If you meet someone new – a potential employee, babysitter, neighbor, or date – and you want to learn more about the person, what do you do? If you are like many Americans, you turn on the computer and type their name into your favorite search engine. If that person has ever been arrested, chances are that their booking photo or mug shot will appear near the top of the search results, even if the person was never convicted of a crime. As detailed in an article in the New York Times, these mug shot websites can cause a lot of hassle and heartache for people whose photos are posted. But are the operators of these sites committing a crime?
The short answer is that posting booking photos online is not necessarily illegal. It is undisputed that booking photos are part of the public record. As well they should be -- we want to live in a society where the actions of police officers are matters of public record and not hidden away, out of sight, and unable to be challenged. But where such sites may run afoul of the law is by charging people to remove their photos from the Internet. (For an update and a perspective, see Mean Mugging: The Invincibility (and Integrity) of Mugshot Publishers.)
Booking photos are taken when a person is arrested. (For more information on the booking process, see What Happens During Booking?) Once the photo is taken, the police department that made the arrest keeps the photo for its own records. Local police departments also often publish arrest records on their own websites, although usually only for a short period of time.
In the last few years, a number of for-profit websites have sprung up, with names like Mugshots.com and Onlinemugshots.com. These sites search arrest records and the Internet for mug shots and post them on their own sites. While these sites present themselves as protectors of public safety, flushing out criminals, they make money by charging people money to remove their images. The fees are usually range from $100 to $400, but because numerous sites may publish a person's photo, removing (or attempting to remove) all of them from the Internet can be quite expensive. Some sites offer free removal for people who have been exonerated or whose arrest did not result in charges, but it is not clear how easy it is to obtain free removal. Professional mug-shot removal services can also charge thousands of dollars to remove photos.
In the past year, some states have stepped in to make it easier for people to get their photos removed or to make it harder for booking photos to be posted online in the first place. In Utah, House Bill 408, passed in 2013, prohibits county sheriffs from disseminating booking photos to anyone who will publish the photo or post it online and charge a fee to remove the photo. Under Utah’s new law, mug shot websites should not be able to obtain and profit from arrest records in Utah.
Also this year, Oregon (House Bill 3457) and Georgia (House Bill 150) enacted laws giving booking photo websites 30 days to remove, for free, any images of people who can show that charges were never filed against them or were dismissed, that they were acquitted or exonerated, or that their records were expunged. While such laws do not protect people who have actually been convicted of a crime, they do provide protection to people whose guilt was never proven beyond a reasonable doubt or whose names were cleared.
An attorney in Ohio has filed a class-action lawsuit against mug shot sites, alleging extortion and invasion of privacy. Mug shot websites claim that their posts cannot be extortion and do not invade privacy because they are merely republishing something that is a matter of public record. For more information on the crime of extortion, see Extortion: Laws, Penalties and Sentencing.
Journalists and free speech advocates claim that any effort to block the publication of booking photos may infringe on the First Amendment right to freedom of speech, and that journalists and the public should decide whether such photos are newsworthy, no matter how distasteful one finds these sites and their business practices. This is an emerging area of the law and lawmakers must be careful not to run afoul of the First Amendment.
The most elegant solutions to the problems posed by mug shot websites may lie outside the law. According to the New York Times article, some credit card companies and Paypal have stopped processing payments to mug shot sites. Without a way to make money, the hope is that these sites will simply shut down. However, this approach is fairly new and it is not clear that it will produce the desired result. If even one credit card company continues to process payments, the sites will have an incentive to keep posting. Google has also tweaked its algorithms so that mug shot sites do not appear so prominently when a person’s name is searched. Such technical solutions may provide an easier fix than could be provided by any law.
Having your mugshot on the Internet for the world to see can have serious consequences. If your mug shot is published, you may wish to talk to a local attorney about the law in your state and your options. An attorney can tell what, if anything, you should do to address the matter. With an attorney’s help, you can hopefully resolve the matter.