Public Record

The mugshot extortion industry should make us rethink open records laws. 

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. 

While some states have attempted to write laws prohibiting companies from profiting off mugshots, the Times notes that private corporations, after being contacted by the paper, are having a bigger impact on the business than legislators

As it happens, Google’s team worked faster than Mr. Freidenfelds expected, introducing that algorithm change sometime on Thursday. The effects were immediate: on Friday, two mug shots of Janese Trimaldi, which had appeared prominently in an image search, were no longer on the first page. For owners of these sites, this is very bad news.

And, it turns out, these owners face another looming problem: getting paid.

Asked two weeks ago about its policies on mug-shot sites, officials at MasterCard spent a few days examining the issue, and came back with an answer.

“We looked at the activity and found it repugnant,” said Noah Hanft, general counsel with the company. MasterCard executives contacted the merchant bank that handles all of its largest mug-shot site accounts and urged it to drop them as customers. “They are in the process of terminating them,” Mr. Hanft said.

PayPal came back with a similar response after being contacted for this article.

American Express and Discover were contacted on Monday and, two days later, both companies said they were severing relationships with mug-shot sites. A representative of Visa wrote to say it was asking merchant banks to investigate business practices of the sites “to ensure they are both legal and in compliance with Visa operating regulations.”

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?

Doesn't matter. Your chances of landing a job or a lease aren't helped by that picture of you with red-rimmed eyes and messy hair, your hands gripping a black and white placard. Despite the obvious consequences of trotting innocent-until-proven guilty people before a camera and then blasting that picture far and wide, some folks are concerned to see corporate giants refusing to cooperate with extortionists. Writes Mathew Ingram at GigaOm

It seems — to me at least — that there’s a very real risk that this kind of behavior could quickly become a slippery slope, and eventually result in Google and/or other platforms doing what Amazon did when it removed WikiLeaks documents from its S3 cloud servers in 2010 (which the company claims was not the result of any pressure from the U.S. government).

But there are slippery slopes on both sides of the mountain. The case against releasing mugshots was probably made most effectively in 1999 by the U.S. District Court of the Eastern District of Louisiana, which ruled against releasing the mugshot of Edward J. DeBartolo, Jr. Then the owner of the San Francisco 49ers, DeBartolo had been charged with failing to report a felony after Louisiana Governor Edwin Edwards attempted to extort him. The New Orleans Times-Picayune sued the Department of Justice to get DeBartolo's mugshot, and lost. In its ruling, the court said that

As in the cliche, a picture is worth a thousand words. For that reason, a mug shot's stigmatizing effect can last well beyond the actual criminal proceedings. Furthermore, just because somebody has conceded guilt does not negate that person's interest in nondisclosure of the mug shot. Halloran, 874 F.2d at 322 ("that otherwise-private information may have been at one time or in some way in the 'public' domain does not mean that a person irretrievably loses his or her privacy interests in it"). A mug shot preserves, in its unique and visually powerful way, the subject individual's brush with the law for posterity. It would be reasonable for a criminal defendant, even one who has already been convicted and sentenced, to object to the public disclosure of his or her mug shot.

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.”

These mugshot websites aren't for leering, say their creators (even though that's why these sites rank so high on Google—people surf them for a looong time), they're for keeping you and your loved ones safe. Yet people lived without having this information at their fingertips until about 2010, when the first of the mugshot sites began to pop up. Were things really so bad back then? 

If the best argument for keeping mugshots in the "public information" category is that they've always been in that category, or that they help people instantaneously vet their dates and children's baseball coaches, then open records advocates (of which I'm one 99 percent of the time) need to rethink this issue. Mugshots are a tool that allow police and crime victims to identify and track suspects through the criminal justice system. Making them publicly available turns an investigative tool into a lifelong punishment. 

Top image: Al Capone. 

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