Electronic etchings: The damaging permanence of lists in the digital era

“Electronic etchings: The damaging permanence of lists in the digital era

“By Rebecca Beitsch- NARSOL 12/22/17

By Rebecca Beitsch . . . Mike Anderson was an 18-year-old freshman at Texas State University when he was busted with less than a gram of weed. Police arrested him, took his mugshot, and he spent the night in jail.

The legal consequences for being caught with such a small amount of marijuana — just enough for a joint or two — were minimal, but expensive. Prosecutors offered to drop the charges if he attended a drug program and did community service, and he could later get the record of his arrest expunged for about $500, wiping the history of his arrest from public view.

“After I got it expunged I thought it was pretty much a done deal,” he said of the order granted earlier this year.

But the next time he Googled his name, he realized the ordeal was far from over. His arrest photo was posted on Mugshots.com. The page was one of the top results for anyone who might be looking for him. And as Anderson applied for internships — a graduation requirement for mechanical engineering majors — recruiters who initially seemed interested would offer the spot to someone else.

“It wasn’t right,” said Anderson, a junior, who asked that his real name not be used for fear of drawing further attention to his mugshot.

“I called [Mugshots.com] on the phone, and they told me basically the only way I could get the mugshot to come down was to pay a certain fine. Proof of expunction wasn’t valid.”

At a time when personal information can end up online and rocket around the globe in seconds, the estimated 78 million Americans with criminal records are a rich target for websites that collect mugshots from police departments and sheriffs’ offices across the country and typically charge hundreds or thousands of dollars to have the photos removed. Even people who are arrested but never charged have their photos on the sites.

Since their business practices came to light in 2013, the websites have drawn the ire of state lawmakers who criticize them as exploitative. Texas is one of 18 states with laws designed to help people like Anderson, cracking down on mugshot websites by banning them from charging removal fees, stemming the flow of mugshots from law enforcement agencies, or requiring that the postings be accurate.

But so far, the laws have been largely ineffective in providing relief to those whose photos are featured on the sites.

“They haven’t worked,” said Eumi Lee, a law professor at University of California-Hastings who has spent three years studying the effectiveness of mugshot laws for an upcoming legal review article to be published by Rutgers. “But they’ve had a bunch of unintended consequences.”

Mugshot websites have ignored the laws or quickly figured out ways to work around them, Lee said. In places where people can no longer pay to have photos deleted, they often have no remedy to get them removed. And once law enforcement releases the photos, they have little control over where they end up.

Mugshots.com, one of the biggest purveyors, has entries for nearly 30 million people, including people in states that hoped to make it easier to have mugshots removed.

A Stateline review found evidence across the country of the laws’ inadequacy:

Georgia – twice tried to get mugshots off websites, first blocking sites from charging arrestees who were never convicted to have their pictures removed, and then requiring affidavits from any entity requesting law enforcement copies of mugshots. Still, Mugshots.com claims to have 2.3 million records from Georgia on its site, including entries for those arrested after the law took effect.

California – enacted a law in 2014 barring mugshot companies from charging to remove photos. But even its sponsor doesn’t know how well it’s working. Pressed recently by Stateline for evidence of the law’s effectiveness, the office of state Sen. Jerry Hill, a Democrat, found a still-operating site, Whogotarrested.org, requesting a fee to remove photos. He requested a probe by the state’s attorney general.

And in Illinois, where the law similarly bans fees to remove mugshots, Mugshots.com is being sued for charging arrestees.

One of the plaintiffs in the Illinois suit, Peter Gabiola, said he can’t escape a criminal past — despite time served — because his face keeps popping up on Google searches. Gabiola said Mugshots.com told him it would cost $15,000 to have his information removed from the site. He contends he’s repeatedly been fired shortly after starting new jobs, even when he disclosed his criminal past, because Mugshots.com incorrectly insists he is still on parole.

“I made my life hard enough making some of the decisions I made in the past as a knucklehead, so I don’t need some worldwide company or whatever making it harder by publishing incorrect information,” Gabiola said.

Sheryl Ring, Gabiola’s attorney, said that’s part of the company’s business model — people who are already struggling because of a criminal record will be more likely to pay if the listing makes things look worse than they really are.

Despite the laws’ dubious track records, states keep enacting them. This year Florida, New Jersey, Ohio and South Dakota all enacted laws targeting mugshot websites.

To be sure, trying to rein in mugshot websites is a challenge. In most states, mugshots are a public record. The companies can digitally scrape the photos from law enforcement websites, uploading them to their own sites in just hours, or put in public information requests to get others. When they’ve been sued, the sites’ attorneys have repeatedly argued their work is protected under the First Amendment.

Please read the rest of this article at Stateline.