The Mugshot Conundrum

While no one argues that there is any virtue whatsoever in the posting of nude images of nonconsenting people on the internet, or that such images don’t harm the victims, the same can’t be said about a variation on the theme, the mugshot.  Unlike the gutter websites doing revenge porn, the mugshot industry operates above-board and with the acquiescence, if not approval, of the government. Where do you think they get the mugshots?

Mike Riggs does a great job of presenting the arguments by both sides of this problematic issue:

In a feature that ran this past weekendThe New York Times drew some much needed attention to a very ugly business: websites that trawl sheriff and police databases for mugshots, post those mugshots on their own sites, then charge arrestees to have their mugshots taken down. Since its inception the industry has grown to include scores of sites that will post your mugshot, as well as intercessory businesses that charge hefty fees—ranging from $195 to more than $800—to have your photo removed from one or more Internet locations. As Wired reported in 2011, the two business models are essentially complimentary, and the operators of each sometimes collude.

Sound familiar? It’s the same scam run at the revenge porn sites. So it’s evil, right?  Well, maybe the scam is, but the posting of mugshots isn’t quite so easy to dismiss.  Mugshots are historically public, which is why there used to be a wall of them in the Post Office for all to see. Want to invite the new neighbor over for dinner? Best to know he’s not a killer or rapist, right?  Daughter dating some new boy she met on the interwebz? Is he a French model or a push-in burglar?  Fair questions.

But then, mugshots convey other things as well. Tainted allegations of presumptively innocent people who are memorialized on the internet, much to their perpetual harm. As Mike adds:

If it’s not obvious why this business is unseemly, imagine the impact it would have on your career, your job hunt, your school-age children, to have a mugshot appear on the first results page of a Google search for your name; near the top, perhaps. Maybe you were young, overestimated your tolerance for alcohol, and got pulled over for speeding. Maybe you were middle-aged, lonely, and sought out paid consensual sex with another adult, who just happened to be an undercover cop. Regardless of how one feels about, say, sex work, it is ultimately the case that mugshots turn ephemeral moments into lasting monuments. If you’re convicted of something awful, perhaps you deserve the infamy. But what if you’re not convicted? What if you didn’t do what your mugshot suggests you did? What if you are guilty, but only of preferring nontraditional but totally consensual recreational activities?

Unlike revenge porn, the mugshots don’t come from scorned lovers or misanthropes, but your friendly, neighborhood police databank.  Often, it’s for sale, because what government doesn’t want to make a quick buck off an asset already in its possession?  Okay, so maybe they are misanthropes, but they’re working on our dime.

As Kash Hill notes in her Forbes piece, the takedown payment transmitters are having a far more effective impact on this unseemly business than any law.

But rather than a legal fix, New York Times reporter David Segal’s investigation may be the fix. His inquiries to Google, Paypal, Visa, American Express, Discover and others about their role in promoting and monetizing these sites has led to a serious backlash.

Google is screwing with its algorithm to get mugshots off the front page.  Paypal and Am Ex won’t be involved in paying over the takedown money.  And if there is no profit to be made in the mughot business, those engaged in it magically lose their interest in the public good. Go figure.

Before you start applauding Google and Am Ex, however, consider yet another slope on this nasty mountain, where corporations are deciding policy for our internet pleasure.  Just as they can shut down payment to the mugshot industry, they shut down payment to Wikileaks. And Google can make anybody disappear from the internet. Do you really want the Jolly Good Fellow at Google deciding who should be findable on the web for you?

So the question remains, are mugshots fair game despite the harm they can cause?

Perhaps more importantly, the court noted that mugshots “contain information that is intended for the use of a particular group or class of persons.” That line is probably the best argument for exempting mugshots from public record laws. Like fingerprints, mugshots are used by law enforcement to identify people. Over time, the press began to treat them as “public documents,” and some courts have agreed. It’s clearly time to renegotiate that claim. Two decades ago, unless you were a celebrity or a nobody accused of a particularly heinous crime, your mugshot wasn’t worth much. Today, it’s worth something to a lot of different parties: mugshot sites want to bank on prying eyes, neighbors want to know more about their neighbors, etc. As one mugshot site said:

“No one should have to go to the courthouse to find out if their kid’s baseball coach has been arrested, or if the person they’re going on a date with tonight has been arrested. Our goal is to make that information available online, without having to jump through any hoops.”

A pretty decent sales pitch, but the trade-off between ease of satisfying one’s curiosity and harm to a person’s reputation which could follow him for a lifetime isn’t an easy one to resolve. It might be unseemly to post mugshots for the purpose of being paid to remove them, but it’s hardly unlawful, nor should it be as long as they’re public information.

Mike suggests that the arguments militate in favor of mugshots being outside freedom of information laws, existing for the benefit of police and kept out of the public eye. That includes Lindsay Lohan, guys. Sorry. But not even limiting mugshots to only the convicted adequately addresses the problem side of the equation, though selling pics of the accused before conviction strikes me as a no-brainer.

Even the convicted are allowed to return to normalcy after they’ve paid their debt to society, without permanent taint on the internet.  And this is particularly true of those convicted of victimless, regulatory and consensual-type offenses, which are more a violation of Puritan sensibilities than anything that harms another person.

As with the revenge porn dilemma, there are many competing interests, all valid, and weighted according to whose ox is gored.  Only the simplistic will see a simple solution, which doesn’t seem to change the fact that there is plenty of damage to go around.



8 thoughts on “The Mugshot Conundrum

  1. TomH

    New York Courts have weighed in, stating that one is damaged when records eligible to be sealed under Penal Law § 160.50, are not properly sealed. See Lino v City of New York, 2012 NY Slip Op 08783, 101 AD3d 552 (1st Dept). I think there is also a case in the Third Dept. to the same effect.

    I know that relying on § 160.50 does not prevent the release of photos _before_ a final disposition. But by recognizing that the records damage people it does give a rationale for the legislature (assuming the State legislature has a sliver of rationality) to declare the pre-conviction fingerprints and pictures to be confidential. Particularly in this day and age where, in the internet a bad picture can be forever and forever searchable.

    Oh, and for the most part, courts agree that neither state governments nor municipalities have first amendment rights.

    1. SHG Post author

      Years ago, they used to return the pics and prints to defense counsel when a case was dismissed. I had a cabinet full of ’em. That was before the lege decided to save money by trusting the cops to destroy them on their own. I’m sure they were diligent, when they found the time, to comply.

      In Nassau County, DA Kathleen Rice has taken it upon herself to post photos of DWI defendant upon arrest, pre-conviction. While the pics may be destroyed later if the case is dismissed, that doesn’t change their existence on the internet. I’m not sure which, if any, governmental entities sell mugshot data in New York, but if so, compliance with 160.50 means only the cops destroy their copies (delete them from their own computer?), but means nothing to any third party to whom they’ve already been sold or given. It only applies to the pics and prints in police custody. For others, sealing means nothing.

      1. Ultraviolet admin

        On the other hand, I see this like the previous dust up on revenge porn, there’s a possible civil solution already existing. NY’s right of privacy, along with the common law rights recognized elsewhere (especially the Right of Publicity via Cal), should give some sort of recourse, while 1st amendment exceptions have been already hammered out in these laws.

        Of course this makes a great fact pattern for whether or not an action is possible under NY’s more restrictive RoP statue compared to the common law, since NY has unique wrinkles beyond the universal first amendment concerns.

        And, unlike the Revenge Porn issue the mugshots issue can be solved at the source if the local agencies controlled their publication (like licensing only noncommerical reproduction) and/or exercised restraint in publishing them.

        1. SHG Post author

          Given that nature of the internet, my thought is that the problem has never been the need for a criminal sanction, but a swift and effective civil takedown method with an effective sanction attached. It would work for all these issues, revenge porn, mugshots, and whatever comes next (and something will).

          1. Ultraviolet admin

            The only problem I’d have with developing something like the DMCA notice and take down provisions for this is the abuse we’re already seeing for such systems. Right now automatic bots file DMCA’s with youtube, ignoring the first amendment fair use provisions until a human lawyer steps in for counter notices. We already have idiots trying to trademark their names to prevent their use in news stories.

            Such a broad law isn’t necessarily a bad idea, but needs to careful thought to prevent abuse. Perhaps draconian statutory fees for misuse, but even then the counter-notice of the DMCA is suppose to have teeth yet we still have bots trolling youtube. Perhaps Lessig’s lawsuit will change things.

            1. SHG Post author

              I deliberately omitted DMCA take down as the example because it’s proven to be flawed. But that doesn’t mean we can’t learn from its mistakes to construct a system with better, but swift, due process to eliminate the bot nonsense, as well as the failure to honor proper take down notices. Regardless of Lessig’s lawsuit, I think we can do far better than the DMCA method while protecting speech and nailing the miscreants.

            2. Ultraviolet admin

              I hope we can. The problem is fair use needs a court to decide, and ultimately the balancing here would need to make fair use (especially for journalists) in the administrative procedure. Hmm perhaps how the Anti-slapp rules worked in Cali before the Paris Hilton case, since that seems like the right sort of framework.

              But such a thing would need the feds to get involved in right of publicity/privacy since otherwise we end up with a patchwork of conflicting state laws and the hosting providers would be immune under CDA 230 and they’re the ones who could respond quick enough.

              Even then, there’s a bit of a hydra aspect to it and a risk of the Streisand effect, which the notices may make it more notorious and widespread and outpace the ability to do take downs.

            3. Marc R

              Excellent analysis. I’m wondering even if a municipality loses the right to post such info immediately that private companies won’t just as easily post the charging statements from the police and mugshot photo akin to how it’s done now.

              Assuming a civil cause of action to recover funds exists which are as good against any random defendant posting stuff on the internet. Recovery of actual money damages is severely limited. Even with injunctive relief, are you going to pay and retain an attorney and court costs and process servers to set an emergency or other quickened hearing to occur before your first appearance or even arraignment?

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