The mugshot website extortion racket

Why is the Reporters’ Committee for Freedom of the Press defending blackmailers?

If your physician has diagnosed you with low blood pressure, I recommend reading this New York Times piece about mugshot websites, which post the photos of arrestees and then charge people to have their photos removed. That includes a woman who was charged with aggravated assault by the domestic partner who attacked her with a knife. The charges were dismissed, but the mugshot endures as a source of extortion revenue for the website operators. This sort of behavior reminds you of the reason for the belief in Hell.

I’m glad to see that Google and the some credit-card companies – but not, disgracefully, Visa – were moved by inquiries from the Times to distance themselves from this racket. But Mark Caramanica, the flack for the Reporters Committee for Freedom of the Press demonstrates why flackery is bad for the soul by denouncing any attempt to rein in this abuse:

It’s an effort to deny history. I think it’s better if journalists and the public, not the government, are the arbiters of what the public gets to see.

Forget the fact that the people running these websites aren’t “journalists,” and that the public currently has no power at all over what’s going on. Someone told Mr. Caramanica that his job was to oppose any restriction on the publication of information, and by God that’s what he’s going to do – as long as his paycheck continues to clear – no matter who gets hurt in the process. Feh.

Some questions for our lawyer-readers:

1. My understanding of the law is that extorting money by threatening to reveal unfavorable information about someone constitutes the crime of blackmail, even if the information is true. Does the fact that the unfavorable information is public record change matters? Or that the process is revealing the information first and then demanding money to stop revealing it?

2. If not, can’t some local prosecutor simply charge the website operators with blackmail, giving us an opportunity to see their mugshots on line? It seems to me there should be venue where the victim lives, independent of the location of the website operator. [Note to federal prosecutors: extortion and blackmail are RICO predicate offenses.]

3. Could Congress pass something parallel to the Fair Credit Reporting Act to require, at least, that information about exoneration be published along with the mugshot? Was FCRA the subject of a Constitutional challenge, and, if so, on what basis did it survive?

4. Going forward, why should state and local government treat arrest records and mugshots as public records? By statute, couldn’t they claim copyright, and use their own powers (under, e.g., the DMCA) to regulate the use of what would then be their images and records, or allow private-attorney-general actions to assert those rights on their behalf in defense of those not convicted?

There’s a broader issue here. The Fifth Amendment forbids the deprivation of life, liberty, or property without due process of law. That innocent people should sometimes be arrested is inevitable unless we can equip police with powers of omniscience. But the existence of an arrest record, even without a conviction, has many bad consequences. By maintaining arrest databases and making them available to others, the state in effect continues to punish someone for a crime of which that person was not convicted by due process of law. Why shouldn’t that be ruled unconstitutional?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

30 thoughts on “The mugshot website extortion racket”

  1. There are good reasons for requiring public records to be public, and being chincy with exceptions. The rise of the internet has produced results that were difficult to imagine 20 years ago, of which this is an excellent example. I would be optimistic that targeted use of extortion and possibly privacy laws can resolve this specific problem — but that will be one mole whacked. What about mug shot databases created just for the heck of it, with no deletion option offered; who will be better off with that? Expect other problems along the same lines.

  2. Arrests are public acts, and publishing arrest records is clearly protected speech.

    Asking for money to take them down, though, is unprotected and should be illegal.

  3. The Massachusetts extortion statute reads, in pertinent part:

    “Whoever … by a written or printed communication, maliciously threatens to accuse another of a crime or offence, or by a verbal or written or printed communication maliciously threatens an injury to the person or property of another, … with intent thereby to extort money or any pecuniary advantage … shall be punished by imprisonment in the state prison for not more than fifteen years, or in the house of correction for not more than two and one half years, or by a fine of not more than five thousand dollars, or both.” (Mass. Gen. Laws, c. 265, sec. 25.)

    It’s not clear to me that the publishing of mugshots falls within this statute. (The point might be arguable, but in criminal cases ambiguities in the statute are supposed to be resolved in favor of defendants.)

    1. It might. You need to bear in mind that one of the reasons why prosecutions for blackmail are so difficult is that the threatened action is almost never per se illegal. Frequently it’s simply publicly revealing some fact that the victim wants to keep hidden. The thing that makes it a crime and that distinguishes blackmail from journalism or protected speech is the threat and the intent to disclose the private fact or engage in a smear campaign unless the blackmail is paid.

  4. The second sentence in your second question (“It seems to me there should be venue where the victim lives, independent of the location of the website operator.”) made me almost pass out. One of the problems identified early in the “history” of blogging was the alleged long-arm jurisdiction over bloggers in other jurisdictions merely because their blogs could be accessed in the jurisdiction in which the lawsuit was filed. Thus, there was a particularly nasty defamation suit out of Australia attacking a U.S. based blogger. The case arose many years ago and I’ve lost the precise information. However, there continues to be litigation in this area. See here: http://bit.ly/1bRHgbn.

    Here’s the nature of the problem: Do you really want, for instance, the members of the RBC subject to liability in some state where their only contact is the ability of residents to click on samefacts.com via the Internet? Needless to say, the defense of such a lawsuit might be expensive due to the fact that it is brought in a jurisdiction to which the defendant has no actual connection. Better yet, imagine the jurisdictions in this country in which a jury might be biased against the RBC based on their political views.

    Or, perhaps, do you want to have to defend a lawsuit in a country (e.g., Great Britain) that lacks the defamation protection of the First Amendment as interpreted by the Supreme Court in NYT v. Sullivan and its progeny?

    If you want to rein in open publication of public information, the only acceptable manner of doing so is via a law, or set of laws, tailored to achieve the end that is sought.

    1. I didn’t claim that the case should be venued wherever the website is read. But when someone in California calls about the false-arrest mugshot that’s on line, and the operator offers to take the picture down for a “service charge” of $400, that operator has chosen to do business in California and should be subject to California law.

      Since the RBC isn’t in the extortion business, I wouldn’t have any worry about having such a law applied to RBC activity.

      1. Actually, not true. If I understand the facts that your positing, victim, located in California, calls website operator located in some other state. That does not subject the website operator to personal jurisdiction in California, since the website operator did not attempt to use the laws or benefits of California. It’s roughly the same principle that allows mail order websites, such as Amazon.com, to avoid collecting sales tax on sales to Maryland residents. (I can imagine a state (say California) passing a statute that says: If you take our mugshot collection and try to “extort” money based upon what you find there, an aggrieved party has jurisdiction to bring a law suit in that state, i.e., California. I think that there would be effective personal jurisdiction in such a case. However, that is not particularly helpful if the website operator is in Idaho and the victim is in Maryland, having been arrested at some point in the past while in California. The Maryland victim would still have to bring suit in California.)

        I would agree that RBC is not in the extortion business. But it is in the business of commenting on public affairs and the actions of public figures. As I said, NYT v. Sullivan probably protects RBC with respect to suits in the United States. But what if the actions are brought in foreign countries with much narrower protection against defamation lawsuits.

        BTW, the Australian case that I was thinking of was Dow Jones v. Gutnick. See one firm’s comments here: http://bit.ly/19bkmuX There’s also a good Wikipedia article on the case here: http://bit.ly/15WTue0 Do a Google search on the case and you will find a good deal of academic comment.

        I addressed a similar question here: http://bit.ly/1fVFrPD in commenting on a case involving anti-spam legislation. I think that spam is significantly different from the mugshot web cases, since the spammer is actually “aiming” at residents in Maryland. In the mugshot web cases, however, the website owner is pretty much passive and waits until his victim comes to him.

        1. I’m not following you here. This would be a criminal case, not a civil one. The “detrimental effects” test (Strassheim v. Daily) would seem to apply (act occurred outside the state, act produced and was intended to produce detrimental effects within the state, act caused those detrimental effects, check, check, check), and the state were the victim of the extortion lives would seem to have jurisdiction over the extortionist. The blackmailer may be passive, but at some point he or she still accepts the money (one of the elements of the crime), leading to detrimental effects in, say, California.

          The question of how other countries define their offenses seems to be beside the point, since dual criminality rules generally apply to international extradition proceedings. But several countries do claim jurisdiction under doctrines similar to the detrimental effects test.

          1. The question is not criminal v. civil. The question is whether the state has jurisdiction to punish a crime which does not take place within its borders, in a case where the putative defendant has not purposely availed himself or herself of the benefits of that state.

            Take a look at the Urciolo case here: http://bit.ly/17Q0Jbv It has a good discussion not only of the jurisdictional issues, but the difference between venue and jurisdiction.

  5. I think it would a criminal prosecution would be a real stretch although there are many reported cases where the blackmailer has threatened the victim with publication of a criminal conviction or even just bad publicity. Much would depend on the statutes and case law of the jurisdiction but if some DA out there wants to give it a serious look, I would be happy to help.

    Depending on how the website describes the mugshot or its database, the lady in question might have a cause of action for defamation if the implication is not simply that she was arrested but that she’s actually a criminal (that’s because in American defamation law the rule is generally that literal truth isn’t enough. It’s the defamatory sting that must be true—thus the classic example of a newspaper that publishes a statement that “Madame X worked in a brothel” is still on the hook if she was just a piano player. Yes, it’s literally true that she worked in a brothel but the implication is that she worked as a prostitute so that’s what needs to be true). There are also circumstances (at least in California) where the public dissemination of true private facts can be actionable. But this would cost beaucoup dollars and, I would guess, most of the institutional players who might help would probably pass on 1st amendment grounds.

    But the obvious problem is that, for reasons that seems tho have no legitimate public purpose, many jurisdictions consider their mugshot photos to be public records. The best, easiest solution would be to just change the laws instead of using a kludge.

  6. Our own county sheriff up in far Northern California stopped publishing photos on the county jail’s website in reaction to the local mugshots site. (He blames an expensive technical problem. Nobody really buys it.)

    The pay-for-removal racket is exactly as described. However, our town happens to be undergoing a noticeable crime wave — thanks not least to AB 109 and the trouble managing the new system. Demand to bring back the mugshots is intense enough that a candidate to replace the sheriff has made it one of his key campaign planks.

  7. “Forget the fact that the people running these websites aren’t “journalists,” ”

    Indeed, let’s forget that, quick, in as much as the 1st amendment doesn’t have anything to say about “journalists”, who are just regular folks as far as constitutional rights are concerned.

    1. I was responding to the flack’s rhetoric, not his legal analysis.
      But say it out loud, Brett: do you really believe that this sort of extortion racket is, and ought to be, protected speech?

      1. I gotta jump in on Brett’s side here.

        His statement was narrowly addressed to a single statement in the original post. In that regard, I think he’s exactly correct.

        Whether those individuals are journalists is not relevant, and bringing it up introduces a red herring. For the first Mark to mention it is disingenuous, and for the second Mark to give the response he did to that statement is seemingly done to reinforce a prejudice against the individuals in question. “After all, they’re not even journalists; why should they be protected?”

        The whole question has to do with the Constitution, not with journalism, which is Brett’s point.

        And anticipating Brett’s response, I would guess that the answer (as discussed above) should be a narrowly defined “extortion” statute that recognizes the offer to remove an offensive posting for a fee is an attempt at extortion. That would (should?) be treated like a journalist offering to refrain from reporting an individual’s crime in exchange for payment.

        1. “or abridging the freedom of speech, or of the press; ”

          Clearly a difference between an ordinary fellow speaking out and someone operating a press, so not automatically the same.

          Cranky

        2. His statement was narrowly addressed to a single statement in the original post.

          I’m not sure that this is a defense. Zooming in on one small aspect of a post and focusing on it to the exclusion of the rest of the post or even the context is a questionable rhetorical strategy. Note that Mark was saying to “forget that the people running these sites aren’t even journalists”. I.e., that was something that he expressly wasn’t basing his argument on (other than pointing out that the statement was inherently nonsensical), yet Brett focuses on this sideshow.

          The whole question has to do with the Constitution, not with journalism, which is Brett’s point.

          The US Constitution would come into play only with respect to the removal of existing mugshots from public sites (possibly, insofar as a government doesn’t retroactively claim copyright over them [1]). But neither the federal government nor any of the state governments have an obligation to publish mugshots in the first place or to allow their retrieval and republication. The latter happens based on statutes, and those statutes could hypothetically be amended or repealed.

          [1] Colorado, for example, reserves the right to claim copyright for state government records and based on the experiences with the Copyright Term Extension Act, there shouldn’t be a general problem with retroactively passing such legislation, either. Unlikely to occur, but not obviously unconstitutional.

        3. Yeah, I would say that the offer to remove the truthful information transforms protected speech into extortion.

    2. I’m with Brett on this one, although the First Amendment does talk about the “press.” I don’t like privileged classes of speakers.

      Unlike Brett, I do view moneyed speakers as privileged ones, and don’t like their privilege of a bigger microphone. Of course, Brett could make the very reasonable point that the Supreme Court disagrees with me. But then again, Brett has never been afraid to rail against Supreme Court decisions that he does not like, and I shall avail myself of the same privilege.

      1. The First amendment does talk about the “press”. The “press” is a machine which prints letters onto paper. We all have the freedom to use it.

        People who used printing presses professionally only later started calling themselves ‘the press’, and pretending the Constitution refered to them, rather than their tool.

      2. I’d also make what I think is the reasonable point that, in these cases, the most privileged actor is the government, and by creating regulations you further privilege that actor. Whatever campaign reformers may think they are doing, they are mostly providing incumbants cover to enact incumbant protection measures.

  8. What about employers here? I find it odd that they would refuse to give someone a job because of a mug shot. Shouldn’t they show more ethics and responsibility and investigate a bit further, rather than just reflexively saying, “Oh, online mugshot –> reject? (This isn’t to say I don’t agree with Mark that these websites are a disgrace and that in a just society, there would be serious legal tools available to shut them down forthwith.)

    1. If you think this then you clearly haven’t gone through the job search process recently.

      1. You misread me, Michael. I’m not saying that employers aren’t petty. I am saying that they shouldn’t be.

    2. The problem here is that getting arrested for drug possession is correlated with being an unreliable employee. Even if the correlation is weak, it might still be better than all the other factors the hiring company has to go on. In a world where information is limited and expensive to obtain, potential employees who have circumstantial but easily observed signs of weakness (e.g. mediocre school grades) lose out to those with very serious but less detectable flaws (e.g. narcissistic personality disorder). It’s a dysfunction that goes to the heart of our political and economic system, but we can at least try to tame the nastiest aspects of it.

  9. This is abhorrent. I have to say, Massachusetts legislation makes me proud on this one. Our CORI law (criminal offender record information) is one of the toughest in the nation and makes it almost impossible to uncover criminal records without permission of the subject or a court order. No part of an arrest record is public, including a mug shot. Once a complaint is sworn out in court, the case file may be viewed by the public, but you have to know which court, and you have to go there in person and crawl around on the floor looking through little carbon slips filed in ancient systems that look like card catalogs from the 1960s. The slips are filed alphabetically by year, so you’ll spend a lot of time in each court (all 61 of them). If you find the name you’re looking for, you write down the docket number and ask the clerk for the file. I don’t know if any of the indexes have been computerized, but if they have, the databases are not published. You’d have to use the public access terminal at the courthouse.

    Although the conduct of the website operators should be criminal, it might not be. I think the better way to shut them down is via a class action suit for damages. The operators cannot justify what they are doing with the bogus claim that the public has a right to know since they offer deletion for a price, and since other sites just pick up where they left off, they have to agree that they are selling a nullity. I think that a few people who suffered measurable harm could make out a case of intentional infliction of emotional distress, not to mention consumer fraud. In MA, I’d consider a cause of action under the consumer protection act that allows treble damages and legal fees for unfair and deceptive business conduct. The only way to stop this kind of behavior is to make it unprofitable.

  10. On the one hand, what the mug-shot sites are doing is horrific and evil and almost certainly straight-up extortion or blackmail. (And yep, as soon as you ask for a pile of money to do something you can lawfully do, you’ve crossed a line.)

    But. My concern is with Google and the financial-services companies. In this case their sense of ethics is correct: honorable, law-abiding entities should not be doing business with blackmailers. In other cases, would it be? We don’t know, yet a few minutes worth of phone calls between managers at Google or at a top-level credit-card servicer can effectively disappear an enterprise or class of enterprises from the online world. We should be focused on getting conventional legal means to work, rather than applauding what is effectively vigilante justice just because its victims this time are scum.

    1. Hey, Paul…people who get a DWI, for example, are “scum”? Really? Wow, you must be a Republican.

    2. “[A]s soon as you ask for a pile of money to do something you can lawfully do, you’ve crossed a line”

      That sentence needs more qualifiers. I can lawfully do my job, but I ask for a pile of money to do it.

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