We live during an era in which people’s lives are increasingly conducted and documented on the Internet. Facebook profiles, Twitter feeds, LinkedIn accounts all attest to this reality: we share more and more of our personal and professional information with the rest of the world, often unaware of who can see the details of our lives. Recognizing this danger, many people have taken to keeping scrupulous care of their online presence. High school seniors applying to university purge their Facebook profiles of embarrassing or incriminating photos, occasionally even going so far as to change their name; many people routinely Google their own name to see what would show up if a potential employer wanted to do a little digging around.
The New York Times ran an article on Oct. 5 entitled “Mugged by a Mug Shot Online” that discusses the proliferation of websites — under names such as Mugshots, BustedMugshots and JustMugshots — that mine the Internet for the mug shots of convicted criminals and then publish them on their site, charging a fee to have them taken down. These websites cause particular concern for those who are arrested for minor offenses — as oftentimes police will wipe a person’s record clean if he or she agrees to a course of treatment or community service — and for people whose charges are dropped altogether, since a mug shot is taken on arrest, not conviction. For such people, the websites that post these mug shots ensure that the record is never cleared, perpetually endangering the individual’s employment prospects.
The sites that offer these services argue that they are providing a public service. Every mother has a right to know who will be teaching her 6-year-old son, they argue. People should know the history of those they are dealing with personally or professionally. This logic is itself dangerous, as will be discussed below. However, what is immediately repugnant is the method in which these websites make money: by charging people to have their mug shots removed. According to the article, these fees range from $30 to $400, and oftentimes mug shots will appear on multiple different websites. People wealthy enough to pay the fees can remove their mug shots; the rest are left wondering who can stumble across their past misdemeanors. Although these actions may not qualify as legal extortion, the principle is parallel: pay the fee, or face the potential consequences. This seems to undermine the purported mission of the websites; why should the wealthy be allowed to expunge their record, no matter how heinous the crime, while those unable to pay up are punished?
The main clash of ideals here, though, is whether or not the First Amendment protects the activities of such websites. For such is the claim of the Reporters Committee for the Freedom of Press, a group that opposes limitations on websites like mugshots.com. States such as Oregon and Georgia have passed laws that require the websites to take down the photos of those who can prove they were exonerated or have had their record wiped clean. These laws, supporters of the websites claim, restrict the free flow of information to which the public entitled.
This logic is flawed. First, the purpose of the legal system is in large part to determine who is to be deemed publically accountable for a crime. The pronouncements of the Justice Department, via its affiliated courts, are the law of the land and the only legitimate record of guilt and innocence. When someone’s record is wiped clean, the message is clear: the penance has been paid, the humiliation borne and the individual should no longer be viewed any differently than other members of society. The harms imposed on the individual because of his or her actions are to cease. In the eyes of the law, the crime was never committed. When mug shots are posted online by for-profit websites, the action is tantamount to an accusation of wrongdoing. When this accusation is made in spite of the verdict of the justice system, it treads the line between free information and libel — a category of speech not protected by First Amendment guarantees. By failing to properly police whose mug shots are posted online, these websites unlawfully indict the individuals whose records bear no mark of guilt.
Moreover, one must take issue with the contention that others have a “right” to know about the history of those they deal with. Our online presences are powerful entities. Stories abound of students rejected from universities or job-seekers left unemployed because of damning online evidence. Something as serious as the publication of criminal conduct should be left to the exclusive discretion of the authorities, from which such data is mined in order to be posted on these websites, rather than to the “marketplace” of information-providers and seekers. The free flow of information is a beautiful concept when applied to the news or to theories and ideas; it is something altogether more sinister when someone’s professional reputation is at play. That such a decision might be left to for-profit enterprises — who, we must be reminded, derive their revenue from allowing the wealthier to pay for removal — is cause for great concern.
How, then, should we approach this issue? The answer, as it is with most controversial topics, is carefully. Should the entire project be shut down because of its abuses? Not necessarily. But at the very least, states should have laws in place very similar to those already in place in Oregon, Georgia, and Utah — laws that protect those whose records are free from criminal charges. Such individuals should never live in fear that an employer might stumble upon their mug shot during a cursory Google search. They should be able to move on from their crime, as the law intended when it expunged their record. We live in a country that extols justice — but endless, inescapable punishment reaches far beyond mere reparation for wrongdoing. Websites that publish mug shots should be held up to strict scrutiny to ensure that the privacy of our nation’s citizens is duly protected.
Russell Bogue is an Opinion columnist for The Cavalier Daily. His columns run Thursdays.
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