If a Picture Is Worth a Thousand Words, Your Mugshot Will Cost You Much More: An Argument for Federal Regulation of Mugshots.

• Author: Rink, Brooke

TABLE OF CONTENTS I. INTRODUCTION 318 II. BACKGROUND 320 A. Federal Authorities Recognize the Privacy Interest in Booking Photos 320 B. States' Treatment of Booking Photos 325 III. ANALYSIS 327 A. Congress Should Enact a Law Prohibiting the Distribution of Booking Photos Until After a Person is Convicted 327 B. Congress Should Carve Out an Exception to Section 230 of the Communications Act That Would Allow Courts to Require Search Engines to Remove Links to Websites with Exploitative Removal Practices 332 IV. CONCLUSION 338 I. INTRODUCTION

For over a year, Jesse T., of Sonoma County, California, unsuccessfully applied for a number of jobs, from construction to electrical positions. (1) Knowing something was amiss, Jesse decided to search his name on Google. (2) The top search result was a post on Mugshots.com, which is a website that submits freedom of information requests and searches online databases to obtain criminal records. (3) Even though Jesse was never convicted of any charge, Mugshots.com still posted his booking photo along with his full name, address, and information regarding his arrest. (4) The only way to remove his mugshot from the website was to pay $399. (5) In fact, the $399 unpublishing fee was per charge (6)

Mugshots.com is not the only website that publishes booking photos. Other sites include Busted Newspaper, Arrests.org, Florida.arrests.org, and Phoenixmugs.com, among many others. (7) It is not uncommon for a person to pay the unpublishing fee on one website, only for the person's mugshot to pop up on another, a problem that has been compared to a game of "whack-a-mole." (8) A person can spend thousands of dollars before realizing it is a scam. (9) Although some people can afford a lawyer to help take their mugshots down, most of those arrested cannot. (10)

Because there were over 10.3 million arrests in the United States in 2018 alone, companies like Mugshots.com impact a large portion of our population. (11) One in three Americans eligible for employment have some sort of criminal record, including arrests not resulting in a conviction. (12) These websites "humiliate their subjects...because mugshots create a powerful visual association between the subject and criminal activity, regardless of guilt." (13) In fact, courts are unlikely to show juries defendants' mugshots because the familiarity of mugshots from media leads to "the inference that the person involved has a criminal record, or has at least been in trouble with the police." (14) According to the New York Civil Liberties Union, the consequences of having a mugshot taken can affect a person for years "after an arrest, no matter how a charge was resolved, and to no discernable public benefit, [it] can impact the subject's personal and romantic life, child custody, job prospects, college or other educational opportunities, rental or license applications, and career advancement." (15) Indeed, some states even automatically disqualify individuals with certain criminal records from obtaining professional licenses, such as roofing and barbering. (16)

Furthermore, the posting of mugshots online is especially a problem for those who have their records sealed or expunged. Six states passed "clean slate" statutes that automatically seal eligible criminal records. (17) Although well-intended, these statutes are ineffective if an employer can still find your mugshot with a quick Google search. Expungement and record sealing allow individuals to withhold from employers the fact that they have a record; however, after a Google search, the employer will be able to find the mugshot and then will conclude the person is "a liar and a criminal." (18)

Companies like Mugshots.com are not the only ones profiting off public access to mugshots. "[R]eputation management firms, mugshot removal services, media companies that publish mugshot galleries and search engines like Google" all benefit from the further humiliation of a significant part of our population. (19) This exploitive mugshot industry has generated several lawsuits and has caused elected officials to rethink classifying mugshots as public records. (20) As a result, mugshot websites have switched from charging takedown fees to selling "reputation management services." (21) They also rely on advertising revenue from those who visit these sites. (22) In addition, Mugshots.com now displays the word "news" in its logo, which is an example of how mugshot websites are gearing up to make First Amendment arguments. (23) Local newspapers also profit from advertising revenue after posting mugshots, and these mugshots often end up on social media. (24) Although newspapers have broad First Amendment protections, it is unclear why an array of photos with zero context is considered newsworthy.

Because of how pervasive and widespread the circulation of mugshots has become--enough so that it birthed an entire industry--Congress should enact a statute that keeps up with the Internet Age. Before the Internet, a person could be arrested, acquitted, and then successfully move on with their life because arrests did not generally appear on pre-employment checks. (25) However, today, most employers Google applicants before offering them a job. (26) When a mugshot is available online indefinitely, even for those arrests which do not result in a conviction, this poses a significant hinderance to employment, housing, and interpersonal relationships. (27) Because making mugshots freely available imposes significant privacy costs and other burdens well in excess of any public benefit, Congress has, and should exercise, authority to limit the release and distribution of mugshots at both the federal and state levels. This Note will first examine federal treatment of booking photos and freedom of information requests, followed by state treatment of booking photos. Then it will offer two solutions for how Congress may address the mugshot industry: first, Congress should enact a statute prohibiting law enforcement from releasing booking photos until after a person is convicted of an offense, unless there is a compelling need to distribute a person's mugshot, such as attempting to find a fugitive; and second, Congress should carve out an exception to Section 230 of the Communications Act that would allow a plaintiff to seek equitable relief from the court in order to require search engines to remove links to websites with exploitative removal practices.

2. BACKGROUND

   1. Federal Authorities Recognize the Privacy Interest in Booking Photos

      Although mugshots seem engrained into our culture, their disclosure at the federal level is actually considered an "unwarranted invasion of privacy" for the purpose of Freedom of Information Act (FOIA) requests. (28) This section will first examine the U.S. Marshals Service's (USMS) decision to prohibit disclosure under FOIA, then it will examine the federal circuit-level opinions upholding this decision. It will also examine Supreme Court decisions that focus on disclosure of criminal histories.

      Congress passed FOIA in 1966 which, according to the legislative history, was designed "to permit access to official information long shielded unnecessarily from public view" and "to create a judicially enforceable public right to secure such information from possibly unwilling official hands." (29) FOIA's principal aim is government transparency. Exemption 7(C), however, prohibits disclosure of "records or information compiled for law enforcement purposes...to the extent that the production...could reasonably be expected to constitute an unwarranted invasion of personal privacy." (30) This exemption requires courts to balance public interest in disclosure against the privacy interest Congress intended the exemption to protect. (31)

      The USMS is the agency responsible for responding to FOIA requests regarding federal criminal records. (32) Beginning in 1971, the USMS adopted a nondisclosure policy for booking photos based on the assertion that disclosure would constitute an unwarranted invasion of personal privacy that exemption 7(C) sought to protect. (33)

      In 1996, the Sixth Circuit held in Detroit Free Press, Inc. v. United States Department of Justice (Free Press I), that the USMS could not prevent disclosure of booking photos because criminal defendants did not have any privacy interest in the photos. (34) Thus, exemption 7(C) of FOIA does not apply. (35) Because Free Press I specifically dealt with individuals under indictment and awaiting trial, the Court stated that it "need not decide today whether the release of a mugshot by a government agency would constitute an invasion of privacy in situations involving dismissed charges, acquittals, or completed criminal proceedings." (36) There seems to be a certain level of skepticism about whether public access would serve any legitimate purpose in those circumstances. (37)

      Twenty years later, the Sixth Circuit recognized Free Press I as untenable because of the accessibility of mugshots online: "In 1996, this court could not have known or expected that a booking photo could haunt the depicted individual for decades. Experience has taught us otherwise." (38) Relying on Supreme Court precedent, it stated that exemption 7(C) needs to be understood "in light of the consequences that would follow from unlimited disclosure." (39) Because courts also consider "potential derivative uses" of the information sought, (40) the Sixth Circuit recognized the damaging personal consequences of mugshot websites and the "online-reputation-management industry." (41) A concurring judge found the dissemination of the photos "for malevolent purposes" problematic and stated that "these images preserve the indignity of a deprivation of liberty, often at the (literal) expense of the most vulnerable among us." (42) The court also agreed with the USMS's case-by-case approach to the release of booking photos. (43) Under this approach, the public's interest...