By Justin Silverman
When Tim Donnelly, a 26-year-old job seeker, Googled his name recently he found that the first link provided was that to a mugshot of him taken seven years ago. He got into a fight as a teenager and was arrested for criminal trespass and assault. According to Donnelly, the trespass charge was dismissed and the assault charge was downgraded to disorderly conduct. “I have since learned better,” he said.
What bothered Donnelly wasn’t the publication of his mugshot per se, but instead the companies working together to solicit payment for its removal. “I am all for having a completely open government,” he said, “but something needs to make this online shaming device stop.” Donnelly believes he has a solution.
Since I wrote about the prevalence of mugshot websites last October, many readers weighed in with their own take on what David Kravets described in Wired as a “racket.” According to Kravets’s article, self-described “reputation companies” are part of an emerging industry of websites publishing mugshots and then charging those pictured to remove the photos to spare them further embarrassment.
“This is not a ‘mugshot business’ or ‘mugshot industry’,” wrote one reader. “This is extortion… The demand: Pay up or it stays up.” Another reader noted that many of these sites defend their right to publish mugshots — which are public records in many states — by claiming they are news organizations: “They’re not a ‘news organization’ by any stretch of the imagination,” that reader wrote. “They have zero/zilch bona fide news media credentials… [They] break every accountable, professional, bona fide news media/news-reporting ‘code of ethics’ out there.”
Donnelly contacted me shortly after my blog post ran to comment on the mugshot phenomenon. He immediately began outlining his plan to deactivate this mugshot minefield. His solution is to legislate a public records exemption for those who would be using the records for “commercial purposes.” Donnelly, a Fort Worth, Texas, resident, is currently lobbying his representatives to enact such a clause in his home state’s FOI law. Presumably, such an exemption would prevent companies from exploiting public record laws while allowing news organizations to continue with their business.
At first blush, such an exemption seems conceptually absurd. Public records are considered such because the information they provide is of value to the community and necessary to maintain an informed citizenry. The information itself does not change based on the purpose and intent of the party distributing that information. The public is informed regardless and the objective of FOI law is met. There is also the issue of news media having commercial purposes, and so a commercial exemption could result in potential First Amendment conflicts. Further, if the intent of such a proposal is to distinguish journalists from mere profit-seekers such as the aforementioned reputation companies, then legislators would be marching into an ongoing battle over the definition of “journalist.”
Despite these immediate concerns, however, what Donnelly proposed is already being practiced. Indiana, for example, allows its agencies and “political subdivisions” to prohibit the release of public information in electronic form, if that information is to be used for commercial purposes. Ind. Code. § 5-14-3-3. This bar to public information does not apply to the “publication of news,” but as shown by one state official’s explanation, the distinction can be a difficult one to make. In a dispute last year over a website’s access to digital mugshot photos, Indiana’s Public Access Counselor, Andrew J. Kossack, wrote the following:
…if a newspaper received the type of records sought in the request at issue here, it could publish a story about some aspect of the arrest process generally or about the particular arrestees specifically… [But] the same newspaper could be restricted from establishing a for-profit, fee-based database on its website that used the information to “sell, advertise, or solicit the purchase of merchandise, goods, or services.”
So, it appears that an Indiana publication can safely publish a mugshot in its newspaper, but if that same mugshot is aggregated with others in a database for which access costs a fee, then there could be a violation. In both scenarios, the same information is being provided. Assuming it is not a free newspaper, both instances involve payment for that information. The difference under Indiana FOI regulations, is that once a mugshot becomes part of a database, it is no longer “news” but a commodity, as if there is no news value in the information that database provides. Many, including myself, would argue otherwise. Further, if that fee is removed to comply with the law, then with that fee will go any incentive to create the database in the first place. As most government agencies are lax in centralizing public records online, there should be more incentive for third parties to step in, not less.
The U.S. District Court in Rhode Island addressed the issue of “commercial purpose” exemptions in 1999, declaring a similar law partly unconstitutional. Rhode Island’s public records law states that “no person or business entity shall use information obtained from public records” to “solicit for commercial purposes. . . .” R.I. Gen. Laws § 38-2-6. Those doing so face a fine of up to $500 and imprisonment for up to a year. Id. The Rhode Island Association of Realtors, however, wanted to use public records to identify new or recent real estate licensees in the state to recruit new members. Rhode Island Assoc. of Realtors v. Whitehouse, 51 F.Supp.2d 107 (D.R.I. 1999), aff’d 199 F.3d 26 (1st Cir. 1999). Fearful that the statute prevented it from doing so, the association sought a declaratory judgment that the law violated its First Amendment rights. Rhode Island Assoc. of Realtors, 51 F.Supp.2d at 109. Using the Central Hudson test, the court found the statute was not narrowly tailored to address the state’s interest in protecting the privacy of its citizens. Id. at 114. That interest could instead be protected by excluding certain information from the statute’s scope, rather than creating distinctions based on the intent of the requestor. Id.
If privacy is the goal, a law that discloses private information to some requestors but not others fails to offer protection. The information is still disclosed. Ultimately, I believe this is where such “commercial purpose” exemptions falter. Even if a statute could adequately distinguish between bona fide news organizations (whatever that means) and those dealing in the mugshot trade (however that’s defined), the photo can still be released and the arrestee’s privacy vanquished.
The frustration of those like Donnelly is understandable. Because there is no central repository for public records, mugshot websites can exploit state FOI laws and profit from what seems like a shady practice. The practice seems shady because there’s a degree of unfairness when a private company plays gatekeeper to embarrassing information and then charges a heavy toll to keep it quiet. Though I may not agree with many of the proposed responses to this practice, I can certainly empathize with those whom are caught up in it and compelled to pay.
But as I told Donnelly, context is everything. Rather than making it more difficult to obtain information, it is almost always preferable to simply provide more. Having been arrested myself years ago — cuffed by an overzealous cop when I refused to leave a valid press area while working as a journalist — I remember the feeling of panic when a Google search of my name brought up reports of the arrest. To combat the misconceptions I believed existed, I took every opportunity to fill in the gaps left by those stories. By challenging what he perceives as a deceptive practice, Donnelly is sharing more about himself and creating a new impression, one that will eventually overshadow his previous indiscretions. The saying “fight speech with more speech” applies to not just speech, but all information — even if only that contained in a mugshot.
Justin graduated from Suffolk University Law School in 2011 and served as founding president of Suffolk Media Law. He is currently an attorney based in Newton, Mass., and a contributor to the Citizen Media Law Project, where this post first appeared. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @justinsilverman.
(Screenprint of mugshots courtesy of Flickr user angus mcdiarmid licensed under a Creative Commons BY-NC license.)
5 comments
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May 19, 2012 at 12:38 pm
Brian Keaney
A few years ago I wrote about what people could do when things like this happen to them. While it doesn’t tackle the legality of the mugshots, I still think it has some good advice for people like Donnelly:
“Forget Big Brother, the bigger concern today is Big Google. Managing a brand – personal or corporate – in the 21st century increasingly means managing what the search engines say about it. The internet never forgets, so the trick is to be constantly feeding it new memories that convey the message you want to put forward.
…You will never be able to scrape the internet completely clean, however, and you can’t stop others from writing negative things about you (or publishing the embarrassing things you yourself create).
What you can do is flood it with good news about yourself or your business, and with strong SEO hope that it pushes the bad coverage down in the Google listings.”
The full post can be found at http://briankeaney.wordpress.com/2010/10/28/big-google-and-the-puppy-dog-defense/
July 31, 2012 at 11:12 pm
Bordeos2000
Thanks for the advice… but me and most the others who find themselves caught in the mugshot racket can’t compete with those who make a living by manipulating SEO and we shouldn’t have to.
August 4, 2012 at 5:20 pm
Computers, Speech and the First Amendment «
[...] many, this debate has real consequences. Since I wrote about the prevalence of mugshot websites, for example, I’ve had many conversations with readers who question why their mugshot is the [...]
August 7, 2012 at 12:12 am
Vincent
if we look to the definition of blackmail, we can see that the scam fits perfectly within the definition:
Since the nature of this blackmail is in the form of “a cancerous gift that keeps on giving” until a ransom is paid, and not a conventional one time quid-pro-quo, law enforcement has been slow to recognize this as a cyber mob shakedown for the digital age.
The websites that promise to clean up a persons “online reputation” are presumably pursuing these sites to remove their extortee’s mugshots and not hacking into them. If they are persuading the sites to remove the victims materiel through financial consideration then they are in a clear business relationship with them and should be covered by both the criminal and civil provisions of the RICO statute.
March 27, 2013 at 9:32 am
Blog
Governmental issuance of public record voids it from public records.
The webmaster’s openly tell mainstream media that they are stealing public records and each state and the fed’s charges money for the records. The amount stolen goes into the hundred’s of millions of dollars.
INTERPOL
http://www.interpol.int/Forms/Contact_INTERPOL
18 USC § 1030 – Fraud and related activity in connection with computers
(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—
(C) information from any protected computer;
18 USC § 641 – Public money, property or records
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof;
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
Department Of Justice Manual
Criminal Resource Manual 1663 – Protection Of Public Records and Documents. “The taking of a public record or document is prohibited by 18 U.S.C. § 641.”
DOJ. Retrieved from http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01663.htm
Converts public records to his use or the use of another. Without authority, sells conveys or disposes of public record.
18 USC § 1028A – Aggravated identity theft
Whoever, knowingly transfers, possesses, or uses (website), without lawful authority, a means of identification (government photograph) of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.
47 USC § 223 – Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications
(a) Prohibited acts generally
Whoever—
(1) in interstate or foreign communications—
(C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications;
18 USC § 2261A — Stalking
(2) with the intent—
(A) to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States; or
(i) that person;
18 USC § 2319 — Criminal infringement of a copyright & 17 USC § 506 — Criminal offenses
For the purpose of commercial advantage (website) and private financial gain.
Governmental Prima Facie Evidence of name and likeness copyright:
State Certified Birth Certificate, State Driver’s License, Passport and other government documents and records “created” to identify and validate name and likeness.
18 USC § 1584 – Sale into involuntary servitude
(a) Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined under this title or imprisoned not more than 20 years, or both.
Internet Spyware (I-SPY) Prevention Act of 2007
“Intentionally obtains (steals/screen scraps), or transmits (internet) to another person information with the intent to defraud (unpublish/repair reputation).”
18 USC § 875 – Interstate communications
Transmits (internet) communication interstate (world wide web) with the intent to “injure reputation” to extort (unpublish/repair reputation).
18 USC § 873 — Blackmail
Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both.
18 USC § 1962 – Prohibited activities
(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
18 USC § 880 – Receiving the proceeds of extortion
A person(s) who receives, possesses, conceals, or disposes of any blackmail (unpublish/repair reputation) money.
Bizarre Logic and Reasoning
If kidnappers called the ransom amount the returning person fee would it bedazzle the system again? If the kidnappers rationalized their acts with the same logic would the system be mystified by them? Reasoning, they had to go through the hassle of kidnapping someone hence they are entitled to the returning person fee (Ransom Money).
If blackmailers called the extortion amount the unpublish/reputation repair fee would it bedazzle the system? Further, if the blackmailers rationalized their acts with the same logic would the system by mystified be them? Reasoning, they had to go through the hassle of stealing government property, identity theft, stalking people, holding people to involuntary servitude, injuring their reputation, blackmailing them, collecting an unlawful debt and collection extorting money hence they are entitles to the illegal money (unpublish/reputation repair fee).
http://www.unodc.org/unodc/en/human-trafficking/contact.html?ref=menuside
Governmental issuance of public record voids it from public records.
Public Records of an individual.
Birth Certificate
Drivers License History
Court Records
Marriage Records
Divorce Records
I’m an American so I must “promote” and make “money” for individuals and corporations both foreign and domestic with my Public Records (Life).
Why is the USA government so bewildered that they invalidate their own identification records and documents?
18 USC § 2319 — Criminal infringement of a copyright & 17 USC § 506 — Criminal offenses
For the purpose of commercial advantage (website) and private financial gain.
Governmental Prima Facie Evidence of name and likeness copyright:
State Certified Birth Certificate, State Driver’s License, Passport and other government documents and records “created” to identify and validate name and likeness.