Mugshot-Removal Sites Accused of Extortion

The growing online mugshot-removal racket -- where arrestees pay sometimes hundreds of dollars to remove their mugs -- is being hit with extortion accusations in a novel lawsuit testing the bounds of the First Amendment.

"The law prohibits demanding money to stop embarrassing somebody," said Ohio attorney Scott Ciolek, who last week added the accusations to a pending lawsuit accusing several removal sites of violating the publicity rights of arrestees.

Dozens of mugshot removal sites have cropped up around the country, many of which obtain their pictures by scraping local police department websites. The mugshots were often hidden behind police CGI search scripts until they get into the hands of the mugshot-removal sites, where the mugs now display prominently in Google searches.

The Ohio suit, (.pdf) which seeks untold damages, names JustMugshots.com, BustedMugshots.com, MugshotsOnline.com, findmugshots.com, Mugshots.com, and others. The latest accusations are already being met with stiff resistance on constitutional grounds.

"First of all, I think Scott has insurmountable problems with the First Amendment. The mugshots, as you may or may not know, are public record," said Lance Winchester, a Texas attorney for BustedMugshots.com and MugshotsOnline.com, which charge under $100 to remove mugs from their sites.

One of the plaintiffs in the case is Phillip Kaplan, who was a freelance graphic artist charged in 2011 for failure to disperse from a party a few doors from his Toledo residence. His mug appeared on BustedMugshots and MugshotsOnline, the suit says. He refused to pay to take it down. He suspected the mugshots were hindering his employment opportunities.

Gene Policinski, a vice president of the First Amendment Center, suggests that the mugshot-removal industry is an incurable side effect of the First Amendment.

In a recent blog post, he wrote:

At least one site, Mugshots.com, cloaks itself in constitutional robing, including the First Amendment value of insuring public-records transparency and the Sixth Amendment fair-trial guarantees. In its 'frequently asked questions' the site states: 'Imagine a world with no transparency, 'star chambers' and citizens who are secretly dragged into investigation [never to see] the light of day again. No one sees. No one hears. No one knows. It’s hard to imagine this was all not so long ago. Russia? China? North Korea? Cuba? Or even today, Guantanamo Bay, or the CIA’s 'black sites'? Greater openness and transparency are the foundation of strong government of the people.'

All true. But though the postings benefit the individual and the public, who gains from taking down the photo? The individual and his or her reputation, certainly — especially when prosecution was erroneous or failed to convict. But the benefit to society of a private company or person profiting from removing information from public view is, well, nonexistent.

There's the rub: Those public-spirited companies like Mugshots.com suddenly turn self-serving in demanding from $99 to $399 to take down a photo. Critics call the practice 'unfair' or 'extortion.' But given that the postings are done by private companies, not public officials, legal cures proposed thus far seem as bad as the ailment.

While many First Amendment scholars agree with Winchester and Policinski -- Ciolek suggested that such thinking is "logically false."

"That they are public records, that doesn't take them out of the realm of being an extortionist just because other people might have known of the arrest," Ciolek said. "What's implicit in their offer to take down the picture, they are threatening to expose it to anybody unless you pay money. That is exactly what is implied in their takedown service."

The lawsuit is pending in Lucas County Court of Common Pleas.