There is a new and disturbing industry that has sprung up: publishing mugshots of people and then charging to have those pictures taken down. One individual in the article below, Jaclyn Lardie, paid hundreds of dollars to remove the mugshot from a college drinking arrest only to have the picture appear on other sites. States have moved in to try to legislate protections. While invented in its standard form in 1888 by Alphonse Bertillon (shown here), it took the Internet to make a rather shady business out of the millions of mugshots generated in criminal arrests great and small.
Various websites have also sprung up to help people deal with such embarrassing pictures. It has become a cottage industry as people find themselves in the post-pay-post cycle.
There is a class action against sites like Justmugshots.com where plaintiffs are alleging a violation of the right to privacy in the use of their images for profit without their consent.
In today’s Internet age, these pictures come back to haunt people when they are searched in Google. Seven states — Georgia, Illinois, Texas, Utah, Oregon, Colorado and Wyoming — have passed laws to curtail the practice but Marc Epstein, a lawyer for Mugshots.com, told Fox News that such laws are unconstitutional.
That does present an interesting question. This does look like protected speech to me. This is a government publication that is available to the public. These photos are routinely published by the media and on sites like this one. Of course, these sites just published all mugshots, which reduces the newsworthy element. However, they can claim that they are a popular resource to people searching stories and personal investigations. Sometimes such unknown individuals later become newsmakers for good or bad.
The laws and lawsuit pit free speech advocates against consumer protection advocates in a difficult conflict.
A typical statute (out of Texas) focuses on sites charging more than $150 “or more or other comparable value” to remove such pictures. On one hand, the law creates useful requirements of posting contact information for people to use to challenge the accuracy of such photos. However, the creation of a new crime for such postings raises difficult free speech issues in my view. There is an obvious good-faith concern over extortion when these sites are all too willing to take down photos for a price. That cuts against the notion that they are creating a public resource and service. Moreover, these sites can fold in claimed administrative costs like salaries to argue that they are not making a profit. The line drawing presents some interesting and difficult questions.
Source: ABC
They are public records. No copyright involved. Obviously, charging a fee to redact or remove a published or to-be-published document is extortion.
Does “law enforcement” care? Even if they don’t, in some places (like Florida) victims can make out a case under Little RICO if they can find two predicate acts and get attorney fees as well. Civil RICO, no need for a jury to learn about what a dirt bag the plaintiff is unless the extortionist demands a jury. Merely “clear and convincing evidence” to prevail.
I love Civil RICO.
Will Lois Lerner have a mug shot taken for being held in contempt of Congress?
Will Hillary have a mug shot taken if she refuses to comply with a subpoena from the Congressional Select Committee on Benghazi?
There is an eerie silence on this site. .
John – not sure if being arrest for contempt of congress warrants a booking photo.
Paul Schulte
Paul, I was simply sharing a thought on a way to curtail the release of these mug shots. This is all esoteric discussion. The press intention in acquiring the photo is different than a for profit business who uses the image AND then demands money for it’s removal. As long as the mug shot is public record, there is little, if anything the arrestee can do to protect its dissemination. In my state, KY, we do address this in our expungement statutes :
Kentucky Revised Statutes
Title 40. CRIMES AND PUNISHMENTS
Chapter 431. GENERAL PROVISIONS CONCERNING CRIMES AND PUNISHMENTS
Current through 2014 Ky. Acts ch. 123
§ 431.076. Expungement of criminal records for those found not guilty of crimes or for whom charges have been dismissed with prejudice
(1) A person who has been charged with a criminal offense and who has been found not guilty of the offense, or against whom charges have been dismissed with prejudice, and not in exchange for a guilty plea to another offense, may make a motion, in the District or Circuit Court in which the charges were filed, to expunge all records.
(2) The expungement motion shall be filed no sooner than sixty (60) days following the order of acquittal or dismissal by the court.
(3) Following the filing of the motion, the court may set a date for a hearing. If the court does so, it shall notify the county or Commonwealth’s attorney, as appropriate, of an opportunity for a response to the expungement motion. In addition, if the criminal charge relates to the abuse or neglect of a child, the court shall also notify the Office of General Counsel of the Cabinet for Health and Family Services of an opportunity for a response to the expungement motion. The counsel for the Cabinet for Health and Family Services shall respond to the expungement motion, within twenty (20) days of receipt of the notice, which period of time shall not be extended by the court, if the Cabinet for Health and Family Services has custody of records reflecting that the person charged with the criminal offense has been determined by the cabinet or by a court under KRS Chapter 620 to be a substantiated perpetrator of child abuse or neglect. If the cabinet fails to respond to the expungement motion or if the cabinet fails to prevail, the order of expungement shall extend to the cabinet’s records. If the cabinet prevails, the order of expungement shall not extend to the cabinet’s records.
(4) If the court finds that there are no current charges or proceedings pending relating to the matter for which the expungement is sought, the court may grant the motion and order the expunging of all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records. The court shall order the expunging on a form provided by the Administrative Office of the Courts. Every agency, with records relating to the arrest, charge, or other matters arising out of the arrest or charge, that is ordered to expunge records, shall certify to the court within sixty (60) days of the entry of the expungement order, that the required expunging action has been completed. All orders enforcing the expungement procedure shall also be expunged.
(5) After the expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall delete or remove the records from their computer systems so that any official state performed background check will indicate that the records do not exist.The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.
(6)
This section shall be retroactive.
Cite as KRS 431.076
History. Amended by 2013 Ky. Acts ch. TBD, §16, eff. 6/24/2013.
Paul.
In our state, for example, there are fees that can be charged but there is case law that it be reasonable. A run of the mill request costs about five dollars and accident reports are set by state law. I don’t remember what the cost is for these but it is either ten of fifteen dollars. The fees are equal for whomever makes the request.
frank – I do support that law although it does not specifically address stuff that goes to the press, etc. And one of the problems is the Wayback Machine which can find any webpage every posted.
rafflaw
Post arrest, the prosecutors should redact social security numbers from arrest slips ( sometimes they do, sometimes not), so the defense attorney has to redact the record before the court.
This discussion has brought out another way to combat the release of the “Mug Shot”: Charge the media X$ per photo and all others $100.00+/photo may slow down the profit margins if these sources acquiring the photo and publishing it for profit online or in a written publication. I like the discussion of requiring a written release being signed by the arrestee.
We really need laws to protect these images post arrest pre-conviction. As you recall the U.S. Supreme Court approved gathering of DNA upon arrest, whether convicted of the crime or not in the future.
Citizens of this country have seriously lost any right to privacy long ago along with their right to be free from unreasonable search and seizure.
” I love my country it’s my Government that scares the hell out of me.”
The press has no better standing to get a photo than the man on the street. You cannot charge the press less and the public more, that has got to be unconstitutional. Would be in my state.
@Jonathan “Moreover, these sites can fold in claimed administrative costs like salaries to argue that they are not making a profit.”
Why would they have to make a profit for it to be a commercial purpose? Could an advertising company claim it doesn’t need permission to use peoples images in ads because it is operating at a loss? Does any state require a profit to make selling a picture a commercial undertaking requiring permission of the subject?
Samantha, I had to deal w/ those fat, lazy, bureaucrats on a daily basis. I would have veins popping out of my neck sometimes. But, here’s what I found. At Christmas or other holidays, bring some food for the office. I would give bins of fresh popcorn, chocolates, pizza, etc. I know what you’re thinking, I would not give those lazy bureaucrats the sweat off of my ass. But, understand, they are unhappy people. You do a little something that makes them happy and they will do backflips for you, giving you all kinds of info! I would duke them w/ goodies, saying in my head all types of nasty stuff, but smiling amiably. It always worked for me and we have some very lazy, entitled govt. employees in Wi., evidenced by their epic hissy fit when they were made to come back to reality by Scott Walker.
anon, You misunderstood me. I know the law prevents employers from asking about convictions, which is horseshit. The next step is these Nazi’s making records, mugshots, private information. Wi. has, up until the Nazi’s starting taking over, the most open records in the nation. I have a relationship w/ Bill Lueders. He is a journalist on the far left. We share the righteous belief that the govt. works for us, and ALL they do, should be public. Not being able to ask the simple question is antithetical to being able to screen employees. Them LYING on that question is all I would need to know not to hire them. If they are truthful, I would consider that a plus and then weigh the convictions and discuss it w/ the applicant. Asking the question is very important in establishing an honest and trustful relationship. My job as a Vista volunteer was as a job developer, finding employers willing to hire released inmates on parole. You would be surprised how many employers are receptive to this. Many get burned. But, that question, and how the applicant answers it, is an important part of the process. “The truth shall make you free.”
The people who pay attention to these Mug shots are not worth my time. This is impossible to control. One sees this all the time with divorces – to upset the other party.
Well, thanks goes to the credit bureaus. Just try to get them to expunge a criminal record or a valid ding for that matter.
If they can’t “charge money” to take them down because it constitutes extortion of some sort, there is a simple loophole: Charge an administrative fee for the work it takes to take it down.
Thanks for forcing pacman to regurgitate my comment.
What bigfatmike said. While I do see a free speech issue, these kind of sites should be regulated. As previously discussed a disclosure form that must be signed by the accused before any pictures can be released. Can’t the release of these pictures be prejudicial to a judge or jury in the subsequent trial on the alleged crime? Maybe Frank M. can chime in on that thought. Maybe a “Do Not Disclose” process like we have for spam phone calls at least.
rafflaw – many of those pictures have already been printed in the local press and shown on local tv. Not sure your reasoning hold water, so to speak. So, should we regulate tv and newspapers? You do not hold a right to your booking photo.
” You do not hold a right to your booking photo.”
Well maybe you should. We tend to assume that if the government has the information then the information is by definition public.
But that is not necessarily true. Tax information is protected, medical information held by Medicare, Medicaid and public hospitals and research projects are protected, grades and other student information is protected.
We need to rethink the whole public/private issue of all state held information.
In the past there was no pressing issue because getting the information was labor intensive. As a result of the time an expense necessary to retrieve the information there was no great abuse of information.
That balance has change with the digitization of information and easy access to the data by modern electronic communications.
Individuals have an interest in protecting their own information – that much is clear. Where the public has a reasonable interest in accessing the information about the individual is not so clear.
To my mind at least, there is nothing compelling about making state held information available for the sole purpose of allowing a business to monetize the information. That seems to be a very poor reason to make the information available to me.
Certainly the public has a need to have access to much of the information. But exactly what part of that information and under what circumstances and for what purposes are questions that need to be examined. So far as I know no one has mounted a comprehensive review of information access policies in consideration of privacy issues. The time is ripe for such a review.
D. Smith, in my state and at least several others, imposing limits designed to interfere with access to public records is illegal. Agencies have to provide them in digital form if they are kept in that form. They may charge a fee to cover the actual cost of material to provide copies, but must be able to show the fee reflects the actual costs involved. They may not charge for any employee time involved. They can’t require that the request be submitted in any particular way, as long as it provides adequate information to identify the records being requested. If it doesn’t provide adequate information, the agency is required to provide assistance to the requestor to determine what is desired.
Between the crackpots, the commercial enterprises, the media, and individuals with some particular area of interest or need, the public entity I represent uses a lot of resources in responding to such requests each year. Some websites advise people involved in administrative proceedings with a public agency make repeated and burdensome requests to harass the agency involved.
What Is considered private has changed significantly over the years. 50 years ago, no one saw any reason for social security numbers to be redacted from publicly released documents.
Frankly and and anon, oh my you have hit the nail directly on the head.
Anon – BUT IT’S THE NAZI MADISON!!!!! therefore it is the worst thing ever, like Hitler and Stalin had a baby that married Mao and their baby went to a Madras. Reason and common sense like actually reviewing what the law says and does just is not going to work.
OTOH it is always nice when the mouth-breathing morans self identify like that one did. Saves us all time otherwise wasted reading the sludge dripping out of their face hole.
Pacman ate my comment.
Well, Nick, generous of you to do gratis background checks. In my county I cannot get some public information via the Internet without having to pay a huge fee. But if I drive to the recorder’s office, a two-hour trip, they give the same information to me for free. How is the county’s extortion any different than the mugshot extortion? I just don’t think I should have to pay TWICE for public information. After all, it is our tax dollars that fund public employees who collect the information in the first place. I find it patently offensive when public employees shake me down in this way. And when I show up in person, they never return my smile. Instead, they are bothered because they have to lift their slab-sided asses from their office chairs, where they like to sit from 9 to 5 with mostly nothing to do.
Thank goodness cops never make bogus arrests or falsify reports to justify arrests! That way we know these sites are only posting pictures of serious criminals who need to be removed from contact with society.
“Moreover, these sites can fold in claimed administrative costs like salaries to argue that they are not making a profit.”
Oh, really? Well, they sure aren’t doing this to create a loss. Of course they are making a profit! And the more you want that image taken down, or the more damning the situation, or the more prominent the individual and the mug shot, the higher the price. This feels like nothing more than a classic shakedown to me – enabled by the taxpayer and the law enforcement communities.