Mug Shot Mania: The Legal and Policy Issues Surrounding Private Websites’ Postings of Arrest Photos

Many people find themselves arrested and hauled into a police station to have their “mug shots” taken.  In the past, these mug shots remained in police departments’ files.  Industrious reporters might track down a particular mug shot to publish alongside a newspaper article or TV story, particularly if an alleged crime was serious or the alleged perpetrator was a celebrity.  But that was the extent of the publicity.

Then, with the advent of the Internet, we began to see celebrity mug shots posted online—on sites like “the smoking gun.” Apparently, the public likes to see celebrities looking less than perfect—tired, disheveled, and down on their luck—and to find out the often embarrassing charges against them, such as driving under the influence (DUI), drug possession, or soliciting a prostitute.

But now, the mug shots of not just celebrities, but also ordinary people, can be found online, in “mug shot galleries.”  The arrestees’ alleged crimes include misdemeanors such as shoplifting, as well as other, more serious offenses.  The postings are the work of for-profit companies, which have made their mug-shot galleries easily searchable, retrievable, and downloadable.  This new reality can create a host of headaches for the arrestee—and particularly for the person against whom charges are dropped, who is acquitted at trial, or who is otherwise exonerated.

In this article, I will examine this new commercial trend, and discuss its legal implications and some potential policy solutions.  I’ll also discuss a new trend of police departments’ posting certain mug shots on Facebook—a practice that has garnered criticism.

Generally, people who find their mug shots on the web must pay significant sums to get their photos taken down.  Some deem the payment akin to extortion: You have to pay huge sums to protect your reputation.  Others deem it fair play:  If you are arrested, then you suffer the consequences.  Some complain that rich people can pay to get their mug shots taken down, while people of modest means cannot—and therefore are subject to greater public scrutiny, over a longer period of time, for their arrests.

In the Past, Mug Shots Were Private; Now They Can Become Very, Very Public, and Removing Them Is Costly

It used to be that mug shots were kept well out of view.  Although mug shots have long been public records in many states, they often were hard to access save for veteran journalists who knew how to find them. The photos were often locked up in file cabinets in a police station, for example, which kept them largely out of the public’s view.  Now, however, those same photos are uploaded to the Internet on many county or sheriff websites.  And that new reality has given rise to two new online businesses: (1) the mug- shot publication website, and (2) the mug-shot removal website.  Ironically, some websites practice both aggregation and removal.

The interaction of these two seemingly different types of websites may be more direct than first meets the eye.  Companies like RemoveSlander.com will offer consumers a way to remove their mug shots online.  For $399, Remove Slander will remove a mugshot that is featured on a popular — but seemingly unaffiliated — site Florida Mug shots.  (It costs $699 to remove a mug shot from multiple sites.)  The company gets the mug shot taken down by paying part of that fee to the mug shot site’s owner.  Although the two sites seem to have no corporate relationship with each other, they are each part of an interlocking symbiotic system:  Each allows the other to thrive.

Another web reputation company, Internetreputation.com, offers a removal service for BustedMugShots.com, which is one of the most extensive databases of mugshots online.  All mug shots and arrest records listed on BustedMugShots.com come from booking records that are available in the public domain.  Internetreputation tells the public, “Without convenient mugshot databases like BustedMugShots.com, you would have to search for your mugshot and arrest record on the official website of the county jurisdiction that you were arrested in.”  The site further warns that BustedMugShots is  “proficient in search engine optimization, and will stop at nothing to attract more traffic to their website, and potentially to your mugshot.”

They also warn consumers that “[b]ecause a mugshot provides a glimpse of how you looked after being arrested, these dreaded photos are often more damaging to a person’s image than a simple background check, which only provides details of the charges. Whether you had your picture taken after a DUI, domestic battery, or a simple traffic stop, there’s a good chance you didn’t look too friendly in the process, and prospective employers, coworkers, relatives, and friends may change their opinions about you after seeing such a picture.”

In some circumstances, it may be possible to have your photo removed if you are acquitted or exonerated—but the policies and practices of sites regarding that issue are by no means consistent or transparent.  And some sites may still maintain arrest information if it pertains to a serious violent crime arrest that has not resulted in an acquittal.

The mug-shot companies are emerging in states such as Florida that have broad public record laws, which allow individual mug shots to be easily obtained and posted online.  When it comes to these photos, most states consider the photo of an arrestee’s image—be it tired, bruised, unshaven, or the like—to be a public record.

All this openness isn’t necessarily bad.  It provides information to the public  about those who are arrested for crimes.  The surrender of privacy, some argue, is a worthwhile price to be paid for accountability.  But what about the price to be paid by those who want to keep their public records much less public?

A government-operated website that posts mug shots will include everyone from a particular county or locality, whereas a private mug shot website may be highly selective—depending on who pays or has the ability to pay for the privilege of not being included.  Now, there are companies—even ones owned and operated by teenagers—that use aggregation software to collect the mug shots from more than 60 searchable law-enforcement websites  Local law enforcement may post the photos on their web page—and they do not worry about the optimization of Google search results for those photos.  When aggregated on private for-profit mug-shot sites, those photos can become a valuable database.  But these sites are incomplete. They omit the faces of all those who have the financial wherewithal to pay for their mug shot’s removal, and do so.  Only the wealthy and well-informed get to limit their brushes with the law to the relative obscurity of a single county website.

Thus, while all Florida mugshots are public in theory, some are more accessible than others.  Companies can determine which mug shots stay hidden behind police CGI search tools and which will feature prominently in Google searches, based on the fees paid by their customers.  If the law makes a record public, then it should be visible on equal grounds.  Rich people’s arrest photos should be just as public—or private—as poor people’s.  But that’s not the current reality—far from it.

Most people get their information on arrest records via a Google search, not by a public-records request to a local police department.  This allows for the casual searcher, to type in the names of anyone they find interesting, just to see what might come up.  In theory, every arrest photo remains public.  But in practice, a paying client’s photo will vanish when it disappears from a Google search, because the top search results are coming from private companies, not police departments.  It’s as if the only local newspaper in town were to be paid to omit a particular name from its weekly police blotter.

The best access to public records—be they mugshots or other local government records—shouldn’t be through a site that will protect the privacy of only certain paying customers.  It should be through a government site that includes all mug shots, and is concerned not with profit, but with accuracy and proper context.  Moreover, if there is a public interest in keeping all mug shots and arrest records equally public, authorities may want to consider prohibiting the use of such records for purely private and commercial use—with legitimate journalistic uses constituting an exception.

The Privacy Issue:  When Mug Shots Appear on Google Searches

Beyond the equities of the current system, there are also issues with respect to arrestees’ privacy.  We would do well to remember, here, that the arrestees have yet to be tried and convicted, and thus still enjoy a presumption of innocence.

The high cost of getting one’s arrest out of a Google search is also concerning in terms of the limited choices that members of the public actually have.  ABC News recently reported that when Laura—a Florida teacher who asked that her last name not be used—was arrested for DUI last year, she was horrified to Google herself and find links to pages displaying her mug shot.  Ultimately, Laura decided to pay the $850 to have her mug shot removed from the private websites whose results dominate Google searches. “I was feeling proactive and figured I would do whatever it took,” Laura told ABC News.

Laura also told ABC that some of the websites offered a “combo deal” to remove photos from more than one site, but she only used services that guaranteed removal from a specific website.  She also said that she had to badger at least one site repeatedly, to get a response to her request for removal.

Mug-shot websites might be paralleled to the databases that have been created due to Megan’s Law, a 1994 federal statute that is solely focused on sex offenders, requiring that their images, information, and whereabouts be provided to communities.  Various states have created their own Megan’s Law sites with the hope of empowering communities with knowledge and current information on offenders.  However, there is a very major difference between Megan’s Law databases and mug shots: Megan’s Law applies only to convicts, and only convicts are listed in its databases.

The ACLU’s Objection to Police-Operated Mug-Shot Websites, Including Sites on Facebook

The American Civil Liberties Union (ACLU)  has also taken strong issue with  police-operated mug-shot websites, arguing that the use of social-networking sites as a venue for arrest records could violate constitutionally-guaranteed due process rights. “The police frequently arrest people who do not deserve to be arrested, and in today’s Internet environment having your picture posted on a Web site is something that can stick with you for the rest of your life,” said Jay Stanley, the Public Education Director for the ACLU’s Technology and Liberty Program.

Other concerns include the risk that police will inadvertently post the photo of an arrested undercover officer, or a member of a witness-protection program.  And inaccurate information might serious harm employment decisions, after potential employers Google the person and find the arrest record.

One police department, in Reedsburg, Wisconsin (pop. 10,000) is even going so far as to put suspects’ mug shots on its Facebook page.  Although over 2,300 people have “liked” the page, others don’t like the practice of posting such information before a trial and conviction have occurred.  Some also are concerned about offensive comments being made about the mug shots on Facebook.

In the age of the Internet, mug shots will likely only get more and more public and ubiquitous.  We should consider possible types of regulation, while also keeping First Amendment concerns in mind.  Perhaps the government ought to regulate private companies whose businesses of posting mug shots and removing them for a fee have too strong a resemblance to extortion for our society to tolerate.  And perhaps mug shots of arrestees should be posted with a disclaimer reminding the Internet user that the person in the photo has not yet been—and may never be—convicted of any crime.