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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

The Digital Scarlet Letter: Responding to Mug Shot Publishers

Rapid growth of the internet has spawned a new business whereby publishers “harvest” arrestees’ mug shots from public sites and reproduce them online without regard to subsequent disposition of the individual’s case, at times requiring payment to remove a photo from public view.  Legal responses to the phenomenon are varied and the issue remains unsettled.

Nathaniel Hawthorne’s character Hester Prynne in his 1850 novel, The Scarlet Letter,1 is made to stand on a wooden scaffold bearing a red “A” on her dress as a symbol to the townsfolk that she was found guilty of adultery. The story explores, in part, the theme of public display of someone caught, the draw of curious onlookers this display generates, and the shame that ensues. While many years have passed since 1850, this theme lives on today with the scarlet letter now being a booking photograph (a/k/a mug shot) of someone arrested and online websites as the modern version of the wooden platform.

Various digital publishers active on the internet mine publicly2 available law enforcement databases, copy the photos they find, and publish these on websites such as: Busted Mugshots.com3 and Mugshots.com,4 Minnesota’s version of which covers all 87 counties. Little if anything is offered as to the ultimate disposition of the arrested person’s case. Was there a conviction, plea deal, or dismissal? Depending on the site, people who have had a charge dismissed or whose information is incorrect, or the personal representative of a deceased person whose photo is displayed, can write to explain their situation and may or may not have their name and image removed for free. Other sites remove a name and image once paid to do so.5

Litigation Responses

Lawsuits and legislation constitute the primary legal methods of response to online mug shot publishers. As to lawsuits, a representative sample finds an Ohio class action6 case pleading a cause of action based in part on a theory that defendants violated Ohio’s right of publicity law7 and specifically, in Count 26, “Plaintiffs’ images have commercial value, as is shown by defendants profiting from the unlawful appropriation of those images for commercial purposes.”8 A Florida woman pled a similar theory and alleged mental pain and anguish in that she was subjected to humiliation and a violation of her privacy rights as a result of her image booking photo being published.9 A California man is attempting to gain lead plaintiff status in a class action lawsuit against justmugshots.com and additional unnamed defendants under tort claims of misappropriation of likeness and unfair competition, pleading defendants’ conduct is similar to extortion.10 An Arizona man lost his case after pleading that Maricopa County’s release of his mug shot and its subsequent republication by various websites violated his property interest in his image.11

Legislative Responses

As a representative sample,12 the states of New Jersey, North Carolina, Oregon, Florida, and Minnesota have seen their legislatures propose various response strategies via bills seeking to regulate the mug shot publication industry and these bills have stalled in committees. Utah, Georgia and Texas bills have resulted in laws being passed.13

Minnesota House Bill HF1940 sought to regulate access to, and dissemination of, booking photographs under the Data Practices Act.14 The key component of the proposed law called for restricting public access to copies of a booking photograph maintained by a law enforcement agency, unless the requestor submits the following data to the agency:

(1) the legal name and address of the requestor, and if requesting on behalf of a business, specified information about the business;

(2) a statement of the purpose of the request and the manner in which the photograph is intended to be used; and

(3) if the photograph will be published, a list of all locations and formats of publication, including website addresses. Additional supplemental disclosures would have been required if a booking photograph was to be published in a manner or format not originally disclosed.

The bill passed out of both the Civil Law and Public Safety committees but failed to obtain a hearing in the Senate and stalled out. The bill’s chief author, Rep. Kim Norton, stated:

Despite passing committee, it should be noted that there were some objections raised by an attorney during the Civil Law Committee [hearing] and legal counsel from the University of Minnesota shared her concerns about the groups bypassing laws by taking their operations overseas and away from state jurisdiction and statute. Law enforcement shared concerns about the extra work the changes might make at their end, but it was determined in designing the bill that tightening things up at the source was a better approach than trying to ban access, which would likely raise a constitutional challenge. The Senate failed to take any action on the bill and so it was not brought to the House floor for a vote and so the bill is dead for this biennium. I do hope the issue will be taken up by the Senate next year and I will file it again.15 

The legislation and cases referenced above attempt to limit online publishers or attach civil damages to their actions. Are these responses reasonable or is the law veering into censorship? An employer may have a “legitimate” reason to mine arrest data; do curious web surfers among the general public deserve the same consideration? The tension inherent in this debate runs between the public interest in disclosure of arrests versus individual subjects’ interests that are implicated when publishers leverage this disclosure for profit by displaying publicly available booking photos en masse and, depending on the discretion of the publisher, compelling payment for removal of such photos. Five key factors remain constant in the debate:

1. The pervasiveness of internet use in society16;

2. The presence of enough people exposed to the embarrassment of seeing their image published and who will pay to have it taken down;

3. The presence of enough mug shot website visitors to ensure these sites’ survival, growth, and profitability. History shows Hawthorne’s 164-year-old insight into the human tendency to look at those caught was spot on and people will not change any time soon.

4. Arrest records are, and most likely will remain, public data; and

5. Mug shot publishers will continue to exhibit little and/or erratic tendency to self-regulate, check errors, or follow up after publication.

The various lawsuits and legislation cited above show that enough legal responses are coming to bear on the mug shot industry that in all likelihood some kind of balance will eventually be struck among these factors. Depending on one’s perspective, this balance will be construed as too much legal response or not enough.


John Del Vecchio is a member of the MSBA Business Law Section and has been operating a general law practice firm for 26 years. He’s is a participating adjunct faculty member teaching Business Law and Marketing Law at the University of St. Thomas.


 

Notes

1 Nathaniel Hawthorne, The Scarlet Letter. Ticknor and Fields, 1850. Also online from The Gutenberg Project http://www.gutenberg.org/ebooks/33 (last visited 09/08/2014).

2 Minn. Stat. §13.82 (2013) Comprehensive Law Enforcement Data, Subd. 26, Booking photographs.

(a) For purposes of this subdivision, “booking photograph” means a photograph or electronically produced image taken by law enforcement for identification purposes in connection with the arrest of a person.

(b) Except as otherwise provided in this subdivision, a booking photograph is public data. A law enforcement agency may temporarily withhold access to a booking photograph if the agency determines that access will adversely affect an active investigation.

3 http://www.bustedmugshots.com/(last visited 09/08/2014).

4 http://mugshots.com/US-Counties/Minnesota/ (last visited 09/08/2014).

5 http://unpublisharrest.com/about-us/ (last visited 09/08/2014); http://buckeyesbehindbars.us/option_b (last visited 09/08/2014).

6 Lashaway, et al v. D’Antionio,III, et al., Court of Common Pleas, Lucas County, OH (2012) http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1197&context=historical (last visited 09/08/2014) .

7 ORC 2741, http://codes.ohio.gov/orc/2741.01 (last visited 09/08/2014) .

8 http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1197&context=historical (last visited 09/08/2014). This case settled for $7,500 in damages to the three plaintiffs who were the class members and their mug shots were taken down without charge.

9 Simmons v Instant Checkmate, Inc., Circuit Court, Hillsborough County, FL.(2014) http://issuu.com/wflanewschannel8/docs/complaint-30009795/1?e=8167075/6924142. (last visited 09/08/2014). The complaint was dated February 25, 2014 and the case appears unresolved at this article’s writing.

10 Rogers v. JustMugshots.com Corp. et al., case number BC530194, in the Superior Court for the State of California, County of Los Angeles (2013). A copy of the complaint is available at http://www.law360.com/articles/495116/criminal-search-site-hit-with-privacy-extortion-suit (last visited 09/08/2014) .

11 Jamali v. Maricopa County, US Support LLC http://law.justia.com/cases/federal/district-courts/arizona/azdce/2:2013cv00613/769207/130 (last visited 09/08/2014); See also, Daryoush Taha v Bucks County, Civ No. 12-6867 (E.D. Pa. 02/21/2014).

http://www.paed.uscourts.gov/documents/opinions/14d0114p.pdf (last visited 09/08/2014). Plaintiff sued the county of Bucks, PA, among others, alleging that the defendants published his expunged arrest record in violation of Pennsylvania’s Criminal History Record Information Act. The county was unable to dismiss the case via a summary judgment motion arguing, in part, an immunity defense. The case remains ongoing as of this article’s creation.

12 See, e.g.,

NJ, A3906 Exempts mugshots of arrestees who have not been convicted of the underlying offense from State’s open public records law. http://www.njleg.state.nj.us/2012/Bills/A4000/3906_R1.HTM (last visited 09/08/2014) .

NC—Current Operations and Capital Improvements Appropriations Act of 2013

http://www.ncleg.net/sessions/2013/bills/senate/pdf/s402v7.pdf (last visited 09/08/2014).

OR HB3467 http://legiscan.com/OR/text/HB3467/id/857344 (last visited 09/08/20144).

FL HB 677 http://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=49897 (last visited 09/08/2014).

MN HF1940 https://www.revisor.mn.gov/bills/text.php?number=HF1940&version=1&session=ls88&session_year=2014&session_number=0 (last visited 09/08/2014).

13 See, 

UT HB804 http://le.utah.gov/~2013/bills/static/hb0408.html (last visited 09/08/2014).

GA HB 845 http://gov.georgia.gov/sites/gov.georgia.gov/files/related_files/document/hb%20845.pdf (last visited 09/08/2014).

TX SB1289 http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=SB1289 (last visited 09/08/2014).

14 See, fn. 2, above.

15 Email interview with author.

16 Recent United States Census data reported, “Individual Internet use and computer use in 2011 varied by a series of selected characteristics, including age, race and ethnicity, gender, household income, region of residence, employment status, and educational attainment (Table 2). Young people consistently reported both living in households with computers and accessing the Internet from some location. Individuals 18 to 34 years of age, for example, reported living in a home with a computer 82.8 percent of the time and accessing the Internet 82.0 percent of the time. [citations omitted.] At the other end of the spectrum, Americans 65 years of age and older reported living in homes with computers only about 61.8 percent of the time and accessing the Internet about 45.5 percent of the time. This means that nearly four in ten of America’s oldest residents did not have a computer in their home, and less than half were accessing the Internet at all.” http://www.census.gov/prod/2013pubs/p20-569.pdf (last visited 09/08/2014).

 

 

 

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