ban in DOCCS Directive No. 9202 is unconstitutional and violates the First Amendment of the United States Constitution; 3. Declare that N.Y. Exec. Law § 259-c(15)’s ban on social media is unconstitutional and violates the First Amendment of the United States Constitution; 4. Declare that social media ban in DOCCS Directive No. 9201 is unconstitutional and violates the First Amendment of the United States Constitution; 5. Enjoin the defendants from enforcing the unconstitutional DOCCS Directive 9202, which bans internet access; 6. Enjoin the defendants from enforcing the unconstitutional provisions of e-STOP, N.Y. Exec. Law § 259-c(15), which imposes a ban on social media websites; 7. Enjoin the defendants from enforcing the unconstitutional DOCCS Directive 9201, which imposes a ban social media websites; 8. Award the plaintiffs’ attorneys costs and fees incurred in this action pursuant to 42 U.S.C. § 1988 and other applicable authority; and 9. Enter judgment in the plaintiffs’ favor; and 10. Grant such other and further relief that the Court deems just and proper.
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Dated: June 1, 2020

Respectfully submitted,

NEW YORK CIVIL LIBERTIES UNION FOUNDATION
By: /s/ Molly K. Biklen MOLLY K. BIKLEN DANIEL R. LAMBRIGHT* 125 Broad Street, 19th Floor New York, New York 10004 212-607-3300 mbiklen@nyclu.org dlambright@nyclu.org
RUTGERS CONSTITUTIONAL RIGHTS CLINIC
By: /s/ Alexis Karteron ALEXIS KARTERON Center for Law & Justice 123 Washington Street Newark, NJ 07102 973-353-3239 alexis.karteron@law.rutgers.edu
PRISONERS LEGAL SERVICES OF NY
By: /s/ Michael E. Cassidy MICHAEL E. CASSIDY JAMES BOGIN** KAREN L. MURTAGH 41 State Street, Suite M112 Albany, NY 12207 mcassidy@plsny.org jbogin@plsny.org kmurtagh@plsny.org
*Application for admission pending **pro hac vice application forthcoming

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 Case 1:20-cv-01332-RJD-SJB Document 37 Filed 09/09/20 Page 1 of 20 PageID #: 417

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------X VERNON JONES, VLADIMIR KRULL, THOMAS MITCHELL, COMPTON MOHABIR, and CORYDON UMBER,
Plaintiffs,

-against-

MEMORANDUM & ORDER

TINA M. STANFORD, Esq., in her official capacity as Chairwoman of the New York Board of Parole and ANTHONY ANNUCCI, in his official capacity as Acting Commissioner of the Department of Corrections and Community Supervision,

Case No: 20-cv-1332

Defendants. -------------------------------------------------------------X DEARIE, District Judge

Plaintiffs, sexual offender registrants (“Registrants”) on community supervision, seek to

preliminarily enjoin New York’s Electronic Security Targeting of Online Predators Act (“e-

STOP”), and New York State Department of Corrections and Community Supervision

(“DOCCS”) Directive 9201 on the basis that prohibitions on social media access by certain

categories of Registrants on community supervision violate the First Amendment. While the

Court appreciates the State’s compelling interest and laudable efforts to protect children from sex

offender recidivists on the internet, New York’s attempt to advance this interest via blanket

restrictions cannot be squared with the significant freedom of speech rights at stake. For the

following reasons, Plaintiffs’ motion for a preliminary injunction is GRANTED. While parole

officers remain free to impose individualized restrictions on supervisees based on the

Registrant’s specific circumstances and risk of recidivating using social media, e-STOP and

Directive 9201 are preliminarily enjoined so far as they apply wholesale to Registrants who have

not used the internet to facilitate the commission of their underlying sex offense.

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FACTUAL BACKGROUND Individuals convicted of certain statutorily enumerated sex offenses are required to register as sex offenders under New York’s Sex Offender Registration Act (“SORA”) prior to parole or post-release supervision (collectively, “community supervision”). Amended Complaint (“Compl.”), ECF No. 17, ¶¶ 23, 25. SORA’s registration requirement applies to those convicted of an array of misdemeanor and felony sex offenses, from marrying an adult relative to serious felonies. Id. ¶ 25. As part of the registration process, the sentencing court holds a hearing to assess a risk level that is based on the individual’s risk of recidivism. Id. ¶ 26. Risk levels range from one (low risk) to three (high risk) and vary in their corresponding restrictions and registration requirements. Id. ¶¶ 26-27. In addition to being subject to general conditions of release that apply to all individuals on community supervision, Registrants may be subject to special conditions imposed by the Parole Board and DOCCS. Id. ¶ 24. New York’s e-STOP law requires that the Board of Parole impose a mandatory condition of release prohibiting three categories of Registrants from accessing “commercial social networking websites.” Id. ¶ 41 (quoting N.Y. Exec. L. § 259c(15)). The restriction applies to Registrants on community supervision where: (1) “the victim of [the Registrant’s] offense was under the age of eighteen at the time”; or (2) the Registrant “has been designated a level three sex offender”; or (3) “the internet was used to facilitate the commission of the crime.” N.Y. Exec. L. § 259-c(15). e-STOP defines “commercial social networking websites” as: a website that permits persons under eighteen years of age to be registered users for the purpose of establishing personal relationships with other users, where such persons under eighteen years of age may: (i) create web pages or profiles that provide information about themselves where such web pages or profiles are available to the public or to other users;  (ii) engage in direct or real time communication with other users, such as a chat room or instant messenger; and (iii)
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communicate with persons over eighteen years of age;  provided, however, that, for purposes of this subdivision, a commercial social networking website shall not include a website that permits users to engage in such other activities as are not enumerated herein. Id. Plaintiffs claim that this definition applies to “traditional” social media, such as Twitter and Facebook, as well as broadly to sites like the New York Times website. Compl. ¶¶ 43-44. DOCCS Directive 9201 was promulgated to implement e-STOP. Id. ¶ 46. It adopts the same definition of “commercial social networking websites” and applies the Ban1 as a special condition of release on the same three categories of Registrants as enumerated in the statute, without exception. Id. ¶¶ 46-47; Biklen Decl., ECF No. 28-2, Ex. 1. Plaintiffs are registered sex offenders on community supervision. Compl. ¶ 6. Their underlying crimes range from engaging in sexual conduct against minors, including rape, to repeated rape or attempted rape convictions. Id. ¶¶ 50, 58, 64, 76. None has used the internet to facilitate a sex offense, but all are banned from accessing social media under e-STOP and Directive 9201 as Level Three offenders or perpetrators of a sex crime against a minor.2 Id. ¶¶ 6, 52, 59, 66, 77. Bringing facial and as applied challenges, Plaintiffs allege that the Ban unconstitutionally infringes on protected speech, such as by restricting them from using social media to: participate in online religious classes, view religious and educational lectures on YouTube, engage in political advocacy work, search for employment or housing, communicate with distant family members, hone skills via YouTube videos, and acquire information about
1 The commercial social networking restrictions imposed by e-STOP and Directive 9201 are collectively referred to as the “Ban.” 2 Defendants concede that the Ban was misapplied to Plaintiff Compton Mohabir as he does not fit within the statutory criteria. The Ban was revoked as to Mr. Mohabir in June 2020, Osouna Decl., ECF No. 32, ¶ 6, and the parties agree that his as applied challenge to e-STOP and Directive 9201 is now moot.
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current events. See Jones Decl., ECF No. 28-3, ¶¶ 9-13; Krull Decl., ECF No. 28-4, ¶¶ 13-20; Mitchell Decl., ECF No. 28-5, ¶¶ 9-11; Umber Decl., ECF No. 28-7, ¶¶ 11-14.
LEGAL STANDARD “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A party seeking a preliminary injunction must ordinarily establish (1) irreparable harm; (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party; and (3) that a preliminary injunction is in the public interest.” New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) (quotations and citations omitted). But when “the moving party seeks to stay government action taken in the public interest pursuant to a statutory or regulatory scheme,” he must establish “irreparable injury [and] a likelihood that he will succeed on the merits of his claim.” Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995) (citation omitted). For “a mandatory injunction that alters the status quo,” the likelihood of success on the merits must be “clear or substantial.” D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 510 (2d Cir. 2006), opinion amended on denial of reh’g, 480 F.3d 138 (2d Cir. 2007) (quotations and citations omitted).
ANALYSIS I. Plaintiffs Make a Clear and Substantial Showing that They are Likely to Succeed on
the Merits Plaintiffs’ likelihood of success on the merits turns on whether the Ban “burden[s] substantially more speech than is necessary to further the government’s legitimate interests” in protecting children. Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (citation omitted). Because e-STOP and Directive 9201 are not narrowly tailored as to the subset of
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Registrants to whom they apply nor to the websites proscribed, Plaintiffs sufficiently demonstrate that they are likely to succeed on their claim that the Ban is unconstitutional.
A. Legal Framework In Packingham, the Supreme Court struck down a state law that prohibited all registered sex offenders, including those no longer subject to supervision, from accessing commercial social networking websites. Id. 1733-34, 1738. Assuming that the ban only applied “to social networking sites as commonly understood—that is, websites like Facebook, LinkedIn, and Twitter” and that the ban was content neutral, the Court determined that it could not withstand intermediate scrutiny. Id. at 1736-37 (quotations omitted); see id. at 1736 (“In order to survive intermediate scrutiny, a law must be ‘narrowly tailored to serve a significant governmental interest.’ In other words, the law must not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.’”) (quoting McCullen v. Coakley, 573 U.S. 464, 486 (2014)). Packingham recognized both North Carolina’s interest in “keeping convicted sex offenders away from vulnerable victims” and that social media has become one of the “most important places (in a spatial sense) for the exchange of views.” Id. at 1735, 1737. It concluded that “[t]he State has not . . . met its burden to show that th[e] sweeping law is necessary or legitimate to serve [its] purpose” where “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.” Id. at 1737. The statute improperly “suppress[ed] lawful speech as the means to suppress unlawful speech.” Id. at 1738 (quoting Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002)). Since Packingham, Courts within the Second Circuit have weighed in on the constitutionality of internet restrictions in as applied challenges by individuals on supervision. In United States v. Eaglin, the Second Circuit struck down a wholesale internet ban imposed as a
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condition of supervised release on a defendant who had sexual relationships with two thirteenyear-old girls. 913 F.3d 88, 91, 95-96 (2d Cir. 2019). While the Court did not entirely base its decision on Packingham, it emphasized the case’s relevance to conditions of supervised release:
The restriction that Eaglin challenges here, in contrast [to that in Packingham], was imposed as a condition of supervised release that applies to Eaglin alone and for a limited albeit lengthy duration. Certain severe restrictions may be unconstitutional when cast as a broadly-applicable criminal prohibition, but permissible when imposed on an individual as a condition of supervised release. In our view, Packingham nevertheless establishes that, in modern society, citizens have a First Amendment right to access the Internet. The substance of the Internet ban imposed on Eaglin is even broader in its terms, if not in its application, than that struck down in Packingham. . . . It therefore implicates the same First Amendment concerns that were at issue in Packingham: Eaglin has a First Amendment right to be able to email, blog, and discuss the issues of the day on the Internet while he is on supervised release. Id. at 95-96 (citation omitted). Eaglin concluded that “[i]n light of our precedent, and as emphasized by Packingham’s recognition of a First Amendment right to access certain social networking websites, the imposition of a total Internet ban as a condition of supervised release inflicts a severe deprivation of liberty.” Id. at 97. In Yunus v. Robinson, Judge Nathan adopted a Report and Recommendation preliminarily enjoining a special condition of parole that “prohibit[ed plaintiff] categorically from accessing a commercial social networking website.” Case No. 17-cv-5839 (AJN), 2019 WL 168544, at *15 (S.D.N.Y. Jan. 11, 2019) (quotations omitted). Yunus reasoned that “while in some contexts parolees receive a lesser degree of constitutional protection,” “[u]nder Packingham, blanket limitations on an individual’s ability to access social media will receive intermediate scrutiny, even when imposed as conditions of parole.” Id. at *16. Because the Registrant’s underlying crime—kidnapping a minor—“did not involve the internet, social media, the exchange of electronic messages, cell phones, or computers[, a]s applied to Plaintiff,” the
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special condition “burden[ed] substantially more speech than necessary and therefore fail[ed] intermediate scrutiny.” Id. at 1, 17.
B. The Ban is Not Narrowly Tailored in its Application to Registrants Plaintiffs argue that the Ban is not narrowly tailored because it applies to Registrants who do not present a significant risk of recidivating via social media. Neither e-STOP nor Directive 9201 provides a mechanism to conduct an individualized assessment as to whether a Registrant poses a risk of misusing social media before imposing the Ban. Instead, they apply to all Level Three Registrants and Registrants convicted of a crime against a minor, even where the underlying offense did not involve the internet. Defendants assert that the Ban is narrowly tailored as it only applies as a temporary condition of release to a subset of especially dangerous Registrants. They argue that Level Three Registrants have already undergone “a detailed individualized risk determination by the Board of Examiners of Sex Offenders” that is “subject to review by the sentencing court after a hearing process.” Opp., ECF No. 34, at 15 n.9. And, Defendants claim, while Plaintiffs’ crimes may not have involved the internet, that is of little relevance where most of their criminal histories predate social media’s ubiquity. Defendants emphasize their substantial interest in protecting vulnerable children from recidivist sex offenders on the internet, contending that absent the Ban, their “interest would be served less well.” Id. at 12-13 (citing Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989)). Defendants claim that the Ban allows for “ample alternative” means of accessing information and commerce. Id. at 15. See also Ward, 491 U.S. at 791 (“[T]he government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are
7

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narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”) (quotations and citations omitted). Defendants note that e-STOP and Directive 9201 do not prevent individual parole officers from permitting Registrants access to websites that fall outside the Ban’s scope,3 and that news websites, television broadcasts, campaign websites, and Amazon.com provide other means to exercise First Amendment rights.
i. Packingham’s Framework Applies to the Ban Without disputing that Packingham “sets forth the framework for analyzing the constitutionality of the application of the e-STOP restrictions to the Plaintiffs,” Defendants suggest that the case is inapplicable to those on community supervision. Opp. at 10-11. While Packingham expressed in dicta that “[i]t is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences,” it explicitly did not base its decision on the fact that the North Carolina law applied to persons who completed their term of supervision: “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is . . . not an issue before the Court.” 137 S. Ct. at 1737 (emphasis added). See also United States v. Browder, 866 F.3d 504, 511 n.26 (2d Cir. 2017) (observing that Packingham “not[ed], but seem[ed] not to rely on” that the social media ban applied to those no longer on supervision); Yunus, 2019 WL 168544, at *16 (“There is no indication in Packingham that parolees are exempted from the Court’s decision. . . . [T]he Court was clear that the
3 In addition to e-STOP and Directive 9201, DOCCS Directive 9202 imposes a special condition of release banning internet access for all Registrants on community supervision unless they obtain written permission from their parole officer. Compl. ¶¶ 31-34. Due to COVID-19, Plaintiffs have been granted some temporary relief from the wholesale internet ban, Biklen Decl. ¶¶ 3-4, and Directive 9202 is not at issue in the current motion.
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distinction between those who were presently under the supervision of the criminal justice system and those who no longer were was not a basis for its holding[.]”). And any ambiguity about the scope of Packingham is further foreclosed by the Second Circuit’s reliance on Packingham in Eaglin: “The government argues that Eaglin [a defendant on supervised release] has no constitutional right to access the Internet. We reject that position as outdated and in conflict with recent Supreme Court precedent. The Supreme Court forcefully identified such a right in Packingham . . . .” 913 F.3d at 95 (citations omitted).4
ii. The Ban on Registrants is Unlikely to Survive Intermediate Scrutiny The Ban is “not narrowly tailored to target those offenders who pose a factually based risk to children through the use or threatened use of the banned sites or services.” Doe v. Nebraska, 898 F. Supp. 2d 1086, 1111 (D. Neb. 2012). Defendants proffer only speculative assertions as to why the Ban advances its undoubtedly substantial interest in protecting children from internet-facilitated sex crimes. They focus on the heinous nature of Plaintiffs’ crimes, but offer no evidence that Plaintiffs, nor other Registrants on community supervision who committed crimes against minors or are Level Three offenders, pose a particular threat of internet-based recidivism. See Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994) (“That the
4 Defendants cite United States v. Savastio in support of their claim. In a non-precedential opinion, the Second Circuit deemed Packingham “inapposite” to its review of a probationer’s internet monitoring condition because Packingham delt with restrictions on people “no longer subject to the supervision of the criminal justice system” and because the monitoring condition at issue did not amount to “an outright ban on Savastio’s access to all forms of social media.” 777 F. App’x 4, 7 (2d Cir. 2019). Savastio also determined that it was not bound by Eaglin, because Eaglin “rejected special conditions that altogether prohibited the defendant from accessing the Internet without the specific approval of his probation officer.” Id. at 6-7 (citations omitted). But unlike Savastio, the Ban here is akin to the type of blanket restrictions found in Eaglin and Packingham. Thus, Eaglin’s clear proscription governs: a Registrant “has a First Amendment right to be able to email, blog, and discuss the issues of the day on the Internet while he is on supervised release.” Eaglin, 913 F.3d at 96.
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Government’s asserted interests are important in the abstract does not mean, however, that the [statute] will in fact advance those interests. . . . [I]t must do more than simply posit the existence of the disease sought to be cured.”) (quotations and citation omitted). The risk level assessment is based on an individualized analysis that considers the likelihood of recidivism, but the risk of recidivism via the internet is not specifically contemplated or necessarily even addressed; multiple Plaintiffs state that they “were not questioned about the internet or social media at their SORA hearings or before the social media ban was imposed.” Pl. Mem., ECF No. 28-1, at 22 (citing Jones Decl. ¶ 5; Mohabir Decl., ECF No. 28-6, ¶ 5; Umber Decl. ¶ 7). And while unlike in Packingham the Ban only applies to Registrants for their term of supervision, such limitation does not mitigate the First Amendment burden where the restrictions can last up to twenty-five years. See Reply, ECF No. 35, at 6 (citing N.Y. Penal Law § 70.45(2-a)(i)). While “the First Amendment rights of parolees [may be] circumscribed,” Farrell v. Burke, 449 F.3d 470, 497 (2d Cir. 2006), they may not be disregarded, see Eaglin, 913 F.3d at 95-96.
Applying intermediate scrutiny to each Plaintiff’s case demonstrates why New York’s one-size-fits-all Ban is insufficiently tailored to satisfy constitutional demands. As an initial matter, Defendants’ claim that Plaintiffs were convicted prior to having the opportunity to offend using the internet is dubious at least as to Mr. Jones (convicted in 2006), Mr. Mitchell (convicted in 2011), and Mr. Krull (convicted in 2017). See Reply at 7 n.3; Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997) (recognizing in 1997 that “the Internet can hardly be considered a ‘scarce’ expressive commodity”); Nebraska, 898 F. Supp. 2d at 1109 (“By the end of 2008 and the start of 2009, social networking became even more popular than e-mail.”) (citation omitted).
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As to Plaintiff Vladimir Krull, he was sentenced in 2017 to three years imprisonment and five years supervision on charges stemming from repeated sexual contact, including rape, of his then-girlfriend’s minor daughter. Cox Decl., ECF No. 33, ¶¶ 3-4. Mr. Krull was assessed as a Level Two sex offender. Id. ¶ 3. The record is devoid of evidence that Mr. Krull has or will use the internet to recidivate. Indeed, the facts just as readily support the opposite conclusion: social media was ubiquitous at the time of his conviction, Mr. Krull has never been accused of improper internet use, and the facts of his offense suggest that it was a crime of opportunity.
Plaintiff Thomas Mitchell is a Level Two registrant sentenced to eleven years imprisonment and ten years supervision for “having sexual intercourse with his stepdaughter beginning in 1990, when she was 7 years old, and continuing until the victim was 17.” Domenech Decl., ECF No. 31, ¶¶ 3, 5. Mr. Mitchell impregnated the victim when she was fifteen, paid her for sex, and impregnated her again when she was nineteen. Id. ¶ 5. His parole officer states:
In my opinion, Mr. Mitchell is properly barred from accessing websites where an untold number of children migrate. Under any circumstances, I would be concerned that allowing Mr. Mitchell access to those websites would enable him to access/trade child pornography and entice children (including family members) through private/direct messaging. Mr. Mitchell would also have the means of locating/messaging the female victim of his crime of conviction, a then minor whom he sexually abused and impregnated. . . . Therefore, I feel it appropriate to deny Mr. Mitchell access to Facebook and other social media outlets, where children convene, particularly since several of these websites have location settings that allow viewers to see where social media users are in real time. Id. ¶¶ 11-12. However, Defendants provide nothing to support that Mr. Mitchell’s conviction extended beyond a crime of opportunity and that he has or will contact minors via the internet.5
5 Mr. Mitchell’s parole officer states: “I believe that Mr. Mitchell had previously accessed the internet, and perhaps social media, without my permission since on February 27, 2020, I confiscated a smartphone that he was not permitted to possess. I returned the smartphone in
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Plaintiff Corydon Umber is a Level Three sex offender with a lengthy criminal history. Geh Decl., ECF No. 29, ¶¶ 3-5. His sex crimes entail a 1995 rape of a fourteen-year-old girl and a 1997 rape and assault of an adult woman via forcible compulsion. Id. ¶¶ 4-5. He was sentenced to twenty-five years imprisonment on the latter offense and released in December 2018. Id. ¶¶ 56. He is on parole until July 2022. Id. ¶ 3. Mr. Umber’s parole officer states: “It is my profound feeling that [allowing Mr. Umber access to social media and dating sites] will only lead to more victims of sexually deviant behavior,” but provides no specific information to support his asserted concerns. Id. ¶ 14.
Plaintiff Vernon Jones is a Level Three sex offender with a lengthy criminal record, including two attempted rape convictions. Duplessy Decl., ECF No. 30, ¶¶ 3-4. His most recent offense stems from his forcible rape of his 24-year old niece. Id. ¶ 3. Mr. Jones was sentenced to thirteen years imprisonment and five years post-release supervision. Id. His parole officer provides no information about his risk of internet-based recidivism.
Additionally, while a “regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative,” the availability of less restrictive alternatives demonstrates why the Ban at issue is “substantially broader than necessary.” Ward, 491 U.S. at 800. Much of Mr. Krull’s probation officer’s declaration is dedicated to discussing the installation of “NetNanny” computer monitoring software on his laptop. Cox Decl. ¶¶ 7-13. But Defendants fail to meaningfully explain why the software could not safely enable Mr. Krull and other Registrants to access social media under the supervision of their parole officers, particularly where Mr. Krull has already
April, 2020.” Id. ¶ 9. There is no assertion that any social media website was actually accessed on the phone nor that Mr. Mitchell utilized the phone to make contact with his victim or minors.
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been granted access to LinkedIn.6 Compare Eaglin, 913 F.3d at 98 (“Internet use . . . monitored
by the Probation Office, remain[s] to all outward appearances a viable option. Such a restriction
would adequately protect the public from Eaglin’s potential misuse of the Internet while
imposing a more reasonable burden on Eaglin’s First Amendment interest in accessing the
Internet.”). Mr. Mitchell’s parole officer suggests that other internet restrictions may be lifted if
Mr. Mitchell “allows [her] to monitor the device,” but states that social media access would enable him to entice children, locate his victim, and access child pornography.7 Domenech Decl.
¶¶ 8, 11. As Packingham suggests, the former concerns might be more narrowly addressed by
statutes prohibiting a sex offender from “contacting a minor or using a website to gather
information about a minor” or victim. See 137 S. Ct. at 1737. And even before Packingham, the
Circuit struck down an internet ban release condition for possession of child pornography,
offering as an alternative “a more focused restriction, limited to pornography sites and images,
[that] can be enforced by unannounced inspections of [defendant]’s premises and examination of
material stored on his hard drive or removable disks.” United States v. Sofsky, 287 F.3d 122,
126-27 (2d Cir. 2002); see also United States v. Savastio, 777 F. App’x 4, 5 (2d Cir. 2019)
6 The Court notes the apparent discord between Defendants’ representation to the Court that parole officers lack discretion to relax e-STOP and Directive 9201’s restrictions and the fact that Plaintiff Krull was granted access to LinkedIn. See Cox Decl. ¶ 13; Def. Ltr, ECF No. 23, at 1 (“The Statute requires the Board of Parole to impose certain conditions as a condition of release to ensure public safety.”). The clear language of e-STOP and Directive 9201 conveys that the Ban is a “mandatory condition.” N.Y. Exec. L. § 259-c(15); Biklen Decl. Ex. 1 at 1. Even if parole officers maintained discretion under the Ban, that alone would be insufficient to remedy the First Amendment overbreadth. See Yunus, 2019 WL 168544, at *16 (“[T]he possibility of certain case-by-case exceptions was insufficient to save other overly broad conditions of supervised release limiting internet or technology access, even when analyzed under a less demanding standard. Therefore, the possibility of case-by-case exceptions from some of these conditions does not exempt them from Packingham, a conclusion reinforced by the nearly blanket manner they have allegedly been applied.”) (citing United States v. Sofsky, 287 F.3d 122, 126 (2d Cir. 2002); United States v. Peterson, 248 F.3d 79, 81, 82-84 (2d Cir. 2001)). 7 There is no allegation that Mr. Mitchell has previously accessed child pornography.
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(upholding computer monitoring condition on defendant who viewed child pornography). It may well be that some of the Registrants subject to e-STOP and Directive 9201 pose a
legitimate risk of recidivating using social media. But Defendants’ attempt to address this critical concern through a blanket prohibition without first finding that those encumbered are likely to reoffend via social media is incompatible with the First Amendment. See Nebraska, 898 F. Supp. 2d at 1111 (striking down social media and instant messaging ban “triggered by the commission of a crime against children (often committed in the far-distant past) that may be entirely unrelated to whether the offender used (or threatens to use) a social networking web site, instant messaging, or chat room service to victimize minors”); Scott v. Rosenberger, No. 19-cv-1769 (CS), 2020 WL 4274226, at *9 (S.D.N.Y. July 24, 2020) (declining to dismiss challenge to internet ban parole condition imposed on defendant who engaged in sexual conduct with a child where underlying crime did not “involve[] computers or the internet”); Mutter v. Ross, 240 W. Va. 336, 342-43 (S. Ct. W. Va. 2018) (internet ban unconstitutional under Packingham where parolee’s “underlying offense did not involve the internet,” “he has no history of using the internet to engage in criminal behavior,” and “the State has provided no explanation as to how a sweeping ban . . . protect[s] anyone from misconduct . . . or why [its] legitimate interests could not be furthered through less restrictive means”).
C. The Ban is Not Narrowly Tailored in its Application to Social Media Websites Plaintiffs also argue that the Ban violates the First Amendment by proscribing use of all social media sites for all purposes, including those that do not pose a risk to children. They read the Ban to cover a broad array of websites, including Facebook, Twitter, LinkedIn, Instagram, YouTube, and the New York Times. Additionally, Plaintiffs posit that the Ban’s limiting principle—social media sites that allow minors to create profiles—is meaningless where
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virtually all mainstream social media websites are available to minors. Defendants respond that the Ban is narrowly written to cover “only true social networking sites” that provide access to minors. Opp. at 14. They argue that other resources, such as non-social media websites, television, print, and radio, provide alternative forums for speech.
While Plaintiffs do not bring a vagueness claim, they note that to the extent the Ban’s scope is unsettled, it further chills speech by preventing access to any website that might fall within its purview. The Court agrees that the Ban may be ambiguous in its applicability to some websites. For example, the Court questions whether the ability to publicly comment on a New York Times article or YouTube video is a “direct or real time communication with other users, such as a chat room or instant messenger,” and whether the limited user information available on videoconferencing platforms such as Zoom qualifies as “web pages or profiles that provide information about themselves where such web pages or profiles are available to the public or to other users.” N.Y. Exec. L. § 259-c(15).
But assuming, as the Supreme Court did, “that the law applies [only] . . . to social networking sites as commonly understood,” the restriction nonetheless “enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.” Packingham, 137 S. Ct. at 1737 (quotations omitted). As the Seventh Circuit recognized pre-Packingham, “illicit communication comprises a minuscule subset of the universe of social network activity,” and “there is nothing dangerous about [the] use of social media as long as [a Registrant] does not improperly communicate with minors.” Prosecutor, Marion Cty., Indiana v. Doe, 705 F.3d 694, 699 (7th Cir. 2013). By applying the Ban to a broad swath of protected activities that do not necessarily involve the sexual abuse of minors, the Ban fails to pinpoint “the source of the evils
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the [State] seeks to eliminate . . . without at the same time banning or significantly restricting a substantial quantity of speech that does not create the same evils.” Ward, 491 U.S. at 800 n.7.
While Defendants emphasize other means by which Plaintiffs may access the information they seek, they minimize the critical role of social media in modern society. Social media can provide “up-to-the-minute information” that is not readily available elsewhere, such as local crime alerts, coronavirus updates, details on ongoing demonstrations, and livestreams on Instagram or Facebook. See Nebraska, 898 F. Supp. 2d at 1117 (discussing the central role of social media in the Arab Spring demonstrations) (quotations omitted). Courts also recognize that the internet provides valuable access to resources that promote reintegration and rehabilitation. See Packingham, 137 S. Ct. at 1737 (The social media ban “bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square . . . . Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.”); Eaglin, 913 F.3d at 98 (“[I]mposing an Internet ban would arguably impair Eaglin’s ability to receive needed educational or vocational training, medical care, or other correctional treatment in the most effective manner—one of the goals of sentencing. . . . [A]ccess to the Internet is essential to reintegrating supervisees into everyday life, as it provides avenues for seeking employment, banking, accessing government resources, reading about current events, and educating oneself.”) (quotations and citations omitted).
Intermediate scrutiny “does not require a perfect fit between the regulation and the government interest at stake.” United States v. Laurent, 861 F. Supp. 2d 71, 99 (E.D.N.Y. 2011). But given e-STOP and Directive 9201’s overbreadth as to both whose speech and how much
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speech is encumbered, Plaintiffs make a clear and substantial showing that the Ban burdens substantially more speech than necessary and they are likely to succeed on their claims. II. Plaintiffs Clearly Demonstrate Irreparable Harm
“Irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 233-34 (2d Cir. 1999) (quotations and citations omitted). “The movant must demonstrate an injury that is neither remote nor speculative, but actual and imminent and that cannot be remedied by . . . monetary damages.” Id. at 234 (quoting Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995)). “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (citation omitted).
By demonstrating that the Ban infringes on protected speech, Plaintiffs have made a showing of irreparable harm. See Bronx Household of Faith v. Bd. of Educ. of City of New York, 331 F.3d 342, 349 (2d Cir. 2003) (“Where a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed.”). While Defendants point to recent allowances for Plaintiffs’ internet access, that Defendants have suspended other internet restrictions not at issue in this motion does not undo the harm caused by the social media Ban itself.
The Court declines Defendants’ invitation to find that Plaintiffs’ alleged delay in filing or requesting accommodations from their parole officers undermines their claims of irreparable injury. Plaintiffs were released from prison in 2017, 2018, 2019, and January 2020, and filed their lawsuit on March 12, 2020. See Opp. at 22 (citing DuPlessy Decl. ¶ 5; Domenech Decl. ¶ 3; Geh Decl. ¶ 3, Cox Decl. ¶ 2; Osouna Decl. ¶ 5); ECF No 1. That Plaintiffs filed suit just as the
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coronavirus pandemic forced most of American life online provides strong justification for the timing and particular urgency of this motion. III. The Balance of Equities and Public Interest Favor Plaintiffs
As Plaintiffs argue, “securing First Amendment rights is in the public interest,” and “[t]he Government does not have an interest in the enforcement of an unconstitutional law.” New York Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013) (quoting Am. Civil Liberties Union v. Ashcroft, 322 F.3d 240, 247 (3d Cir. 2003)). On the other hand, Defendants and the public’s interest in preventing recidivist sex offenders from contacting vulnerable children on the internet is extremely compelling. But Defendants do not explain why these interests cannot be served by the imposition of tailored social media restrictions on individual Registrants based on their respective proclivities and conduct. See 9 CRR-NY 8003.3 (“A special condition may be imposed upon a releasee either prior or subsequent to release. . . by a member or members of the Board of Parole, an authorized representative of the Division of Parole, or a parole officer.”). Instead, the State asks the Court to find that even if Plaintiffs present only a “minimal” risk of reoffending via the vehicle of social media, “the potential harm to Plaintiffs [of] some additional inconvenience during the pendency of the litigation” is outweighed by the irreparable harm that reoffending would cause the public and children. Opp. at 20-21. There are important—indeed, constitutionally protected—interests on both sides of this claim, and the State does not demonstrate why the evils it identifies would necessarily come to fruition in the absence of eSTOP and Directive 9201. The balance of equities and public interest tip in favor of Plaintiffs. IV. A Facial Injunction is Warranted in this Case
Plaintiffs bring facial and as applied claims. In First Amendment overbreadth challenges, “showing that a law punishes a ‘substantial’ amount of protected free speech, ‘judged in relation
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to the statute’s plainly legitimate sweep,’ suffices to invalidate all enforcement of that law, ‘until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.’” Virginia v. Hicks, 539 U.S. 113, 119 (2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 615 (1973)). “[A] state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction . . . .” Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975) (citations omitted).
The Ban outlaws a substantial amount of protected speech as compared to its legitimate sweep. See Hicks, 539 U.S. at 119. It prohibits, at a minimum, access to all major social media websites, regardless of whether they are used for permissible speech. And while the parties do not provide information as to the number of Registrants subject to the Ban who have not in some way utilized the internet in the commission of their offenses, the Ban’s overbreadth is significant; it is likely unconstitutional as applied to all Plaintiffs and as applied to two of the three categories of Registrants covered by the statute (i.e. Registrants who did not use the internet in the commission of their crime and either are a Level Three sex offender or committed an offense against a minor). Further, the Ban’s proscription is not amenable to a judicial reading that would remedy the constitutional deprivation. It plainly applies to two problematic categories of Registrants and at least as broadly to social media websites as the ban in Packingham. The Court thus preliminarily enjoins e-STOP and Directive 9201 to the extent they apply to Registrants who have not used the internet to facilitate the commission of their underlying sex offense.
The Court emphasizes that nothing in this opinion casts doubt on the appropriateness of judicial or parole determinations that the specific circumstances of an individual Registrant subject to supervision warrant restrictions on social media access. The Court does not foreclose
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the possibility that even Registrants, like Plaintiffs, who have not used the internet in the commission of an offense may have engaged in conduct that, upon careful consideration, raises legitimate concerns about their risk of reoffending using social media. But by proscribing social media access in one fell swoop for a large group of Registrants, e-STOP and Directive 9201 do not sufficiently reconcile the compelling interest of protecting children with the fundamental First Amendment rights at stake.
CONCLUSION As Packingham recognizes, “the ‘vast democratic forums of the Internet’ in general, and social media in particular,” have become “the most important places . . . for the exchange of views.” 137 S. Ct. at 1735 (quoting Reno, 521 U.S. at 868 (1997)). Social media “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a[ny] person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’” Id. at 1737 (quoting Reno, 521 U.S. at 870). But on the flip side, social media also provides vast opportunities for abuse as a low-cost and often anonymous channel for criminal activity. Mindful that balancing these two considerations strikes at the heart of the issues raised in this case, the Court finds that Plaintiffs have carried their burden of demonstrating that a preliminary injunction is warranted. e-STOP and Directive 9201 are preliminarily enjoined as to Registrants who have not used the internet to facilitate the commission of their underlying sex offense.

SO ORDERED.
Dated: Brooklyn, New York September 9, 2020

/s/ Raymond J. Dearie RAYMOND J. DEARIE United States District Judge
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