In the grey-market world of online mugshots, ‘untagging’ will cost you

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It didn’t take very long. Probably all of 20 minutes, really. A little bit of patience while I clicked through the first eight pages, but then, all of sudden, there it was: a mugshot of someone I knew. His grainy image was plastered against a pale blue backdrop, with his charges of assault and trespassing listed below.

Browsing through mugshots online is addictive: Some people are smiling, some are beautiful, some are terrified, some show up again and again, some have most certainly seen better days. But what all of them share is that their worst moment is documented online and it’s very, very easy to find – the consequences of which are both obvious and serious. It’s not just disappointed family members or long-lost high-school acquaintances who might stumble upon your low point, it’s future boyfriends and girlfriends, potential employers, future landlords. Important people.

And you thought embarrassing party photos were hard to untag; online mugshots are a bigger, badder, meaner beast. And in the past few years, they sites cataloging them have gone from a novel sideshow to a booming industry based on quasi-legal extortion.

Turning misfortune into money

After you’ve reached your lowest low at the local police department, the shots may end up on one of a number of very public websites: MugShotWorld, Mugshots.com, BustedMugshots, MugShotsOnline, the list goes on. But how do they get there?

In many cases, they’re public record. Some police departments run their own online databases, which are susceptible to “scrapers” – automated programs that harvest this data by downloading it, allowing outside sites to republish it. None of the police departments we reached out to replied to our request for comment, but Art Neill, executive director and attorney for New Media Rights, explained the rules for publication.

“If the cops can withhold mugshots, but don’t, that isn’t enough to make publicizing the mugshots unlawful. Morally repugnant, sure, but not wrong.”

“Police departments vary on whether they release mugshots,” Neill says. “For California, everything I’ve seen suggests the California Attorney General left the decision on publishing mugshots up to local departments.”

Even if a department doesn’t automatically publish all of its mugshots online, a site can manually request standing public records that would have to be uploaded one by one. Lawyer Sarah Jessica Farber explains that it’s just a matter of working the right channels, starting with a public records database like Court Logic.

“You can buy as much data as you like from there, and it includes driver license numbers if they were obtained at arrest,” she says. “With that data, you could go back to a background check site and purchase the mugshot from there, assuming the site had it.”

So like it or not, sites like Mugshots.com obtain their images legally. And according to them, they exist as a public service.

“[We publish] arrest records because of their newsworthiness,” a representative of Mugshots.com told us. “It’s the people’s right to know about arrests within their communities.”

But there is money to be made in the online mugshot business, and not just through ads, as most websites (including our own) do it. The big bucks aren’t coming from signing up for Google AdSense, they’re coming from the pockets of the people unlucky enough to find their mugshots online.

Most mugshot sites either provide an in-house option for paying to remove a mugshot, or a link to an outside site – which, typically, operate under the umbrella of the mugshot site. If you see your own incriminating shot online and want to pull it down, you have to pay up. And that’s where the legal grey area begins.

The grayest of gray areas

Even if a site can obtain an image of your mugshot legally, is it legal to exhibit it online? After all, you could legally obtain a Blu-ray copy of Iron Man 3, but posting it online for everyone to see would quickly get an unfriendly knock at the door.

Unfortunately for those arrested, the law doesn’t recognize much of a right to privacy.

“If the mugshots are public records, then it is probably legal to display those images, along with a designation that [the person] has been only accused and not convicted,” Farber explains. “Public records are generally documents in the possession of a government entity that are not confidential.”

The sole salvation for anyone wanting to remove these photos is the right of publicity, which gives you the ability to “control your likeness” and how it’s being used commercially. You may have been hearing a lot about this and how it relates to sports video games: Players are allowed to control how they’re likeness is being used to make money. So are we – and if your mugshot is the source of someone’s income, then you could make a legitimate argument to get it taken down without paying the fee – you’ll likely win. But there’s a catch: You have to be living in a jurisdiction which recognizes the right of publicity. Currently, only some states do, including Alabama, California, Connecticut, Florida, Georgia, Hawaii, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin.

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“In those states, you might be able to sue to have your image taken down without the fee, although, of course, the cost of the lawsuit would outweigh the cost of the fee,” says Farber.

It’s also important to note that the legality of using someone’s photo and using their mugshot are different. “The challenge is that some of the typical claims that might come up with a photo are difficult to bring with mugshots,” Neill explains. “There aren’t the typical kinds of copyright or privacy claims that go along with a photo. Privacy laws are complicated and vary state to state. While there may be a privacy claim in certain situations, there are often First Amendment considerations as well.”

“The cost of the lawsuit would outweigh the cost of the fee.”

Of course, this is all assuming that a mugshot was obtained via publicly available records; if it was taken from criminal-investigation records, then law enforcements agencies are able to shut it down. While you (or a site, for that matter), can request information from a criminal-investigation record, the authorities can say “no.” However, they don’t always do that – in fact law enforcement agencies rarely withhold this information.

“If law enforcement agencies do deny the various people or corporations these photos [because they’re part of criminal investigation records] then, I think, there is a very good argument that the law enforcement agencies would win in court,” says Farber. “Of course, there would be a huge fight. I would imagine media organizations would put money and institutional support behind a ‘mugshots.com’-type plaintiff in seeking access to those records.”

Still, why would a police department hand over a mugshot it didn’t have to? For as sleazy as a reason as you might think. “There is a complex symbiosis between law enforcement and the media, and maintaining good relationships is worth something,” Farber explains. “Your district attorney is elected, your sheriff is elected, the police chief adds a police appointment, and good press is valuable to them. There is always the next election to think about. Avoiding ticking off media and their lawyers, and getting touted up in a sideshow civil lawsuit is also nice.”

“If the cops can withhold mugshots, but don’t, that isn’t enough to make publicizing the mugshots unlawful. Morally repugnant, sure, but not wrong.”

Beyond mugshots

The market for incriminating photos doesn’t stop at mugshots. Sites like TheDirty and CampusGossip make their living by publicizing private moments, like debaucherous snapshots from nightclubs and house parties.

The guidelines for getting these photos taken down can be even more treacherous than dealing with mugshots. For instance, CampusGossip required (the site is now defunct, but there are a variety of other outlets taking up its cause) you to become a “VIP member” before being able to remove the image or any of content concerning you on the site. After you pay between $80 and $130 to become a member, you then have to wait between 24 hours and seven days (depends on which membership level you applied for).

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But hey – you do get immunity from future postings about you on the site. And a t-shirt.

Is change around the corner?

As the mugshot industry grows, more and more states are adding legislation that requires a mugshot site to pull down your photo if the charges originally filed against you were dropped, expunged, or if you were acquitted. And if they don’t? They’re opening themselves up to a potential defamation lawsuit.

Oregon is one of the states adopting such laws. This past July, Governor Kitzhaber signed House Bill 3467, which requires mugshot site owners in the state to remove mugshots for free if the person pictured can prove charges were dropped, expunged, or if they were found not guilty.

Another recent incident in North Carolina resulted in another solution to the mugshot issue: No more mugshots. Weekly protesters engaging in acts of civil disobedience and getting arrested in the state found their mugshots publicized online by a “non-partisan” group called Civitas Institute, which also cross-referenced the images with citizens’ home addresses, employers, salaries, voting records, and other personal data. They also created a “Pick The Protestor Game,” mocking the arrested. As a response, the local police department stopped taking mugshots of these protestors.

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But the exploitation is far from over. Services ready to help you clean up your mugshot history continue to launch new products, because the target demographic is one that can be easily manipulated into paying up. This isn’t the type of service you go trying to find a deal on. This one even leverages high-profile violence in Florida as extra motivation for getting your mugshot offline as quickly as possible: “Because we know these shots just have a lot of power right now because of the things happening in Florida, mugshot removal is more important in this state than it’s ever been before.”

Ultimately, though, the most practical advice may not be what you want to hear. Until more laws change, Farber says that in most cases, you’re best off just paying the take-down fee if want that less-than-flattering buried as soon as possible.

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