BILL ANALYSIS �
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
(more)
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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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