Mug shot publishing industry

The mug shot publishing industry is a niche market of tabloid journalism emerging in the United States. The industry consists of private companies that publish mug shots and booking details of individuals arrested by law enforcement agencies. These companies publish the arrest information in tabloids and through websites. More than 60 new mug shot websites were created in the two-year period ending March 2013. The related mugshot removal services, at least one of which calls itself part of the reputation management industry, profit when individuals pay a fee to have their mugshot removed from one or more websites. The two types of business are sometimes operated by the same company resulting in a combination business model which Kashmir Hill, writing for Forbes calls the "embarrassment extortion industry," and David Kravets, writing for Wired refers to as a racket. Some legal experts say that while it is "close to extortion," it is a legal business model.

Publishing

The owners of mugshot websites have stated their belief that publishing the information can spur tips to Crime Stoppers and deter others from committing crimes for fear of their information being published.

Arrest data and photos are public record, and can be accessed through the websites of law enforcement agencies. However, many agencies in small cities, towns and counties do not provide online data. To reduce the probability of their mugshot going online, at least one Florida attorney suggests that his clients pick a rural sheriff's department when they surrender to authorities.

Mug shots and the associated information are published regardless of whether or not the person is guilty or has been convicted of the crime they were arrested for. The industry has become controversial because of this and due to many of the online websites charging fees to remove mugshots and arrest profiles.

Removal

Some sites remove information free-of-charge if a complainant provides proof they were found not guilty or that the charges were dropped. Other sites charge a fee regardless of the disposition of the case. This controversy has led some state legislatures to propose bills to regulate the industry.

There have been reports that some businesses offering mug shot removal services are connected to the mug shot publishing websites. David Kravets wrote in Wired magazine that when he asked one site's proprietor how removals were accomplished, he was told the information was "proprietary", a "trade secret", and accomplished using a "crack legal team" that required a "tremendous amount of work to get the photos down".

It has been argued that it is pointless to pay to have mugshots removed from the Web because "the Internet never forgets." Multiple archival services store the content of most websites on a periodic basis, and that content can be retrieved at any time in the future.

Criticism

The mugshot publishing industry faces several major interrelated criticisms.

Criticisms of the industry appeared online as early as 2009.

Refusal to remove when cleared

Many mugshot publishers refuse to remove records for those whose charges have been dropped, expunged, or for those who were found not guilty.

Since there are many websites participating in this industry, removing a mugshot on one site doesn't get it removed from other sites. Some people have felt that removing their mugshot from a site results in it appearing on other sites. They compare this problem to a game of Whac-A-Mole. The owner of a mugshot removal website directed blame at Police and Sheriff departments where mugshots are posted online after an arrest, and are the source of mugshot website photos. He stated, "Here's the thing, the police can stop this overnight and that's the part no one is talking about. Why are (authorities) posting the mug shot of someone who simply missed traffic court?"

Embarrassment extortion

"Embarrassment extortion", according to writer Kashmir Hill, is when the same companies which post the mugshots are the ones offering to take them down for a fee, is the "dark side" of the mugshot publishing industry.

"It's wrong but not a violation of the criminal laws. Arbitrarily charging for mugshot removal doesn't fit the legal definition of extortion because the photos are public record" said Danny Porter, Gwinnett County, Georgia District Attorney.

Kenneth B. Nunn, law professor at the University of Florida's Fredric G. Levin College of Law, said the mug shot sites look like "a seedy business," but, "There's nothing wrong with posting these further," he said. "It's close to extortion, although not quite because there is not a threat to harm reputation, but to improve it," he said.

On Oct. 29, 2013 the Better Business Bureau launched an investigation and concluded that Watson has a First Amendment right to operate his business but investigators felt "the company is using high pressure and unethical business practice to intimidate individuals."

Private attempts to block industry

On October 5, 2013, David Segal, a reporter at the New York Times, published an article critical of the mug shot publishing industry. Prior to publication and seemingly in response to this criticism, Google took steps to lower mug shot sites rankings in their search algorithms so that such pictures no longer appear in the first page of search results when a person is searched by name. According the New York Times article, payment processors such as Visa, MasterCard, Discover, American Express, and PayPal were in process of terminating processing payments to mugshot websites and related removal sites. Ten days later CNN Money reported, that according to American Express, it had severed all ties; and that other companies were still in the process of cutting ties with the mug shot industry.

Legislation

Several state legislatures have introduced bills to regulate the mug shot publishing industry. These bills often require that operators of mug shot websites remove information about individuals who were arrested but never convicted. This removal would have to occur after a specified period of time and without charging a fee to the person arrested.

California

On August 15, 2015 California Governor Jerry Brown signed Senator Jerry Hill's Senate Bill 1027, which went into effect on January 1, 2015, that prohibits websites from publishing arrest mug shots and then charging to take them down. Specifically, the legislation makes it unlawful to solicit or accept payment to remove, correct or modify mug shots. A civil action may be brought against any website that violates the law. The person or entity who brings suit may seek damages equal to the greater of $1,000 per violation or the actual damages suffered. SB 1027 does not restrict access to arrest records and booking photos by the media and interested individuals.

Colorado

On April 11, 2014 House Bill 14-1407 was signed into law. House Bill 14-1407 requires commercial websites that charges a fee to remove people’s mug shots or other identifying information to remove that information for free if the person was found innocent of the crime for which they were arrested.

Connecticut

On July 15, 2014 The Connecticut State Supreme Court issued a ruling that restricts the amount of information police are required to release about arrests. The court ruled that police are required only to release basic “blotter” information about arrests, including the name and address of the person arrested, the date, time and place of the arrest, the criminal charges and a news release or narrative of the arrest. Under the ruling, mug shots do not have to be disclosed.

Georgia

A new law went into effect in Georgia on May 6, 2013, that regulates how mug shot websites handle requests to remove an individual's image. Specifically, the bill requires mug shot websites to remove images of persons who were cleared of their charges and cannot charge a fee for the removal. The removal must be completed within 30 days of request and the website cannot charge a fee for the removal.

Missouri

On July 9, 2014 Gov. Jay Nixon signed legislation making it a misdemeanor to publish police booking photos on websites and then seek money to take the photos down. HB1665 became effective on August 28, 2014.

New Jersey

New Jersey introduced a bill that would prevent the dissemination of mugshots until the suspect has been found guilty. The measure (A3906), approved 9-0 with one abstention by the Assembly Law and Public Safety Committee, would amend the state's open public records act to make confidential the photographs of anyone arrested if they have not yet been convicted.

Oregon

A bill was introduced in Oregon's House in 2013 that would forbid any law enforcement agency from publishing mug shots online. A single individual's mug shot and booking information could still be obtained through written requests submitted in person. The bill has been amended removing those provisions but now requires mug shot sites to remove mug shots within 30 days after receiving paperwork showing that the charges did not result in a conviction.

South Carolina

Lawmakers led by Sen. Paul Thurmond, R-Charleston, are working Senate Bill 255 that would require websites take down booking photos if the people aren’t found guilty.

Texas

During its 2013 legislative session, the Texas State Senate passed two bills regulating the businesses who publish mug shots and accept payment to remove the information. It requires these businesses to publish either an e-mail address, fax number, or a mailing address to allow people to contact the business. Any individual can contact the business disputing the accuracy of the information being published by the business. The business has 45 days to respond, in writing, about the dispute and the results of its investigation into the dispute. The bill also forbids these businesses from publishing the arrest records of anyone who has not been convicted and establishes a fine for those business that do so.

Utah

On April 1, 2013, Utah Governor Gary Herbert signed HB 408 into law. The bill prohibits booking photos from appearing on mug shot websites that require payment to remove the image. It requires that any individual requesting booking photos to sign a sworn statement that the image they received will not be used these kinds of websites. Violations of that sworn statement could result in criminal charges of lying to police.

Virginia

On March 23, 2015 SB 720 was signed into law. SB720 creates a civil action against any person who disseminates, publishes, or maintains or causes to be disseminated, published, or maintained the criminal history record information of an individual pertaining to that individual's charge or arrest for a criminal offense and solicits, requests, or accepts money or other thing of value for removing such information. Such person shall be liable to the individual who is the subject of the information for actual damages or $500, whichever is greater, in addition to reasonable attorney fees and costs.

Litigation

On December 3, 2012, a case was filed in the Lucas County Court Of Common Pleas, in Ohio, against 14 mug shot publishers. On December 27, 2013, a settlement was reached and Judge Zouhary signed an order dismissing the litigation with prejudice after the mug shot websites claimed to not be in violation of any laws. However, the websites did agree to remove the plaintiffs' mug shots and to no longer process mug shot removals. According to attorneys in the case, Citizens Information Associates LLC has agreed to pay $7,500 to Debra Lashaway of Holland, and Phillip Kaplan and Otha Randall, both of Toledo.

On October 21, 2013, U.S. District Court for the District of Arizona issued a victory for publishers who post mugshots on their websites. In Jamali v. Maricopa County, US Support LLC, et al., the federal Court flatly rejected an arrestee’s claims that the publication of his mugshot violates his Fourth, Fifth, Eighth, and Ninth amendment rights under the U.S. Constitution. Additionally, the Court thoroughly rejected any possibility that the arrestee could even hope to identify a valid federal claim against publishers based on the publication of his mugshot, saying “The Court is satisfied that Plaintiff cannot plead a federal claim and that further amendments would be futile. The Court accordingly will not grant him leave to amend.”

Lawyers in Ohio filed a lawsuit on behalf of 3 plaintiffs. The suit contends that more than 250,000 people in Ohio have been harmed by the mugshot web sites. A settlement was reached in the lawsuit on December 27, 2013 and several of the mugshot publishing companies involved agreed to remove the plaintiffs' mugshots as well as pay a settlement. The lawyer in charge of the class action lawsuit is no longer accepting any mugshot cases.

See also

• Mug book
• Class action