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Mugshots.com…Busted!!!!

Not everyone who is arrested is guilty. Not everyone who is arrested is charged with a crime. Not everyone who is charged with a crime is guilty. You may recall from your high school civics class the idea that criminal defendants are presumed innocent until proven guilty. With that principal in mind, the State of Florida provided for the idea that you could expunge a criminal record when the State Attorney’s Office decided not to file charges or charges were dismissed. This process really provided relief for many individuals.

An expunged record allows a person to deny an arrest. It also removes records from the County Clerk of the Court, the State Attorney’s Office, FDLE, and the arresting agency. It gives people an opportunity to walk away from a bad situation and one the government did not prosecute. Unfortunately, this process did not apply to private entities and an order expunging a record had no effect on non-governmental agencies.

Until relatively recently the expunging process was providing enough relief for most people. It was not until around 2011 that websites like mugshots.com and arrested.org began publishing the mug shot photos and arrest information on their website. As the New York Times article stated “It was only a matter of time before the Internet started to monetize humiliation.” These private businesses capitalized on this humiliation by charging individuals to have their name and photograph removed.

As a defense attorney in Orlando I can tell you it was a mess. It was difficult to explain to people that the government had to follow a court’s order but the people at bustedmugshots.com could keep publishing this information. People who had never previously been in trouble AND who had their cases dismissed were finding their photograph prominently displayed all over the internet. They wanted to move past this time of their life and wanted to prevent others from finding out about their arrest. The two words that I heard the most were frustration and embarrassment.

I wanted to offer my clients counsel on how to proceed but it was difficult to advise them to pay the ransom to each and every website that was holding their image captive. I was not the only one with this problem; criminal attorneys across Florida and the United States were facing the same issues. We want to protect our clients but we were not given a vehicle to accomplish this goal.

Legislators were attempting to pass statutes prohibiting these sites from displaying this information or face penalties for refusing to delete this information. Some states in fact passed these laws but others states found it difficult as they believed it had a chilling effect on the First Amendment. Jillian Stonecipher wrote an interesting blog on this very issue for the Nieman Journalism Lab.

Google Giveth and Google Taketh Away

Then along came Google to the rescue. They have been able to accomplish what legislators and attorneys have been unable to do. They saw these sites for what they were, not an informative website, but one that attempted to capitalize on our society’s voyeuristic tendencies. On October 3, 2013 Google flipped the switch or changed their algorithm, depending on how tech savvy you are, and is actively trying to push down these mug shot website from showing so prominently and ranking so high. Barry Schwartz from Search Engine Land wrote a very good article explaining that Google has been working the last few months to update the algorithm and also includes a number of other articles explaining the evolution of Google’s thought process on the subject.

These mug shot sites were ranking incredibly well before this change to the algorithm. The same New York Times articles states that according to Doug Pierce of Cogney these website were ranking so well because people loved looking at them. They would click on the site, stare in disbelief, and then continue to look for other people. This would “tell” Google that it was an interesting and informative site and would boost their search results. However, once actual humans at Google became aware of the sites and realized these violated Google unofficial “Don’t be evil” policy things came crashing down. It is one thing to provide interesting and original content; it is another to humiliate people into paying money to remove their picture.

While the Search Engine Land article points out that the New York Times example is still showing up prominently on a search, I can personally attest to the fact that these sites are losing prominence on search results. I have “Googled” a number of past clients and am no longer seeing their picture as a top result. This should be a relief to everyone not just those unfortunate enough to be arrested. People make mistakes, and so do police and prosecutors. An indiscretion by any of them should not show up on the first page of Google.

So where does that leave us and what remedy do people have to protect themselves if their unfortunate photograph still pulls a high rank on a Google search? In the short run, people are probably stuck with the image. I have been counseling people for a few years now that while an expunged record does have benefits, the idea that people will not be able to find out about an arrest is naïve in today’s age of information. Even if every mug shot website was taken down voluntarily or otherwise, an arrest is still a public record and more than likely it is documented somewhere by some private entity and not subject to an expungement order.

I personally feel that because Google has programmed their algorithm to penalize these sites other search engines will follow suit. This in combination with the fact that credit card companies are contacting merchant banks and asking them not to continue servicing these companies will have an enormous effect on the websites finances. Market forces will then lead to the demise of these sites. If mugshots.com or arrested.org are not showing on the first few pages of a search then less people will be accessing the site. If less people are accessing the sites then they will not only have fewer people willing to pay for their removal but there will also be less advertising on the sites as well.

If you cannot wait for the free-market to take care of this problem, I would suggest either retaining a reputation management company or creating your own web presence. Create a website with your name as the domain name. Include images in the website and create links in and out of the website. In order to mend your online image social media can be your friend. Create a Facebook fan page and try to promote it or spend extra time and attention on your LinkedIn and Google+ account. All of these ideas help promote your web presence and also push down the negative information that is on the web.

At this point, we are still in a wait and see situation. There is not a legal remedy to remove your image from the site. Perhaps the various state legislatures will craft a law that will allow an image to be removed, but still protects the First Amendment. There is a pending lawsuit alleging that these sites are making money by exploiting the images of those who were arrested, but that is not a quick fix nor is it a guaranteed remedy.