You’ve seen them, staring straight out from the sidebars of the lower-quality websites you visit. Hard-looking dudes with weird face-tattoos. Sad-looking grandpas missing some teeth. Confused-looking teenage girls with tear-streaked mascara. Arrest photos, all of them of real, and all of them inviting you to click to see more. Clicking on the ads will take you to dedicated mugshot websites, where you can see the photographic evidence of some of the worst moments of people’s lives. Or, maybe, your own. “EVER BEEN ARRESTED?” one ad shouts. “Then your arrest record is online and ANYONE can view it.” (And whose fault is that, ad?) “Click here to check instantly.”
The mugshots that fill these websites’ feeds have been scraped and siphoned from local police and sheriff offices across the country. They are public records, available for free. They don’t only populate standalone mugshot websites, either. Some understaffed local news websites have “Crime” sections that consist of nothing more than police reports and mugshots—the editors might not feel great about it, but it’s easy to produce, and they know it generates pageviews.
In a recent article in Information & Communications Technology, Morgan Vasigh, a clerk at the City Attorney’s office in Tampa, Florida, examines this particularly seedy corner of the Web. She starts out with a hypothetical scenario that demonstrates how harmful this kind of thing can be to someone’s reputation, and just how permanent that harm can be, too. Consider: A college student moves to a new town and forgets to renew her drivers’ license. She is pulled over for speeding, and because she is driving with an expired license, she is arrested. As per typical procedure at the county sheriff’s office, she is booked and photographed. Her photograph is digitized and uploaded onto the sheriff’s website, where it is automatically and immediately scraped by one of those mugshot sites. Vasigh continues:
Within 24 hours, her mug shot is available not only on the county sheriff’s website, but on various private mug shot websites, including mugshots.com, mugshotsgainesville.com, mugshotsonline.com, and bustedmugshots.com. Jennifer’s mug shot comes up merely by entering her name in an online search engine. Disturbingly, the next day an online search of ‘Jennifer Sullins’, yields multiple search results, with links to her mug shot displayed in the first five. The sixth link is to her Facebook page, and an article written by the animal shelter she volunteers with appears seventh. Her mug shot also appears in Google images.
Everyone who gets arrested gets a booking photo—including those who are innocent of the crime they’ve been suspected of. A mugshot isn’t a guilty verdict; it’s just one part of an administrative process. Unfortunately, it’s easy to look at a picture of someone holding a booking number and wearing a frown and think of them as a criminal. It’s become a kind of visual shorthand. For this reason, people who have been booked and photographed, whether they are guilty or innocent, will be highly motivated to get those pictures scrubbed from the Web. But very often, they’ll have to pay.
The proprietors of these sites make money coming and going: from the ad revenue that this free click-bait earns them, and then from the fees they charge the people featured in the photos to take them down. As Vasigh points out in her article, the websites either take money from the photograph subjects themselves, or else outsource the service to certain “authorized” reputation managers who are very often “in cahoots” with those very same websites. Each site has its own system for “unpublishing” and must be paid separately; not only that, there’s no guaranteeing that the photos won’t pop up again on other, newer sites. It’s all a scam.
Some of these sites do seem to be aware of the legal tightrope they’re walking. Mugshots.com, for instance, has the following disclaimer, written in awkward legalese at the top of its page:
ALL ARE PRESUMED INNOCENT UNTIL PROVEN GUILTY IN A COURT OF LAW. EVERY EFFORT IS MADE TO ENSURE THE ACCURACY OF INFORMATION POSTED ON THIS WEBSITE. HOWEVER, MUGSHOTS.COM DOES NOT GUARANTEE THE ACCURACY OR TIMELINESS OF THE CONTENT OF THIS WEBSITE. NAMES MAY BE SIMILAR OR IDENTICAL TO OTHER INDIVIDUALS. FOR LATEST CASE STATUS, CONTACT THE OFFICIAL LAW ENFORCEMENT AGENCY WHICH ORIGINALLY RELEASED THE DATA.
Still, the photos are all part of the public record. So there’s nothing to be done, right? Wrong, says Vasigh. She argues in her article that these websites are actually breaking the law—and in so doing, she shows how they might be stopped. Throughout, she looks specifically at Florida state law, where she is based. She first makes the case that the entire “mugshot industry” violates Florida’s “right of publicity statute,” which protects a person’s ability to control and protect his or her image against commercial use—these sites are clearly making money off of people’s images. The subjects of the photos haven’t provided the necessary consent to have them used in any particular way. (Given the circumstances surrounding the photos, they most likely don’t want them to be taken at all, or used for anything.)
The right of publicity statute does have a “newsworthy” exception, but, Vasigh argues convincingly, there is no news value to this anonymous, bulk photo-collection. And a newspaper would never charge the subject of an article to have the article taken down from its website. “[W]hen booking photos are published in real-time about every single arrest, the newsworthiness of each individual’s mug shot, or arrest, is diminished,” Vasigh writes. “Though the publication of mug shots is at least arguably newsworthy, that issue is irrelevant because the use is for advertising purposes as stated above.” She also explains how mugshot sites violate Florida’s public record laws.
At the end of her article, Vasigh mentions some recent attempts to stop the mugshot industry’s exploitative ways. There was an imperfect bill addressing the problem that was proposed in the Florida legislature earlier this year, but it died in committee. Utah and South Carolina have introduced laws that seek to change the way criminal records and photos are stored online, so that it will be harder for them to get scraped and published in the first place. Georgia, Oregon, and Texas have all passed laws this year that prohibit mugshot websites from charging people money to take the photos down. These laws get specific in interesting ways:
Both laws give the website operators 30 days to remove the mug shots if the charges were dropped or dismissed. Georgia also requires that the website operators remove the mug shots of individuals such as those who have never been prosecuted, or who have pled guilty or found guilty on drug-related charges and have completed probation. Oregon also requires that the website operators remove the mug shots of individuals who had their charges reduced to violations, or had their record expunged.
If the author gets her way, Florida (and, eventually, all states) will introduce and pass stronger laws to fight the misuse of mugshot photos, and protect the rights of everyone who passes through central booking—whether it’s straight-A “Jennifer Sullins” or a capital-G gangster.
