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. 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. Amid allegations that mugshot websites are extorting people, 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 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 people who have been exonerated or whose arrest did not result in charges, but it's not 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.
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. 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.
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. On the other hand, at one point, Google reportedly tweaked its algorithms so that mugshot sites wouldn't appear so prominently when a person’s name is searched. These kinds of technical solutions may sometimes be more effective than the law.
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. An experienced attorney should be able to tell what you can do to address the matter.