Kentucky Fights Back Against Mugshot Extortionists

Introduction

Few can deny that the advent of the internet has created a variety of privacy issues. Personal data and metadata are uploaded to the internet with every interaction, and it is difficult to retrieve that information afterward.[1] One area of the law that seems largely ignored is the posting of criminal mugshots on the internet and their availability to do harm to individuals regarding employment and reputation. Although there are valid arguments for warning the public about criminal offenders, those arguments weaken after the court has expunged the offender’s record, or the individual was never convicted.[2]

Regarding expungement, state legislatures determine which offenses are eligible for expungement and have certain requirements before the offender can have their record deleted.[3] After an offender’s record is expunged, his previous record will not be reported on a background check, and he can legally report on most job applications that he has not been convicted of a crime.[4] Even though his record will not be on his background check, the offender’s booking photograph may still be available on the internet which has led to privacy concerns.[5] Despite the impact on individual’s reputation and financial prospects, some websites have created a business extorting ex-offenders through use of his or her booking photograph. As a result, some states have passed mugshot extortion laws.

Privacy Concerns

The Sixth Circuit case Detroit Free Press, Inc. v. United States Department of Justice describes the growing privacy concerns of booking photos.[6] Detroit Free Press discussed the Freedom of Information Act,[7] and whether “[i]ndividuals enjoy a non-trivial privacy interest in their booking photos.”[8] The court described how information uploaded to the internet is more damaging than before the majority of Americans had access to the internet.[9] It stated, “[i]n 1996, . . . booking photos appeared on television or in the newspaper and then, for all practical purposes, disappeared. Today, an idle internet search reveals the same booking photo that once would have required a trip to the local library's microfiche collection.”[10] The court then noted how mugshot websites post booking photos from arrests that occurred decades ago.[11] The individuals whose photos appear on these sites are so “[d]esperate to scrub evidence of past arrests from their online footprint, [they] pay such sites to remove their pictures.”[12] Based on that reasoning, the court determined that an individual has a non-trivial privacy interest in his or her booking photograph.[13]

Despite privacy concerns and the impact on individuals, some websites have created a business of posting offender’s mugshots and charging a fee for their removal.[14] One notable website is called mugshots.com. Offenders who had their record expunged, or were never convicted, contacted mugshots.com and requested the website delete the offender’s mugshot.[15] However, mugshots.com’s employees charged the offenders a fee and allegedly threatened the ex-offenders.[16] As a response, some of the offenders filed a class action lawsuit against mugshots.com for alleged extortion.[17] California’s Attorney General described mugshot.com’s business as, “exploitation, plain and simple [because] [t]hose who can't afford to pay into this scheme to have their information removed pay the price when they look for a job, housing, or try to build relationships with others.”[18] Based on these policy concerns, states have begun passing new laws regarding mugshot extortion.[19]

Mugshot Extortion Laws

As a result of websites like mugshots.com charging a fee to remove an offender’s mugshot, at least 18 states have created “mugshot extortion laws,”[20] including Kentucky[21]. Kentucky’s statute states that a person cannot use a mugshot for a commercial purpose if, “[t]he photograph will be placed in a publication or posted on a Web site,” and “[r]emoval of the photograph from the publication or Web site requires the payment of a fee or other consideration.”[22] If an individual whose mugshot was posted on a commercial website in violation of the Kentucky statute, the individual has a “right of action in Circuit Court by injunction or other appropriate order and may also recover costs and reasonable attorney’s fees.”[23] In addition, if it is determined that a website has violated the statute, the website may be liable for each day the booking photo remains on the website.[24] These damages may include:

(a) One hundred ($100) dollars a day for the first thirty (30) days;

(b) Two hundred and fifty ($250) dollars a day for the subsequent thirty (30) days; and

(c) Five hundred ($500) dollars a day for each day thereafter.

If a violation is continued for more than one (1) day, each day upon which the violation occurs or is continued shall be considered and constitute a separate violation.[25]

Conclusion

Certain websites have tainted the public-safety purpose of publishing booking photos by extorting ex-offenders. Additionally, these websites have caused financial and emotional ramifications. However, various states across the country, are beginning to implement laws against those websites that extort ex-offenders. As evidenced by the statute, Kentucky is one of the states that responded to a growing concern in our modern technology-driven age. Perhaps these new statutes will deter websites in the future from using public booking photos for extortion purposes.

FOOTNOTES

[1] This blog does not discuss freedom of speech which should be protected. The only purpose of this article is to discuss the extortion of others based on booking photographs.

[2] Expunge means “[t]o remove from a record, list, or book; to destroy.” Expunge, Black’s Law Dictionary (10th ed. 2014). On the other hand, sealing a record means, “[t]he act or practice of officially preventing access to particular . . . records.” Sealing of records, Black’s Law Dictionary (10th ed. 2014).

[3] See, e.g., Ky. Rev. State. Ann. § 431.079 (LexisNexis 2019).

[4] Clean Slate Kentucky, Department of Public Advocacy, Expungement Guidebook 1 (2019), https://dpa.ky.gov/clientandcommunityresources/expungement/Documents/Expungement%20guidebook%209.24.19.pdf.

[5] Detroit Free Press, Inc. v. U.S. Dep’t of Just., 829 F.3d 478, 482 (6th Cir. 2016) (“A disclosed booking photo casts a long, damaging shadow over the depicted individual.”).

[6] Id. at 480.

[7] Id.

[8] Id.

[9] Id. at 482.

[10] Id.

[11] Id.

[12] Id. at 483.

[13] Id.

[14] Olivia Solon, Haunted by a Mugshot: How Predatory Websites Exploit the Shame of Arrest, THE GUARDIAN, (June 12, 2018), https://www.theguardian.com/technology/2018/jun/12/mugshot-exploitation-websites-arrests-shame.

[15] Id.

[16] Chad Marks, Mugshots.com Operators Arrested, Face Extradition to California, PRISON LEGAL NEWS, (April 2019), https://www.prisonlegalnews.org/news/2019/apr/2/mugshotscom-operators-arrested-face-extradition-california/.

[17] Becky Yerak, Lawsuit: Mug shot website posts incomplete records so sister site can solicit ‘takedown’ fees, CHICAGO TRIBUNE, (Mar. 13, 2017), https://www.chicagotribune.com/business/ct-mug-shot-websites-0312-biz-20170310-story.html.

[18] Fox 6 Milwaukee, 2 Mugshots.com owners charged with extortion, FOX NEWS, (May 18, 2018), https://www.fox6now.com/news/2-mugshots-com-owners-charged-with-extortion.

[19] Rebecca Beitsch, Fight Against Mugshot Sites Brings Little Success, The Pew Charitable Trusts,  (December 11, 2017), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/12/11/fight-against-mugshot-sites-brings-little-success; See also Stephanie Francis Ward, States considering bans and fines for mug shot 'extortion' websites, ABA Journal, (April 29, 2014), https://www.abajournal.com/news/article/states_considering_bans_and_fines_for_mugshot_websites.

[20] Id.

[21] Ky. Rev. Stat. Ann. § 61.8746 (LexisNexis 2019).

[22] Id.

[23] Id.

[24] Id.

[25] Id.