Proposals would do little to limit mug shot publications
Posted June 23, 2014 11:48 a.m. EDT
Updated June 24, 2014 9:29 a.m. EDT
Raleigh, N.C. — Every year, thousands of people trudge through the corridors of the Wake County Detention Center and, when prompted, shoot a glance at a digital camera.
Sometimes they smirk. Others sport bloody scrapes or puffy eyes. Many simply grimace.
That moment, frozen with the click of the camera shutter, takes as little as an hour to hit the Internet. From there, information about every individual booked by the City-County Bureau of Identification – name, age, charges and that mug shot – becomes fair game.
A range of websites and print publications across the country, including WRAL.com, use these images in both news coverage and standalone databases. The sites allow the public to pore over those who've racked up charges from missed court dates to felony murder.
The arrest information, much like the mug shots themselves, represents a snapshot in time. Yet, long after the court system may drop charges, acquit defendants or expunge records, many of these images persist on the Web. Critics say all it takes is a simple Google search for inaccurate or dated information to scorch a person’s future.
"The photo, it lives in a much different way than just printing what the police reported has happened," Bill Rowe, general counsel and director of advocacy for the North Carolina Justice Center, said. "It can be a cause of tremendous embarrassment and damage to a person’s reputation when the charges are dropped."
A set of competing provisions working their way through the North Carolina legislature is taking aim at these publications, particularly those that offer to remove a mug shot for a payment ranging from $60 to $300.
Other states have tried to put similar laws on the books, but those who watch the mug shot publishing industry closely say they have little confidence these laws will have much of an impact on the intended targets, which have learned to evolve and retreat into the shadows despite mounting scrutiny.
"These people that think they want that legislation," said Joe Ellis, owner of the reputation management firm Clean Search Inc., "it's going to come back to bite them."
Competing provisions target 'cynical exploitation'
State lawmakers have so far proposed three different techniques for dealing with mug shot sites, all housed in massive, multi-part bills that address the state budget, regulatory reform or criminal justice.
The broadest version, offered up by Rep. Tim Moffitt, R-Buncombe, would exempt all mug shots in misdemeanor cases from publication until the accused is convicted. Law enforcement agencies could release the images in cases where public safety was at risk.
Moffitt was unavailable for an interview, but he said in a written statement Thursday that the practice of publishing mug shots amounts to "cynical exploitation" and sensationalism that appeals to "the worst part of our natures."
"Once an initial arrest – or even an accusation – is put out by the media, there is rarely any follow-through when the person is exonerated," Moffitt said. "In our technological age, once a picture is published, it's on the Internet forever – even if it's wrong."
Moffitt’s measure remains in committee, as does another option from freshman Rep. Nathan Ramsey, R-Buncombe. Offered as an amendment to a suite of justice reforms, the bill would make accepting a fee to remove a photograph an unfair trade practice.
"It's sort of a scam," Ramsey said. "They go out and publish your picture – which is public record and that's OK – but to charge someone to take it down is, in my view, just not appropriate."
Ramsey said he worked to craft the amendment with Sen. Thom Goolsby, R-New Hanover, who authored another measure buried in the 275-page budget bill the Senate passed in late May. The law would require anyone requesting a mug shot to promise not to charge for its removal. Lying would result in a misdemeanor criminal charge.
Goolsby’s measure goes further, requiring publications to retract photos and names upon request when cases are dropped or end in acquittal. Organizations that don’t comply would rack up civil penalties and eventually open themselves up to defamation lawsuits.
Amanda Martin, a Raleigh attorney who often represents media organizations such as WRAL News, said she has little sympathy for sites that charge for mug shot removal, but she said the removal measure would create a massive constitutional issue.
"The fact of the matter is the publication of truthful information is protected by the First Amendment," Martin said. "If an individual is charged with a crime and a photograph is taken associated with that charge, that is legitimate public information. There should be no restriction on the publication of that information."
Goolsby did not respond to multiple calls and emails requesting comment.
Doubts linger over impact of mug shot legislation
Seven states – Colorado, Georgia, Illinois, Missouri, Texas, Utah and Wyoming – have passed laws since 2013 to deal with the use of mug shots, according to research from the National Conference of State Legislatures. Another measure is pending in South Carolina.
In all those cases save Texas, the provisions specifically outlaw the practice of charging a fee for the removal of arrest information. Many also focus on requirements to update information in cases of acquittal or dropped charges.
Cases like these are the primary reason the N.C. Justice Center has pushed the issue with several legislators, including Goolsby, Rowe said. When people are wrongly accused, the impact of an online mug shot can spread to jobs and personal relationships.
"It's not doing a criminal record check," Rowe said. In some cases, he said, "the mug shot defines the person as doing this behavior when in fact they hadn't done it and the charges were dropped."
Sites that require payment also have a disproportionate impact on those who can’t afford to pay, he said, creating a system where only the wealthy come up clean.
"It would be one more hurdle for an indigent person to jump through," Wake County Public Defender Charles Caldwell said. "It's hard enough pulling yourself up from the bootstraps without having to deal with stuff like this."
But many aren’t convinced the law can do much to curb the problem.
In contrast, says David Ardia, assistant professor of law and co-director of the Center for Media Law and Policy at the University of North Carolina at Chapel Hill, they may actually do more harm to those trying to comply with the new rules.
"The law, because it's a very blunt instrument, tends to restrict activities that are otherwise not objectionable," Ardia said. "That's where the problems come up."
At the NC Slammer, a print-only mug shot publication that distributes about 15,000 copies in the Charlotte and Raleigh areas, director of operations and co-owner Billy Alderman said they’ve long taken a "moral point of view" against accepting payments or requests not to include people in their bi-weekly editions.
"It's always been our practice not to show preference," Alderman said. "Everyone arrested has an equal chance of going in."
Because of that stance, Alderman said the payment provision of the laws wouldn’t be an issue.
The broader proposal backed by Goolsby would require that online publications like Mugshots.com remove any mug shot upon request for free once charges are dismissed or the accused is acquitted.
For the print-only NC Slammer, it might mean a retraction months or years after publication.
"Logistically, that would be a nightmare," Alderman said.
Tyronne Jacques, owner of the Louisiana-based RemoveSlander.com and author of "How to Fight Google and Win," has closely tracked mug shot sites and the legislation that governs them. He said many of the new laws in other states have already prompted a simple change – sites have just taken down the "unpublish" button.
"At one time, you could pay these guys, and they go away," Jacques said in a phone interview. "What they do now is they don't take people off."
That’s the case for BustedMugShots.com and MugShotsOnline.com, which nixed the removal option. Both are owned by Kyle Prall, who indicated his opposition to North Carolina’s pending legislation in an email.
"Thank goodness for the First Amendment and federal courts," Prall said. "The law is unconstitutional in any case, and since we no longer charge for the removal of photos, we will not be obliged to comply with this."
UNC's Ardia said the real way to reduce the potential harm of a publicized mug shot is less likely to come from the law than it is the Google rankings that make them so popular in the first place. In fact, a 2013 change to Google’s search formula did drastically downgrade the prominence of these sites.
"It points to using the technology itself to address the problem and not using the law," Ardia said. "It can be very productive to think about how technology made this problem possible and how technology may make solutions possible."
This is the first in a two-part series on the mug shot publishing industry. For more on how these companies have rapidly evolved since their inception, read part two.