Mug shot ‘takedown fees’ drawing scrutiny
CHICAGO — Peter Gabiola thought he was on the right track in 2013. He was out of prison and had been off parole for retail theft for more than a year when he started a new job with a sales and marketing firm in suburban Chicago.
But about an hour after he started, someone at the business Googled his name and saw that he was listed as being on parole. The company fired him immediately, he said.
The Illinois Department of Corrections had removed his records from its website. Commercial website Mugshots.com, however, still featured the information.
After having two more job offers rescinded, Gabiola typed his name into Google himself, saw his page on Mugshots.com, and contacted another site, Unpublisharrest.com, to try to get it taken down. He said the site, which only offers its service for Mugshots.com, told him it would cost $15,000 to attempt to scrub the information — with no guarantee that his profile would be removed.
Decades ago, booking photos — taken after someone is accused of, though not necessarily found guilty of, a crime — had a shelf life, remaining available only if someone kept a newspaper clipping or was willing to visit the public library to scroll through microfilm.
But in the internet age, mug shots culled from public law enforcement endure on the web. The sites argue that people have the right to know whether, say, their son’s baseball coach has been arrested. Mugshots.com says it’s merely republishing arrest information from publicly available government records, so the First Amendment immunizes it from liability. Pay for a clean slate?
However, the growing business of charging consumers money to wipe the slate clean is drawing scrutiny across the country.
Illinois and some other states prohibit companies that publish mug shots from soliciting or accepting fees to remove or correct information about criminal records, equating that business model to extortion. Some credit card companies have policies prohibiting the use of their cards on mug shot removal sites.
A cottage industry of reputation management websites has sprung up, offering comprehensive removal services so people whose mug shots are published don’t have to go through the timeconsuming and expensive process of contacting each site individually to get them removed.
Gabiola is a lead plaintiff in a federal lawsuit seeking class action status against Mugshots.com. The lawsuit alleges the site posts incomplete records so, in turn, Unpublisharrest.com, which the suit claims is a sister site, can solicit “takedown” fees from people desperate for a more wholesome digital footprint.
The lawsuit, filed last year, seeks $1,000 for each class member, plus punitive damages, and aims to force Mugshots.com to remove class members’ photos. I
About 43,500 inmates currently are housed in Illinois prisons, and the experience of ex-inmates like Gabiola has drawn the attention of state Attorney General Lisa Madigan. She has intervened in Gabiola’s case against Mugshots.com, saying the state “has a substantial interest in protecting citizens against financial exploitation” that “preys upon the stigma associated with being arrested, convicted or imprisoned.”
Mugshots.com and Unpublisharrest.com “used photographs from the most humiliating moments in people’s lives to shake them down for money,” Madigan’s office said in a November court filing, characterizing Mugshots.com’s business model as an “extortionate practice” that a 2014 state law prohibits and the First Amendment doesn’t protect.
“They run a commercial enterprise built to obtain money from people whose notoriety consists solely of having a criminal record,” the attorney general’s office said in a court filing.
Website critics say the industry can undermine former inmates’ job prospects, particularly at a time when a widening swath of the public backs reforms to make it easier for former prisoners to find work as a path to rehabilitation. First Amendment rights
But First Amendment rights for even unpopular speakers must be protected, a lawyer for Mugshots. com said.
“These are perilous times for the First Amendment,” said David Ferrucci, a lawyer representing Mugshots.com. “We need to defend everybody’s First Amendment rights.”
Like Madigan, the lawyers who filed the lawsuit against Mugshots. com aren’t convinced by the First Amendment argument.
“Freedom of the press does not include the right to use incorrect or wrong information to profit off of the worst moment of another person’s life,” said Stuart Clarke, an attorney with Chicago law firm Berton N. Ring. “The First Amendment is not a blanket protection for everything you do.” Hard to find a job
Gabiola, 53, who no longer lives in the Chicago area, said in a recent interview that it has been difficult for him to find a job and housing because Mugshots.com incorrectly still shows him as being on parole.
He said he just lost a job he held for four months, supervising crews that clean rail cars holding chemicals. When he was being considered for the job, he was asked whether he had ever been convicted of a felony, confirmed that he had, and still got the job, he said. His boss, however, recently Googled him and saw his inaccurate listing on Mugshots.com.
“It’s like I’m a month away from homelessness constantly, and it’s because of these websites,” Gabiola said. “At the very least, the information on the website should be accurate because they’re only making it harder for people that are really at the bottom of the barrel in society.”
Mugshots.com argues in a court filing that Gabiola’s reputation is damaged by the fact that he was arrested and convicted of multiple crimes. It also said that because he
and other plaintiffs haven’t paid any fees, they haven’t been damaged by the removal service that is at the heart of the lawsuit.
“Mr. Gabiola, for example, does not complain that he was never on parole, only that he currently is not and his criminal record on the website is not up to date,” the company said. “However, a website publisher has no obligation to update.”
Mugshots.com said constitutional privileges to republish information from a public record “is not lost simply because the information has become stale, or is incomplete.”
“No one would reasonably suggest that republication of O.J. Simpson’s arrest photos from the Nicole Brown Simpson murder case would not be protected by the First Amendment simply because the arrest photo is more than 20 years old and Simpson was ultimately acquitted of the charges,” it said in a filing.
It took issue with the “extortion” characterization. Extortion generally means seeking payment before — not after — publishing information, the company said.
The company also said Unpublisharrest.com is a website separate from Mugshots.com that offers licensing rights to the public to control specific information in the Mugshots.com database.
Mugshots.com is owned and operated by Julkisuudessa in Nevis, West Indies, according to its website. The Better Business Bureau lists Unpublisharrest.com as an alternate business name for Mugshots.com.
Gabiola said inaccurate information is more likely to compel arrestees to pay to have the information removed, and it implies that people on the site are dangerous regardless of whether they’re rehabilitated.
“I committed the crimes, yes, but I did my time,” he said.
Separate from the lawsuit against Mugshots. com, Bluhm Legal Clinic at Northwestern University’s law school is trying to get the names of almost 20 exonerated people off of mug shot websites, said Samuel Tenenbaum, clinical associate professor of law.
Among them are Terrill Swift and Jacques Rivera, who spent 15 years and 21 years, respectively, in prison for crimes they didn’t commit.
Swift, 39, whose effort to get his photo removed from Mugshots.com was reported by the Chicago Tribune in 2012, said it’s a “bad reminder” for his photo to still be on the site five years later.
The site, accessed this month, has photos of Swift, who was wrongly convicted of rape and murder, though it also displays a video of him after his exoneration and lists links to related stories.
“We’ve been exonerated,” Swift said. “They should do the right thing and take our pictures off those websites.”
Earlier this month, Rivera, 51, was still shown as being in custody for murder. He was exonerated and released from prison in 2011.
Ferrucci, the lawyer for Mugshots.com, said the site features stories about exonerations every Sunday and removes exonerees free of charge if they contact the site and provide documentation.
However, Tenenbaum said: “We contacted them. They wouldn’t do it.”