Posted Aug 01, 2012 07:59 am CDT
On the Internet, the saying goes, nobody knows you’re a dog—unless, of course, they see your picture online and forward it to their friends.
If you’ve been arrested they might know that, too, thanks to webpages that pull booking information from law enforcement sites and republish it.
The sites, most of which include mug shots in their Web addresses, will remove the information if you pay a fee. Or if you use the services of their advertisers, who claim they can restore individuals’ online reputations. The sites’ removal policies aren’t unlawful, say many lawyers, because the sites provide information that’s already public.
Yet many say the growth of mug shot sites, as well as other pages that supply public yet often embarrassing information, may change the balance between privacy and public information laws.
“What’s public record is now not only public, it’s going to be publicized,” says University of Idaho College of Law professor Annemarie Bridy, whose work focuses on the Internet and intellectual property law. “They’re taking advantage of the public information and using it as a kind of shaming.”
Kyle Ritter of Portland, Ore., claims to own more than 40 mug shot websites across the country.
“For us the whole mug shot publishing game came about organically, basically a combination of a joke and a programming exercise that ballooned into popularity and manufactured outrage soon after,” says Ritter, who is known online by the nickname “Mugshot Barry.”
Click a pic on one of Ritter’s sites, like BoiseMugshots.com, and a page opens with the subject’s booking information. That page has a link directly above the subject’s photo, which reads “Click here for instant mug shot removal.” That link goes to RemoveMyMug.com, which claims it will delete the shot for $99.
Ritter says he does not own the removal website. He says his revenues come from advertising; rates start at $25 a week. RemoveMyMug.com did not respond to interview requests from the ABA Journal.
Ritter’s sites say that arrest information will be removed if the charges are dropped, or if the individual is found not guilty. Also, the sites suggest they might remove a mug shot if someone asks, regardless of the case’s outcome. Ritter would not say how many subjects’ mug shots have been removed from his sites for free.
“Threatening to sue or alluding to any kind of legal action when contacting us will not yield favorable results,” BoiseMugshots.com reads. “Such emails are promptly deleted. It is really so much easier to approach politely.”
Eric Goldman, who writes the Technology & Marketing Law Blog, says he sees more sites that post potentially embarrassing information and offer to “downgrade” the data for a fee. Getting people’s names to the top of Google search results, he adds, plays a premium role in today’s information ecosystem.
“Once a business establishes a page on a person’s name, it can use tricks to get that page into the prime search results zone on the person’s name,” says Goldman, a Santa Clara University law professor. “Then the business can turn off those tricks, at which point it’s likely the page will fall out of the prime zone.”
According to Ritter, his mug shot sites don’t do that.
“To create a Google bomb of the magnitude that you are suggesting would be both daunting and futile,” he says. “Our websites are popular by virtue of their own existence and the public’s appetite for looking at pictures of their neighbors.”
Previously Ritter was known around Portland as the guy who ran BarFlyMag.com, a site about local drinking establishments. His association with the mug shot sites was kept mostly secret until last year, when the newspaper Willamette Week was about to run a piece revealing him as the guy behind PDXmugshots.com.
Ritter reportedly identified himself to Lewis & Clark University law professor Jack Bogdanski, who blogs about Portland life at bojack.org.
Bogdanski says his only communication with Ritter has been through email, and he cautions about accepting any online information with complete certainty.
“It could really be him, or it could be an 80-year-old woman in her pajamas doing this. I have learned to believe nothing on the Internet,” says Bogdanski, noting that PDXmugshots.com posts a link to his site, Jack Bog’s Blog, under the heading “Sites we like.”
If something is public record it may be easily seen, Bogdanski says, and Ritter’s sites facilitate that. But he does not like the idea that people can remove their information for a fee.
“It probably isn’t illegal,” Bogdanski says, “but to me it’s just sleazy.”
Sheriffs also say they find the sites troubling. Ada County, Idaho, Sheriff Gary Raney told the Idaho Statesman that he considered no longer posting arrest information online because of BoiseMugshots.com. But Raney says he thinks having arrest information on his agency’s website serves as a crime deterrent, specifically for drunk driving.
When private mug shot sites are promoted for entertainment purposes and seem to have mass market appeal, they are likely operating within the law, say attorneys who defend Internet privacy cases.
“What it comes down to is how the information they’re producing is intended to be used,” says Los Angeles attorney John Nadolenco, a Mayer Brown partner. “If it’s not meant to be targeted to prospective employers or insurance companies, to use in their validations of a person’s credit, then it’s probably OK.”
He defends Spokeo, a website that mines and publishes online data. Two ongoing federal cases against the site allege that it violates the Fair Credit Reporting Act by containing inaccurate consumer information marketed to groups doing background checks.
One case filed in 2010, Robins v. Spokeo Inc., is on appeal in the San Francisco-based 9th U.S. Circuit Court of Appeals. The other case, Purcell v. Spokeo, was stayed pending the appeal.
If a site removes someone’s mug shot for a fee, that could be considered blackmail, says Russell Christopher, a law professor at the University of Tulsa. But showing damages would be difficult.
Christopher, who wrote “Meta-Blackmail,” which was published in 2006 in the Georgetown Law Journal, says the sites seem to remove the information for a one-time fee, while blackmailers generally make repeated demands for money.
The act of removing someone’s mug shot for a fee could amount to a federal criminal offense, says Ron Safer, who formerly headed the criminal division of the U.S. Attorney’s Office in the Northern District of Illinois.
“Under the extortion law, the key is to use the fear of economic harm against somebody to get a benefit. That’s clearly what they’re doing here,” Safer says. “The question becomes: ‘Is it wrongful?’ That’s in the eye of the beholder. It gets very close to the line in my view.”
Safer, now managing partner of Chicago’s Schiff Hardin, adds that the federal government would probably not bring such a case because it lies in a gray area. He notes that there’s no civil remedy for extortion under federal law. “But what would be interesting is [that] extortion is a RICO predicate,” Safer adds. “So you get together a class of people and sue [the sites] under RICO.”
In the European Union, member countries are considering an online “right to be forgotten,” part of a January directive dealing with data protection. In February, Google argued that the legislation made unreasonable demands on search engines and Internet platforms.
In the U.S., lawmakers could rethink how public records are used, Goldman says. He cautions that would likely not be a good fix.
“The only true solution is that we as consumers will have to get better at evaluating information that is presented to us. We have to accept that people have taken drugs, been at beer parties and gotten arrested,” he says. “We have to rewire our brains not to overreact to that information, and realize that all of us have transgressed.”