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. (email@example.com), 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.