Mugshot websites like Mugshots.com and Arrests.org work with impunity in Florida, as they're protected by the state's permissive records laws.
In essence, these sites can grab mugshots and use them in any way they see fit, including making money on removal requests that come from people who appear on the site, and there's very little anyone can do to fight back (although some have tried).
A new set of bills working their way through the Florida legislature would attempt to place controls on the dissemination of mugshots, and the money that can (and cannot) be made by the operators of these sites. This isn't the first time Florida has tried to change its laws to block mugshot websites, and while I have no idea what will happen with these laws, I have a sneaking suspicion that this new set of legislative rules will suffer the same fate seen by other proposed legislative changes.
Past Attempts At a Florida Mugshot Law
In 2013, Representative Carl Zimmerman proposed a bill that would have provided at least some relief for innocent people who appeared on mugshot websites. In this bill (SB 1060), people who had been accused and arrested for a crime, but who were later exonerated in one way or another, could obtain a free removal from a mugshot website, and if they didn't get that removal, they'd be eligible for some kind of compensation.
This was a pretty ambitious law, and I'm almost positive that its appearance on the docket was cause for a significant amount of celebrating, but there was also a significant amount of vocal opposition to some aspects of this law. For example, the Florida Press Association wrote a stern letter of opposition to the bill, claiming that controlling the use of mugshots represented a strike against free speech.
To them, this represented a form of repression, and the writers of this particular piece felt that the law wouldn't pass constitutional muster.
The Nieman Journalism Lab said much the same thing, claiming that even though some people might find mugshot websites distasteful, they weren't necessarily operating outside the confines of the law. The authors of this article suggest that the constitution is designed to force a person to defend his/her innocence when something is printed that might be inflammatory.
If this is the case, mugshot laws could be unconstitutional, as they require the publisher of those photos to determine someone's innocence.
These are dense arguments, and they can be a little difficult to understand, but it does seem like they were effective, as this proposed law died in committee before it could come to a final vote. At the time, I though that would be the end of mugshot lawsuits in Florida, but they're back again!
New Attempts at Mugshot Regulation
There are two separate bills up for grabs in the legislature right now: One comes from the Senate, and one comes from the House. On first glance, the Senate bill seems like the more stringent bill, to me, as it provides a blanket form of protection for anyone who appears on a mugshot website. Scraping photos would be forbidden, as would charging fees for removal. The House bill provides protections only for those who are "not yet convicted of" a crime.
Presumably, someone who is found guilty would get no protections here.
It seems as though the lawmakers have learned from previous mugshot law attempts, as the House version includes some language that would allow for public access to photographs and other arrest records in Florida, although news agencies would have to send a representative to the law enforcement site to get that data, as it wouldn't be popped up on a public site for scraping.
The Senate version doesn't contain this language, but it defines mugshot websites quite clearly, which might help newspapers and other public media outlets to post mugshots if they'd like to do so, as they wouldn't meet the definition of a mugshot website.
But still, there are a number of public officials who are concerned about these bills, and their complaints are worth listening to.
- Reporters, including those at The News Herald feel as though the House bill would make journalism just more difficult. They'd have to send representatives to the courthouse repeatedly, and that could be costly and time-consuming.
- Government watchdogs dislike the idea that these bills would allow police departments to shield their work behind a firewall. That creates the possibility of corruption, which sunshine laws are designed to prevent.
- Employers who might like to use Google to perform a prescreening prior to hiring dislike the idea that these photos won't be freely available
- Lawyers suggest that collection of fees and fines could be difficult, as some mugshot websites are located in other states or in other countries.
These bills are already going through a number of revisions and changes, and it's possible that all of these concerns could be handled through the revision process. But it's also possible that these bills could simply fade away, as the constitutional concerns brought up as a result of the first bills still apply here. I don't see how they could be addressed unless the bills are withdrawn.
So what's the solution? At this point, people who are arrested in Florida and who appear on mugshot websites might still be required to pay fees to have their shots removed, unless they're working with a mugshot website that provides free record removal option. Right now, that's really the only response available.