Thursday, January 21, 2016
Question of the Week No. 2
Police booking photos are routinely taken when a
person is arrested by a law enforcement agency.
These mug shots are public documents in most states and have spawned
several websites which post the mug shots online, e.g. mugshots.com. In 2013, Utah passed a law that forces people
who want copies of mug shots to swear under oath that they will not post it on
a website that charges a fee to remove the photo. Open records advocates have warned that the
bill sets a dangerous precedent of the government demanding to know what
someone intends to do with public information.
Privacy advocates argue that some arrested persons are never charged
with a crime or are acquitted and should not have to pay a fee to eliminate an
embarrassing and private incident. Is
Utah’s mug shot law sound public policy?
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Yes. Utah's mug shot law is sound public policy. There is no social value in obtaining mug shots with the sole intent of posting them on a web site so that the subject of the photo must pay to have it removed. In fact, this practice sounds a lot like extortion. The intent behind classifying mug shots as public documents was for the safety of concerned individuals. It was not to line the pockets of extortionists. It may be costly to enforce such a law and police the activity of the people requesting mug shots. But from a public policy perspective, the government has an interest in protecting its citizens from extortion--no one questions anti-extortion laws. In response to the open records advocates, I would underscore that the government is not asking the open-ended question of what the requester plans to do with the mug shot--it is simply forbidding them from doing one specific thing with it. And that one specific thing is entirely devoid of social value.
ReplyDeleteYes, while arguably under inclusive in terms of privacy interest, the Utah law is sound public policy. When examined through the lens of privacy interests, the law is under inclusive as it only limits mug shot distribution for the purpose of making a profit. However, banning the distribution of mug shots altogether would probably pose some challenges as well. There are legitimate reasons why individuals or organizations would want mug shots, some of which might be personal safety or deterrence. Drawing the line at using mug shots for financial gain would theoretically eliminate the possibility of financial extortion of the people in the mug shots and help ensure that the shots were used for reasons more beneficial to society as a whole.
ReplyDeleteYes, although I am a little uncomfortable with the precedent. I can see the danger of setting restrictions on public information. However, with this particular issue I can understand that balancing the interests of the public in mug shots with the interest of persons that are arrested. When someone is arrested they are innocent until proven guilt, and thus, should be afforded all the rights of an innocent person until they are proven guilty. Nonetheless, mug shots, as public documents can be acquired before a person is able to mount a defense. The harm done to a persons reputation is done long before the arrested person has had the opportunity to defend themselves.
ReplyDeleteYes. Utah law has developed sound policy by requiring those that receive copies of mug shots to swear under oath not to post them on websites that will charge a take down fee. Companies should not be able to profit from mug shots regardless of whether the person was charged with a crime. Even if publishing mug shots does a public service, third-parties should not be able to maintain for-profit websites. Although these mug shots are in the public domain, the Utah law seems narrowly tailored and would still allow one to post the mug shots and receive money from advertisers. Because of the nature of the content, public policy should favor a simple take down process; however, states should not ban the ban the practice of posting mug shots on the web as the public has a right to access public information. Furthermore, a person should not have to deal with a time consuming process or suffer financially to take down their own private mug shot.
ReplyDeleteNo, Utah's Mugshot Law (Utah Code § 17-22-30) does not go far enough to protect, and is ultimately unenforceable against actual bad actors. Utah's law appears to be sound public policy on the surface, and certainly seems motivated by reasons we the general public can agree on: preventing extortion, balancing public interest with private interest, etc., as many of my classmates have noted above. However, the statute may only serve to prevent shady practices by websites that obtain the mugshots directly from law enforcement sources (“primary sources”), and does virtually nothing to curb actual actual bad actors who may obtain it by simply mirroring “legitimate mugshot websites” (“secondary sources”), if one might actually them that. For example, Utah Code § 17-22-30(2) places a restriction on whom the Sheriff may release these photos to, and § 17-22-30(3) requires the person who originally requested the photos to sign a sworn affidavit that it will not be placed on a website that requires a payment of a fee to remove or delete it from the website, subject to criminal penalty under Utah Code § 76-5-504, for issuing false statements. It is reasonable to assume that a website owner who stands to profit from maintaining access to mugshot information from primary sources, or who is otherwise subject to or within reach of the jurisdiction of Utah courts might comply with the provisions of the above sections, to avoid criminal penalty, and also to maintain that source of revenue. However, a bad actor who relies on secondary sources to mirror or “scrape” other mugshot websites which actually comply with those provisions of the law cannot be prosecuted under this section, because the Utah code is silent on such secondary use by other websites. Additionally, the internet is highly distributed by its very nature, and is global in character. Thus, if a bad actor running a mugshot website were based somewhere outside the reach of Utah courts, there is no legal remedy under this law, and this is the actual Achilles heel of the Utah statute and any other state statute that claims to address this particular area of law. Even if the Utah legislature were to amend the language of § 17-22-30(3) by replacing “a person who requests a copy” with “a person who obtains a copy,” the jurisdictional problem remains, rendering the statute ultimately toothless.
ReplyDeleteNo. I agree with Vik. This law is "sounding brass and a tinkling symbol." The jurisdictional issues Vik highlights are very persuasive. Additionally, it seems likely that a persons mugshot could remain on a website interminably that does not charge fee to remove the photo. Just because a website does not charge a fee to remove the photo, does not mean the website is legally obligated to remove the photo upon request. As a result, a person's photo could remain on any number of websites or blogs and the person may never know about it, or the person's requests could simply be denied indefinitely. Due to these factor, while Utah's law may mitigate the adverse effects of a narrow set of circumstances, it still leaves much of the problem largely unsolved.
ReplyDelete