Those mug shots you can’t help but click on? Maybe those widely shared arrest photos of Nick Nolte, Justin Bieber, or the one of Tiger Woods, deemed by Golf Digest as the mug shot “that will live forever (thanks to the Internet)”? Their days might be numbered.
Three recent developments across the U.S. are signaling the beginning of the end for the widespread practice of releasing booking photos. First, New York Gov. Andrew Cuomo recently proposed banning the release of mug shots and arrest information, making these records exempt from the public records laws that have hitherto governed their release.
Second, the operators of Mugshots.com, which in its heyday posted people’s booking photos and then charged thousands of dollars to remove them, will see a California judge on March 25 to enter their plea for criminal charges of extortion, money laundering, and identity theft. While dozens of lawsuits against the website have failed in the past, this is the first time that criminal charges have been filed.
Finally, a federal court is preparing to hear a class action lawsuit alleging that a Pennsylvania county violated state criminal record law by posting thousands of inmate mug shots on the local jail’s website. (Disclosure: As a researcher, I submitted expert testimony for this case on behalf of the plaintiffs.) In contrast to the California case against private citizens running a website, this civil lawsuit places the blame on the criminal justice agency itself for disclosing the photos in the first place.
While the California and Pennsylvania cases have received relatively sparse (but mostly positive) public attention, Cuomo’s announcement has been met with hostility, provoking a spate of op-eds around New York that decry a loss of transparency. The editorial board of the Daily Gazette in Schenectady, New York, warned that the ban “deprives the citizens of information they have an interest in knowing and goes too far to protect the criminal.” Arguing that the U.S. justice system is, by design, “public and accountable,” the Albany-area Times Union wrote that the proposed ban might lead to secret trials and secret arrests.
Although it’s unpopular, Cuomo’s proposal to keep pre-conviction records private is probably the most effective approach to prevent the bulk capture-and-release of mug shots by extortionist and clickbait schemes. It’s not a stretch to imagine the harms done to a person whose mug shot appears online in perpetuity, even if they weren’t ever charged or convicted of a crime, or their record was expunged. There’s an important due process responsibility to protect the innocent that must be balanced against unfettered access in a digital age—even if this means losing access to millions of mug shots.
As it stands now, the debate over whether law enforcement should release mug shots centers on how the records are used in the public sphere. While simply posting the photos is an expression of First Amendment freedoms, salaciously posting the mug shots for fodder, voyeurism, or extortion feels wrong. But attempting to make a clear distinction between the two creates a false dichotomy between the appropriate and inappropriate sharing of public records on the internet.
Put differently, the public seems to object to losing access to mug shots, yet supports punishing those who are actually posting the photos online. That’s confusing.
The reality is that as long as booking photos are released by police, the online mug-shot industry will innovate within the current limits of law. Since the California arrests, mug-shot websites have quickly pivoted to charging for “reputation management services,” instead of takedown fees, and are relying increasingly on ad revenue from curious site visitors. Additionally, mug-shot websites have begun to more publicly claim the same First Amendment rights as media. The Mugshots.com logo, for instance, now prominently displays the word “news” in its logo.
And while we tend to put them in a different category, local newspapers also profit from search engine results and advertising revenue when they post mug shots. Plus, their feeds of booking photos routinely show up on Facebook and Twitter, extending the reach of such content. When a search result for your co-worker’s name produces a mug shot, you don’t really care which website posted it first.
Another line of argument posits that mug shots give us the chance to monitor police activity. The Daily Gazette, for instance, writes that withholding mug shots may actually work against the accused, “as it could prevent the public from seeing any injuries the suspect may have sustained in police custody.” But it’s far more important to demand access to public records that actually tell us about police, prosecutor, and prison officials’ behavior. There are dozens of exemptions in state Freedom of Information Act laws that let criminal justice agencies withhold information from the public. Based on Exemption 7 of the federal FOIA, police can refuse to release any record they say could compromise an ongoing investigation—including police misconduct cases. Under existing policies, it’s nearly impossible to get good information on prison conditions or parole board hearings. Even criminal court records provide more access to defendants’ personal information (including full names, birthdates, and home addresses) than to data on how courts actually operate, such as in the host of mysterious decisions shrouded in prosecutorial discretion.
In practice, there are serious limits to accessing the records and data that tell us what criminal justice agencies are up to, while there is relatively unfettered access to personal information in the records that do make it to the public.
This gets to the heart of the matter: What is the function of public records law in today’s digital context? In theory, transparency laws exist so that we can watchdog government. In some current practices, these laws enable companies and websites to profit financially from public records and leads to the bad behavior that plagues the mug-shot and criminal records industry today. This has created the “reverse sunshine effect,” in which public records are accessed to monitor the behavior of other people rather than to monitor governmental operations—the original intent of public records legislation.
There are other options for how to treat mug shots and other pre-conviction records. Nearly all European countries, for instance, routinely protect the privacy of the accused and limit public access to criminal records in an effort to foster rehabilitation. Curbing mug shots to prevent public shaming and extortion just doesn’t equate to secret criminal justice operations—which, in reality, are already quite secretive even with our current public records scheme. It’s entirely possible to promote open government while also preventing the bulk release of millions of booking photos per year.