BILL ANALYSIS Ó
SB 1027
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Date of Hearing: June 17, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 1027 (Hill) - As Amended: June 4, 2014
As Proposed to be Amended
SENATE VOTE : 34-0
SUBJECT : BOOKING PHOTOGRAPHS: FEES
KEY ISSUE : SHOULD THE PRACTICE OF CHARGING A FEE TO REMOVE OR
MODIFY A CRIMINAL BOOKING PHOTOGRAPH BE CONSTRAINED IN ORDER TO
PROTECT AGAINST UNFAIR EXTORTION, HUMILIATION AND INTERFERENCE
WITH EMPLOYMENT?
SYNOPSIS
In recent years, commercial Web sites have apparently begun to
extract and compile criminal record information, including
booking photographs (mug shots), from certain law enforcement
Web sites, post that information online, and charge substantial
fees to the subject of the photograph to have that information
removed. This practice has now reportedly expanded to
California, affecting the employment prospects and causing
humiliation to California residents. This bill would prohibit
the solicitation or acceptance of a fee to remove, correct,
modify or refrain from disseminating a criminal booking
photograph by private parties. Public entities would be largely
exempt from the measure so that they could continue to charge a
reasonable administrative fee to correct booking photographs
when it is appropriate to do so. The bill has no known
opposition.
SUMMARY : Regulates certain conduct with respect to criminal
booking photographs. Specifically, this bill :
1)Provides that it shall be 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 from a
subject individual to remove, correct, modify or to refrain
from publishing or otherwise disseminating that booking
photograph.
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2)Provides that notwithstanding the prohibition above, a public
entity may accept a reasonable administrative fee to correct a
booking photograph.
3)Provides the following definitions:
a) "Booking photograph" means a photograph of a subject
individual taken pursuant to an arrest or other involvement
in the criminal justice system.
b) "Subject individual" means an individual who was
arrested.
c) "Person" means a natural person, partnership, joint
venture, corporation, limited liability company, or other
entity.
d) "Public entity" means the state, county, city, special
district, or other political subdivision therein.
EXISTING LAW :
1)Governs the disclosure of information collected and maintained
by public agencies through the Public Records Act, which
provides generally that all public records are accessible to
the public upon request, unless the record requested is exempt
from public disclosure.
2)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).)
3)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.)
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FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : The author explains the bill as follows:
The development of online mug shot websites has transformed
the dissemination of arrest information from being about
serving the public good, to being about making a profit.
There are over 80 mug shot websites, such as
www.mugshots.com, www.mugshotsonline.com, and
www.justmugshots.com that collect millions of mug shots and
post them online, regardless of whether a person was ever
actually charged or convicted. The websites charge hefty
fees to remove a person's mug shot. The fees range from
$99 to over $400 per mug shot removal. But just because
one website is paid to remove a mug shot, it doesn't mean
that all the other websites will also remove the photo.
Some websites offer mug shot removal "packages," claiming
to remove all a person's mug shots for one fee. These
removal packages often cost thousands of dollars. However,
they often fail to remove every mug shot from the internet.
Despite what these companies claim, there is no way to
completely remove a mug shot from the internet. The
companies mere purpose is to make money from vulnerable
individuals.
Before the advent of mug shot websites, an arrest would
generally be a local event; the information would rarely
travel farther than border of the community where the
arrest occurred. But now, mug shot websites transmit mug
shots worldwide and mug shots often come up as a top hit on
internet search engines.
A mug shot is not meant to imply guilt, but is simply
evidence that an arrest occurred. In many cases, an arrest
never leads to charges or to a conviction. Now, because of
these websites, mug shots, which may represent past
mistakes or wrongful arrests, are forever in the collective
memory of the internet, available for anyone to see,
causing embarrassment and in some cases, unrepairable harm.
As the National Conference of State Legislatures states,
once they are posted on the web, "the photographs can be
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copied and redistributed by other sites, and individuals
who had charges dropped or were found not guilty can find
it difficult to repair their online reputations."
Five states (Georgia, Illinois, Oregon, Texas, and Utah)
have already passed laws, all with bipartisan support,
restricting the practice of charging a fee to remove a mug
shot. Over 14 additional states have introduced legislation
in 2014 to bar the practice of extorting money to remove a
mug shot.
Sources report that there has recently been a proliferation of
Internet web sites that charge hundreds of dollars, and in some
cases thousands of dollars, to have police mug shots removed
from their sites. Critics contend that these are fly-by-night
enterprises that often sully reputations and hinder employment
opportunities, regardless of whether the charges that lead to
the booking photograph are subsequently dropped or the
individual is exonerated.
While at least twenty states have introduced or passed
legislation to bar this extortion-like practice, current
California statutes do not appear to regulate this practice -
allowing web sites to charge potentially high fees to remove a
mug shot from the internet. According to supporters, for
example, film producer Bob DeBrino 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 reportedly prescribed by doctors in
preparation for surgery. The DUI charges were dropped after the
Los Angeles County District Attorney's Office rejected the case.
Nevertheless, DeBrino's mug shot remains on web sites that he
reports have demanded he pay them thousands of dollars to take
down.
This Bill Seeks To Balance Consumer Protection And Public
Access. This bill would prohibit the solicitation or acceptance
of a fee to remove, correct, modify or refrain from
disseminating a booking photograph 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
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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
Will Dig Up Your Past, Charge You to Bury It Again (Aug. 2,
2011)(available at http://www.wired.com/
threatlevel/2011/08/mugshots.) 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
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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.
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.)
Author's Clarifying Amendments. In order to better capture the
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intent of the measure, the author proposes the following helpful
amendments:
1798.91.1. (a) For the purposes of this section, the following
definitions shall apply:
(1) "Booking photograph" means a photograph of a subject
individual taken pursuant to an arrest or other involvement in
the criminal justice system.
(2) "Subject individual" means an individual who was arrested
and had his or her booking photograph taken
(3) "Person" means a natural person, partnership, joint venture,
corporation, limited liability company, or other entity.
(4) "Public entity" means the state, county, city, special
district, or other political subdivision therein.
(b) It shall be 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 from a subject
individual to remove, correct, or modify or to refrain from
publishing or otherwise disseminating that booking photograph.
(c) Notwithstanding subdivision (b), a public entity may charge
or collect accept a reasonable administrative fee to correct ,
modify, or remove a booking photograph.
REGISTERED SUPPORT / OPPOSITION :
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 Police Protective League
Riverside Sheriffs' Association
Opposition
None on file
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Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334