Thursday, May 8, 2014

Criminal Law: The Republication Of Mug Shots Online

By Morgan Vasigh

Sheriffs’ offices across the United States, including the Hillsborough County Sheriff’s Office, publish arrest records and booking photos online. Arrest records are public records, and the publication of arrest data on these websites provides the public with easy access to view and inspect records.

However, private entities have been taking (lifting, scraping, stealing, copying) arrest records and mug shots in bulk from sheriffs’ office websites and republishing them on private websites (e.g., The private entities then use search engine optimization to maximize each arrestee’s Web exposure. Thus, a quick search of an arrestee’s name in a search engine will not only yield a Facebook or LinkedIn page, but a mug shot if one has been copied by one of these private websites. Plus, the mug shot will appear at the top of the search results.

Most of the private entities that republish mug shots online will not remove a mug shot from their websites — regardless of the crime, whether charges were filed, or the disposition of the case. However, if you pay a service fee (it can run up to $399 to remove just one mug shot), the photo will be removed from that one particular website. To remove it from one of the dozen other mug shot sites, you must pay each site separately. Some mug shot websites direct arrestees to use an “authorized” removal website. Arrestees then pay the fee to the removal website instead of the mug shot website directly. However, most removal websites appear to be closely related to the mug shot websites, and it is suspected that they are operated by the same private entity. 

During the 2014 legislative session, two bills were introduced that seek to prohibit individuals (and business entities) from charging arrestees to remove or modify arrest data from publications such as these websites. H.B. 265 (2014), S.B. 298 (2014). Similar bills were introduced in 2013 but were unsuccessful. H.B. 677 (2013), S.B. 1060 (2013). Sheriff Bob Gualtieri announced in early January that the Pinellas County Sheriff’s Office will stop posting mug shots online.

Proponents of the mug shot websites contend that mug shots are public records and the mug shot entities, as news outlets, are exercising their First Amendment rights. On the other hand, opponents argue that mug shot websites are violating arrestees’ right of publicity under Florida Statute § 540.08 because they publish arrestees’ photographs (booking photos) for a commercial purpose without obtaining consent from the arrestees. They also assert that making an exact copy of arrest data from a sheriff’s website and republishing the data “as is” (and then charging for removal) does not meet the “newsworthy” exception.

Although mug shots are public records, opponents argue that the public does not have free rein to do whatever it pleases with the mug shots. For more details on the legal argument, please see “Smile, you are under arrest: the misappropriation and misuse of mug shots online,” published in the Information & Communications Technology Law journal.  There is also currently a class-action lawsuit against these mug shot companies going on in our backyard.