Journal of Free Speech Law: "Privacy Rights, Internet Mug Shots, and a Right to Be Forgotten," by Prof. Amy Gajda

Just published as part of the symposium on Media and Society After Technological Disruption, edited by Profs. Justin "Gus" Hurwitz & Kyle Langvardt.

The article is here; here is the Introduction and the start of Part I:

In the spring of 2022, visitors to the Smoking Gun website would find a challenging "game, where [one's] wasted time [was] well spent."

"For today's 'Friday Photo Fun,'" the website explained, "readers must examine five mug shots and match up the respective defendants with the crime for which they were arrested." There appeared five photos of sorry-looking individuals arrested for crimes both serious and not so much. A tattooed white man nabbed by police for narcotics possession; a Black woman arrested for speeding; three other individuals arrested for driving while intoxicated, assault and battery, and grand theft respectively. The match-the-mugshot-to-the-crime game appeared every Friday.

The Smoking Gun gathered those police booking photos through freedom-of-information laws, statutes designed to give the public access to important governmental information. For a long time in the United States, mug shots have been a part of such governmental openness: The thought was that the public should know who'd been arrested and on what grounds, and how they'd looked at the time of arrest in order to ensure that police had not battered them. Mug shots also helped to avoid mistaken identity, access proponents said. In the past, it was mainly journalists who were those proponents, who would receive the images from police and later assess them for newsworthiness, publishing only those they thought relevant for public view.

Today, it's not only journalists who are interested in mug shots. As the Smoking Gun matching game shows, other types of websites publish the images for reasons beyond news value; some have no focus on news value at all.

This chapter considers mug shots and other once-public information about those arrested by police. It finds that, in direct response to worries about internet-based abuse and online longevity, legislatures and courts have taken action to shield such information from public view. It notes that journalism has shifted to include mug shots in reporting less often and, in some cases, to remove from public databases those mugshots published as a part of older news stories. Given such shifts, this chapter predicts that, soon, most mug shots will no longer be made available through public-records requests and those whose mug shots are published could one day bring a valid publication invasion-of-privacy claim. Finally, given such shifts and potential shifts, it predicts one's entire criminal past, including one's older mugshot, could one day be even more strongly protected on privacy grounds.

I. Two Shifts in Law Regarding Mug-Shot Privacy

As ubiquitous as mug shots may seem today online and otherwise, at the turn of the twentieth century, courts routinely protected mug shots on privacy grounds. In short, there is support in early case law for a right to privacy in booking photos.

Consider Joyce v. York, an 1899 case from New York in which the court suggested even a habitual criminal could have an action against police for including his photograph in a so-called rogue's gallery published for others to view. The court wrote that the "wrong [was] in the nature of a libel," which back then meant at times that anything either true or false that harmed reputation could lead to liability if published. How one looked at the time of arrest, that court suggested, impacted the way others perceived the person, even if the photograph and the information regarding the arrest were accurate.

In Itzkovitch v. Whitaker, too, a decision from 1905, the Louisiana Supreme Court forbade police from circulating an arrestee's booking photograph even though the man was notorious for running a pawn shop and had been arrested several times. "Everyone who does not violate the law can insist upon being let alone (the right of privacy)," the court wrote, and indicated that an individual not yet convicted would be protected from having his booking photograph published to others too. By 1906, the Louisiana court ordered police to return to the not-yet-convicted arrestee all photographic negatives of his mug shot and "to erase and cancel all record entries of the photographs and of the measurement made of the plaintiff" too.

Judges in other states agreed; most courts that had decided lawsuits involving booking photos back then found privacy rights in them, especially—but not exclusively—before the arrestee's conviction. Those states included Indiana, Maryland, Missouri, and New Jersey. Courts were especially concerned about the lasting harm that such images would have on a person's reputations no matter the outcomes of the underlying criminal case. "Upon [an arrestee's] vindication," the New Jersey court wrote in explanation, "the circulation of such information [] could not be undone."

Then, there came a shift in that sort of privacy-protective awareness regarding mug shots. In the 1960s and 1970s, as federal and state governments opened more of their files to the public view as a measure of support for the public's right to know about government matters, mug shots and other arrest information became more accessible, and privacy protections in such information seemed less of a concern….