By Erin Coyle. Following recent undercover operations targeting prostitution in North Carolina and Florida, law enforcement authorities in those states posted to their social media accounts booking photographs—“mug shots”—of individuals swept up in the stings, inviting the public to add comments. “Naming and shaming” suspected sex buyers is sometimes wielded as an effective way to combat sex trafficking by targeting the demand for commercial sex—but the claim is difficult to prove. What is clear, however, is that when individuals whose mug shots appear online are found to be arrested for prostitution-related charges or victims of human trafficking, the shame can be particularly harmful and long-lasting—“a permanent digital scarlet letter,” as a lawyer for the American Civil Liberties Union put it in an interview.

Many arguments exist to discourage the publication of booking photographs. In the United States, some federal courts recently recognized privacy interests in association with booking photographs that news outlets requested be disclosed under a federal law. Legislatures in several states also have considered limiting access to booking photographs in the last six years.

Privacy scholars define privacy as a right to be let alone(PDF), human dignity, autonomy, secrecy (PDF), and a right to protect (PDF) one’s self and one’s information from unwanted exposure.

Scholarship connects privacy to people’s need to control how others may access information about them—especially access to information that people might feel embarrassed, humiliated, or vulnerable from having released to others without their consent. Although the fact that a person was arrested commonly is considered information that might provide details about the focus and effectiveness of law enforcement, images that reflect a person’s arrest may display a highly stressful experience worthy of privacy protection. Concerns that publicly disclosing mug shots might cause depicted persons to endure shame, reputational harm, and exploitation increased after commercial websites started posting mug shots online, some demanding money in exchange for removing the photographs.

Law enforcement agencies routinely photograph arrested persons to record who has been charged with involvement in criminal activity, and those booking photographs are public records that may be disclosed under many state public records laws. Law enforcement in many states, release booking photographs via the press, social media accounts, or websites. Advocates for publicly releasing the images say sharing them sheds light on law enforcement processes, protects against misidentification, and acts as a deterrent against future criminal activity. Journalists also advocate for disclosure for greater oversight of the criminal justice process.

In the United States, a booking photograph indicates a person has been arrested, but does not indicate that a court of law has found (or will find) the photographed person guilty of committing a crime. Nonetheless, an Eleventh Circuit Court of Appeals opinion stated in 2011 that a mug shot “is a vivid symbol of criminal accusation, which, when released to the public, intimates, and is often equated with, guilt. Further, a booking photograph captures the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties.” A person whose mug shot is publicly distributed may be perceived as guilty in the court of public opinion.

In the opinion of the court, booking photographs are created for law enforcement purposes, and releasing those records could “result in an unwarranted invasion of personal privacy.” Accordingly, in the Eleventh Circuit, those records may be considered exempt from public release under the Freedom of Information Act unless releasing the images would serve a public interest that could justify their disclosure. Privacy interests associated with booking photographs sought under the federal law must be balanced carefully against the public interest served by disclosure on a case-by-case basis.

The Tenth Circuit Court of Appeals in 2012 and the Sixth Circuit Court of Appeals in 2016 also recognized privacy interests in association with booking photographs, which may allow federal agencies not to publicly disclose mug shots. The Sixth Circuit's majority opinion specifically addressed concerns about modern technology that may exacerbate threats to privacy. In the twentieth century, booking photographs typically were publicly released via newspapers or television broadcasts, then later stored in places where someone would have to physically retrieve a copy at a later time. In this century, booking photographs posted online may be found and viewed for years by any person—prospective employers, landlords, or romantic partners. Sixth Circuit Judge Deborah L. Cook wrote, “A disclosed booking photo casts a long, damaging shadow over the depicted individual.”

In the past six years, some states have considered ways to protect privacy interests that may be harmed when booking photographs are released online—either by law enforcement or by commercial websites that publish mug shots online. In 2017 Illinois limited public access to any booking photographs—only allowing the release to a person with a relevant case or claim. California, New Hampshire, and Alabama adopted statutory provisions specifically to protect the privacy and safety of human trafficking victims by addressing identifying information and images of trafficking victims or persons arrested on prostitution-related charges. California’s Penal Code requires law enforcement agents to inform any person who reports being a victim of human trafficking of a right for the victim’s name, address, and image to be confidential as well as for the name, address, and image of the victim’s family members to remain confidential. New Hampshire’s Trafficking in Person’s law similarly states that the identity and images of any human trafficking victim as well as the identity and images of any victim’s family members shall be confidential. Alabama’s Human Trafficking Safe Harbor law makes arrest photographs for some prostitution-related arrests exempt from public disclosure and prevents publication of those images, unless permitted by a court order. Said Rep. Jack Williams (R-Birmingham), who sponsored Alabama’s law, “We're trying to look at these women less as criminals and more as victims, and we don't want to see them be victimized.” Preventing publication of images, however, might be considered unconstitutional.

Scholarship asserts that publishing mug shots might threaten privacy interests of depicted persons. Considering that trafficking victims lack autonomy when forced into what some anti-trafficking advocates call a modern form of slavery, and could face stigma due to those experiences, publicly disclosing records of this loss of self-determination could be considered a further threat to their autonomy, control over information, and, thus, privacy. Some state and federal laws likely may allow law enforcement agencies to shield those images from disclosure when the resulting harm to victims’ privacy interests would outweigh public interests served by releasing the images.

Erin Coyle, Ph.D. (ekcoyle@lsu.edu), is an associate professor in the Manship School of Mass Communication at Louisiana State University. Her research focuses on privacy, access to government information, and freedom of expression.

By Jessa Dillow Crisp - In 2015 at the Colorado State Capitol, I publicly shared my story of surviving sex trafficking. I wanted to educate others about the realities of this nefarious crime and longed for my pain to give hope to another individual. In the weeks following, I had no idea that media outlets from around the world would seize my story and seek me out for intimate details of the traumas I endured.

After vulnerably sharing elements of my painful history, I noticed that journalists misrepresented my experiences—making my story their story for sensationalized shock value. Details of my story were changed, and liberties were taken, such as some outlets lifting my personal pictures and videos from the web and using them without consent. These experiences took me by surprise; I thought that if someone was not a trafficker or buyer, they would protect me. But in fact, one of the hardest things I have had to deal with since my escape and in my recovery process is working through feelings of being re-exploited by media. At times, I felt like my own being did not belong to me, but rather to the number of views that my story brought without my permission.

Through my experience with media outlets and journalists, I have come to realize that the desire for exclusive content can lead individuals to promote a culture of sensationalism. In this process, many well-intentioned journalists are doing things that are inhumane—creating and sustaining a culture where it has become okay to exploit the exploited. Where the amazing feat of trauma endured is not enough for the story, rather acceptable curiosity is taken over by a desire to know how many hours someone was raped, or asking the number of men who have used their body for sexual fantasies. Where an interviewee’s boundaries are considered obstacles that need to be overcome, rather than healthy indicators of the difficult healing journey that has taken place.

This voyeurism and quest for details are not the only ways that media sensationalize sex trafficking. Another way is through the use of pictures that highlight the sadistic pain of victims and images that misrepresent the phenomenon of trafficking. Some examples include: a begrimed girl whose hands are tied up and mouth is gagged, barcodes stamped across one’s forehead, or hands erotically bound in ropes or chains—most of these are stock photos, widely available and free of charge.

These sensationalized pictures are counterproductive to creating change surrounding human trafficking. Instead, they are another way to perpetuate the problem. Using these kinds of pictures and sensationalizing stories can create more harm than good for audiences. If concerned citizens are seeing human trafficking only through the lens of the media where trauma is glorified or misrepresented through inaccurate reporting, sensationalized captions, and pictures that do not accurately depict the crime, then victims caught in trafficking will struggle to relate to the coverage and may not reach out for help. In addition, community members will not be able to recognize trafficking when it takes place within their neighborhood.

Since a person is not the sum of their trauma, media should use pictures that accurately portray the story they are sharing, including the person’s current pursuits and future dreams. Some alternative illustrations they could use would include a person smiling, a person engaging in a hobby, and the artwork/photography survivors have created. Additional suggestions for media can be found on my Tips for Using Images When Reporting on Human Trafficking.

Despite the negative experiences I have had with some reporters, I have also had some incredibly healing experiences with a few journalists. Through this, I believe that journalism is needed to create an accurate awareness surrounding human trafficking and give hope to individuals who have experienced this crime. In this place, I hope journalists will seriously consider their responsibility to the individuals whose stories are being recreated for their article. By forgoing sensationalism and respecting survivor sources and the stories they share, journalists educate their community of followers and ultimately empower victims to not only tell their narratives, but also move into a place of thriving.

By Minh Dang - In the midst of one of Southern California’s worst storms in over a decade, the United States Advisory Council on Human Trafficking (“the Council”) met for a strategic planning retreat. I had convinced other members of the Council and the State Department to come to California in February, since most of our meetings were scheduled in Washington, D.C.

Although California failed to extend a warm welcome for our first session, I felt immense gratitude for this group of people and for the existence of the Council. Council members are innovative, thoughtful, committed, and willing to bring their whole selves to the table. Members hail from a diversity of nationalities, citizenship status, gender identity and geographic locations. Like any other group of people, our perspectives on specific issues don’t always align. However, what is similar among all of us and is salient throughout our work is our shared and deep commitment to using our experiences and expertise to prevent the suffering of others.

By Barbara Barnett - For journalists telling the stories of individuals trafficked into forced prostitution, one of the challenges is crafting a narrative that accurately characterizes the physical danger and emotional abuse victims experience. These narrative choices can affect the ways that audiences think about the crime of trafficking and its victims.

One story-telling technique is the use of first-person narratives, which allows trafficked individuals to describe their circumstances, from their perspectives, in their own words – an important consideration when writing about a crime that denies its victims the ability to speak or act in their own interests.

For journalists telling the stories of individuals trafficked into forced prostitution, one of the challenges is crafting a narrative that accurately characterizes the physical danger and emotional abuse victims experience. These narrative choices can affect the ways that audiences think about the crime of trafficking and its victims.

By Noy Thrupkaew - The story wasn’t new, according to Associated Press international enterprise editor Mary Rajkumar. Forced labor and human trafficking in the Southeast Asian seafood industry was an open secret throughout the region. So why should the AP assign four reporters to more than a year’s worth of work on the story?
“‘What’s new’ is a critical question to ask,” Rajkumar told journalists at this year’s Investigative Reporters and Editors conference in New Orleans. “But another critical question is, ‘If it isn’t new, then why isn’t anything being done about it?’”

By Chanda Marlowe - Visitors to Backpage.com can look for jobs and shop for appliances, but as of January 9 they can’t shop for sex. The classified ad website closed its adult ads section in the United States, citing government pressure. Clicking on links to body rubs, escorts and strippers takes the user to a screen that reads, “The government has unconstitutionally censored this content.”

For their part, law enforcement officials, including the National Association of Attorneys General, had long accused Backpage of providing an outlet for sex trafficking of minors. And it has been the target of multiple lawsuits.

In one case, a federal appeals court ruled on March 14, 2016 that three teenagers who were trafficked for sex through classified advertisements on Backpage.com could not sue the website—despite the fact the judge said the ads “evoke outrage.”