BILL ANALYSIS �
SB 1027
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Date of Hearing: June 10, 2014
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Susan A. Bonilla, Chair
SB 1027 (Hill) - As Amended: June 4, 2014
SENATE VOTE : 34-0
SUBJECT : Booking photographs: commercial use.
SUMMARY : Prohibits private persons and companies from
soliciting or accepting a fee or other consideration for the
removal, modification or correction of a law enforcement booking
photo published or disseminated through a print or electronic
medium, and would also provide a private right of action for
damages equaling the greater of $1,000 or actual damages, along
with costs, reasonable attorney's fees and any other legal or
equitable relief. Specifically, this bill :
1)Prohibits any person engaged in publishing or otherwise
disseminating a booking photograph through a print or
electronic medium from soliciting or accepting the payment
from a subject individual of a fee or other consideration to
remove, correct, or modify that booking photograph.
2)Authorizes a public entity to charge or collect a fee to
correct, modify, or remove a booking photograph.
3)Provides that each payment solicited or accepted in violation
of this bill constitutes a separate violation.
4)Provides 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 the provisions 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
result, along with costs, reasonable attorney's fees, and any
other legal or equitable relief.
5)Provides that the jurisdiction of a civil action brought
pursuant to the provisions of this bill shall also include the
county in which the subject individual resides at the time of
the violation.
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6)Defines the terms "booking photograph", "subject individual",
"person" and "public entity".
EXISTING LAW
1)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)
2)The California Public Records Act (CPRA) governs the
disclosure of information collected and maintained by public
agencies. (Government Code (GOV) Section 6250, et seq.)
3)Generally, all public records are accessible to the public
upon request, unless the record requested is exempt from
public disclosure. (GOV 6254)
4)Under CPRA, certain criminal record information is
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 6254(f))
5)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. (Civil Code
(CIV) Section 1798.32)
6)Authorizes a public agency to charge fees, if any, to an
individual for making copies of a record. (CIV 1798.33)
7)Authorizes persons arrested but not charged with a crime, or
where no conviction takes place, to petition for their arrest
records to be sealed and destroyed. (Penal Code Section 851.8)
8)As interpreted by the California Attorney General, existing
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law leaves the specific disclosure of booking photographs to
the discretion of local law enforcement agencies as they are
construed to be exempt as "records of investigations" under
CPRA but may be used to fulfill the required disclosure of
physical description. (86 Ops. Cal. Atty. Gen. 132 (2003)).
FISCAL EFFECT : None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS :
1)Purpose of this bill . This bill would prohibit the practice
of commercial Web sites publicly posting booking photographs
obtained from law enforcement in order to solicit money for
their removal from California residents. This bill would also
create a private right of action for each violation, including
damages equaling the greater of actual damages or $1000, plus
costs, reasonable attorney's fees, and any other legal or
equitable relief. This bill is author-sponsored.
2)Author's statement . According to the author, "[t]he
development of online mug shot Web sites 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 Web sites, ? that collect millions
of mug shots and post them online, regardless of whether a
person was ever actually charged or convicted. The Web sites
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 Web site is paid to remove a mug shot, it doesn't
mean that all the other Web sites will also remove the photo.
"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."
3)The online mugshot removal industry . The current online
mugshot removal industry is primarily comprised of two types
of Web sites: publishing and removal.
Publishing sites collect and post the booking photos and arrest
records for thousands of individuals from across the country
and make them searchable by name, arrest location, or
residence. One site has over 616,000 booking photographs of
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Californians alone. Removal sites offer to delete the booking
photograph and arrest records on a specific Web site or group
of Web sites for a fee ranging from under a $100 to $400 per
booking photograph.
Many publishing sites combine these two functions and place a
button to begin the removal process on their own site, or host
linked advertisements to other removal sites. However once a
person pays for the removal of a booking photograph there is
nothing preventing the publishing of the booking photograph on
additional Web sites owned by the same or affiliated
publishers. This places subject individuals in a repeating
cycle of solicitation and payment for the same service.
In response, some search engine providers have attempted to
limit the visibility of these Web sites on their search
results, and some payment providers have stopped processing
payments to these Web sites. Further, a handful of states
(Colorado, Illinois, Georgia, Oregon, Texas, Utah, and
Wyoming) have recently enacted statutes to restrict, to
varying degrees, the practice of soliciting and accepting
payments for removal, modification or correction of booking
photographs.
For example, Illinois' enacted statute (ILCS 505-2QQQ,
Effective January 1, 2014) mirrors the proposed language of
this bill but with a broader prohibition for "criminal record
information" rather than just a booking photograph. There is
no record yet of any legal action brought as a result of the
Illinois law, and booking photographs from Illinois are still
widely available on commercial Web sites. Booking photos of
citizens residing in the other states with prohibitions on
their books also remain widely available.
4)Mugshot disclosure practices in California . Current law, as
interpreted by the California Attorney General, grants
California law enforcement agencies the discretion to decide
whether or not to disclose booking photographs under the
California Public Records Act.
While disclosure practices vary, most California counties do not
disclose booking photographs in bulk or by default, but on a
case-by-case basis balancing privacy with the danger the
arrestee poses to the public and the needs of ongoing
investigations. Only the counties of Amador, Madera, Sutter,
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Tehama, and Tuolumne are known to make complete arrest
records, including booking photographs, publicly available
without request on their Web sites.
Based upon a preliminary search by Committee staff, it appears
that arrest records from these five counties constitute the
bulk of California-originated booking photographs on the most
well-known commercial mugshot Web sites. However, the majority
of booking photographs of California residents on these sites
are actually taken from out-of-state law enforcement agencies
as a result of arrests originating in those other states.
While booking photographs may be obtained through public records
requests, it may be that many of the photos in question are
being harvested or "scraped" directly from law enforcement
agencies' public Web sites. In a 2011 article from Wired
magazine, it was reported that one owner of a mug shot Web
site searches police and sheriff's department databases in
another state through "screen-scraping software to perform
searches on 37 of the counties [in Florida], 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)
Of course, while existing law does permit uncharged or
acquitted arrestees in California to remove booking
photographs from government records, the remedy does not
extend to private entities who obtain the booking photograph
as a public document prior to its being sealed and removed.
This bill would not restrict the ability of local law
enforcement agencies to exercise their discretion to retain or
release mugshot photos, nor their ability to remove, correct
or modify such photos. Instead, this bill would grant subject
individuals a private right of action to sue private Web site
operators for damages and costs if the operator asks for or
accepts money from the subject to take a photo down. By doing
so, the author hopes to cut into the profitability of the
business model and reduce the prevalence of the tactic.
5)Arguments in support . According to Legal Services for
Prisoners with Children, "This bill provides protection
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against the exploitation of formerly incarcerated people by
protecting their privacy rights while de-incentivizing
commercial profit-making at the expense of formerly
incarcerated people?the commercial usage of photographs of
[subject individuals] could curtail the efforts of Realignment
by reducing the formerly incarcerated person's ability to find
gainful employment".
6)Questions from the Committee . Given that seven other states
have adopted laws similar to this bill and yet booking
photographs from those jurisdictions continue to be posted
online in those jurisdictions, the Committee members may wish
to inquire of the author as to the effectiveness of the
existing laws in other states, and how to best ensure that
this bill, if enacted, will be effectively enforced.
7)Double-referral . This bill has been double-referred to the
Assembly Judiciary Committee, to which this bill will be
referred if passed by this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Law Enforcement Association of Records Supervisors,
Inc.
California State Sheriffs' Association
California State Lodge, Fraternal Order of Police
Legal Services for Prisoners with Children
Los Angeles County Professional Peace Officers Association
Long Beach Police Officer Association
Sacramento County Deputy Sheriffs Association
Santa Ana Police Officers Association
Association for Los Angeles Deputy Sheriffs (2/14/2014 version)
Los Angeles Protective League (2/14/2014 version)
Riverside Sheriffs' Association (2/14/2014 version)
Opposition
None on file.
Analysis Prepared by : Brandon Bjerke and Hank Dempsey / B.,P.
& C.P. / (916) 319-3301
SB 1027
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