Introduction

After serving time for retail theft, Peter Gabiola had tried hard to turn over a new leaf. He finished a stint on parole and found a job. But a searing story in the Chicago Tribune shows how hard it can be to outrun the past, especially when that past is posted online.

On the same day he started work at a sales and marketing firm, Gabiola was called into the office and unceremoniously fired. A manager at the company had run a Google search on Gabiola and come across the new employee’s photos on Mugshots.com, a website which specializes in publicizing photos and arrest records of people who’ve had run-ins with the law. Mugshots erroneously reported said Gabiola was still on parole. When he called the site to complain, Gabiola was referred to an affiliated site, Unpublisharrest.com, the Tribune reported. Gabiola said someone from the affiliated site told him it would cost $15,000 to make the mugshot go away—though there were no guarantees.

Gabiola was another victim of a burgeoning online mugshot industry. Dozens of sites have sprung up in recent years with names like lookwhogotbusted.com and bustedmugshots.com.These sites access police websites for information on recent and even long-ago arrests. Mugshot sites attract readers who relish lurid and embarrassing stories–and they also attract advertising dollars. But for many of the sites, the main revenue source is charging people for taking down the mugshots the sites themselves post.

While many of these sites claim to operate with the best intentions with a goal of improving access to information and other civic-minded purposes, the reality is of these site’s business practices calls these proclamations into question. Many of the mugshot websites will not remove mugshots even if the charges have been dismissed, dropped, or downgraded or when no charges were actually filed. Many will not remove the mugshot even if the individual is acquitted on the charges or if the conviction is expunged or sealed. However, many of these sites WILL agree to remove the arrest photo if you hand over a significant sum of cash – typically no less than $100, but often $500 or more.

There have been some recent developments, however, that are hopeful for those effected, with new laws in a number of states cracking down on online mugshot extortionists.  There are also several class action lawsuits aimed at the sites. Peter Gabiola, who I mentioned at the start of this article, recently won a significant court victory that might provide a new avenue for combating mugshot websites. Below, I’ll  bring you up to date on the legislative outlook and case law.

But first, I’ll offer a little real-world advice about why you might need a lawyer to help you run interference in dealings with a mugshot site.

Posts on the internet about a person that are false, inaccurate, or cast the individual in an untrue negative light can have profoundly negative and far-reaching consequences. Internet defamation can result in great embarrassment and the development of fear and anxiety in social situations. In terms of tangible effects on one’s life, Internet defamation can lead to a loss of social standing and a narrowing of one’s social circles. Potential or current employers who google the individual’s name may decide to terminate, not hire, or pass the person over for a promotion they otherwise would have received. In short, statements that have a negative effect on how other people perceive your character can cause a number of social and professional problems. Those statements are unacceptable when they are defamatory.

In some states that have laws regulating mugshot websites, you can force the website to remove the photo if you have been absolved of the charges that led to the arrest or those charges have been expunged after the completion of community service or probation. Other states make it illegal for the sites’ publishers’ to charge a fee for removal of a mugshot under any circumstances–whether you were guilty or not.

But if you were indeed guilty of a crime and aren’t in a state with favorable mugshot laws, then your options are more limited. If mugshots of you are harming your career or personal life, the only practical thing to do is suck it up and pay the website to take them down. But you have to be smart about paying and that’s where experienced counsel can help.

Frequently, the mugshots get scooped up on multiple websites. Many clients who come to me with complaints about mugshots aren’t even aware of all the sites where they have been published. A typical client might know of three sites publishing the photos when there are in reality twice that many. You have to know how to undertake a deep search to find all the sites that are publishing the photos and a knowledgeable attorney can do that for you.

Paying off a mugshot site but failing to track down all of the places online where the mugshots appear is like going under the knife for cancer but only excising 80% of the tumor. That cancer will just grow back. You need a skilled surgeon to remove cancer and a skilled attorney to remove online material that could be malignant for your reputation.

Mugshots Have Been Used By Police For 150 Years

Let’s try to step back for a moment and get some historical perspective on mugshots. Mugshots date back to the 1870s, some forty years after the first photographs appeared.  The mugshot—one straight ahead photo and one profile shot—was devised by a clerk for the Paris police force named Alphonse Bertillon. He was so enthusiastic about mugshots as a way of identifying and cataloging criminals that he wrote books about them. His system was exhibited at the 1893 Chicago World’s Fair. Police forces around the world soon began to imitate the French system. Some mugshots of famous people, like Martin Luther King Jr. and Jim Morrison, have become so widely published as to reach iconic status.

Vintage MugshotOnly relatively recently have mugshots evolved into a form of voyeuristic entertainment. In 2008, Isaac Cornetti published one of the pioneering mugshot newspapers, The Slammer, in Raleigh, N.C. It was such a shoestring operation that he had to use his parents’ minivan to deliver the first editions. In just four years, it became one of the fastest growing papers in the U.S. with editions in 11 cities in the South and Midwest.

When asked if he had misgivings about airing the dirty laundry of people who’d never done him any wrong, Cornetti responded with a joke about his victims. “I probably don’t feel as bad as they do when they when they wake up and sober up the next morning,” referring to people depicted in the Slammer after winding up in the drunk tank. “Obviously people aren’t going into The Slammer for singing too loudly in church. People’s actions have consequences. Stop using drugs, slow down, stop drinking and driving, stop writing bad checks, keep your hands off other people, behave, it’s really not that difficult to stay out of jail.”

But, an article recently published by the ABA Journal highlights just how embarrassing and harmful it can be to your reputation if your picture winds up on a website like mugshots.com, lookwhogotbusted.com, or bustedmugshots.com.

In the article, a Florida criminal defense attorney (who specializes in DUI defense, among others things) wound up with his mug shot on several Internet mug shot sites after he was arrested for a drunken driving incident that also involved a hit-and-run.

To make matter worse, a Google advertisement for the attorney’s law firm was prominently displayed next to his mug shot. It did not take long for this ironic juxtaposition to wind up on national news and gossip websites like Gawker.

Mugshots As Entertainment–And Extortion Tools

Over the past seven or eight years, a slew of online mugshot publishers have emerged with searchable databases of photographs, along with information about the identity and alleged crime committed by those pictured.

mugshot sitesThe growth of the mugshot business has not only been propelled by the expansion of the internet but also by the spiraling population of the incarcerated. Rutgers University sociologist Sarah Esther Lageson wrote about the issue recently in The Law & Society Review.

“Given the sheer number of arrests each year, there are millions of others who face the posting of their criminal justice interactions online,” she wrote in a paper titled “Crime Data, the Internet, and Free Speech: An Evolving Legal Consciousness.”

“While slightly more than 1.5 million persons were held in U.S. prisons in 2013, there were more than 7 times that of arrests last year — about 11.3 million. Blame et al. (2012) estimate that a full 30 percent of U.S. youth are arrested by age 23, unevenly distributed by race and sex, with about 49 percent of African American males, 44 percent of Hispanic males and 38 percent of white males arrested by age 23 (Brame et al. 2014). “

Mugshot sites have also proliferated thanks to open access laws in many states that make all arrest records publicly available, writes Allen Rostron, a professor at the University of Missouri, Kansas City, and author of “The Mugshot Industry: Freedom of Speech, Rights of Publicity, and the Controversy.” Technology has facilitated mugshot entrepreneurs’ capacity to locate and disseminate mugshots, he says. Screen scraping programs allow mugshot companies to scoop up new and old mugshots from law enforcement agencies and to post them on their own sites.  In addition, “search engine optimization” techniques allow the sites to tag photos so that they turn up at the top of the results when someone enters a name into Google, or another search engine, Rostron says.

Many of the mugshot sites have affiliated “reputation management” sites that offer to scrub the embarrassing arrest photos from the internet. As I wrote earlier, they are really quite the operators. “Many of the mugshot websites will not remove mugshots even if the charges have been dismissed, dropped, or downgraded or when no charges were actually filed. Many will not remove the mugshot even if the individual is acquitted of the charges or if the conviction is expunged or sealed. However, many of these sites WILL agree to remove the arrest photo if you hand over a significant sum of cash – typically no less than $100, but often $500 or more.”

It sounds like extortion to many whose photos appear on these sites. But Rostron writes, “The picture is clouded, however, by the fact that so much confusion surrounds the crime of blackmail. Legal scholars continue to disagree about the fundamental underlying question of why blackmail is even illegal. The offense remains notoriously difficult to define, with ‘[m]ost statutes broadly prohibit[ing] behavior that no one really believes is criminal and then rely[ing] on the good judgment of prosecutors not to enforce the statute as written.’ Given the muddled character of this area of criminal law, it is difficult for anyone to know with certainty what practices by a mugshot company would cross the line into blackmail. “

Additionally, in the case of an expungement or a sealed record, the site is unlikely to remove your records due to the nature of the legal process. The site will not receive notice that your arrest and other records have been sealed or expunged and thus it is possible for expunged and sealed records to live-on indefinitely in private third-party databases like BustedMugShots unless the individual takes action to have it removed.

Mugshot Sites Hide Behind The First Amendment

Mugshot entrepreneurs barricade themselves behind the free speech guarantees embedded in the U.S. Constitution. “These are perilous times for the First Amendment,” David Ferrucci, a lawyer representing Mugshots.com told the Chicago Tribune. “We need to defend everybody’s First Amendment rights.”

But freedom of speech arguments provides scant solace to those whose reputations are wrecked by mugshot websites. The Chicago Tribune reported that the Bluhm Legal Clinic at Northwestern University’s law school is trying to get the names of almost 20 exonerated people off of mugshot websites. Two them are Terrill Swift and Jacques Rivera, who spent 15 years and 21 years, respectively, in prison for crimes they didn’t commit. Rivera, 51, was still shown one site as being in custody for murder in September, even though he was exonerated and released from prison in 2011.

“We’ve been exonerated,” Swift told the Tribune. “They should do the right thing and take our pictures off those websites.”

The websites also harm people who actually did break the law, often making them pay an outsized price for their errors. In 2013, the New York Times wrote about a college freshman from Austin, Texas, named Maxwell Birnbaum, whose youthful indiscretion has already had a high cost. During one spring break, he and friends were riding in a van in Alabama. The police pulled over the van for a broken tail light, the Times reported. An officer who searched the vehicle with the driver’s consent found six Ecstasy pills in Birnbaum’s knapsack. He was handcuffed and placed under arrest,  the Times said. Birnbaum agreed to enter a multiyear, pretrial diversion program that has involved counseling and drug tests, along with periodic visits to the judge in Alabama. His hope was to clear his record so he was untainted when he started looking for a job after graduating from the University of Texas, the Times reported.

But the agreement with the court didn’t resolve the problem of Birnbaum mugshots that were floating around sites like BustedMugshots and JustMugshots. The top four results for “Maxwell Birnbaum” were mugshot sites, the Times reported. When Birnbaum tried applying for an internship with a Texas state representative, the mugshot episode ruined his chances. A friend who had told him about the job said an adviser to the representative told him,  “‘We’d like to hire him, but we Google every potential employee, and the first thing that came up when we searched for Maxwell was a mug shot for a drug arrest,’ ” Birnbaum told The Times:  “I know what I did was wrong, and I understand the punishment. But these Web sites are punishing me, and because I don’t have the money it would take to get my photo off them all, there is nothing I can do about it.”

State Legislatures Crack Down on Mugshot Entrepreneurs

Several state legislatures have lept into the fray to protect people like Birnbaum, passing legislation designed to rein in some of the mugshot industry’s more egregious practices.

The National Conference of State Legislatures notes that Georgia, Illinois, Oregon, Texas and Utah in 2013 enacted legislation . . . prohibiting commercial sites from charging fees for removing inaccurate mug shots upon request or by prohibiting sheriffs from releasing mug shots to sites that charge a fee, among other provisions. California, Colorado, Georgia, Missouri, and Wyoming passed laws in 2014; in Maryland and Virginia in 2015; Kentucky and South Carolina in 2016.

So far in 2017, Florida, Ohio and New Jersey have joined the trend, passing laws making it illegal for websites to charge people for removing their mugshots. The legislation in those states requires the websites to take down mugshots if they receive a registered letter requesting removal from the subject of the photo.  “These website operators put these mugshots online just to extort people and charge them to remove their photos,” New Jersey Assemblyman Raj Mukherji told NJ Advance Media, as the bill was signed into law in that state. “That serves no public information purpose. It’s a shakedown.”

A full list of states that have taken action or are considering legislation can be found at this link.NCSL logo

Some credit card companies have also condemned the sites and said they won’t work with them.

New Legal Tactics Against Mugshot Purveyors

Meanwhile, lawyers are trying new strategies against the websites in an effort to circumvent their First Amendment shield. For instance, Gabiola was one of the plaintiffs in a class action suit against Mugshots.com. Attorneys for Gabiola and others whose images appeared on the site argued that their photos were being used as commercial speech, which has less protection under the First Amendment than other types of speech. In making the case that Mugshots.com was using the images to make money, the suit noted that’s beside the photos was a button that led to a paid removal service when clicked by readers.

A U.S. District Court judge agreed and allowed the suit to move forward in September. The judge’s opinion noted that, “It is not advertising use in the traditional sense, but Mugshots.com promotes itself with plaintiffs’ likenesses (and others), by using the embarrassing nature of an arrest to promote the website, draw consumers, and if it is their photo or likeness, provide an easy link to removal for a fee. There are no allegations in the complaint to suggest that any of these plaintiffs provided consent. Plaintiffs here clearly allege that defendants are using their likenesses, in the form of arrest photographs, without their consent to solicit enrollment in the subscription removal service.”

The class action case has also revealed information on the nitty gritty on the economics of the mugshot industry, and websites’ overwhelming dependence on payments for taking down photos as a revenue source. Advertising revenue, the suit notes, “is only a limited or fractional amount of revenue.” In 2012, takedown service revenue for Mugshots.com was $940,000, while advertising revenue was only $130,000, the suit said. In or around the first five months of 2013, takedown service revenue for Mugshots.com was approximately $2,070,362, while advertising revenue was only $112,703.

Work with an Experienced Internet Slander & Libel Removal Team

If you have been shocked to find false and defamatory posts, photos, or reports about you online you are likely seeking answers about how to remove those posts. The lawyers at Minc Law can fight to protect your reputation by working to remove false and defamatory materials from Internet websites like Bustedmugshots.com or Google. To schedule a no-cost, private initial legal consultation, call our firm at (216) 373-7706 or contact us online.