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Secret Policing: New York ‘mugshot ban’ leaves newsrooms in the dark

July 23, 2019 11:00

The idea of secret policing in America may seem scary and farfetched but in New York the debate is real. Thanks to Governor Andrew Cuomo, New York State now has a “mugshot ban” on its books and almost passed an outright ban on the release of all booking information from police agencies.

A little context first. As the New York Civil Liberties Union (NYCLU) has expressed in public comments about the new legislation, “arrest photos can affect one’s personal life, job prospects, educational opportunities, housing options, and career advancement” – all legitimate concerns for someone wrongfully arrested. Records can be expunged but digital posts including mugshot photos can live forever.  

A spokesperson for the Governor claimed, “The intent of our proposal is to help curtail an unethical practice that amounts to extortion of formerly incarcerated individuals.” The spokesperson was referring to the cottage industry of internet sites that has profited millions off the posting and subsequent removal – for a hefty price – of mugshot photos.

In response, New York has enacted a change to the state’s Freedom of Information Law (FOIL). Originally, the proposed changes to FOIL would have not only blocked the release of mugshots to the public, but also booking information relating to identities of criminal suspects. Even the New York Civil Liberties Union felt the attempt at protecting privacy here was overly broad. Many news organizations across the state agreed. The pushback was significant and caused last minute changes that eliminated the ban on the release of booking information.

Still, as of April 3rd of this year, the New York State Police stopped publishing mugshots to its website. In a written statement the agency said – based on the new mugshot ban – it will no longer include the arrest photos in press releases and will no longer provide them to the media upon request. The State Police will be able to release mugshots “for specific law enforcement purposes only.”  

While the New York State Police have adopted a strict interpretation of the new law, many local police operations are not sold on the idea of withholding the arrest photos. Many jurisdictions are still releasing photos upon request by the media based on their reading of the law. The headline on a recent story in The Post Star Newspaper in Glens Falls reads “As expected, the mugshot ‘ban’ has not been a ban.” The piece cites a letter from the Warren County Sherriff defending his position to continue to honor requests for the release of mugshots. It also quotes from the legislative declaration of New York’s Freedom of Information Law. Here is some of what that declaration says:
The people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.

The legislature therefore declares that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.
There is no doubt the Governor’s heart is in the right place in fighting for protections for wrongfully accused. The NYCLU explains it this way:
The ban is intended to address a real problem: an extortionate form of internet-based public shaming in which so-called “pay-to-remove” websites collect arrestees’ booking photos from various law enforcement agencies via FOIL requests, post the photos online, and then charge arrestees a hefty fee to take them down.

If an arrestee does not pay, the humiliating photos remain on the internet forever, invariably appearing whenever someone searches the Internet for an arrestee’s name – even if charges are dropped, the arrestee is exonerated, or a conviction is later expunged.
The “pay to remove” mugshot business is a big one, but the so-called “mugshot ban” is not only confusing and unevenly applied, its primary effect is not protecting privacy, but impeding the public’s right to know.

The people of New York have a right to know (and see) who police agencies are arresting. Holding back any information on the operation of government agencies does a disservice to the public that government serves. Holding back information important for public safety is further misguided.

News organization do have a responsibility to use information released by public safety agencies in a responsible and judicious manner. A Tallahassee, Florida, television station, WTXL, recently shut down the popular booking page on its website after careful consideration about the value of posting the information and photos from every single arrest in the local community. WTXL General Manager Matt Brown wrote that the newsroom was getting two to three calls per week from people complaining about the posting of information or mugshots in cases that were ultimately dropped or expunged.

A key question in the decision to stop automatically posting arrest information and photos was “does publishing this booking information make our community a better place?” While sometimes the public release of booking photos has led to new witnesses and breaks in criminal investigations, when cases get dropped or records get expunged, news sites have a responsibility to eliminate the use of the arrest photo in the case and update the original story to reflect the change. Journalists need to operate like the managers of WTXL and consider the public good in the release of such information on our media channels. Newsrooms should have – and are having – internal discussions about when and how to release of photos, names, addresses and other details contained in booking information and update those stories appropriately.

New York isn’t alone in stifling those newsroom conversations. Other states like Arizona have considered similar outright bans on the release of mugshots and booking information. Another dozen or so states (Florida, California, Colorado, Connecticut, Georgia, Missouri, New Jersey, Oregon, South Carolina, Texas, Utah, and Virginia) have passed laws that either prohibit posting mugshots online, or make it a crime to post the mugshots and charge for taking the photos down.

It is doubtful that the New York law successfully addresses the privacy concerns it was intended to fight. What we do know is covering law enforcement got more difficult this past spring in New York. The lesson for lawmakers may be to spend more time trying to fight the illicit business of mugshot blackmail and less keeping the public in the dark. Policing in the dark is never a good idea.


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