Websites whose business model depends on posting arrest mug shots and then demanding hundreds of dollars to remove them are about to have a harder time plying their trade in Utah.
In the legislative session that ended earlier this month, Utah lawmakers decided to put more guardrails around these sites to stop them from preying on those who have spent time in police custody. Other states have also been enacting laws and taking enforcement action to protect individuals from online mug-shot catalogs that are generally regarded as exploitative.
While most people agree these websites are unsavory, the discussion about how to limit them has some concerned about chipping away at access to public information.
Sen. Daniel Thatcher, who sponsored SB185, said his legislation is miles away from a move to seal up government records.
“I don’t think this is an issue of transparency or openness,” the West Valley City Republican said. “I think this is that someone who is not guilty ... or who has been acquitted should not be listed on a site where people presume you are guilty.”
Thatcher said having your mug shot plastered online can make it difficult to do anything from getting a job to landing a date.
The companies don’t just target hardened criminals, says Darcy Goddard with the Salt Lake County District Attorney’s Office. Being arrested for driving under the influence or public urination can land you a spot on these sites, and the photos often stay online even if the charges are dropped, she said.
“These sites are such dirtbags,” said Goddard, her office’s chief policy adviser for civil matters.
Salt Lake County stopped publishing its jail booking photographs online in response to these sites and has started requiring people who submit requests for pictures to disclose whether they’re affiliated with one of these companies, she said. But the businesses continue to scoop up mug shots from Utah agencies that do post them publicly.
So Goddard drafted this year’s legislation, sponsored by Thatcher, to require that these companies take down mug shots after getting a removal request from the pictured individual. The sites must do so for free if the person was acquitted or the case was dropped and can’t charge more than $50 if the person was convicted.
Companies could incur civil penalties and legal fees for refusing to remove the photos.
The measure passed unanimously in the House and Senate and was signed by Gov. Gary Herbert last week.
State legislatures since 2013 have been trying to crack down on these websites, and California’s attorney general last year filed extortion and money laundering charges against four people allegedly behind the “exploitative website” Mugshots.com. A news release announcing the complaint states that Mugshots.com pocketed more than $2 million in removal fees from more than 5,700 individuals across the nation over a three-year period.
(The website asserts that it is a legitimate news-gathering organization and does not charge photograph takedown fees.)
However, critics of efforts to tamp down on these sites argue that journalists rely on mug shots to do their jobs and that the photographs are part of the public’s right to know who’s being arrested in their communities, according to the National Conference of State Legislatures.
A former attorney with the American Civil Liberties Union of Utah, Goddard calls herself a “crazy free speech absolutist” but says legal protections are different when it comes to commercial speech.
“The media is always going to be concerned about unintentional overlap of statutes like this with journalism,” she said of Thatcher’s bill. “But as long as they’re carefully crafted, they should be fine.”
Salt Lake City media law attorney David Reymann said the final version of Thatcher’s legislation seems narrowly written to target profiteering mug-shot sites and would not inhibit journalists. But the larger discussion about restricting these photographs can stray into tricky territory, he says.
“The dangerous thing," Reymann said, “is that companies that try to exploit mug shots for money can’t be the reason that we start denying access to legitimate news media who have a role in reporting those events.”
Reymann served as legal counsel for one of these mug-shot websites during a public records dispute with Salt Lake County, which has taken the unusual step of putting a copyright on its arrest photographs. Copyright material falls under an exception to the state’s public information law, and Reymann worries this loophole could allow governments to slap copyright onto all kinds of records they’d rather not make public.
People who are arrested and booked into jail are not in a private setting, he noted. They’re part of a criminal justice system that must remain open to inspection and evaluation by citizens.
“If the machinery of justice starts becoming secret," he said, “then there’s no accountability for the way it works, and booking photos, for better or worse, are part of that.”
Goddard says Salt Lake County never uses copyright to refuse release of booking photos to news media outlets.
Thatcher’s bill is slated to become law May 14.