By Donald W. Meyers | April 13th, 2013
Utah officials accuse the sites of extortion, on the grounds that the sites publish jail booking photos and either charge or direct visitors to a vendor who will remove them — for a fee going as high as hundreds of dollars.
I’ll leave the debate over the ethics of such publications to my colleagues on the Ethics Committee. Instead, let’s look at how Utah’s attempts to deal with it has affected access to public records.
Previously, Utah residents could go on a jail website and see who had been booked and for what crime.
Salt Lake County Sheriff Jim Winder simply took down the photos from the sheriff’s website. Those wanting pictures have to file public records requests under Utah’s Government Access and Management Act.
The Weber and Utah county sheriffs didn’t take the draconian steps Winder did, but they made it harder for the mug-shot sites to scrape photos, and the general public to see who had been booked into the jail.
In Weber County, you have to know the name of the person who has been arrested in order to see the photo. Utah County’s jail website merely posts the pictures in thumbnail size, making the photo barely discernible to people looking at it on a screen, and turning it into a Technicolor blur if it is enlarged to any degree.
But that was not enough for Winder and others.
The Utah State Legislature passed HB408, sponsored by Rep. Paul Ray, R-Clearfield, at Winder’s insistence. The bill requires people seeking mug shots to sign a sworn statement promising not to post the photos on a site that charges people to remove them. Violators would be prosecuted for lying to police, a crime punishable by up to six months in jail.
The bill sailed through the Legislature with no debate or amendments, spurred on by Ray’s pleas to consider the poor soul who got arrested and is trying to get his or her life back in order only to be haunted by their mug shot popping up on web searches.
But this law sets a dangerous precedent. It grants agencies holding public records to weigh what a requester will use a record in whether to grant it to them. The law specifically deals with mug shots, but its principles could easily be extended to other records, which runs counter to the premise that the public doesn’t have to explain why it wants records.
If this were the last shot in this war, that would be bad enough. But wait, there’s more!
This past week, the Salt Lake County Council sustained Winder’s rejection of Kyle Prall’s request for almost 1,400 records to post on his bustedmugshots.com website. Winder stated, and the council affirmed, that the mug shots were copyrighted images and could not be released.
I’ll wait while you clean the beverage you just spit out off your computer screen.
That’s right. A public record, created by a government entity, is being held back because of a copyright claim.
First, U.S. copyright law is clear: Government can’t copyright materials it creates or commissions. That’s why you’re free to copy Dorothea Lange’s “Migrant Mother” photo as much as you want.
Second, if we follow the copyright argument to its illogical conclusion, all public records could be closed off because releasing them would violate copyright. Is that what we really want?
Winder and others do the accused no favors by blocking access to mug shots. Sure, it could be embarrassing to see your jail photo plastered on websites, but making them public provides a great protection, as my colleague David Cuillier points out.
The mug shot, Cuillier argues, provides proof that someone has been arrested and how they were treated at the time of their arrest. Contrast that with Argentina’s “Dirty War,” where countless people viewed as opponents to the military junta essentially “disappeared” when they were taken secretly by the government and tortured and murdered.
“If Utah officials want a Stalinist society, they’re off to a good start,” Cullier said.