Over the past 40 years, the field of behavioral economics has emerged to explain why humans make irrational decisions. We talk with one of the pioneers of the field to find out what’s behind the choices we make, and how we can use this knowledge for good.
Guest Host: Marc Fisher
For decades, the press and public have used booking photos to identify crime suspects. In the past, mugshots were largely forgotten in police station and newspaper archives, but the Web has given these photos new life, often haunting those whose charges were minor or even dismissed. We explore the privacy concerns surrounding mugshots, and find out about efforts to make both federal and local mugshots public, despite a burgeoning online “mugshot racket.”
- Stafford Shealy Owner, Reputation Turn LLC
- Mark Caramanica Freedom of Information Director, Reporters Committee for Freedom of the Press
- Scott Ciolek Attorney, Ciolek Ltd.
MR. MARC FISHERFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your community with the world. I'm Marc Fisher of the Washington Post sitting in for Kojo. Last week's manhunt and capture of the Boston bombing suspects can largely be credited to photography, from the thousands of photos police collected from bystanders to video and even infrared images. Authorities say releasing the suspects' photos was a crucial turning point.
MR. MARC FISHERMany states are responding by clamping down on access to police files, which is rankling journalists and open government advocates and people who just want to see who is committing crimes. So how do you balance the public's right to know with the right to privacy? Joining us in studio, Mark Caramanica is freedom of information director at the Reporters Committee for Freedom of the Press, an advocacy and advisory group for journalists. And by phone from Toledo, Ohio, Scott Ciolek is an attorney in Toledo who has filed a class action lawsuit against those sites that post mugshots from public records.
MR. MARC FISHERAnd Mark Caramanica, we've just come off this huge news week with thousands of images of the hunt and capture of the Boston bombing suspects. And as we know, in the hours before the suspects were caught, the decision to release photos of the Tsarnaev brothers went all the up to the attorney general and the head of the FBI. But we're not going to see the mugshot of the surviving brother, Dzhokhar Tsarnaev. And why is that?
MR. MARK CARAMANICAThat's correct, Mark, and you won't see it because the Marshalls have instituted a policy that basically says that in all circumstances, no matter who the individual or the newsworthiness of the event, that federal mugshot booking photos contain a privacy right that is not trumped in any way by the public interest and disclosure. And this is in contradiction and direct defiance to a 1996 federal appeals court ruling out of the 6th circuit that said essentially that when named defendants make an appearance in court in connection to an ongoing criminal trial, that essentially they have no privacy right in that record under the Freedom of Information Act.
MR. MARK CARAMANICAAnd in the wake of that decision the Marshalls had interpreted that decision very narrowly and only applied it to foyer requests that originated in the 6th circuit, because that was the reach of the decision still denying those requests in other jurisdictions. Now fast forward a couple of years and we've had some other decisions out of the 10th and the 11th circuit that have found some privacy interest in those records and a basis to withhold. And because of those decisions now, the Marshall Service is saying that they have authority to refuse disclosure in all scenarios.
FISHERWell, certainly the tradition in our country is for public information to be public. And whether it's wanted posters or pictures in newspapers of people who have committed crimes or simply that the basic facts that show up in the crime blotter in your local weekly. All of these things are meant to be public because anything that the government has that's not part of an active investigation is generally considered open.
FISHERWell, what do you think? Give us a call at 1-800-433-8850 or email us at email@example.com. Should mugshots be released to the public? Do you think mugshots have become a form of public entertainment? And do mugshots taint the presumption of innocence that we grant to people who have been arrested? Scott Ciolek in Toledo, Ohio is a lawyer who believes that mugshots are being abused. But, Mr. Ciolek, why is it that these shouldn't be as public as the police account of a crime or any government account of, you know, the images of a city council meeting?
MR. SCOTT CIOLEKWell, that's an excellent question. The mugshots right now are being abused and exploited all over the internet. And what we're finding throughout the country right now is that once a mugshot hits a public information request situation, like it is on most of the state levels, is that these pictures are being absorbed into these online databases where the proprietors of the databases are charging people money to have it removed from their database. So it's a very large racket that's going on all across the country right now.
FISHERIt's quite a bit of internet commerce going on there and a rather cynical one it would seem, in that you have some companies that are taking these mugshots from public databases or released by police departments, putting them up on a commercial site. And then separately another company comes along and says, hey would you like to have your photo removed from that site and taken off the internet? And charges a large fee for that service. So are these sort of hands washing one another in that exchange of these two different companies?
CIOLEKWell, oftentimes -- well, because a company that posts the mugshots has total control over what comes off and what goes on, there is oftentimes a contractual relationship or agency relationship between the posting sites and these reputation repair sites to the point where some of these mugshot websites are running the whole operation themselves. They post the pictures. And right under the picture you'll find a link to a service of removing the mugshot.
FISHERAnd -- but beyond these websites that are taking advantage of this public information in publishing mugshots, presumably for -- at least in part for the entertainment of the audience, police departments have put up mugshots on their own websites basically from the beginning of the internet until now. That clearly is government deciding that there's a public service involved here. And they're not making any money off it. Are you opposed to those mugshots being publicized as well?
CIOLEKOh, no. Our class action is very specifically targeting mugshot websites that charge a take-down service because it's extortion. And it's the authorized commercial use of someone else's image. When police and government agencies are using the photos, there's two big differences. One, there is a exemption for their use which is in the public interest and two, it's not a commercial use. And three, the government's posting of the mugshots and all the arrest information is subject to the sealing of records and the expungement statutes of the state.
CIOLEKOne of the things we're running into these days is people go through the process, they're arrested. It turns out they were falsely accused. They have all their charges dismissed. They have their records sealed only to find one of these commercial websites still posting the original arrest record as if the dismissal had never occurred or the record had never been sealed.
FISHERHere's Mike in Tyson's Corner. Mike, it's your turn. You're on the air.
FISHERGo ahead, Mike. You have a question? I think we've lost Mike. But, Mark Caramanica, so why should a private business be permitted to make a profit off these mugshots that are being released for the protection of the community by the authorities?
CARAMANICAWell, I think we have to draw a distinction between the publication of a public document and what Scott has labeled the extortion of an individual for taking that mugshot down for a fee. I think you get into dangerous ground when you start creeping into the ability of the news media and journalists to publish information from government sources that is newsworthy. And in the case that Scott has filed, I think we just need to be very careful that we don't see any type of ruling that infringes upon the legitimate uses of those mugshots and the publication of mugshots and journalist's first amendment rights there.
FISHERIf you've had your mugshot put up on the web and were unhappy about it, give us a call at 1-800-433-8850. Has something from your past caught up with you on the internet? And do you think mugshots have become more a form of entertainment than use in protecting public safety? Scott Ciolek, is there a role for journalists and people in commercial media to use these mugshots beyond what -- how police and sheriff's departments use them?
CIOLEKOh, yes. I agree with the other presenter in that when it comes to publicly available information, there should be and there is exceptions for newsworthy and things in the public interest, like sometimes mugshots can be. But the newspaper industry and the online news industry enjoy a lot of immunity from the types of issues that are creeping into these mugshot industries. But one of the things that they have to adhere to is the fair reporting standards that the states have instituted.
CIOLEKFor example, if a newspaper prints something defamatory or puts someone in a false light, they'll make corrective entries into future editions of their paper or their online service. The mugshot industry does not have any sort of controls like that that they're operating under now. And the publicity rights that we're targeting in the class action lawsuit exempts newspapers 100 percent. And it is our position that the offering of the removal for a fee, that use alone takes them outside of any exceptions that should be enjoyed by the media or reporters or newspapers or what have you.
FISHERSo, Mark Caramanica, if an exception is being made for news media doing their job then why would you oppose these for-profit companies that are simply exploiting the use of these mugshots? Why would you oppose restrictions on them?
CARAMANICAWell, again, let me emphasize. I'm not here to defend that particular practice. I think that, you know, Scott has presented quite an interesting argument based on rights of publicity laws as to how you can hold these types of websites accountable. So I think, again, that as long as we're preserving the rights of journalists to present newsworthy information of public important to the public without restricting access to mugshots in the first instance and the ability to publish and comment upon them in relation to a newsworthy event, then I think we're edging towards safer ground there.
FISHERLet's hear from John in Ashburn, Va. John, it's your turn.
JOHNHi. I work for an oil company and when I was down in our headquarters in Tulsa, Okla. I saw this actually print a newspaper, like a dollar newspaper. And it just has pictures of mugshots and, you know, the charges that they were arrested on. It's basically an entertainment magazine. And I'll take my answer offline.
FISHERMark, you want to address that?
CARAMANICASure. You know, those types of publications are pretty common and quite popular, particularly in smaller towns where individuals may know the subjects of the people that are featured in those magazines. But, again, I would emphasize that there is still a public interest there. And there's not the extortion that is being claimed in the class action lawsuit. And that the public has an interest in knowing generally who in their community is being arrested and what charges are being brought.
CARAMANICAAnd furthermore, it can help lead to solving of other crimes, additional witnesses coming forward if they can see the pictures of individuals who are arrested for crimes. Maybe they saw them a day earlier casing a particular establishment or they say, you know, hey I saw this guy walking down the street doing X, Y and Z. Maybe that would be helpful to the police. And that -- you know, having that picture there is much more informative than a narrative description of, you know, a 6'1" Caucasian male, brown hair, brown eyes. You know, I just described myself and, you know, thousands of other people in the community.
CARAMANICASo I think the pictures themselves are a very powerful medium to get the message out to people and do serve that public interest.
FISHERMark Caramanica is freedom of information director at the Reporters Committee for Freedom of the Press. And joining us now by phone from Hollywood, Fla. is Stafford Shealy. He's the owner of Reputation Turn, which is a mugshot removal company. He's also an attorney and an engineer. And Stafford Shealy, tell us about how your company came to be and what's the -- the nature of the service that you provide. Stafford Shealy, are you there? Mr. Shealy?
MR. STAFFORD SHEALYYes, I'm here. Can you hear me?
FISHERYes, I can. Go ahead. I was just asking if you could tell us a little bit about how your company came to be and what you saw as the need for this service.
SHEALYCertainly. I had a client of mine that approached me about an arrest record. And I started doing research. In addition to being an attorney I have a very strong legal background and engineering background and did ID consulting for a number of years. So it was king of a weird twist in the last two or three years of my law practice. I started the reputation company. I researched how to get this guy removed from one site. And one thing led to another. I've now been doing reputation repair work for two years and helped over 1,000 people get removed from mugshot websites.
SHEALYA lot of -- go ahead.
FISHERWell, the people who come to you are people who by definition have been at least arrested and charged with a crime. They haven't necessarily been convicted but they're people who at one point or another were either wanted by the police or arrested by the police. Why should they be exempted from the public notice that everyone else in their position is given simply because they're willing to pay you a fee?
SHEALYWell, I mean, the bottom line is, if I'm going to work for someone I need to get paid. I don't work for free. And I'm pretty sure you don't work for free. That said, I'm kind of in the middle between Scott and Mark. I understand there's a public interest in having mugshots published. It does help solve crimes. It helps prevent future crimes. Like a lady that is doing some Google research on a blind date and decides not to go on that date and saves herself a lot of trouble.
SHEALYOn the flipside, people who are arrested, the charged are dropped and they're up on arrest websites, that is insane. And I'm here in Florida. This is kind of the birthplace, based on our public records in Florida, of the whole mugshot industry. And I get both sides of it. It's really going to take some -- from the legislature. There's a couple of bills out in Florida, Georgia and a couple other states that I hope will start moving in the right direction. It's an interesting argument on the interests of the public and those that are really crushed with the power of the internet today.
FISHERSo at ReputationTurn.com you charge anywhere from a couple of hundred dollars to almost $2,000 to have mugshots removed from websites. Why is there such a huge variation in price? And is a portion of that money going to the companies that put the mugshots up in the first place?
SHEALYThat's a fair question. Certainly the price that I quote is based upon how complex the case is that I'm working on. I'll give you an example. I had a lady that hired me to help her son. He was arrested once. He was on five or six websites. After I helped that situation resolve, she hired me to help her daughter. Her daughter was arrested four times. She was on -- with the four arrests she had 42 arrest profiles. This is where I'm backing Scott. That's insane.
SHEALYIt took me six months to get all of those things removed. And there are ancillary sites beyond Google that scoop up information from Google and put it on their site. Six months later I finally tracked down the owner of this one company. He was over in the UK. He was a nice guy. He helped me when I finally got a hold of him. It's just there's -- on the technical side when you're tracking people down, there is an investigation process in getting things resolved. So yes, my prices vary depending on what I'm dealing with.
FISHERWell, but when you're dealing with these companies like MugshotsOnline.com or FloridaArrests.org, these are the companies that make their money putting mugshots out there for people to see. Why are they willing to go along with you and take a picture off just because you asked them to, or are you paying them to do so?
SHEALYI definitely send money out to get things removed. And that's how I can provide a guarantee that you're getting removed from that site and it's coming out of the search engines.
FISHERSo that's -- Scott Ciolek, earlier in the program, called that extortion where they...
SHEALYWell, I mean, Scott and I talked about this. Scott originally named my company in the class action. And he is a good attorney. I back what he's doing. He ended up dismissing me from the lawsuit because I think he knows at this point I am in this to help people with a technical background and a law degree. I can't help the way that the public records work but I can help my customers and work myself.
SHEALYI mean, I met with, for example, Palm Beach County Sheriff's office to talk to them about how can we clamp down on not having all the arrest records scooped up? Their comments were, we can't do it because the Florida statutes require it to be disclosed. We call them sunshine laws down here. And every time we make a change, the biggest, loudest voice that we hear are the newspapers because their websites get a lot of traffic based on mugshots. Which, what are they selling? Advertising.
SHEALYAt the end of the day, everyone's making money. The thing that needs to happen is to make it fair. If someone's dismissed from a case, they should not have their arrest record up. If you get dismissed -- you're arrested and you get dismissed two weeks later or six months later, you shouldn't have to go through an expungement process. Your arrest information should go away.
SHEALYThe state didn't prove their case...
FISHERLet's hear from Ryan in Kensington. Ryan, you're on the air.
RYANYeah, hi. That was specifically what I was wondering about. See, I personally have been arrested some years ago for possession of marijuana, okay. And I live in Maryland. And now because of this new legislation that they've completely decriminalized this in the amount that was -- probably had a street value of $10 back then, I now have a criminal record, okay. Now because of that I have to live with that. Now every time I go to get a job or try to apply for a job, all they care about is whether you've been arrested.
RYANNow it used to be that you used to be able to go to the courthouse and they had a book that you could look up anybody's information who had been arrested. Now what I'm wondering is, when was it legal for the newspapers to be able to sell newspapers based on the misery of other people or the shame that they may have that goes along with this because of the misfortune of other people.
RYANAnd this is prior to them being convicted, like the guy is just talking about.
FISHEROkay. Let's hear from all three of our guests about Ryan's case. Mark Caramanica.
CARAMANICAWell, I think that the caller's comments are important but they somewhat miss the mark in that, you know, we have a First Amendment in this country. And we don't want the government intruding upon editorial decisions on what to put in newspapers and what is deemed newsworthy and worthy of distribution. The idea that -- speaking specifically about some of the bills in Florida -- one of the bills that I read had a provision that basically said, you know, if an individual of the charges are dropped or is ultimately found acquitted that the website that's publishing their online mugshot would have, I think, 15 days to take down the photograph.
CARAMANICAAnd that's very chilling to crime reporting. And think about the implications in Florida of a situation like that where a tremendous amount of resources were put into, for example, covering the Casey Anthony trial. And then ultimately she's acquitted. Now do news websites have to go back and scrub their websites from all the mugshot pictures of Casey Anthony that has ever been put up there? I think it's an incredible barrier to crime reporting and raises some significant, if not grave constitutional concerns.
SHEALYAnd I'm going to jump in. This is Stafford Shealy.
FISHERYeah, please, go ahead.
SHEALYI agree with Mark. I wrote down Casey Anthony. She's up in Orlando. I think the trial was up there. I'm not going to comment on my belief personally about when you have a diseased infant DNA in your back trunk. I'll leave that alone. But Mark raises an excellent point and this is why it's a complicated issue. Are we going to shut down media outlets or require them to go fix everything?
SHEALYThink of the O. J. trial. It went on forever. Let's say that, you know, you got to clean up all that. It -- there's no easy answer and I'm here just to help people with what they see in front of them on the net. And -- but there are problems. I agree with Scott's case. I think there are companies that are totally taking advantage of public records.
FISHEROkay. Let's give Scott the last word. Scott, do you still think that what Stafford Shealy and companies like his are doing is extortion? And is there a way to protect people's rights without infringing the public's right to know?
CIOLEKWell, you know, the websites and their agents are extorting people. It's very clear that that's what they're doing. Anyone who charges to take pictures down from a website is really just charging an extortion fee. Now the question becomes, if you're not going to be charging an extortion fee, why do these people stay in business?
CIOLEKSo to the caller's question, it is my experience -- and I've been reached out to by about 3,000 people across the country who are in a very similar situation -- once your mugshot is on these websites and it starts getting proliferated through the whole system, they cannot find a job. They have a very difficult time finding rents. And they end up having to fall into this cycle of paying one website just to find it cropping up in other websites.
CIOLEKSo I agree that the government should not be telling news agencies what they can and can't report on. But the government has total control over what to do with its records. Most states, as well as the federal government, have enacted these public record acts that allow access to the majority of public records. But allowing exceptions to those acts, like for medical records or educational records or criminal investigatory records are part of the benefits of privacy that have been afforded to the populace. And since we are in a democracy the rights and the needs of the news media do not trump the needs of the populace.
FISHEROkay. We'll have to leave it right there but thanks very much. Scott Ciolek is an attorney based in Toledo, Ohio. Stafford Shealy joined us from Hollywood, Fla. where he's the owner of ReputationTurn.com. And Mark Caramanica is in studio. He's the freedom of information director at the Reporters Committee for Freedom of the Press. When we come back after a short break, we will turn to the sound that is about to fill the ears of people who live in the Washington area. It's the cicadas. They're coming back after a break.
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