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 the name into your favorite search engine. If that person has ever been arrested, a booking photo or mugshot might appear near the top of the search results, even if the person was never convicted of a crime. Mugshot websites that show up in these searches can cause a lot of hassle and heartache for people whose photos are posted. But are the operators of these sites breaking the law?
The short answer is that posting booking photos online is not necessarily illegal. Booking photos are often part of the public record. But where such sites may run afoul of the law is by charging people to remove their photos from the Internet. Amid allegations that mugshot websites are extorting people by charging for photo removal, courts and legislators have started paying more attention to businesses that profit from this kind of model.
Booking photos are taken when a person is arrested. Once the photo is taken, the police department that made the arrest keeps the photo for its own records. Local police departments also sometimes publish arrest records on their own websites, although often only for a short period of time.
In recent years, a number of for-profit websites have sprung up. These sites search arrest records and the Internet for mugshots and post them on their own sites. While these sites present themselves as protectors of public safety, flushing out criminals, they often make money by charging people money to remove their images. 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 have offered free removal for certain people—for instance, those who have been exonerated or whose arrest did not result in charges—but it's not always clear how easy it is to obtain free removal. Professional mugshot removal or reputation-management services exist to remove photos, but these too can be expensive.
The way that courts and legislatures view mugshots looks to be evolving in the age of the Internet. In 1996, a federal appeals court found that criminal defendants didn’t have a privacy interest in their booking photos. The court held that booking photos of defendants who had appeared in court during ongoing proceedings had to be released pursuant to the Freedom of Information Act. In 2016, the same court overruled that 1996 decision, stating that people do indeed have a “non-trivial privacy interest in their booking photos.” (Detroit Free Press Inc. v. United States Dep't of Justice, 829 F.3d 478 (6th Cir. 2016).)
Further, as a 2017 Pew Charitable Trusts article tells, at least a few people have sued over the continued display of their mugshots. State law is sometimes behind such a plaintiff, as where a statute makes it illegal for mugshot websites to charge people to remove their photos from those sites. (The article explains that one potential downside of that kind of ban is the loss of an effective way for people to get their photos taken down.)
Along similar lines, a law in Utah, for example, prohibits county sheriffs from providing a booking photo to anyone who requests the photo and will publish it or post it online and charge a fee to remove it. (Utah Code Ann. § 17-22-30 (2017).)
Also, a law in Oregon applies to anyone who operates a booking-photo website and charges to have a photograph and the name and personal information of the person in the photo removed. It applies where there's a written request to remove the photo and the request has documentation showing that the charges related to the arrest didn't result in a conviction, were reduced to "violations," or resulted in conviction but were expunged or set aside. In this kind of situation, the website operator must remove the photo and related name and personal information from all its websites—for free and within 30 days of the request. (Or. Rev. Stat. Ann. § 646A.806 (2017).)
While the second kind of law doesn't protect people who have actually been convicted of a crime, it does provide protection to many people, including those whose guilt was never proven beyond a reasonable doubt or whose names were cleared.
Despite the kinds of reform noted above, many people continue to suffer from their mugshots being posted online. Their struggle has inspired other ideas, like law enforcement agencies stepping in and using copyright law to get mugshots off websites.
Potential solutions to the problems posed by mugshot websites may sometimes lie outside the law. According to a 2013 New York Times article, some credit card companies and Paypal stopped processing payments to mugshot sites. Without a way to make money, the hope was that these sites would simply shut down. But if even one credit card company continues to process payments, the sites have an incentive to keep posting. And such websites can make money from advertisements even if they can't charge to take photos down.
Google has reportedly made changes so that mugshot sites wouldn't appear so prominently when a person’s name is searched. But reports are that mugshot sites have been effective working around these changes.
Ideas people have tried to address their own situations include paying third-party companies like reputation-management services and increasing their online presence in order to "bury" or "push down" the search results that display their mugshots. The latter option isn't intended to remove the information in question from a mugshot site but rather to get it to fall so far down in search results that other people won't see it. Online discussion forums, including ones hosted by Google, have other ideas for affected people.
Having your mugshot on the Internet for the world to see can have serious consequences. If your mugshot is published, you may want to talk to an attorney about the law in your state and your options. Some but not all attorneys in several areas of practice—like criminal defense, criminal record expungement, Internet law, consumer protection, and personal injury—handle these kinds of cases.