Monetizing Shame: Mugshots, Privacy, and the Right to Access
70 Rutgers U. L. Rev __ (2018 Forthcoming)
66 Pages Posted: 13 Nov 2017
Date Written: November 2017
Created for the purpose of criminal identification and investigation, mugshots have become a commodity in the digital era, exploited for financial gain. Although much public attention has been focused on commercial mugshot websites and their practice of charging fees for the removal of these images, the problem is far more widespread. Law enforcement agencies, news outlets, and tabloids have created modern-day “rogues’ galleries” online, indiscriminately publishing mugshots of individuals, many of whom were never prosecuted or convicted. The mass publication of mugshots online permanently stigmatizes millions of Americans with the mark of criminality and undermines two basic principles of our criminal justice system – presumed innocence and redemption.
This Article explores the commodification and commercialization of mugshots and the constitutional and statutory laws that govern their availability. This Article asserts that current state laws fail to address the realities of the digital era and the greater privacy interests that are implicated through permitting open access to mugshots. Because the majority of states deem mugshots open records under their public records laws, mugshot companies and the press have the constitutional right to publish them. The Article proposes that the presumption should be switched and that mugshots should be deemed closed records that are generally not disclosed to the public. This change would be in line with the trend under federal law and provides the protection necessary for the privacy interest at stake.
Keywords: mugshots, booking photos, First Amendment, Privacy, Right to access, open records, public records laws, FOIA, Internet
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