Mug Shots on Lockdown: Government and Citizen Backlash to “Exploitation” Websites Surges, Free Speech Is the Casualty

Vol. 30 No. 3

By

Deanna K. Shullman is a partner at Thomas & LoCicero PL in Lake Worth, FL. Mark R. Caramanica is an associate at the firm’s Tampa, FL, office.

It’s no longer surprising to see the Internet scapegoated as the modern-day boogeyman for society’s ills. This is certainly true when it comes to government attempts to squelch speech that, while not always highly regarded, was rarely, if ever, actually threatened in the nondigital world. Websites, and similar convenience store print publications, devoted solely to displaying arrestee booking photographs, more commonly referred to as mug shots, have proliferated in recent years. More mainstream, general news outlets, of course, also frequently publish mug shots and often have special webpages dedicated solely to displaying, for example, those booked into county jail over the last 48 hours.

Ire is generally focused on those websites that limit themselves to only publishing mug shots, often using tools that scrape government websites where mug shots are posted to reproduce the photos wholesale and in almost real time. The main criticism of such websites is the common practice of charging subjects fees, often well into the hundreds of dollars, to have their images removed. Those with the desire to be removed from such sites often find they enter into a never-ending game of whack-a-mole, where they pay substantial sums to have their mug shot removed, only to see it show up on a similar website. Critics call it extortion and do not believe others should have the right to engage in such tactics or that mug shots should be publicly available. They argue such sites can unfairly stigmatize people as criminals, ruin their ability to find gainful employment, and turn people into a spectacle for ridicule in perpetuity.

Major news organizations, including the New York Times, the Associated Press, and ABC News, have all reported on the mug shot website industry and its criticisms.1 Additionally, certain sheriff’s offices have also become opposed to, or wary of, posting mug shots online because of the “exploitation” sites that scrape their data.2

The backlash against such sites is in full swing. There has been a marked uptick in bills being filed in state legislatures aiming to restrict how mug shots and criminal record information can be used. The federal government is in the midst of an aggressive push in federal court to have mug shots declared wholly exempt under the federal Freedom of Information Act (FOIA). Additionally, individuals are suing mug shot websites, often seeking class action certification, asserting numerous claims ranging from defamation and appropriation to unfair trade practices violations and federal civil rights claims.

While the concerns raised by such sites are not easily dismissed, even by fervent free speech advocates, what is often lost in the rush to remedy perceived problems is the impact regulating mug shots and other criminal record information can have on the ability of the media to fully report on newsworthy criminal matters. Moreover, under what conditions such information can be released and how it can be used once released raise serious constitutional questions about the government’s ability to control information dissemination.

This article examines the controversy by looking at the major avenues by which access to and publication of mug shots is being challenged. It begins with a review of recent efforts at the state level to address the issue, providing commentary on why such measures can be potentially problematic for the general news media and stand on questionable constitutional footing. It goes on to review the various lawsuits brought by citizens against mug shot “exploitation” websites and suits brought against government websites that publish mug shots. Finally, we trace the federal government’s long and ongoing efforts to block access to all federal mug shots pursuant to the privacy exemptions found in FOIA.

State Legislative Initiatives Heat Up

In the past two years, there have been at least 33 bills filed in state houses nationwide attempting to restrict access to or otherwise limit the use of an individual’s mug shot.3 Twenty-one have been proposed in 2014 sessions, while 12 were proposed during 2013 sessions. While the majority of such proposed 2013 legislation failed, bills in Georgia, Illinois, Oregon, Texas, and Utah were signed into law.4 To date, the only bills enacted into law from 2014 state legislative sessions are in Colorado and Wyoming.5

These laws employ a combination of varying approaches to combat the purported privacy concerns over mug shot websites. For example, the Oregon and Wyoming laws apply only to websites that specifically charge fees for takedown services.6 They generally allow individuals who were acquitted of a charge or had charges reduced, dismissed, or expunged to request that their mug shot be taken down without charge. Failure of the website to do so upon proper proof that charges were dismissed or otherwise disposed of would be a violation of each state’s respective trade practices/business code. The laws do not grant any avenue of redress for those actually convicted of the crime for which they were booked and charged, nor do they appear to apply to websites that simply do not charge to take mug shots down, regardless of the ultimate disposition of the case.7

Georgia’s approach is similar to that of Oregon and Wyoming. One notable difference, however, is that the Georgia law does not specifically target websites charging takedown fees; it simply identifies those who are “engaged in any activity involving or using a computer or computer network who publishes on such person’s publicly available website” an individual’s mug shot.8 While this appears to be exceptionally broad in scope, a related section of law granting an exemption to traditional media outlets (listed as newspapers, periodicals, and radio and television stations and networks) for certain violations of the state’s trade practices laws was amended to give “electronic” publications of such outlets immunity as well.9 This immunity covers the “publication or dissemination” of “[n]ews or commentary.”10 It thus appears that the Georgia legislature has provided protection to traditional news outlets from the potential penalties flowing from state trade practices law that would be imposed against mug shot websites for not complying with valid takedown requests.11

In 2013, Utah enacted a law stating that sheriffs may not provide access to mug shots in any format if the record will be placed in a publication or posted on a website and a fee or other consideration must be given in order to have it removed.12 Similar affirmations must be made by the requester before gaining access, and anyone submitting a false statement related thereto is subject to criminal penalty. Again, this particular law should only apply to those charging a fee for removal.

Colorado’s approach is similar to that of Utah. The requester must sign a statement affirming that the mug shot “will not be placed in a publication or posted to a web site that requires the payment of a fee or other exchange for pecuniary gain” in order to remove the image.13 Submitting a false statement constitutes a misdemeanor punishable by a fine of up to $1,000.

Texas’s new law applies to those who publish, in writing or electronically, criminal record information (which includes mug shots) and charge a fee of “$150 or more or other consideration of comparable value” for takedown services or charge any fee or consideration to correct or modify such information.14 The law requires such publishers to verify and correct errant or incomplete information when they receive notice that it is incorrect. They must do this at no charge and cannot continue to publish incorrect or incomplete information. Further, an entity cannot publish any criminal record information if it has knowledge or notice that an order of expunction or nondisclosure has been issued. To violate any of these provisions subjects the publisher to continuing damages of up to $500 per day, per violation. Such damages accrue separately to the benefit of the records’ subject and in civil fines payable to the state.15

Finally, Illinois appears to take a simpler, albeit still problematic, approach to regulating mug shot publications, making it unlawful for “print or electronic” publishers to “solicit or accept the payment of a fee or other consideration to remove, correct, or modify” criminal record information (which includes mug shots).16 The law does not provide any affirmative right or procedure to have one’s image removed from a publication but also applies to “descriptions or notations” of arrests, charges, and criminal dispositions.17

All of the above measures are rife with problems, both from an open government, statutory perspective and on constitutional grounds. Moreover, they often present practical problems in implementation that may unintentionally impact traditional media (i.e., those publishers who are not in the business of publishing mug shots with the intent to profit from takedown fees).

Any law that absolutely mandates removal of criminal record information simply because an arrestee was acquitted or otherwise not convicted of the crime for which he or she was arrested certainly invades an editor’s prerogative to determine what information is newsworthy and worthy of publication. Such laws suffer from overbreadth infirmities, as they can potentially stifle legitimate reporting on crime. Arrests are inherently newsworthy. Acquittals and dismissals can occur for any number of reasons, including, for example, government misconduct, the grant of immunity in return for the accused’s cooperation in the government’s prosecution of other individuals, or even the death of the accused before trial. It is further highly questionable whether the government could articulate a compelling justification for such blanket “depublishing” mandates. The fact that an arrest, and perhaps even a criminal trial, occurred should not be scrubbed from history simply because a conviction was not obtained.

Moreover, having to affirm that such records will not be used on mug shot websites for revenue generating purposes sets bad precedent for directing the use of public records. Over the years, such “good cause” barriers have been slowly creeping into public records laws, the most notable example probably being Florida’s good cause limitations on access to autopsy photographs that was enacted in the wake of NASCAR driver Dale Earnhardt’s death at the 2001 Daytona 500.18 Such pledges also present practical problems, as it will only be a matter of time before a record that was requested with legally proper intentions is misused by a third party and the government thereafter looks to find culpability in the original requester. This could easily be a traditional media requester who now must be concerned with how the mug shot it requested may be used secondarily once published.

Language that targets not only websites charging takedown fees but also those who receive any kind of “consideration” in exchange for taking down a mug shot may be particularly problematic for news organizations. There certainly could be situations where, for example, a lawsuit is filed against a media outlet regarding factual misrepresentations in a posted mug shot. One may ultimately settle the matter, and in return for the plaintiff dismissing the claim, the publisher may agree to take down the mug shot. Would such instances of exchanged consideration be enough to bring a news website within a law clearly designed to target the “exploitation” websites?

Further, these laws can present an undue burden on publishers to continually monitor criminal prosecutions for all persons for whom they have published a mug shot. Texas’s law, for example, is unclear as to what constitutes “knowledge” of expunction or nondisclosure orders. Are publishers imputed with constructive knowledge by virtue of there being a public docket and case file documenting such orders? What would constitute sufficient “notice” otherwise of such orders under Texas law? And what burden could media outlets have under such general “knowledge” or “notice” commands to scrub archived material or back issues that remain for sale?

Finally, such laws raise general constitutional concerns over whether the government is improperly making judgment calls on the value of certain speech and attempting to ban speech it finds objectionable. These laws also dangerously encroach on media independence as the government moves toward drawing its own distinctions between meritorious and harmful media outlets.

It should be noted that over the last two years there have been a few legislative efforts to actually enhance public access to mug shots at the state level by affirmatively making the records subject to public disclosure.19 These efforts, however, have all failed to advance into law. For example, a bill was introduced in the District of Columbia to specifically make mug shot photographs of persons arrested public.20 The bill’s sponsor, Councilwoman Mary Cheh, championed the bill as a way to engage the public in helping the district solve crimes. Cheh’s support for greater access to mug shots actually landed her picture (although not a mug shot) on Mugshots.com.21

Private Lawsuits Commence

With varying degrees of success, those unhappy with finding their mug shots online are also beginning to fight back in court. Perhaps the most notable case thus far filed against sites like MugshotsOnline.com and BustedMugshots.com was Lashaway v. D’Antonio III, a suit seeking class action certification filed in federal court in August 2013.22 The plaintiffs brought suit against numerous mug shot websites, asserting claims under Ohio law for violation of the state’s right of publicity statute and its Pattern of Corrupt Activities Act. In late December, the plaintiffs settled with MugshotsOnline.com, BustedMugshots.com (both sites are operated by Citizens Information Associates LLC), and certain individuals named as defendants, and soon thereafter dismissed the claims against them.23 Press reports indicated that pursuant to the terms of the settlement, the websites agreed to take down the images of the plaintiffs and to pay them $7,500, as well as to no longer charge fees to take down mug shots, a policy the sites claim they voluntarily adopted in October 2013.24 According to BustedMugshots.com chief executive and founder, Kyle Prall, the settlement would help set precedent to protect the right to publish arrest and crime information.25

Citizens Information Associates, along with other mug shot websites, are currently being sued in federal court in at least four other actions.26 All but one were brought seeking class action status and assert various claims ranging from traditional media torts such as defamation, appropriation, and false light to unfair trade practices act violations and federal civil rights and RICO claims. Of particular note, in one non-class action proceeding where the plaintiff filed a one-count complaint for defamation, the court found that Citizens Information Associates qualified as a media defendant under Florida Statutes section 770.01, the state’s presuit notice statute.27 The court noted that the statute has been construed by Florida appellate courts as only applying to media defendants engaged in the dissemination of news and information.28 It went on to state that “[w]hile plaintiff belittles the newsworthiness of the content of the website, arrest information is historically considered ‘news’ and is routinely published in newspapers and other periodicals.”29

Maricopa County, Arizona, Sheriff Joe Arpaio’s mug shot website was also the subject of a federal lawsuit in which various constitutional claims were alleged, and ultimately dismissed.30 It is interesting to note that while some sheriff’s offices have come out against posting mug shots online, Sheriff Arpaio has embraced the practice. The Maricopa County Sheriff’s Office website allows the public not only to view arrestee mug shots but they can also vote on the “Mugshot of the Day!”31 In this case, Imran Ahmad Jamali was booked for stalking in Maricopa County, during which his fingerprints and booking photograph were taken.32 Jamali’s arrest information and mug shot were posted on the sheriff’s office website. He argued all of this amounted to, among other things, violations of his Fourth, Fifth, and Eighth Amendment rights.33 The court tersely disposed of all the claims, noting that the county’s seizure and publication of Jamali’s personal information was not a Fourth Amendment violation, nor did he have a property interest under the Fifth Amendment that prevented the government from publishing such information, along with his likeness. Finally, the court found that posting such information did not amount to cruel and unusual punishment, seemingly giving the government the latitude to conduct activity for which private mug shot websites are vilified: “Although some may regard Maricopa County’s practice of holding a ‘mugshot of the day’ contest to be tasteless and inappropriate, it is not cruel and unusual punishment under the Eighth Amendment.”34

Conflict in the Federal Circuits

The federal government’s resistance to public access to mug shots long predates the more recent proliferation and controversies surrounding mug shot websites and similar mug shot mass publicity. As early as 1993, the United States Marshals Service (USMS) had been denying access to federal mug shots under FOIA pursuant to the statute’s two privacy exemptions.35 Exemption 6 excepts from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”36 Exemption 7(C) excepts from disclosure records compiled for law enforcement purposes where disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”37 Such denials led to the first federal appellate decision on whether mug shots could be withheld on privacy grounds under FOIA—the 1996 decision by the U.S. Court of Appeals for the Sixth Circuit in Detroit Free Press, Inc. v. Department of Justice (DFP I).38 In a 2–1 decision, the court upheld the public’s right to access such records, albeit only under the specific circumstances discussed below.

Detroit Free Press v. DOJ

In DFP I, the newspaper made a FOIA request to the USMS for the mug shots of eight named individuals who had been indicted on federal crimes and were awaiting trial.39 The USMS denied the request, citing exemptions 6 and 7(C). In determining whether the records were public, the appellate court employed the balancing test utilized under exemptions 6 and 7(C) that weighs an individual’s privacy right in the particular records against the public interest in their disclosure.

As to the claimed privacy right, the court held that indicted individuals have no recognizable privacy right in their mug shots when: (1) there is an ongoing criminal proceeding, (2) in which the names of the individuals have already been made public, and (3) the individuals have made appearances in open court.40 The court dismissed the government’s argument that mug shots convey an unflattering and embarrassing depiction of the individual and carry with them a presumption of guilt.41 In so doing, the court stated that “the personal privacy of an individual is not necessarily invaded simply because that person suffers ridicule or embarrassment from the disclosure of information in the possession of government agencies.”42 The court also found significant the fact that all subjects of the FOIA request were involved in ongoing criminal proceedings where they appeared. Thus, the court found that disclosure of their mug shots conveyed no new information beyond what was already in the public domain. Further, the fact that a criminal prosecution was moving forward “drastically lessened” any need to suppress from the public the fact that an individual had been booked on federal charges.43

Given that the court found no privacy interest existed under the circumstances articulated, there was no need to conduct any balancing analysis to determine if a privacy invasion would be “warranted” under FOIA.44 However, the court noted in dicta that even if a privacy interest was found, a government oversight-based public interest could lie, justifying the release of a mug shot. “For example, release of a photograph of a defendant can more clearly reveal the government’s glaring error in detaining the wrong person for an offense than can any reprint of only the name of the arrestee” and “can startlingly reveal the circumstances surrounding an arrest and initial incarceration of an individual in a way that written information cannot.”45 Despite its apparent willingness to consider a countervailing public interest argument, the court stressed that its holding that no privacy interest existed in the mug shots requested was limited to the three above-stated factual conditions. Mug shot FOIA requests regarding individuals with “dismissed charges, acquittals, or completed criminal proceedings” may require a different analysis, one which the court specifically declined to address.46

The USMS construed DFP I narrowly and only applied its disclosure mandates within the geographic bounds of the Sixth Circuit. For requests emanating beyond the Sixth Circuit’s borders, the USMS continued to deny FOIA requests for mug shots on privacy grounds. If, however, a mug shot was released pursuant to DFP I, the USMS would thereafter honor a subsequent request for the same record from any requester regardless of where the request originated. Hence, the USMS’s response to DFP I created a system where nonresident requesters could obtain access by committing to a bit of gamesmanship and making their request through an individual within the Sixth Circuit. For larger media companies, the requester typically would be an employee based in the Sixth Circuit. However, smaller, more geographically limited media companies and individuals without local connections—or just simply unaware of the discriminatory system—were often unable to take part in this work-around and would therefore be forced to wait until after an initial release was made before their request would be honored.47

Karantsalis v. DOJ

The DFP 1 model remained USMS’s working model for 15 years until the U.S. Court of Appeals for the Eleventh Circuit handed down its decision in Karantsalis v. U.S. Department of Justice.48 In July 2009, Theodore Karantsalis, a “self-described freelance reporter whose ‘interests’ include ‘obtaining information under the Freedom of Information Act,’” requested the federal mug shot of Luis Giro.49 Giro, the former president of a south Florida investment group, pleaded guilty to securities fraud in 2009.50 The USMS denied the request, citing exemption 7(C), and Karantsalis eventually filed suit.51

Observing that the Eleventh Circuit had previously held that “‘mug shots carry a clear implication of criminal activity,’” the Karantsalis court found that Giro’s privacy interests, despite his being adjudicated guilty in open court, were implicated by the disclosure of his mug shot.52 “The Court agrees with the Marshals Service that a booking photograph is a unique and powerful type of photograph that raises personal privacy interests distinct from normal photographs.”53 It is a “vivid symbol” often “equated with” guilt that “captures the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties.”54

Having found a privacy interest existed, the court stated it could not “identify any particular public interest that would be served by releasing the booking photographs of Giro.”55 It found unpersuasive arguments that the subject’s facial expressions in the record would be an indication of whether he was receiving preferential treatment. In fact, the court found that “common sense” would dictate otherwise and that the subject would likely be at greater risk of losing such preferential status by smiling or smirking in his mug shot. The court further rejected Karantsalis’s argument that general public curiosity in Giro’s mug shot facial expressions would help contribute to the public’s understanding of government operations. On balance, therefore, the court found that the USMS could properly withhold the mug shot under FOIA exemption 7(C).56

Karantsalis petitioned the U.S. Supreme Court to review the case, but the Court denied his request in early 2012.57 Perhaps foretelling the fight the USMS intended to instigate in the Sixth Circuit (discussed infra) over its dissatisfaction with the DFP I ruling, in opposing Karantsalis’s petition, the government stated in a footnote: “In light of the recently developed division of authority and the associated potential for rehearing en banc in the Sixth Circuit, the [USMS] will be able to reconsider its prior practice of granting mug-shot FOIA requests in the Sixth Circuit to facilitate further review by that court.”58

World Publishing Co. v. DOJ

Less than a year later, in World Publishing Co. v. U.S. Department of Justice, the U.S. Court of Appeals for the Tenth Circuit followed the Eleventh Circuit and held that the USMS could properly withhold federal mug shots from the public under exemption 7(C).59 In this case, the Tulsa World had requested the mug shots of six pretrial detainees. The court cited numerous reasons and precedent to support its conclusion that a privacy interest existed, including that: (1) individuals can still maintain a privacy interest in previously disclosed information, be it in open court or through individual police records; (2) mug shots are uniquely powerful images that document a brush with the law for posterity; and (3) USMS policy restricted access to such records, and mug shots were only voluntarily released by the USMS when attempting to capture a fugitive.60

The Tulsa World asserted several public interest arguments in support of disclosure. The court rejected all of them. As to the arguments that disclosure would help determine whether the government had detained the correct person, allow witnesses to come forward and assist in other arrests and crime solving, and help capture fugitives, the court replied that all such purposes relate to the public’s ability to assist law enforcement, not its ability to oversee government activity.61 Regarding whether disclosure would enable the public to detect favorable, abusive, or disparate treatment; profiling; the competence of the detained to stand trial; and the ability to compare one’s appearance at booking versus at trial, the court responded that none of these purposes would be significantly advanced through disclosure.62 The final asserted justification—that disclosure would indicate whether the accused took the charges seriously—would, according to the court, tell the public nothing about the government’s actions.63

The Marshals Ignore Detroit Free Press

Emboldened by the recent 2–1 federal circuit split in its favor, the USMS issued a revised mug shot disclosure policy on December 12, 2012, that essentially said it would ignore Sixth Circuit law:

In light of the weight of legal precedent now supporting the Department of Justice’s conclusion that booking photographs generally should not be disclosed under the FOIA, the Department has decided that a uniform policy should be applied. Accordingly, effective immediately, the USMS will not disclose booking photographs under the FOIA, regardless of where the FOIA request originated, unless USMS [Office of General Counsel] determines either that the requester has made the requisite showing that the public interest in the requested booking photograph outweighs the privacy interest at stake or that other factors specific to the particular FOIA request warrant processing that request consistent with existing Sixth Circuit precedent.64

It was not long before the media began receiving denials for FOIA mug shot requests emanating from the Sixth Circuit. For example, in a January 2013 letter to Attorney General Eric Holder protesting the policy, the Reporters Committee for Freedom of the Press (RCFP) documented two instances where the USMS denied FOIA mug shot requests originating from the Sixth Circuit after the new policy was instituted.65 The first was made by a CNN freelancer who requested the mug shots of two Pakistani-born U.S. citizens accused of plotting terrorist attacks in New York City. The second denied request was for a mug shot of an Atlanta businessman accused of bribing Detroit city officials, including ex-mayor Kwame Kilpatrick.

Detroit Free Press Redux

In January 2013, the Detroit Free Press made a FOIA request for the mug shots of four City of Highland Park police officers whose records qualified for release under the standard announced in DFP I. Pursuant to its policy, the USMS nevertheless denied the request on privacy grounds. In July, the newspaper filed suit against the Department of Justice (DOJ) seeking access to the records.66 Cross-motions for summary judgment were filed in late 2013 and, as discussed in greater detail below, the court issued its related opinion on April 21, 2014.67 While the court found that it was bound to uphold and apply the ruling in DFP I, the court stayed its order requiring production of the records pending the government’s anticipated appeal to the Sixth Circuit.

In its summary judgment papers, the Detroit Free Press argued, among other things, that the USMS is in direct defiance of circuit precedent and has no independent authority to disregard the disclosure mandates of DFP I.68 The government conceded that the district court is bound by DFP I and expected the court to rule against it.69 However, the government viewed the anticipated adverse ruling as a means to once again return to the Sixth Circuit and argue why DFP I should be abandoned.70 Moreover, it raised arguments driving much, if not all, of the current controversy surrounding access to mug shots at the state and local level, that is, the enhanced purported privacy invasion posed by Internet distribution requires a recalibration of the privacy/access balance.71

The court’s April 21, 2014 opinion recognized that “Free Press I, a published panel decision, remains controlling precedent” until such time as modified by the United States Supreme Court or the Sixth Circuit Court of Appeals sitting en banc.72 The court further stressed that because it based its ruling on stare decisis, it was not addressing the merits of whether DFP I was correctly decided.73 The court did note, however, that the current circuit conflict on the issue of access to mug shots coupled with “FOIA’s liberal venue provision” allowing access from within the Sixth Circuit’s jurisdiction presents a strong case for the government to be allowed to move forward and seek to have the matter re-heard by the Sixth Circuit.74 In so noting, the court also recognized that “technological changes brought about by the rise of the Internet” may also provide grounds for granting rehearing en banc at the appellate level.75

The court went on to, among other things, grant the government a stay pending its expected appeal.76 It further ordered that the Detroit Free Press would be entitled to attorney’s fees should an appeal not be taken or if it were to succeed at the next stage.77 In finding that the imposition of fees would ultimately be proper under such circumstances, the court was, however, quite hostile to the argument that there was any significant public benefit to the disclosure of federal mug shots.78 The court found that disclosure would not shine light on federal criminal justice administration nor likely encourage the public to come forward with evidence any more than the release of an ordinary photograph of the arrestee.79

Much like in state legislatures, federal appellate courts appear to be more sympathetic to the purported privacy rights inherent in mug shots than to the public interest in keeping them open to the public. But the battle here is not over controlling the uses of mug shots. Rather, the federal government’s preference is to shut down any access under FOIA in the first instance. The USMS certainly has been opposed to disclosure under FOIA long before the advent of mug shot websites and, at least on the face of their issued opinions, the Karantsalis and World Publishing courts did not appear to be influenced by any additional privacy argument based on Internet distribution. The words “Internet” and “website” do not appear at all in the opinions.

While many argue that potential distribution over the Internet only heightens such concerns and lends further credence to the “practical obscurity” rationale made (in)famous in the U.S. Supreme Court’s decision in U.S. Department of Justice v. Reporters Committee for Freedom of the Press, it is interesting to query if in the long run Internet publication will have just the opposite effect.80 As we continue to move toward Internet and web-based publishing as the primary search and distribution platform for ever more information, the notion of practical obscurity in public information may seem but a quaint relic of the paper world.

Indeed, the U.S. Court of Appeals for the District of Columbia appeared to recognize the possible beginnings of such a philosophical shift in its 2011 decision in ACLU v. Department of Justice.81 In that decision, the court stated that “computerized government services like PACER make it possible to access court filings concerning any federal defendant from the comfort of one’s home or office, quite unlike the ‘diligent search of courthouse files, county archives, and local police stations throughout the country’ that a citizen would have to undertake to replicate the contents of a rap sheet.”82

Conclusion

At both the state and federal level, access to mug shots is becoming increasingly difficult. While states thus far appear more interested in targeting websites that charge a fee to take down mug shots, the federal government has taken the position that such records are per se exempt under the privacy exemptions to FOIA. Both approaches ignore the public function that access to mug shots serves in crime reporting. Lawmakers should be hesitant to follow the recent wave of legislation seeking to restrict how mug shots are used by the public, as such laws inevitably infringe on the ability of the media to fully report the news. At the federal level, legislation specifically declaring mug shots to be public may be necessary if the Sixth Circuit were to hear the government’s anticipated appeal and hold DFP I incompatible with the Internet era. Even if that were not the case, the current circuit split could well land the matter before the U.S. Supreme Court.

Endnotes

1. See David Segal, Mugged by a Mug Shot, N.Y. Times, Oct. 6, 2013, at BU1; Adam Geller, Don’t Want Mug Shot Online? Then Pay Up, Sites Say, Associated Press (June 22, 2013), http://bigstory.ap.org/article/dont-want-mug-shot-online-then-pay-sites-say; Steve Osunsami, Mug Shot Websites: Profiting Off People in Booking Photos?, ABC News (Mar. 7, 2013), http://abcnews.go.com/Technology/mug-shot-websites-profiting-off-people-booking-photos/story?id=18669703.

2. See, e.g., Jim Dalrymple, Salt Lake Sheriff to Stop Posting Mug Shots Online, Salt Lake Trib., Jan. 10, 2013, http://www.sltrib.com/sltri/news/55600434-78/online-photos-lake-salt.html.csp; Stephen Thompson, Pinellas Sheriff Limiting Access to Mugshots Online, Tampa Trib., Jan. 9, 2014, http://tbo.com/pinellas-county/pinellas-sheriff-targeting-websites-limits-access-to-mug-shots-20140109/; Patrick Orr, Idaho Sheriff Says He May Stop Posting Mug Shots, Associated Press (Feb. 27, 2012), http://www.idahopress.com/news/state/idaho-sheriff-says-he-may-stop-posting-mug-shots/article_11a558d4-3d08-58c9-9313-5fd90d88949e.html.

3. See Mug Shots and Booking Photo Websites, Nat’l Conf. St. Legislatures (Apr. 21, 2014), http://www.ncsl.org/research/telecommunications-and-information-technology/mug-shots-and-booking-photo-websites.aspx. States where such measures have been proposed in the 2014 legislative session include Alabama, California, Colorado, Florida, Georgia, Kentucky, Minnesota, Missouri, New Jersey, New York, South Carolina, Virginia, and Wyoming. In 2013, bills were introduced in the District of Columbia, Florida, Georgia, Illinois, New Jersey, Oregon, South Carolina, Texas, and Utah.

4. See H.R. 150, 152d Gen. Assemb., Reg. Sess. (Ga. 2013); S. 115, 98th Gen. Assemb., Reg. Sess. (Ill. 2013); H.R. 3467, 77th Legis. Assemb., Reg. Sess. (Or. 2013); S. 1289, 83d Leg., Reg. Sess. (Tex. 2013); H.R. 408, 60th Leg., Gen. Sess. (Utah 2013).

5. See H.R. 1047, 69th Gen. Assemb., Reg. Sess. (Colo. 2014); S. 53, 62d Leg., Budget Sess. (Wyo. 2014).

6. H.R. 3467, 77th Legis. Assemb., Reg. Sess. (Or. 2013); S. 53, 62d Leg., Budget Sess. (Wyo. 2014).

7. H.R. 3467, 77th Legis. Assemb., Reg. Sess. (Or. 2013); S. 53, 62d Leg., Budget Sess. (Wyo. 2014).

8. H.R. 150, 152d Gen. Assemb., Reg. Sess. § 1 (Ga. 2013).

9. Id. § 2.

10. Id.

11. A bill was introduced in the 2014 Georgia legislative session to generally forbid law enforcement agencies from posting mug shots on the Internet and to prohibit any public disclosure of a mug shot if the requester intends to publish the mug shot in print or on a website and also intends to charge a fee or “other consideration” for its removal. H.B. 845, 152d Gen. Assemb., Reg. Sess. (Ga. 2014). Requesters would be required to affirm their use will be in compliance with the above restrictions. Those who knowingly make false statements to obtain mug shots would be subject to a fine of up to $1,000 and up to five years in prison. The bill passed both state houses and on March 26 was forwarded to the governor.

12. H.R. 408, 60th Leg., Gen. Sess. (Utah 2013).

13. H.R. 1047, 69th Gen. Assemb., Reg. Sess. § 1 (Colo. 2014).

14. S. 1289, 83d Leg., Reg. Sess. § 1 (Tex. 2013).

15. Id.

16. S. 115, 98th Gen. Assemb., Reg. Sess. § 15 (Ill. 2013).

17. Id.

18. See Fla. Stat. § 406.135.

19. See Mug Shots and Booking Photo Websites, supra note 3. Jurisdictions where pro-access mug shot legislation has been introduced include the District of Columbia, New Jersey, and South Dakota.

20. Council 20-0073, 20th Council (D.C. 2013).

21. Mike Debonis, Mary Cheh Is Featured on Mugshots.com, Wash. Post, Jan. 25, 2013, http://www.washingtonpost.com/blogs/mike-debonis/wp/2013/01/25/mary-cheh-is-featured-on-mugshots-com/.

22. See Amended Complaint, Lashaway v. D’Antonio III, No. 3:13-cv-01733 (N.D. Ohio Aug. 9, 2013), ECF No. 4.

23. Notice of Dismissal, Lashaway, No. 3:13-cv-01733 (N.D. Ohio Aug. 9, 2013), ECF No. 28.

24. See John Seewer, Ohio Deal: Websites Won’t Bill to Remove Mug Shots, Associated Press (Jan. 8, 2014), http://bigstory.ap.org/article/ohio-deal-websites-wont-bill-remove-mug-shots.

25. Id.

26. See Bilotta v. Citizens Info. Assocs., LLC, No. 8:13-cv-2811 (M.D. Fla. Nov. 1, 2013); Wakefield v. Citizens Info. Assocs., LLC, No. 1:13-cv-23754 (S.D. Fla. Oct. 16, 2013); Intihar v. Citizens Info. Assocs., LLC, No. 2:13-cv-720 (M.D. Fla. Oct. 11, 2013); Dolemba v. Citizens Info. Assocs., LLC, No. 1:13-cv-06939 (N.D. Ill. Sept. 26, 2013).

27. Opinion and Order, Intihar, No. 2:13-cv-720 (M.D. Fla. Mar. 4, 2014), ECF No. 31.

28. Id., slip op. at 7.

29. Id., slip op. at 9.

30. See Jamali v. Maricopa Cnty., No. CV-13-00613 (D. Ariz. Mar. 26, 2013).

31. See Mugshots, Maricopa County Sheriff’s Off., http://www.mcso.org/Mugshot/Default.aspx (last visited Apr. 28, 2014).

32. Order, Jamali, No. CV-13-00613, slip op. at 2 (D. Ariz. Oct. 18, 2013), ECF No. 130.

33. Id., slip op. at 3.

34. Id., slip op. at 4–5.

35. See 5 U.S.C. § 552(b)(6), (7)(C) (2013).

36. Id. § 552(b)(6).

37. Id. § 552(b)(7)(C). Given its broader language, exemption 7(C) has been recognized by courts as providing a wider breadth of privacy protection to law enforcement records covered under the exemption as opposed to the protections afforded non-law enforcement records covered by Exemption 6.

38. 73 F.3d 93 (6th Cir. 1996).

39. Id. at 95.

40. Id. at 97.

41. Id. The dissent found the exact opposite, noting that the majority “misconceives the true nature of a mug shot” as “it relates a number of facts about a person, including his expression at a humiliating moment and the fact that he has been booked on criminal charges.” Id. at 99 (Norris, J., dissenting). The dissent also argued that mug shots do indeed “convey an ‘unmistakable badge of criminality.’” Id.

42. Id. at 97 (majority opinion).

43. Id.

44. Id.

45. Id. at 98. The court cited the example of how a mug shot of Rodney King would have served this latter function had there been no videotape documenting his treatment by Los Angeles police officers. The court also noted that “additional examples” of such a public oversight function “could be detailed,” but it did not devote additional time articulating such examples. Id. The dissent took issue with the majority’s conclusion here as well, noting that there was no evidence to suggest USMS misconduct in this case, and any such “speculative” justifications were “not entitled to weight in the FOIA privacy exemption balancing.” Id. at 99–100 (Norris, J., dissenting).

46. Id. at 97 (majority opinion).

47. A comprehensive description of how the USMS applied DFP I when processing FOIA requests for mug shots can be found in a declaration filed by the USMS in connection with the media’s struggle to obtain the federal mug shot of Jared Loughner. See Declaration of William E. Bordley, United States v. Loughner, No. 4:11-cr-00187-LAB (D. Ariz. Feb. 14, 2011).

48. 635 F.3d 497 (11th Cir. 2011), cert. denied, 132 S. Ct. 1141 (2012).

49. Id. at 499. The court borrowed this description from Karantsalis’s LinkedIn user profile.

50. Id. Giro pleaded guilty to the one count of fraud in June 2009. He was indicted on the charge in 2003 and was a fugitive for six years before being apprehended by Venezuelan authorities in 2009. Press Release, FBI, Former Fugitive Investment Manager Luis Giro Pleads Guilty to Securities Fraud (June 23, 2009), http://www.fbi.gov/miami/press-releases/2009/mm062309b.htm.

51. Karantsalis, 635 F.3d at 499.

52. Id. at 503 (quoting United States v. Hines, 955 F.2d 1449, 1455 (11th Cir. 1992)).

53. Id.

54. Id.

55. Id. at 504.

56. Id.

57. See Karantsalis v. Dep’t of Justice, 132 S. Ct. 1141 (2012).

58. Brief for the Respondents in Opposition at 14 n.5, Karantsalis, 132 S. Ct. 1141 (No. 11-342).

59. 672 F.3d 825 (10th Cir. 2012).

60. Id. at 827–29.

61. Id. at 831.

62. Id. The court appeared particularly skeptical of the racial and ethnic profiling argument absent specific evidence that some form of profiling had occurred. In a footnote, the court noted that while it was ruling on the matter in a categorical manner, it was conceivable that there could be factual, case-by-case situations where “compelling evidence” required balancing the competing interests at stake. Id. at 831 n.1.

63. Id. at 831.

64. See Memorandum from Gerald M. Auerbach, Gen. Counsel, U.S. Marshals Serv., to All United States Marshals et al., Booking Photograph Disclosure Policy 2–3 (Dec. 12, 2012), http://www.usmarshals.gov/foia/policy/booking_photos.pdf. This is not the USMS’s first attempt to defy DFP I. In 2005, the Detroit Free Press sued the Department of Justice after it took the position that the U.S. Supreme Court’s decision in Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004), rendered DFP I “no longer authoritative even within the Sixth Circuit.” Detroit Free Press, Inc. v. U.S. Dep’t of Justice, No. 05-71601 (E.D. Mich. Apr. 25, 2005); see United States Department of Justice Guide to the Freedom of Information Act: Exemption 7(C) (2013), available at http://www.justice.gov/oip/foia-guide13/exemption7c.pdf. The misguided effort to apply Favish’s relational privacy rationale to mug shots was short-lived, as the government abandoned the position soon after the lawsuit was filed.

65. Letter from Bruce D. Brown, Exec. Dir., Reporters Comm. for Freedom of the Press, to Eric H. Holder Jr., Attorney Gen., U.S. Dep’t of Justice (Jan. 30, 2013), http://www.rcfp.org/sites/default/files/2013-01-30-letter-to-attorney-general-holder.pdf. Despite its stated intent to do so, the Department of Justice has yet to provide the RCFP with a substantive response to its letter.

66. Detroit Free Press, Inc. v. U.S. Dep’t of Justice, No. 13-12939 (E.D. Mich. July 6, 2013).

67. See Opinion and Order, Detroit Free Press v. Dep’t of Justice, No. 13-12939 (E.D. Mich. filed July 6, 2013), ECF No. 24.

68. See Memorandum of Detroit Free Press in Support of its Motion for Summary Judgment at 15-20, Detroit Free Press v. Dep’t of Justice, No. 13-12939 (E.D. Mich. filed July 6, 2013), ECF No. 14.

69. See Defendant’s Memorandum in Support of its Cross-Motion for Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment at 2, Detroit Free Press v. Dep’t of Justice, No. 13-12939 (E.D. Mich. filed July 6, 2013), ECF No. 18.

70. See id.

71. See id. at 8-12.

72. See Opinion and Order, Detroit Free Press v. Dep’t of Justice, No. 13-12939 (E.D. Mich. filed July 6, 2013), ECF No. 24 at 16.

73. See id. at 17.

74. Id. at 18-19.

75. Id. at 20, n. 10.

76. See id. at 29.

77. See id. at 33.

78. See id. at 31. The court analyzed the factors considered in determining whether to award attorney’s fees in FOIA cases including the public benefit in the disclosure, the commercial benefit to the requester and the nature of its interest in the records, and whether the government had a reasonable basis to withhold the records. See id. at 30.

79. See id. at 31.

80. See 489 U.S. 749, 762–67 (1989). “Practical obscurity” refers to the idea that public, government documents not compiled in a centralized database have a de facto level of privacy by virtue of the fact that it often takes exceptional effort and expense to independently recreate a centralized record. As the Court noted, “Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information. Id. at 764.

81. 655 F.3d 1 (D.C. Cir. 2011).

82. Id. at 10 (quoting Reporters Comm., 489 U.S. at 764).

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