The Shakedown

This is the first of a series of blog posts I hope to devote to the practice of the mugshot racket. Through these posts, I hope to bring some much needed light to this industry that has so far managed to thrive in the shadows.

What is the Mugshot Racket?

Maybe you were just recently arrested. Maybe it was five, ten years ago. Regardless of when it happened, there is a good chance that your booking photograph – or mugshot – is now hosted by any one of a number of new websites devoted to publishing these “public records.”

Make no mistake. These are public records, regardless of the fact that they only report one side, and one instant, in what is usually a complex legal process. If these websites were operating as legitimate news organizations, their publication of these records would categorically be protected as free speech under the First Amendment. Most people have seen the sections of local newspapers where the police report a “blotter” of arrests the prior week, though owing to the lack of space, most papers until now haven’t included photographs as well.

But the fact of the matter is that most of these organizations, such as “Busted” (bustedmugshots.com) or Mugshots.com, are not operating as legitimate news outlets. Rather, they are taking advantage of the noble aims of state public records acts to further their illegitimate business model, and shielding themselves with claims of journalistic freedom. Instead of merely reporting arrests, these mugshot websites are taking the additional step of promoting the arrests, using search engine optimization techniques to force these pictures into the top 20, top 10, or even number one spot on the Google or Bing search results of the arrestee’s name. It is as if a local newspaper decided to run the booking photo of you on the front page with your name in bold type for weeks, months or even years to the exclusion of all other news.

In addition, these sites, unlike your local newspaper, offer to remove the picture for a fee. Some, like Mugshots.com, use third parties and a private takedown system to remove the photos, costing consumers upwards of $300. Others, like Busted, take your money directly. In effect, these sites are effectively engaged in a form of extortion. At least in its plain English definition: an attempt to gain money from consumers through the use of coercion. It is as if that same paper offered to stop printing your name if you subscribed to their service.

What Can You Do?

A lot of people jump immediately in, saying “what about my privacy?” Some of you were arrested for good reason, and took your lumps in court. Others were arrested only to have their charges dismissed. Some might have even been mistaken identity.

Regardless, you were arrested. And this is a public fact, one which is not entitled to privacy. While some states may give you avenues to pursue this as a privacy violation; for instance under such legal theories as “misappropriation of likeness” or “false light,” such suits may be of limited value in vindicating your rights.

Some may just want to pay these companies off. But beware doing so. For the same reason the government doesn’t negotiate with terrorists, neither should you attempt to pay your way out of your predicament. If you pay one site to remove your materials, there is nothing guaranteeing that they won’t pop up again on another website. In fact, it is virtually guaranteed to, considering some of these companies run multiple sites.

Moreover, before you pay them, look at the Terms of Service and Privacy Policy on some of these sites. By paying the companies, you agree to these terms; they become binding contracts which rob you of any rights you may have to contest their actions in the future. Paying these companies will effectively catch you in their web, and once there, fighting your way back out may prove difficult, if not impossible.

Probably the best option to solving this is to get the attention of law-makers and regulatory agencies whose goal it is to protect consumers. There are a number of ways you can do that:

1. Complain to the consumer protection division of your state attorney general. Many states have laws related to deceptive and unfair trade practices. Considering the flowery legal language these sites use in their Terms of Service, as well as their methods for publicizing your name, there is a valid argument that the sites are engaged in either deceptive or unfair trade practices that directly harm consumers. Google your state AG and file a complaint.

2. File a complaint with the Federal Trade Commission. The FTC is the federal entity charged with protecting consumers from deceptive and unfair trade practices. If they receive enough complaints regarding this practice, they may intervene and move to corral these organizations.

3. Write your state and federal representatives. It is important to try and bring issues such as this to their attention.

As time goes on, I’ll write more about some of the specific websites involved in these schemes, discussing their practices, and compiling the news coverage of them. The important thing though is to bring their practices out into the open.

As Justice Louis Brandeis famously observed “sunshine is the best disinfectant.” So post some comments and tell us your story with these sites. Why not give these websites a taste of their own medicine?