Mugshots

Today's NY Times features an article on commercial mugshot site, of interest in relation to the 'right to be forgotten', consumer protection law, privacy and personality rights.

the mug shot from [name's arrest for an offence resulting in a spent conviction] is posted on a handful of for-profit Web sites, with names like Mugshots, BustedMugshots and JustMugshots. These companies routinely show up high in Google searches; a week ago, the top four results for “[name]” were mug-shot sites.

The ostensible point of these sites is to give the public a quick way to glean the unsavory history of a neighbor, a potential date or anyone else. That sounds civic-minded, until you consider one way most of these sites make money: by charging a fee to remove the image. That fee can be anywhere from $30 to $400, or even higher. Pay up, in other words, and the picture is deleted, at least from the site that was paid.

To Mr. [name], and millions of other Americans now captured on one or more of these sites, this sounds like extortion. Mug shots are merely artifacts of an arrest, not proof of a conviction, and many people whose images are now on display were never found guilty, or the charges against them were dropped. ...

It was only a matter of time before the Internet started to monetize humiliation. In this case, the time was early 2011, when mug-shot Web sites started popping up to turn the most embarrassing photograph of anyone’s life into cash. The sites are perfectly legal, and they get financial oxygen the same way as other online businesses — through credit card companies and PayPal. Some states, though, are looking for ways to curb them. The governor of Oregon signed a bill this summer that gives such sites 30 days to take down the image, free of charge, of anyone who can prove that he or she was exonerated or whose record has been expunged. Georgia passed a similar law in May. Utah prohibits county sheriffs from giving out booking photographs to a site that will charge to delete them.

But as legislators draft laws, they are finding plenty of resistance, much of it from journalists who assert that public records should be just that: public. The Reporters Committee for Freedom of the Press argues that any restriction on booking photographs raises First Amendment issues and impinges on editors’ right to determine what is newsworthy. That right was recently exercised by newspapers and Web sites around the world when the public got its first look at Aaron Alexis, the Navy Yard gunman, through a booking photograph from a 2010 arrest.

“What we have is a situation where people are doing controversial things with public records,” says Mark Caramanica, a director at the committee, a nonprofit organization based in Arlington, Va. “But should we shut down the entire database because there are presumably bad actors out there?”

Mug shots have been online for years, but they appear to have become the basis for businesses in 2010, thanks to Craig Robert Wiggen, who served three years in federal prison for a scheme to lift credit card numbers from diners at a Tex-Mex restaurant in Tallahassee, Fla. He was looking for another line of work, according to news articles, and started Florida.arrests.org.

The idea soon spread, and today there are more than 80 mug-shot sites. They Hoover up most of their images from sheriffs’ Web sites, where rules and policies about whose mug shot is posted and for how long can vary, from state to state and from county to county.

.... Justmugshots is one of several sites named in a class-action lawsuit filed last year by Scott A. Ciolek, a lawyer in Toledo, Ohio. Mr. Ciolek argues that the sites violate Ohio’s right-of-publicity statute, which gives state residents some control over the commercial use of their name and likeness. He also says the sites violate the state’s extortion law.

“You can’t threaten to embarrass someone unless they pay you money,” he said, “even if they did exactly what you are threatening to embarrass them about.”

Lance C. Winchester, a lawyer in Austin who represents BustedMugshots and MugshotsOnline, both named in the lawsuit, says Mr. Ciolek’s lawsuit is a stinker because the United States Supreme Court has ruled time and again that mug shots are public records.

“I understand people think there is a dilemma presented by a Web site where you can pay to have a mug shot removed,” he said. “I understand that people don’t like to have their mug shots posted online. But it can’t be extortion as a matter of law because republishing something that has already been published is not extortion.”

The Times comments that

The trick is balancing the desire to guard individual reputations with the news media’s right to publish. Journalists put booking photographs in the same category as records of house sales, school safety records and restaurant health inspections — public information that they would like complete latitude to publish, even if the motives of some publishers appear loathsome.

The Reporters Committee for Freedom of the Press favors unfettered access to the images, no matter how obscure the arrestee and no matter the ultimate disposition of the case. Even laws that force sites to delete images of the exonerated, the committee maintains, are a step in the wrong direction.

“It’s an effort to deny history,” says Mr. Caramanica, the committee director. “I think it’s better if journalists and the public, not the government, are the arbiters of what the public gets to see.”

People eager to vanish from mug-shot sites can try a mug-shot removal service, a mini-industry that has sprung up in the last two years and is nearly as opaque as the one it is intended to counter. “I’m not going to go into what we do,” said Tyronne Jacques, founder of RemoveSlander.com (Motto: “Bailout of the Internet for good!”). “Whatever works.”

Removal services aren’t cheap — RemoveMyMug.com charges $899 for its “multiple mug shot package” — and owners of large reputation-management companies, which work with people trying to burnish their online image, contend that they are a waste of money.

“Their business model is to find someone willing to pay to take down their image, which marks them as a target who is willing to pay more,” says Mike Zammuto, president of the reputation company Brand.com.

... AS painful as they are for arrestees, mug shots seem to attract big online crowds. Google’s results are supposed to reflect both relevance and popularity, and mug-shot sites appear to rank exceptionally well without resorting to trickery, according to Doug Pierce, founder of Cogney, a search engine optimization company based in Hong Kong. At the request of The New York Times, Mr. Pierce studied a number of the largest mug-shot sites and found that they were beloved by Google’s algorithm in part because viewers who open them tend to stick around.

“When others search your name, that link to Mugshots.com is way more attention-grabbing than your LinkedIn profile,” Mr. Pierce said. “Once they click, they stare in disbelief, and look around a bit, which means they stay on the page, rather than returning immediately to the search results. Google takes that as a sign that the site is relevant, and that boosts it even more.”

What’s curious is that Google doesn’t penalize these sites for obtaining their images and text from other places, a sin in the company’s guidelines. The idea is that Web sites should be rewarded for coming up with original material and receive demerits for copying.

If it acted, Google could do what no legislator could — demote mug-shot sites and thus reduce, if not eliminate, their power to stigmatize.

Initially, a Google spokesman named Jason Friedenfelds fielded questions on this topic with a statement that amounted to an empathetic shrug. He wrote that the company felt for those affected by mug-shot sites but added that “with very narrow exceptions, we take down as little as possible from search.”

Two days later, he wrote with an update: “Our team has been working for the past few months on an improvement to our algorithms to address this overall issue in a consistent way. We hope to have it out in the coming weeks.”

Mr. Friedenfelds said that when he sent the first statement, he was unaware of this effort. He added that the sites do, in fact, run afoul of a Google guideline, though he declined to say which one. Nor would he detail the algorithmic changes the company was considering — because doing so, he explained, could spur mug-shot sites to start devising countermeasures.

As it happens, Google’s team worked faster than Mr. Friedenfelds expected, introducing that algorithm change sometime on Thursday. The effects were immediate: on Friday, two mug shots ... which had appeared prominently in an image search, were no longer on the first page. For owners of these sites, this is very bad news.

And, it turns out, these owners face another looming problem: getting paid.

Asked two weeks ago about its policies on mug-shot sites, officials at MasterCard spent a few days examining the issue, and came back with an answer.

“We looked at the activity and found it repugnant,” said Noel Hanft, general counsel with the company. MasterCard executives contacted the merchant bank that handles all of its largest mug-shot site accounts and urged it to drop them as customers. “They are in the process of terminating them,” Mr. Hanft said.

PayPal came back with a similar response after being contacted for this article.

“When mug-shot removal services were brought to our attention and we made a careful review,” said John Pluhowski, a spokesman for PayPal, “we decided to discontinue support for mug-shot removal payments.”

American Express and Discover were contacted on Monday and, two days later, both companies said they were severing relationships with mug-shot sites. A representative of Visa wrote to say it was asking merchant banks to investigate business practices of the sites “to ensure they are both legal and in compliance with Visa operating regulations.”