There is an eerily reminiscent aspect to the scheme perpetrated by the guys who ran Mugshots.com. Shades of David Blade, the revenge porn “takedown” lawyer. The scam was simple, but effective. Put something on the internet that someone didn’t want to be seen, and then charge them to remove it.
Who wants their mugshot online? Some argue that it enables them to know who the bad dudes are, who might move in next door to rape their children. Others might argue that selling mugshots is a new revenue stream for local government. Some just get off on seeing people suffer.
But for the guys running Mugshots.com, it was just a way to make money, until they got nabbed for it themselves and, ta da, had their own mugshots posted on the interwebs. Karma? Schadenfruede? Who cares because these mutts deserved whatever they get, right? But is it a crime? Cathy Gellis takes the stone cold look:
People are ordinarily allowed to share public records on their websites, just as they may share any other lawful information. People are also free to be arbitrary and capricious in how they choose what information to share. They are even free to be financially motivated in making those decisions.
But according to authorities in California, if the decision on what information to share is linked to a profit incentive (from the arrest warrant: “The motive behind posting the damaging material is financial gain.”), and that information is a mugshot, you go to jail.
Feels right, but is it? Crimes have elements.
But to prove extortion prosecutors must show that the accused threatened a victim either with violence, the accusation of a crime, or the exposure of a secret, if they didn’t pay the accused. Yet the defendants are accused of none of these things. Not only is there no issue of threatened violence, but what the site operators are alleged to have done in no way involves revealing a secret or accusing another of a crime. Instead it is the state that has already accused the site operators’ purported “victims” of a crime, and its having done so is no secret. The state’s accusation against these people became public when it originally released the mugshots, meaning there is nothing that the site operators could have been threatening to reveal that wasn’t already revealed.
No matter how wrong it feels, how unsavory their business model or how despicable these guys are, it doesn’t change there’s nothing criminal about revealing public information, and nothing criminal about taking money to take it off their website. Are they “extorting” money in the sense that they are demanding payment to remove something embarrassing? Clearly, provided extortion is defined in a non-legal sense. But even though the meaning of words may be vitiated by how one feels about them, criminal laws still have elements, and the conduct here fails to prove the crime of extortion.
There is, of course, a better target of ire than the miscreants profiteering off other people’s misery: the nice folks in government providing the mugshots to miscreants.
It’s one thing to impose liability for publishing content that isn’t lawful, perhaps because it’s defamatory, infringing, or somehow intrinsically wrongful unto itself. But it’s another thing entirely to impose liability for publishing content that is entirely lawful – especially, as in this case, when it is not only lawful but a public record.
This raises a very different question. Are they “public records” in the sense that government must make them available, whether for free or for a “reasonable fee,” merely because they’re in the government’s possession? And if so, then is there not a First Amendment right to them?
Freedom of expression means that we are at liberty to decide what to say, and then what not to say, for whatever reason we might decide. Even when these expressive choices are guided by a profit motive.
That the mugshot miscreants ran their scheme for takedown profit may make it unseemly, but it doesn’t make it wrong. This is America and we’re allowed to make money any way we can, as long as it’s not unlawful. But are mugshots really public records?
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
Don’t trouble yourself with these so-called elements of a crime which must be proven for a conviction. The State of California must have on the books a crime of “Aggravated Sleazeballery” which would fit perfectly here.
Even that has elements. You must be a white cisnormative male. Okay. Element.
They do have the crime of aggravated sleazeballery, and they call it blackmail. A good prosecutor, judge, and jury can stretch the elements as needed.
The laws and academic debate surrounding when it is in society’s interest to make it illegal to threaten to do that which is legal are fascinatingly messy. For just one example, much of the logic surrounding the application of the Noerr-Pennington doctrine could apply equally to non-legal venues, but that is hardly ever done — there is no groundswell of public support to decriminalize the sordid business of threatening to publicize unsavory facts unless payment is made.
The prosecution of this case could be successful. How secret does a secret have to be to be a secret? Not all public records are general public knowledge. Is ceasing publication upon payment the same as publishing unless paid? If I threaten to expose Jane’s secrets unless she pays me, and then, to prove I’m serious, I tell her secret to a few passers-by, is it no longer a secret, or is it still a secret by virtue of the fact that some of Jane’s friends don’t know it yet? If I do the same thing, but don’t reach out to Jane, and simply rely on her to reach out to me, does that make it better? After all, when she asks me to stop, I (a) know she’s embarrassed by the information, and (b) am going to keep telling it to everybody who comes by my website, unless (c) she pays me.
Even if the prosecution of this case isn’t successful, it might not be long before blackmail statutes all over the country are weighed down with a ton of extra, overreaching verbiage.
I posted this comment. Send barbecue.
So: brisket for the second paragraph, and pork ribs for the third?
Your comment is delicious.
How many comments would homemade pastrami buy me? Corn the beef and smoke it myself.
You tempt me. Yes, you tempt me.
Better than Katz’s.
Sounds wonderful.
I see no problem with charging Mugshots.com with extortion. Extortion in California includes not just threatening to expose secrets but threatening to expose “a deformity, disgrace, or crime.” Having been arrested is certainly disgraceful, regardless of the case’s outcome.
California courts have never held that extortion excludes threats to publish information in public records. (A recent case found no extortion based on a threat to reveal the location of a sex offender, but of course that information needs to be not just public but widely known.) In People v. Cadman (1881), 57 Cal. 562, on the other hand, the defendant was convicted for threatening to reveal shameful information in federal court records. Granted, whether that information constituted a deformity, disgrace, or crime was not in issue.
Section 519 of the California Penal Code states:
519. Fear, such as will constitute extortion, may be induced by a threat, either:
1. To do an unlawful injury to the person or property of the individual threatened or of a third person; or,
2. To accuse the individual threatened, or any relative of his, or member of his family, of any crime; or,
3. To expose, or to impute to him or them any deformity, disgrace or crime; or,
4. To expose any secret affecting him or them.
Once there’s a mugshot, the “expose a crime” horse has left the barn.