#878: Mugshots For Sale We go deep inside the market for online mugshots. Is it extortion? Or is it a First Amendment right?
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#878: Mugshots For Sale

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#878: Mugshots For Sale

#878: Mugshots For Sale

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NICK FOUNTAIN, HOST:

It's the season of giving thanks and sharing embarrassing stories with your family.

KAREN DUFFIN, HOST:

In the spirit of that, a few days ago, I called up my brother, Joel (ph).

JOEL: Now, can you explain how in the world this all happened in the first place?

DUFFIN: How I ended up getting arrested?

JOEL: Yeah, yeah.

DUFFIN: Yeah. I was driving to your house for Thanksgiving, and, as usual, I was on time, so I was speeding so that I could be more on time, right? And as I was speeding along, I saw police lights behind me, so I pulled over. And, you know, normally, this is, like, a five-minute thing. They look at my license, maybe I get a warning, maybe a ticket. But this time...

JOEL: Well, this is a very well-known speed trap.

DUFFIN: Yeah. I got pulled over, and he asked me to step out of the car, and then he put me in handcuffs and put me in the cop car.

JOEL: Really?

DUFFIN: And I'm thinking, what's happening? And I want to ask so many questions, but then the cop starts to tell me that I have the right to remain silent, and so I do. And then the cop drove me to jail where he took my mug shot - turn to the right, face the camera - and they booked me, which just felt so silly.

JOEL: Yeah, yeah.

DUFFIN: I didn't know you could get arrested for a speeding ticket.

JOEL: Yeah. I mean...

DUFFIN: You can if you also got a speeding ticket a few years earlier and forgot to pay it before leaving town and then you speed again through the same small town on a holiday. But I think the thing that made me the most nervous was that you were the one I had to call because you were my one phone call from jail.

JOEL: You felt like you had let - you were going to be letting me down or something?

DUFFIN: Well, you're quite responsible, and you have children that I like quite a bit.

JOEL: There was a brief moment of evaluation, and we decided can we allow a convicted traffic violator to come to our house for Thanksgiving dinner?

FOUNTAIN: Did you spend the night in jail?

DUFFIN: I did not. Luckily, I bailed myself out a couple hours later, and my brother did save me some turkey. And, of course, they all thought that it was so funny, which this did start out as just kind of a funny family story, but then it turned into something else entirely because there is something that came after the arrest, something that introduced me to a world that I did not know existed that would follow me much longer than the arrest.

FOUNTAIN: OK.

DUFFIN: About six months later, I get a phone call from my niece, and she tells me that she's been online, and for some reason, she was Googling my name. And the first thing that came up was my mug shot.

So one of the kids is the one that found my mug shot online. And they used it as the picture that came up when I called them.

JOEL: (Laughter) That's funny.

DUFFIN: Yeah.

FOUNTAIN: You're telling me that if I, right now, Google Karen - I'm doing it...

DUFFIN: Try it.

FOUNTAIN: ...On my phone - Duffin mug shots - that's not you. There's a lot of mug shots here but...

DUFFIN: Not mine?

FOUNTAIN: Not so far.

DUFFIN: OK. Well, I can tell you why that is because, as I discovered, the entire business model of the website where my photo ended up, mugshots.com, is that they say, look; we'll take down your mug shot if you pay us a fee.

FOUNTAIN: Extortion.

DUFFIN: I know, right? They charged me $399 to take down my mug shot.

FOUNTAIN: And judging by the fact that I'm already on page two of this and I don't see it, you paid it.

DUFFIN: OK. Yeah, it better have worked. And I felt like I had to pay this, especially because I had just left, like, this corporate career that was stable behind me, and I was trying to start over in radio. So I knew that editors would be Googling my name soon, and having a mug shot come up first did not seem like it was going to be the best first impression. So I logged on, and I'm entering my credit card number to pay this thing, and I'm fuming, and I'm thinking, like, how is this legal? And then it occurs to me I am a reporter now. I am going to get to the bottom of this.

(SOUNDBITE OF CHRISTOPHE DESCHAMPS AND LAURENT VERNEREY'S "PSYCHE PEACOCK")

DUFFIN: Hello, and welcome to PLANET MONEY. I'm Karen Duffin.

FOUNTAIN: And I'm Nick Fountain. If you are one of the more than 70 million people in America who have been arrested, chances are you have a mug shot. And thanks to the Internet, that can follow you forever.

DUFFIN: Trying to stop mug shot extortion takes us to a place where the First Amendment and our right to privacy clash in really complicated ways.

FOUNTAIN: Because when it comes to the Constitution, compromise isn't easy.

DUFFIN: Today on the show, I fulfill my promise to my former self. I am going to figure out how online mug shots turned into a business, why it's legal and if we can stop it.

(SOUNDBITE OF CHRISTOPHE DESCHAMPS AND LAURENT VERNEREY'S "PSYCHE PEACOCK")

FOUNTAIN: Let's start very simple. Why do mug shots even exist? Why is a picture of you on your worst day available to the public?

DUFFIN: You kind of have to go back to way before the Internet even existed, back before the founding of America...

FOUNTAIN: What?

DUFFIN: ...Back to our founding grudge against the British.

FOUNTAIN: OK?

DUFFIN: Because the Brits were arresting people secretly, so the colonists were like, that's not cool. And they started publishing their own lists of arrestees.

FOUNTAIN: As like a check on power sort of thing.

DUFFIN: Yeah, yeah. And after we kicked the Brits out, we passed laws so that now Americans get to know all kinds of things about what the government's doing. We get access to a lot of government records, including mug shots. And the first mug shots were physical photographs that law enforcement would basically just collect in a book. And for a really long time, you had to, you know, go to the jail, fill out a form in order to see them. So it took some effort to see a mug shot.

FOUNTAIN: And then the Internet came along, right? So now we don't have to go to the jail to get the picture. Now we can just find it on the Internet.

DUFFIN: Exactly. So police departments and jails, they start putting a bunch of their information online, in part because there was this push to get more information out to victims of crime. So you have more mug shots online, and then someone takes this, you know, noble public access thing and turns it into a huge business. And the guy who's credited with doing that is an enterprising ex-con in Florida.

FOUNTAIN: You're saying we have to blame Florida man.

DUFFIN: As usual (laughter). And this particular Florida man is Rob Wiggen. Rob had served three years in prison, and he was out and trying to get back on his feet. And he thought, what if I applied my computer programming skills to Florida's very liberal public record access laws? So he sits down, writes a program that just scraped mug shots from law enforcement websites and posted them to his brand-new website, florida.arrests.org, where he kindly let visitors tag mug shots. You can tag them, like, hottie or WTF. And he also kindly let people, for a small fee, remove their mug shots. And with that, the online mug shot industry was born. So what used to require real effort - like, drive to a government office or mail in a request and wait - is now just an idle, curious, Google search away.

FOUNTAIN: Yeah. I used to work the graveyard shift at NPR writing the news, and I would come across so many of these things or more, like, articles of people making fun of people who were in mug shots. And I remember some of these sites' names even, like, Georgia Busted (ph), Spring Break Mugs (ph), Gotcha Mug Shots. Also a lot of newspapers do this.

DUFFIN: Right. Like the Tampa Bay Times - about 5 percent of their overall site traffic is to their mug shot page.

FOUNTAIN: There's, like, this online ecosystem around people's worst moments.

DUFFIN: Millions of people's worst moment because millions of people get arrested every year. In fact, if you took all the arrestees in America right now and made them into their own country, it would be bigger than France. And if all the arrestees were to, say, hold hands, they could circle the Earth three times.

FOUNTAIN: OK. I gather you're very into spatial metaphors right now. I also know - because I sit near you in the office - that you have been calling up a lot of people who have dealt with issues because their mug shots were online, right?

DUFFIN: Yeah. I wanted to get a sense for what the experience is like for other people because, you know, my arrest is now just kind of a funny family story, which can happen when you're a middle-class white girl. But for a lot of people I talked to, the thing that changed their lives as much as the arrest, if not more, was the fact that their arrest would now tag along with them on dates, job interviews, housing applications, forever, even though a mug shot is often misleading. I talked to Sarah Lageson. She's a sociologist from Rutgers who studies this.

SARAH LAGESON: A mug shot doesn't tell us much about the person who's arrested. It tells us a lot about who the police decided to arrest.

DUFFIN: A huge chunk of people who are arrested are never charged or convicted. In California in 2011, actually, the majority of people arrested - no charge, no conviction. And the chances of getting arrested are, of course, much higher for some people. You are 16 percent more likely to get arrested if you're a Hispanic man and 29 percent more likely if you're a black man.

LAGESON: And if we, you know, have some trouble with the systemic and structure problems with who gets arrested, we should also have a problem taking the mug shots as sort of an indicator of who's dangerous.

DUFFIN: They can make it harder to get a job because more than 75 percent of employers say that they Google every candidate. And if they see your mug shot, they can just eliminate you right away without even interviewing you.

LAGESON: And just say, you know, these people just aren't qualified for the job. And as the applicant, there's no way for you to challenge that. You don't really know what's going on.

DUFFIN: People I talked to told me that these mug shots make it harder to date. Sarah also says that people will cut way back on what she calls prosocial behaviors.

LAGESON: This might stop volunteering at schools because there's a background check thing there. And, of course, you're in this small community where people talk and gossip. And the last thing you want is for your kid to have to deal with it.

DUFFIN: And then, you take the worst-case scenario - the wrongfully convicted - people like Jacques Rivera in Chicago. He served 21 years for a murder he did not commit, but his online mug shot still linked him to this murder, even said he should still be in jail. He talked to the Chicago Tribune about what it meant that his mug shot was on mugshots.com.

(SOUNDBITE OF ARCHIVED RECORDING)

JACQUES RIVERA: With the profile still on there saying I'm still in custody and the charge of murder, you know, it's scary. All I need is the wrong person to see it. That's all it takes is one person, and it could change my life forever, just like the wrongful conviction did, so...

FOUNTAIN: But, to be clear, Jacques could pay the extortionary fee to the website, right?

DUFFIN: He could, but that is probably not going to solve the problem because it just keeps popping up on other sites. Like, after I paid mugshots.com, mine popped up on another site, and I had to pay them. For lots of people, it can end up on, like, a dozen sites.

FOUNTAIN: OK, which brings us to our second question. How is this even legal?

DUFFIN: As I looked into this, I discovered that it's actually kind of our fault.

FOUNTAIN: My fault?

DUFFIN: Well, reporters are the biggest cheerleaders for access to online mug shots. I called up a lawyer named Adam Marshall. He is a litigator for the Reporters Committee for the Freedom of the Press.

FOUNTAIN: I know them. They're great.

DUFFIN: Right, right. I used them when I was a freelancer and I was trying to get some government documents.

FOUNTAIN: OK, so how does Adam defend your mug shot being on mugshots.com?

DUFFIN: Adam's job is to fight for access to government documents - like, as many as we can get. So he is a purist on this topic. He thinks mug shot access should be absolute.

ADAM MARSHALL: It's hard for us to predict, like, when that openness is going to be really important. When is it going to be the case of mistaken identity? When is it going to be the arrestee who's beaten up by the cops?

FOUNTAIN: OK. But there has to be some reasonable way to handle this.

DUFFIN: In Adam's mind, it's a hard thing to do because you can't say, like, we're going to cut off access to this information because people are using that information poorly.

MARSHALL: Again, if we start saying, oh, you can only, you know, have access to government information if you use it in a good way, that's, like, a really dangerous road, I think, to go down. What's important is that we deal with people who are trying to, again, extort or abuse people. I think that's what's important.

DUFFIN: The way the Constitution protects ideals like the freedom of the press is to protect some extra stuff, too - stuff we don't necessarily like. So it can feel scary to compromise, to say, yes, yes, public records - we need them, but the Internet has weaponized some of them, so for those records, you need a permission slip.

FOUNTAIN: All right, we're almost there. We are almost at the end of your quest to avenge your former mugshotted (ph) self. And our final question is, is it possible to stop these sites?

DUFFIN: There are people who are trying. Eighteen states have passed laws that make it illegal for a website to charge you to take your mug shot off of their site.

LAGESON: The problem is those laws are really hard to leverage.

DUFFIN: This is Sarah Lageson again, the sociologist from Rutgers.

LAGESON: The laws don't have a lot of teeth. And there is jurisdictional confusion. If the server's in Belize and the website operator's in Florida, like, where do I begin, right? What court do I even go to to file this grievance?

DUFFIN: Also, some of the penalties are really low. And states that have these laws - most of them don't even enforce them, which leaves it mostly to citizens to sue. And leaving aside how expensive that would be, these are the last citizens who would want to engage with the justice system.

LAGESON: I've asked people, you know, do you want to sue them? Have you ever thought about taking legal action? And they look at me like I'm crazy. And they say, why would I ever go re-enter a courtroom.

DUFFIN: Oh, right. People who've sued have found their mug shots suddenly multiplied across the Internet, so some people get creative. They try to just do what they can to move their mug shot down in the Google results, like this one guy that Sarah interviewed.

LAGESON: He created all these online profiles with his first and last name. He started blogging about the TV show "Arrested Development."

DUFFIN: Oh, that's great.

LAGESON: Right?

FOUNTAIN: I see why you assigned yourself this story. You wanted - so that when people Google Karen Duffin mug shot, it comes up with a PLANET MONEY episode and not your mug shot.

DUFFIN: Exactly, Nick, exactly. You see it.

FOUNTAIN: All jokes aside, Google can fix this, right?

DUFFIN: Well, they have been trying. Like, a few years ago, people started saying, like, why doesn't Google just cut this off?

LAGESON: In response, Google made this claim that they were going to change the algorithm and that they were going to make sure that these mug shots weren't showing up right away.

DUFFIN: I talked to Google, and they told me, yes, they have been working on this for years now. Sarah seems to think it actually kind of backfired.

LAGESON: In reality, what that did was it taught all the website operators how to optimize their websites for Google search results. Because it no longer was going to be passively happening, they needed to figure out how to make sure that their websites were showing up right away. So they actually became experts in SEO in response.

DUFFIN: Oh, no. It's like they got a vaccine, and, like...

(LAUGHTER)

LAGESON: They're stronger.

DUFFIN: ...And now it made them stronger.

LAGESON: Right.

DUFFIN: Right. Google told me they promise they are still trying to work on this.

FOUNTAIN: I'm not going to say you're disappointing your former self, but you told your former self that you were going to find solutions in this show. Have you found any actual solutions?

DUFFIN: Well, the solution that some people have found is to sort of go back to the system that we had before the Internet - to still let people get mug shots but just not make it automatic, like the feds.

For a long time, federal mug shots were pretty easy to get. But two years ago, the court said, I think the Internet's turned mug shots into something that they were never meant to be. So now you can only get federal mug shots if you do it the old-fashioned way. You have to make a request.

FOUNTAIN: Sure. But federal arrests are, like, a tiny fraction of nationwide arrests, right?

DUFFIN: That is true. That is true. So I also looked around to see if anyone's trying to solve this at a state or a local level. And I found this guy, Mitch Lucas. He is the assistant sheriff in Charleston, S.C. And he told me that when he heard about what mugshots.com and other sites were doing, he was furious. He called it despicable.

MITCH LUCAS: Despicable is the only word I can think of to describe the people who do this. So we decided to do what we could to - literally just to make it more difficult.

DUFFIN: The way he made it more difficult for them is by turning to his IT guys and saying, stop letting these sites automatically slurp up our mug shots. Stop the robots.

LUCAS: We put the roboprotection. If they want a photo, they have to look through them - each one, one by one.

DUFFIN: It's impossible to erase what is already out there, but they can put up a gate to getting new mug shots. And what they did is kind of technical. But basically, they wrote software that makes it impossible for websites to just pick up their mug shots in bulk.

FOUNTAIN: Did it work?

DUFFIN: It did, actually. If you go to mugshots.com and you search on Charleston, most of the entries that come up don't have pictures.

FOUNTAIN: So you're saying our collective fate is in the hands of local IT administrators?

DUFFIN: Yes. This is a solution, but it would require thousands of counties to do it. I'm guessing that the odds of that are pretty low, so I did come up with one more solution that I ran by Captain Lucas.

I have a proposal. I think that everyone in the country has to take an unflattering photograph of themselves and post it online with the worst thing they ever did. And then we're all even. Then it's fine.

LUCAS: Well, I'm sure you're going to have people jumping at the chance to participate.

(LAUGHTER)

DUFFIN: I don't know. I'll have to figure out how to sell it.

(SOUNDBITE OF LAURENT VERNEREY AND RAPHAEL CHASSIN'S "GROOVY BASSLINE")

DUFFIN: Do you have any story ideas? If you want to share an unflattering photo with us, you can let us know at planetmoney@npr.org. We are also on Twitter, Facebook, Instagram. We're @planetmoney.

FOUNTAIN: Today's episode was produced by Sally Helm. Thanks, Sally. Our editor is Bryant Urstadt. Our supervising producer is Alex Goldmark.

DUFFIN: Special thanks to a lot of people - Utah Public Radio, Anne Alvarez (ph), Seth Rose (ph), Samuel Tenenbaum, all the people who spoke to me about their mug shots. And a huge thanks to Jonathan Shub, who is working on a lawsuit right now about this issue in Pennsylvania. I am Karen Duffin.

FOUNTAIN: I'm Nick Fountain. Thanks for listening.

(SOUNDBITE OF HECTOR J. ALVAREZ, IGNACIO SCANNONE, KENNETH KAMINSKI, KYLE LEMAIRE AND VANCE WESTLAKE SONG, "BLUES PROMPT")

DUFFIN: Would you like to describe the makeup of our family?

JOEL: Well, we have eight people, six children.

DUFFIN: You killed off one of us 'cause you said there were six kids.

JOEL: Oh, my goodness.

DUFFIN: Which kid did you kill?

JOEL: Should I try that again?

DUFFIN: No. I just want to know which kid didn't survive.

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