No Constitutional Faces? Why One Law Prof Opposes Posting Mug Shots On The Internet

April 26th, 2012

Anita Ramasastry’s take is here:

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. . . .

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.