BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                              2013-2014 Regular Session


          SB 1027 (Hill)
          As Amended March 28, 2014
          Hearing Date: April 8, 2014
          Fiscal: No
          Urgency: No
          TMW


                                        SUBJECT
                                           
                        Booking Photographs:  Commercial Use

                                      DESCRIPTION  

          This bill would prohibit the solicitation or acceptance of a fee  
          to remove, correct, or modify a booking photograph.  This bill  
          would exempt a public entity from that prohibition.  This bill  
          would provide that an individual who brings an action for a  
          violation may recover damages, costs, and reasonable attorney's  
          fees.

                                      BACKGROUND  

          In recent years, commercial Web sites have begun to extract and  
          compile criminal record information, including booking  
          photographs (mug shots), from certain police and sheriff's  
          department Web sites, post that information online, and charge  
          substantial fees to the subject of the criminal record  
          information to have that information removed.  This practice is  
          part of a growing niche industry, "the mug-shot racket."   
          According to a recent article, "[e]xploiting Florida's liberal  
          public-records laws and Google's search algorithms, a handful of  
          entrepreneurs are making real money by publicly shaming people  
          who've run afoul of Florida law.  Florida.arrests.org, the  
          biggest player, now hosts more than 4 million mugs.  On the  
          other side of the equation are firms like RemoveSlander,  
          RemoveArrest.com and others that sometimes charge hundreds of  
          dollars to get a mugshot [sic] removed.  On the surface, the  
          mug-shot sites and the reputation firms are mortal enemies.  But  
          behind the scenes, they have a symbiotic relationship that  
          wrings cash out of the people exposed. . . . None of this  
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          appears to be illegal, but it demonstrates an unintended  
          consequence of state transparency laws."  (Cravats, Mug-Shot  
          Industry Will Dig Up Your Past, Charge You to Bury It Again  
          (Aug. 2, 2011)  
           [as of Mar.  
          27, 2014].)

          The mug shot business has now expanded to California and,  
          according to a recent Los Angeles Times article, is impacting  
          California residents by affecting their employment prospects and  
          causing humiliation.  (Lopez, Lawsuit targets website that posts  
          mug shots (Jan. 22, 2014)  
           [as of Mar. 27, 2014].)  Existing  
          California law requires public access to public agency  
          information but does not prohibit individuals from collecting  
          mug shots of individuals and charging exorbitant fees for  
          removal of the mug shots.

          This bill would prohibit the solicitation or acceptance of a fee  
          to remove, correct, or modify a booking photograph.  This bill  
          would provide for jurisdiction of these cases in the county  
          where the subject individual of the booking photograph resides,  
          and allow an action for damages equal to $1,000 per violation or  
          the actual damages suffered, along with costs and reasonable  
          attorney's fees.

                                CHANGES TO EXISTING LAW
           
           Existing law , the California Constitution, declares the people's  
          right to transparency in government.  ("The people have the  
          right of access to information concerning the conduct of the  
          people's business, and therefore, the meetings of public bodies  
          and the writings of public officials and agencies shall be open  
          to public scrutiny....")  (Cal. Const., art. I, Sec. 3.)

           Existing law  , the California Public Records Act (CPRA), governs  
          the disclosure of information collected and maintained by public  
          agencies.  (Gov. Code Sec. 6250 et seq.)  Generally, all public  
          records are accessible to the public upon request, unless the  
          record requested is exempt from public disclosure.  (Gov. Code  
          Sec. 6254.)  There are 30 general categories of documents or  
          information that are exempt from disclosure, essentially due to  
          the character of the information, and unless it is shown that  
          the public's interest in disclosure outweighs the public's  
          interest in non-disclosure of the information, the exempt  
                                                                      



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          information may be withheld by the public agency with custody of  
          the information.  
           
          Existing law  makes certain criminal record information  
          confidential but requires state and local law enforcement  
          agencies to make public specified information, including the  
          full name, physical description, date and time of arrest, time  
          and date of booking, and factual circumstances surrounding an  
          arrest, except to the extent that disclosure of a particular  
          item of information would endanger the safety of a person  
          involved in an investigation or would endanger the successful  
          completion of the investigation or a related investigation.   
          (Gov. Code Sec. 6254(f).)

           Existing law  , the Information Practices Act of 1977, allows an  
          individual to inquire and be notified as to whether a public  
          agency maintains a record about himself or herself.  (Civ. Code  
          Sec. 1798.32.)  Existing law authorizes the public agency to  
          charge fees, if any, to an individual for making copies of a  
          record.  (Civ. Code Sec. 1798.33.) 

           This bill  would make it an unlawful practice for any person  
          engaged in publishing or otherwise disseminating a booking  
          photograph through a print or electronic medium to solicit or  
          accept the payment of a fee or other consideration to remove,  
          correct, or modify that booking photograph.

           This bill  would provide the following definitions:
           "booking photograph" means a photograph of a subject  
            individual taken pursuant to an arrest or other involvement in  
            the criminal justice system; and
           "subject individual" means an individual who was arrested and  
            had his or her booking photograph taken.

           This bill  would authorize a public entity to charge or collect a  
          fee to correct, modify, or remove a booking photograph.

           This bill  would provide that each payment solicited or accepted  
          in violation of this bill would constitute a separate violation.

           This bill  would provide that, in addition to any other  
          sanctions, penalties, or remedies provided by law, a subject  
          individual may bring a civil action in any court of competent  
          jurisdiction against any person in violation of this bill for  
          damages in an amount equal to the greater of $1,000 per  
          violation or the actual damages suffered by him or her as a  
                                                                      



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          result, along with costs, reasonable attorney's fees, and any  
          other legal or equitable relief.

           This bill  would provide that the jurisdiction of the above civil  
          action shall also include the county in which the subject  
          individual resides at the time of the violation.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            Since 2010, there has been a proliferation of [Web sites] that  
            charge hundreds of dollars, and in some cases thousands of  
            dollars, to have police mug shots removed from their sites.   
            These fly-by-night enterprises often sully reputations and  
            hinder employment opportunities, regardless of whether charges  
            are dropped.

            While at least twenty states have introduced or passed  
            legislation to bar this extortion like practice, current  
            California law is permissive, allowing [Web sites] to charge  
            exorbitant fees to remove a mug shot from the internet.

            For example, Bob DeBrino, a film producer who has worked with  
            such luminaries as director Sidney Lumet and actors Gary  
            Busey, Steve Baldwin and Vin Diesel, said his business deals  
            have collapsed since his DUI booking photo was posted on the  
            internet.

            The former New York City police officer was arrested by  
            Glendale police in January 2013 on suspicion of driving under  
            the influence of methadone and the prescription drug Adderall.  
             The medication was prescribed by doctors in preparation for  
            surgery.  The DUI charges were dropped after the Los Angeles  
            County District Attorney's Office rejected the case.

            But DeBrino's unflattering mug shot remains plastered on [Web  
            sites] that he said are demanding he pay them thousands of  
            dollars to take it down.  "This has been a damn nightmare,"  
            said DeBrino, who received dozens of citations for bravery  
            before retiring early from the NYPD due to injuries sustained  
            in the line of duty, including being shot while foiling a bank  
            robbery.  "It's about time to stand up to these con men who  
            are ruining lives."
                                                                      



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            SB 1027 seeks to end the for-profit dissemination of arrest  
            information [and] would make it unlawful to solicit or accept  
            payment to remove, correct, or modify the criminal record  
            information. 

          2.  Balance of consumer protection and public access  

          This bill would prohibit the solicitation or acceptance of a fee  
          to remove, correct, or modify a booking photograph published  
          commercially in print or online.  Existing law, the California  
          Constitution and the California Public Records Act (CPRA),  
          provide the public a right to access information held by public  
          entities.  Although the CPRA contains confidentiality exemptions  
          for specified classifications of information, including arrest  
          records, there are no limitations on the commercial use or  
          distribution of criminal booking photographs (mug shots)  
          received from public entities.

          The author argues that the current practice by commercial  
          entities of publishing mug shots online with the ability of the  
          subject individual to remove the mug shot by paying exorbitant  
          fees amounts to extortion.  The author notes that, in response  
          to the recent proliferation of those mug shot Web site extortion  
          tactics, Georgia, Illinois, Oregon, Texas, and Utah have enacted  
          legislation regulating the publication of criminal record  
          information, and 12 other states currently have legislation  
          pending on this issue.

          Under the CPRA, state and local law enforcement agencies are  
          required to make public specified criminal record information,  
          including the full name of a person arrested, physical  
          description, date and time of arrest, time and date of booking,  
          and factual circumstances surrounding the arrest, except to the  
          extent that disclosure of a particular item of information would  
          endanger the safety of a person involved in an investigation or  
          would endanger the successful completion of the investigation or  
          a related investigation.  (Gov. Code Sec. 6254(f).)   
          Accordingly, some law enforcement agencies post booking  
          photographs with arrest information online.  A recent article  
          reported that one owner of a mug shot Web site culls through  
          local police and sheriff department databases through  
          "screen-scraping software to perform searches on 37 of the  
          counties, crawling to get arrests stretching back years, and  
          continuously polling the sites for new busts, which he scarfs  
          down at a rate of 1,500 a day."  (Cravats, Mug-Shot Industry  
                                                                      



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          Will Dig Up Your Past, Charge You to Bury It Again (Aug. 2,  
          2011)  [as  
          of Mar. 27, 2014].)  While law enforcement databases are  
          providing important information to the community regarding  
          recent criminal activity, the author argues that commercial  
          interests are using this information to shame individuals  
          arrested, who may or may not actually be charged or convicted  
          with any crime, to generate revenue at the expense of the  
          arrestees.

          The Legal Services for Prisoners with Children, in support,  
          argues that "this bill furthers the statewide progress in  
          corrections and rehabilitation reform by removing potential  
          barriers to re-entry for the formerly incarcerated.  The  
          commercial usage of criminal records could curtail the efforts  
          of Realignment by reducing the formerly incarcerated person's  
          ability to find gainful employment.  When criminal records are  
          open to private, third-party entities, the opportunity exists  
          for the further disenfranchisement of the formerly incarcerated  
          by the mass dissemination of criminal records for public  
          consumption.  The [CPRA] allows access to these records and  
          suffices the public's need to know."

          Typically, freedom of information concerns are raised with bills  
          that may restrict the public's right to access government  
          records.  However, this bill does not prohibit the public from  
          accessing criminal information records from governmental  
          entities.  Rather, this bill is narrowly tailored to only  
          prohibit an individual (not a public entity) from charging fees  
          for the removal, correction, or modification of booking  
          photographs published by the individual.  Staff notes that by  
          prohibiting charging a fee to remove mug shots from commercial  
          Web sites, this bill would eliminate the incentive for the Web  
          site to remove the mug shot upon request of the subject  
          individual.  Thus, the mug shot may remain online for potential  
          employers and other members of the public to access.  However,  
          this bill, by making a modest prohibition on the removal of mug  
          shots for fees, would eliminate the alleged extortion activities  
          currently perpetrated by mug shot Web sites.  Since this bill  
          does not require removal of the mug shot, which is public  
          information protected under the CPRA, this bill does not raise  
          concern regarding the public's right to access the criminal  
          record information.  

          3.  Private cause of action
           
                                                                      



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          This bill would establish jurisdiction of these cases in the  
          county where the plaintiff resides, and provide a private cause  
          of action for damages equal to $1,000 per violation or the  
          actual damages suffered, along with costs and reasonable  
          attorney's fees.  In this way, this bill would provide the  
          plaintiff an appropriate remedy to adequately curb the use of  
          fees to remove mug shots.  Additionally, the California Attorney  
          General, district attorneys, county counsels, and city  
          attorneys, as well as the plaintiff, would be also able to  
          enforce this bill's prohibition under the unfair and fraudulent  
          trade practices laws.  (See Bus. & Prof. Code Sec. 17200 et  
          seq.)


          4.  Suggested amendment
           
          This bill would prohibit any person engaged in publishing or  
          otherwise disseminating a booking photograph through a print or  
          electronic medium from soliciting or accepting payment of a fee  
          or other consideration to remove, correct, or modify that  
          booking photograph.  In order to clarify that a commercial  
          entity publishing or disseminating the mug shot and soliciting  
          or accepting mug shot removal fees, as well as an individual who  
          is running a Web site or working for the commercial entity, is  
          prohibited from this conduct, this bill should be amended as  
          follows:

             Suggested amendment  :

            On page 2, between lines 35 and 36, insert:

               (a)(3) "Person" means a natural person, partnership, joint  
               venture, corporation, limited liability company, or other  
               entity.


           Support  :  Association for Los Angeles Deputy Sheriffs;  
          California Law Enforcement Association of Records Supervisors,  
          Inc.; California State Sheriffs' Association; Legal Services for  
          Prisoners with Children; Los Angeles Protective League;  
          Riverside Sheriffs' Association

           Opposition  :  None Known

                                        HISTORY
           
                                                                      



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           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation  :  None Known

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