This post was written more than four years ago. The world changes fast, and the information, conclusions, or attributions may or may not still be accurate. Check the sources and links, and email me if you have any questions.

Galleries of mugshots have popped-up everywhere over the past several years. Here’s how they work: the person running the site uses state freedom of information laws to request names, charges, and mugshot images of everyone they’ve arrested – and then they post it online, heavily-optimized for search engines.

If you’ve ever been arrested, there’s a very good chance anyone searching your name on Google will find a photo of you in perhaps your most embarrassing moment. And these website operators know it. It’s their business model. If you want them to take your photo down, you’ll have to pay anywhere from $10 to $500, depending on the site. Worse yet, multiple websites might have it posted there too – possibly run by the same people, using the same data.

There’s little you can do to take it offline, absent paying the fee. It’s open and public data, generally with no copyright, and these sites are often run anonymously, or concealed as a limited liability company. Even if you’re never actually charged with a crime, are later found not-guilty, or are otherwise exonerated or dismissed on the charges, your mugshot won’t go away.

This will be just one of many struggles we face with evolution in technology, government, and the complexities of context.

“Sunlight is said to be the best of disinfectants,” wrote Supreme Court Justice Louis Brandeis in a 1913 journal article, then speaking to the benefits of government transparency. But 100 years ago we didn’t have things like the Internet, social media, and search engines, so now we must take on a challenging task of balancing the preservation of privacy versus the risks of losing transparency.

While mugshot websites are the most notable legal exposés of personal information, there’s plenty of other sites violating individual privacy. In most states, property tax records, certain government licenses, and voter registration information is all legally public, and “people finder” sites and large data clearinghouses also use open data in government to source their information.

Over time, large corporations or violent stalkers can amass a frightening amount of information on their targets.

It’s difficult to determine whether one should be more angry at the mugshot websites, or the laws that made them public in all contexts and situations.

Some mugshot sites let you rank the ‘hotness’ of mugshots, leave comments, or attach tags like ‘meth.’  The Maricopa County Sheriff’s Office posts all of their jail booking photos and encourages website views to vote mugshots as “Mugshot of the Day,” generally the subjectively craziest-looking arrestee. While I think it’s disgusting to encourage ranking and commenting on someone else’s misfortunes, it’s profoundly disturbing when the arresting agency themselves encourages it on an official government website.

These websites are simply catalogued archives of people’s mistakes and transgressions. It violates the auspices of “innocent until proven guilty,” because you’re never proven guilty on your first jail booking. And it really, seriously hurts people — an addict trying to clean up and get a job will never be taken seriously when their prospective employer finds them on a dozen mugshot sites in a crazed stupor five years ago.

“As a journalist, I am deeply disturbed by [mugshot websites] because they are using public records against people. And really it’s a matter of time before legislatures figure out that their constituents are being held up by these sites,” said Matt Waite, a journalism professor and former Tampa Bay Times writer, in a Poynter article about mugshot websites. He continues, “I don’t think that’s in the spirit of the public records law, I think it’s actively harmful to the idea of open records and open government, and I’m afraid of what the consequences are going to be.”

The consequences of changes to public records law will ultimately harm the public, data requestors, and journalists.

I’ve seen a variety of proposals:

  • State legislatures could attempt to enact restrictions on the use of mugshots for commercial purposes, carefully carving out an exemption for journalism or crime-fighting, but does that encroach on First Amendment issues?
  • Mugshot websites to remove images for free – especially if the subject hasn’t been charged or was exonerated – but how will it be enforced?
  • Electronic or mass disclosure could be restricted all together, impeding technology and the automated systems that run these sites. But if that’s the solution, I’m afraid that government will think it to be a solution for every situation, and nobody wins.
  • Mugshot websites could be required to post disclaimers that an arrest on a charge is not a conviction nor indicator of guilt, and that it would be illegal to use information on the site for employment purposes, but is that compelled speech?
  • Mugshot websites could be required to list their name and address on the site, and/or obtain a license or registration from the state, but what if the site is based in Russia?
  • States could limit the amount of money sites can charge to remove mugshots – but again, what if the site operator is in another country?

A better question is: why are mugshots public in the first place? Is it in the spirit of open government, transparency, and accountability? Mugshots are taken so that law enforcement has an image of the offender should they escape or need to be identified, not for comedy and stalking.

Locking down data is rarely the solution, and it’s not going to work on the next hot-button issue where we have to balance personal privacy against public disclosure. My only hope is that public records laws don’t suffer in the minds of the public and the books of the legislature.

Photos from the Maricopa County Sheriff’s Office.