Mug Shots and Online Reputation

The New York Times has an interesting story about websites that publish mugshots, the business practices of these sites, and the impact that they have on people's lives.  Describing the case of Maxwell Birnbaum, who was arrested in 2012 for possession of drugs, the Times reports:

[T]he mug shot from his arrest is posted on a handful of for-profit Web sites, with names like Mugshots, BustedMugshots and JustMugshots. These companies routinely show up high in Google searches; a week ago, the top four results for “Maxwell Birnbaum” were mug-shot sites. 

The ostensible point of these sites is to give the public a quick way to glean the unsavory history of a neighbor, a potential date or anyone else. That sounds civic-minded, until you consider one way most of these sites make money: by charging a fee to remove the image. That fee can be anywhere from $30 to $400, or even higher. Pay up, in other words, and the picture is deleted, at least from the site that was paid. 

To Mr. Birnbaum, and millions of other Americans now captured on one or more of these sites, this sounds like extortion. Mug shots are merely artifacts of an arrest, not proof of a conviction, and many people whose images are now on display were never found guilty, or the charges against them were dropped. But these pictures can cause serious reputational damage

The Times reports that these websites are the object of a class action suit, with plaintiffs claiming that these sites violate their right to publicity and that they cause reputational damage.  Legislators have also considered bills that limit the publication of these images.

The biggest problem with these countermeasures, the Times notes, is that the publication of public records is typically protected by the First Amendment.  There is nothing false about the records, and the images are publicly available before the mugshot websites post them, as the images are typically obtained from sheriffs' websites.  And as the Times admits, mugshots do not mean that somebody has been convicted of a crime -- it is simply evidence that somebody has been arrested.

With that in mind, the fact remains that while mugshots do not prove somebody is guilty of a crime, they still have a very negative reputational impact.  People tend see arrest records and mugshots of an individual and assume that the individual is guilty of something.  Moreover, people of color -- or at least, those with names that indicate minority status -- are more likely to be burdened by the reputational impact of these websites, according to this report by Latanya Sweeney (a summary of the report is available here).

The solution to this problem seems to lie in private, rather than government, action.  As the Times describes near the end of the article, making the existence and practices of mugshot websites known to the public has caused the sites to face substantial obstacles due to the reactions of private parties.  The sites now face challenges on the financial front, with entities like MasterCard refusing to do business with mugshot websites.  Google has also begun to de-prioritize these sites' images in its search results, making it less likely that those searching for individuals' names will come across mugshots.

It will be interesting to see if public attention to these practices has any impact on these sites' practices or prominence.  If it does, this would be an interesting example of private governance in the internet domain.  I have my doubts that this problem will go away entirely, however.  Especially when it comes to online advertisements, the parties involved all have a great deal of financial interest in the matter.  Search engines want the income they obtain from ad space they can sell to mugshot websites, and those websites want the prominence that search engines give them.

In the meantime, the only thing that people can do to avoid reputational damage might be to have a name as obscure as "Michael Smith."