Mugshots.com Operators Arrested For Letting Money Influence Editorial Decisions

from the using-poor-inferences-to-unconstitutionally-prevent-other-poor-inferences dept

Earlier this month Ars Technica reported on the arrest of the alleged operators of Mugshots.com, a website that does what it says on the tin: hosts mugshots. The issue is, the site operators didn't just host mugshots; they also charged people to have their mugshots removed from the site through a companion site, Unpublisharrest.com.

Assuming the arrest warrant is fairly stating things, the site's operators may not have had the best of intentions in running their site the way they did. According to the facts alleged they were more interested in making money by charging people to have their pictures removed from their site than in serving as any sort of public records archive.

But it shouldn't matter why they pursued the editorial policy that they did. First of all, mugshots are generally public records, and for good reason. As South Dakota's attorney general Mark Jackley noted last year, when South Dakota declared them to be public records:

"The release of criminal booking photographs to the public will result in greater transparency in the criminal process, enhance public safety, and will further assist the media and the public in the proper identification of individuals in the criminal process."

People are ordinarily allowed to share public records on their websites, just as they may share any other lawful information. People are also free to be arbitrary and capricious in how they choose what information to share. They are even free to be financially motivated in making those decisions.

But according to authorities in California, if the decision on what information to share is linked to a profit incentive (from the arrest warrant: "The motive behind posting the damaging material is financial gain."), and that information is a mugshot, you go to jail. In the case of the Mugshots.com operators, authorities have predicated their arrest on some alarming statutory language:

As of January 1, 2015, California Civil Code Section 1798.91 .1, Subdivision makes it unlawful for any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph. By posting the booking photograph online, and requiring a fee to have it removed, the owners and operators of Mugshots.com and Unpublisharrest.com are operating their websites for an unlawful purpose.

In addition, the authorities construed what the operators of Mugshots.com did as identity theft:

California Penal Code Section 530.5 defines identify theft, stating: "Every person who willfully obtains personal identifying information . . . of another person, and uses that information for any unlawful purpose. . . without the consent of that person, is guilty of a public offense. Section 530.55 identifies a 'person' as a natural person, firm, company, corporation or any other legal entity. The section defines 'personal identifying information' as any 'name, address . . . or other unique physical representation.' Because Mugshots.com and Unpublisharrest.com have used, and continue to use, the booking photographs and PII of individuals for purposes of selling the service of removing the photographs and information, the owners are in violation of California Penal Code Section 530.5, identity theft, a felony."

Taken together, the arrest warrant concludes, the site operators are guilty of extortion and conspiracy to commit extortion. But to prove extortion prosecutors must show that the accused threatened a victim either with violence, the accusation of a crime, or the exposure of a secret, if they didn't pay the accused. Yet the defendants are accused of none of these things. Not only is there no issue of threatened violence, but what the site operators are alleged to have done in no way involves revealing a secret or accusing another of a crime. Instead it is the state that has already accused the site operators' purported "victims" of a crime, and its having done so is no secret. The state's accusation against these people became public when it originally released the mugshots, meaning there is nothing that the site operators could have been threatening to reveal that wasn't already revealed.

This apparently sloppy reading of the extortion statute, compounded with the 2015 statutory language giving mugshots a sort of magical status that prevents them from being treated as an ordinary public record, represents a chilling incursion on protected First Amendment activity. It's one thing to impose liability for publishing content that isn't lawful, perhaps because it's defamatory, infringing, or somehow intrinsically wrongful unto itself. But it's another thing entirely to impose liability for publishing content that is entirely lawful – especially, as in this case, when it is not only lawful but a public record.

California authorities would likely argue that the prosecution is not about liability for speech, but liability arising from the decisions about what speech got spoken. (Or, more particular to this case, remained spoken, for the state is not prosecuting the site operators for having posted the mugshots in the first place.) But this is a distinction without a difference. Indeed, decisions about what we choose to say can be as expressive as anything we actually do say. The government ordinarily does not get to come in and force us to make those decisions in any particular way. Freedom of expression means that we are at liberty to decide what to say, and then what not to say, for whatever reason we might decide. Even when these expressive choices are guided by a profit motive.

Were that not the case, think of how chilling it would be to profit-driven news media if their editorial decisions had to be free from any financial concern in order to retain First Amendment protection. Even in terms of mugshots themselves, think about how chilling it would be if others could not freely use them to tell us about the world around us, if there was money to be made in the process. As case in point, the very same week the arrest warrant was used to extradite the site operators back to California, the New York Times ran a story about the efforts of journalist and photographer Eric Etheridge to document the lives of Freedom Riders.

Among the important artifacts of this historic campaign are more than 300 mug shots taken of the Freedom Riders in Jackson, now the subject of “Breach of Peace: Portraits of the 1961 Mississippi Freedom Riders” (Vanderbilt University Press). In it, the journalist and photographer Eric Etheridge provides visual and oral histories of these courageous men and women, juxtaposing vintage mug shots with short biographies, interviews and contemporary portraits. Originally published in 2008, this expanded edition, with updated profiles and additional portraits…

It is a book that is for sale, so it would seem there is a profit motive somewhere. But consider whether this important historical work could be released if authorities in California – or, perhaps more saliently, in Mississippi, where the mugshots are from – could scrutinize the expressive decisions that went into the book's use of the pictures because it profited from that use.

Yet that's what the California authorities have decided they are entitled to do with the Mugshots.com site. The arrest warrant is dismissive towards the free speech interests of the site's operators, accusing them of "using freedom of speech theories in justifying the activity." Of course, that's what the First Amendment is for, to protect expressive activities that authorities do not like. And authorities really don't like what happened here.

As noted above, the optics in this case are not great. People felt desperate to have their mugshots removed from the Internet, and the site operators profited from that desperation. It feels criminal, but just because they may have had nefarious intent does not mean that they committed a crime. Just reading about the arrest brought to mind the Monty Python sketch where a bunch of gangsters connived a devious plot to go to a jeweler's to obtain an expensive watch - that they paid for.

Sure, it looks like they are up to no good, but to determine whether a crime has been committed we can't just consider how it looks. We have to look closely at the underlying lawfulness of the activity, not the optics surrounding it, and for the very same reason that California authorities are now interested in policing the use of mugshots: to prevent unwarranted inferences of criminal culpability. As the New York Times wrote about the Freedom Riders book:

If these mug shots inadvertently captured the humanity and special qualities of their principled subjects, as Mr. Etheridge observed, their intention was nefarious: to publicly impugn and humiliate people whose only crime was to advocate equality through peaceful protest. No matter their purpose, mug shots inevitably imply aberrance or delinquency, whether or not the people they depict are eventually found to be guilty.

But that's what the California prosecutors have done: impute "aberrance or delinquency" to draw unwarranted inferences about criminal culpability from an act that the law cannot constitutionally criminalize. This inference has already been used to strip the site operators of their constitutional right to express themselves anonymously due to at least three search warrants that were served on their service providers. These warrants were issued upon probable cause, but the only probable cause that can be construed here is that the site operators engaged in expressive activity authorities did not like. Efforts by these authorities to now extradite, further prosecute, and potentially leave the site operators vulnerable to civil damages should not be cheered by anyone who might prefer not to experience the same as a result of their own lawful expression.


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  • identicon
    Anonymous Coward, 23 May 2018 @ 1:54pm

    *meh*

    Not gonna get sad over dirtbags catching shit for blackmailing people who are supposed to be considered innocent.

    Same for news sites that put mugshots up. That’s just foul.

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    • icon
      That One Guy (profile), 23 May 2018 @ 2:13pm

      Them today, you tomorrow

      You should be upset. Yes the site owners come across as seriously slimy, but the very same first amendment protections that are being trampled to get to them are the ones that protect you if someone decides that they don't much care for something you said.

      I don't think you'll find anyone arguing that want they were/are doing is anything less than seriously scummy, but as far as I can tell it is entirely legal(though the 'pay us and we'll remove it' does seem to veer into questionable territory), which means they're not being punished for violating the law, they're being punished simply because someone in power felt like bringing the hammer down on them, and if ignoring what the law actually says is acceptable, then whether or not you follow it is no longer relevant, merely 'have you offended/annoyed someone powerful enough to make you regret it?'

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      • identicon
        Anonymous Coward, 23 May 2018 @ 2:19pm

        Re: Them today, you tomorrow

        Pay up of we will trash you is extortion and no different in intent than collecting for Al Capone's Insurance Company.

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        • icon
          That One Guy (profile), 23 May 2018 @ 2:30pm

          Re: Re: Them today, you tomorrow

          This isn't 'pay up or we will trash you', it's 'pay up and we'll take down official and public information related to you'.

          Dodgy and slimy as hell, yes. Extortion, given the source and availability of the information they're reposting, not so much.

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          • icon
            HegemonicDistortion (profile), 23 May 2018 @ 3:00pm

            Re: Re: Re: Them today, you tomorrow

            It's the charging people to remove it that's the problem. It's even more of a racket if that was done without regard to the disposition of the charge.

            I don't find anything above at all persuasive as to why a mugshot should automatically be a publicly-available "public record." Fingerprints, too? Photos of victims used in a prosecution? I can see when there should be times a mugshot can become publicly available (e.g. if a convict or arrestee has escaped or jumped bail), but not any reason it must automatically be merely because the government took it.

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            • icon
              That One Guy (profile), 23 May 2018 @ 3:22pm

              Re: Re: Re: Re: Them today, you tomorrow

              I don't find anything above at all persuasive as to why a mugshot should automatically be a publicly-available "public record." Fingerprints, too? Photos of victims used in a prosecution? I can see when there should be times a mugshot can become publicly available (e.g. if a convict or arrestee has escaped or jumped bail), but not any reason it must automatically be merely because the government took it.

              That I can certainly see and find persuasive. If there's a pressing need for the public to know about someone, like say an individual escapes custody and there's good reason to believe that they pose a real danger to those around them, then yeah, having the picture available would make sense. Other than that though, what purpose does it serve other than 'name and shame'?

              However, so long as they are public, and the state is making them available, then reposting them would seem to be constitutional, and therefore legal, even if, as noted, 'pay us to take them down' is all sorts of scummy.

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              • identicon
                Anonymous Coward, 23 May 2018 @ 3:30pm

                Re: Re: Re: Re: Re: Them today, you tomorrow

                If there's a pressing need for the public to know about someone…

                Someone shows up at arraignment looking all beat up, then the public has a pressing need to know whether the physical damage occurred before or after booking.

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                • icon
                  That One Guy (profile), 23 May 2018 @ 3:34pm

                  Re: Re: Re: Re: Re: Re: Them today, you tomorrow

                  Which would also fall under the 'exception to the rule', as that would involve a need for the picture to be made, if not public, then at least known to the court.

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                  • identicon
                    Anonymous Coward, 23 May 2018 @ 3:38pm

                    Re: Re: Re: Re: Re: Re: Re: Them today, you tomorrow

                    if not public, then at least known to the court.

                    The arraignment is a public proceeding, 'cause truth be known, we don't trust the judge as far as we throw his honor.

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            • identicon
              Thad, 23 May 2018 @ 3:24pm

              Re: Re: Re: Re: Them today, you tomorrow

              I don't find anything above at all persuasive as to why a mugshot should automatically be a publicly-available "public record."

              Whether it should be may be a good question, but it's outside the scope of this case. Mugshots are public records, whether you believe they should be or not; therefore, disseminating them is legal.

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            • icon
              Mike Masnick (profile), 23 May 2018 @ 5:30pm

              Re: Re: Re: Re: Them today, you tomorrow

              I don't find anything above at all persuasive as to why a mugshot should automatically be a publicly-available "public record."

              "Should" has nothing to do with it. They ARE public records under existing law. Therefore, this is about public records. That you think they should not be public records is a different issue entirely.

              Given that they are currently public records, the arrest here is worrisome in the extreme.

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              • identicon
                Anonymous Coward, 23 May 2018 @ 6:47pm

                Re: Re: Re: Re: Re: Them today, you tomorrow

                They ARE public records under existing law.

                The Declaration Of Inspector Sara Delaney In Support Of Arrest Warrants states that Mugshots.com publishes “confidential information”.

                p.10 (p.14 in PDF) (with added emphasis):

                Mugshots.com continually exposes confidential information by publishing the information on the website . . .

                p.21 (p.25 in PDF):

                The relevant identifying for the listed victims is contained in the Confidential Attachment. Declarant requests that the “Confidential Attachment” be ordered sealed pursuant to California Rules of Court 243.1(d) in order to protect the confidential personal information of the individuals.

                Confidential information is not a public record.

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                • identicon
                  Anonymous Coward, 23 May 2018 @ 8:40pm

                  Re: Re: Re: Re: Re: Re: Them today, you tomorrow

                  Mugshots.com continually exposes confidential information

                  That's a false assertion, as noted in the story above. The images posted are public documents.

                  Just as a hypothetical, could you make the same charges (identity theft, extortion) by posting selfies found on facebook?

                  Hint: copyright. But "confidential"?

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                  • identicon
                    Anonymous Coward, 23 May 2018 @ 8:47pm

                    Re: Re: Re: Re: Re: Re: Re: Them today, you tomorrow

                              Mugshots.com continually exposes confidential information

                    That's a false assertion

                    p.22 (p.26 in PDF)

                    I declare, under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

                    Date: 5-8-2018

                    [signature]

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                    • identicon
                      Anonymous Coward, 24 May 2018 @ 7:13am

                      Re: Re: Re: Re: Re: Re: Re: Re: Them today, you tomorrow

                      Other than Scooter Libby, when does the high court ever convict anyone of perjury? Nothing will happen to Delaney because of this lie.

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                • icon
                  That One Guy (profile), 23 May 2018 @ 9:29pm

                  Re: Re: Re: Re: Re: Re: Them today, you tomorrow

                  From the same page:

                  'mugshots (dot) com is website that publishes the names, booking photographs, arrest information, and the personal identifying information (PII) of individuals who have been arrested.'

                  Which of that is 'confidential information'? It's certainly not the name or photos, it's probably not the arrest information as I would guess that's also involved in the mugshots that the state makes public(otherwise you'd have situations of 'Person X has been charged with violating [REDACTED] law')... the only possible match would be the 'personal identifying information', and that's assuming that's something beyond place of residence, phone number and so on, as that sort of stuff is also public information.

                  If it's confidential information that's meant strictly for use within the courts/law enforcement you can be all but certain that there would be CFAA charges involved for 'unauthorized access of a secure network'. That this doesn't seem to be the case would seem to argue that the extra information was also publicly available.

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                • identicon
                  Anonymous Coward, 23 May 2018 @ 10:46pm

                  Re: Re: Re: Re: Re: Re: Them today, you tomorrow

                  The relevant identifying for …

                  Should read as, “The relevant identifying information for …”

                  That was my omission in typing.

                   


                   

                  California Rules of Court 243.1(d)

                  I observe that the 2018 California Rules of Court web page for Rule 2.550. Sealed records contains a note on the rule's history.

                  Rule 2.550 amended effective January 1, 2016; adopted as rule 243.1 effective January 1, 2001; previously amended effective January 1, 2004; previously amended and renumbered as rule 2.550 effective January 1, 2007.

                  (Highlighting added.)

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              • identicon
                Anonymous Coward, 24 May 2018 @ 6:29am

                Re: Re: Re: Re: Re: Them today, you tomorrow

                Based on your location and experiences you ASSUME that all records are public and that all records posted are public of police arrest. That is a naive view point. Most likely reality that the mug shot are not mug shots but pictures of random people who have not been involved in a crime who can be extorted. Just because you are honest and on the internet does not mean all people on the internet are honest.

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          • icon
            PaulT (profile), 24 May 2018 @ 1:40am

            Re: Re: Re: Them today, you tomorrow

            "Extortion, given the source and availability of the information they're reposting, not so much."

            I'd say it's still extortion, for the following reasons:

            1. Knowledge. Yes, *you* know it's publicly accessible information, but do the people being asked to pay? If they were misled into thinking it was only available on that website, it's still extortionate even if the facts state that the photos were public record.

            2. Threat of publicity. I know for a fact that I've seen photos that originated from the mugshots site that have gone viral, to the point where one forum I frequent used to do a weekly "best of" thread. Some of those photos remain as popular memes to this day. I don't recall having seen too many that originated with people going to the actual public source of the photos, but aggregators like these can lead to embarrassing publicity far easier. The cops usually aren't going to spread the photos across the web far beyond their own records, but the website owners might threaten to make it very visible if they don't get paid.

            The extortion is therefore not dependant upon whether or not the photos can be accessed elsewhere, but whether or not they're deliberately publicised. If I threaten to doxx you using your address and phone number unless you pay me, it's still extortion even if they're publicly listed in the phone book. That threat of publicity under condition of payment is still blackmail, even if the information to be published is known on public record.

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            • icon
              That One Guy (profile), 24 May 2018 @ 12:01pm

              Re: Re: Re: Re: Them today, you tomorrow

              Hmm, you make a good case. I'll grant that it absolutely feels like extortion(that has been pretty clear from the outset), no doubt about that, the question is does it rise to the legal definition, of which I'm not so sure. At the moment I'm leaning towards 'no' due to the public nature of the information and because of what a precedent could mean for other, non-scumbags who published publicly available information that might be inconvenient if known.

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              • identicon
                Thad, 24 May 2018 @ 12:37pm

                Re: Re: Re: Re: Re: Them today, you tomorrow

                But it's not the publishing of the information that's the issue, it's the charging money to take it down.

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              • icon
                Uriel-238 (profile), 24 May 2018 @ 1:13pm

                publicly available information, inconvenient if known

                Like which people are known to be gay? Or what people are known to be Jewish? Or what people are known to be liberals? Mormons? Irish? Klansmen? Muslims? Freemasons? Skateboarders? White Nationalists? Antifa? People with nudes on line?

                Have I touched on any group you'd rather not be outed to employers, law enforcement and hate groups?

                While I'd like to believe that human beings can rise to being entirely rational and not use such information to discriminate against others, so, so often they don't, and I've lost faith that they might rise beyond bigotry anytime in the foreseeable future, especially while scarcities make for a desire to scapegoat.

                As it is, eventually we'll have to live in an era where anything about each of us is discoverable, just as we'll have to live in an era where those who want guns will be able to print molds and turn them into working prototypes. But hopefully we can change our data culture before then, much the way we hope to change gun culture when access to guns cannot be inhibited by law.

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              • icon
                PaulT (profile), 25 May 2018 @ 12:51am

                Re: Re: Re: Re: Re: Them today, you tomorrow

                Well, sure, I'm only going on my opinion rather than the letter of the law. I may well be completely wrong according to the statues involved here. But, I'll maintain that the public availability elsewhere of information is immaterial to whether or not a specific threat is extortionate, especially if the victim is unaware of the public availability of the information.

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                • icon
                  Bergman (profile), 25 May 2018 @ 1:05am

                  Re: Re: Re: Re: Re: Re: Them today, you tomorrow

                  To be extortion, it would have to be a threat along the lines of "pay us money or we publish your mug shot."

                  But what the site does is display the public record that the state has ALREADY published, and then offer to edit out the photo if a fee is paid. There is no 'or else' to it.

                  If the state published the wrong photo there might be grounds for a defamation case, but that would properly be against the state.

                  All the website operators do to increase the exposure of the photos that the states don't is they make all the state's records available in one spot, rather than having to do 50 mugshot searches.

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                  • icon
                    PaulT (profile), 25 May 2018 @ 1:26am

                    Re: Re: Re: Re: Re: Re: Re: Them today, you tomorrow

                    "There is no 'or else' to it."

                    I disagree. There's the implied "pay us or else we will continue to publicise it as we are currently doing". The fact that they started publicity before demanding payment doesn't change that.

                    "All the website operators do to increase the exposure..."

                    ...unless they receive a fee. Exactly my point.

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            • icon
              The Wanderer (profile), 25 May 2018 @ 10:07am

              Re: Re: Re: Re: Them today, you tomorrow

              Agreed.

              IMO the relevant factor is the fact that they are expecting to get the people whose information is being publicized to pay them in order to cease publication.

              Disseminating publicly-available information more broadly than it would otherwise reach is not, and should not be, illegal.

              Doing it when the people the information is about do not want it disseminated is not, and should not be, illegal. (Consider reporters covering a scandal about some public figure.)

              Doing that for a profit motive is not, and should not be, illegal. (Even assuming that the reporters from the previous example did not have a profit motive, consider someone writing an unauthorized biography.)

              But in that last case, the profit is meant to come from third parties who are interested in the information, and by way of the dissemination itself - not by way of ceasing dissemination.

              When the intent is for the profit to come from the parties who do not want the information to be disseminated - when you're saying "if you don't want this information widely publicized, pay me" - that IMO crosses the line into (attempted) extortion.

              (Although it occurs to me that that description could apply to things like the hush-money cases which have been much in the political news lately...)

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        • identicon
          Agammamon, 23 May 2018 @ 4:39pm

          Re: Re: Them today, you tomorrow

          These guys didn't trash anyone. As this article points out (and I pointed out in the last one before getting pissed on about it), the *state* trashed these people by taking and making public the mugshots.

          The root problem here is the state making mugshots and accusations public rather than private.

          If these shots weren't published *already* - by the state itself - then these guys couldn't have done this to start with.

          The state is demanding more power to fix a problem caused by the state.

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          • identicon
            Anonymous Coward, 23 May 2018 @ 4:50pm

            Re: Re: Re: Them today, you tomorrow

            The root problem here is the state making mugshots and accusations public rather than private.

            Just for the moment, set aside the mugshots, and focus on the accusations.

            Should the accusations be read in open court to the accused, shortly following arrest?

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            • identicon
              bob, 24 May 2018 @ 12:31pm

              Re: Re: Re: Re: Them today, you tomorrow

              I believe the punlic has a need to know of the accusations. It forces the police to have a reason for arresting someone (yes I know trumped up charges still occur but police cant just arrest someone and not say why). Knowing the accusations allows the public to monitor the police and justice department and lets the public know of any potential dangers in an area. For example someone accused and arrested for sex abuse of a minor should probably not be allowed alone in areas with minors. At least I would take precautions to keep my children out of that situation until I know more information.

              I think the real problem stems from our society automatically assuming guiltiness based on merely accusations. But we also shouldn't naively allow potential dangers to roam freely which is why we incarcerate people, based on the accusations, until a court determines innocence.

              So it comes down to making a judgement call whether the needs for privacy of the accused out way the needs for awareness by the public. It's not a perfect solution but I'm glad it errors on the side of the publics right to know.

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              • identicon
                Thad, 24 May 2018 @ 12:43pm

                Re: Re: Re: Re: Re: Them today, you tomorrow

                So it comes down to making a judgement call whether the needs for privacy of the accused out way the needs for awareness by the public. It's not a perfect solution but I'm glad it errors on the side of the publics right to know.

                But that's not a thing. "The public has a right to know" is an often-used phrase, but that's not really a legal principle.

                The First Amendment grants a right to free speech and freedom of the press -- which means that individuals and publishers have the right to share information, not that the public has a right to know something.

                Whether something is of public interest can be a factor in determining whether or not speech falls outside the First Amendment, but nonetheless, that's not the same thing as a legally-enshrined public right to know things.

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                • icon
                  Bergman (profile), 25 May 2018 @ 1:08am

                  Re: Re: Re: Re: Re: Re: Them today, you tomorrow

                  The oft-mentioned public right to know is irrelevant here.

                  If the state publishing public records is a violation of privacy, then prosecute/sue them for that.

                  If it's truly public information, then denying someone access would be a violation of a statutory right. And that's a federal crime.

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                  • identicon
                    Anonymous Coward, 25 May 2018 @ 12:29pm

                    Re: Re: Re: Re: Re: Re: Re: Them today, you tomorrow

                    The oft-mentioned public right to know is irrelevant here.

                    Arguing merely that “They ARE public records” —capital ARE by diktat— fails to sufficiently account for the great weight of the public interests in this particular class of public records.

                    We're not talking about the minutes of some zoning commission meeting. If the state insists that zoning commission meeting minutes are “confidential information”, then where, really, is the great and immediate loss of individual liberty?

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                • identicon
                  Anonymous Coward, 25 May 2018 @ 10:58am

                  Re: Re: Re: Re: Re: Re: Them today, you tomorrow

                  "The public has a right to know" is an often-used phrase, but that's not really a legal principle.

                  It's certainly not as definite as—

                  In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation

                  Even Cal. Const. Art I. Sec.3 (b) (1)

                  The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.

                  —is not as definite as Cal. Const. Art. I Sec. 14

                  A person charged with a felony by complaint subscribed under penalty of perjury and on file in a court in the county where the felony is triable shall be taken without unnecessary delay before a magistrate of that court. The magistrate shall immediately give the defendant a copy of the complaint, . . . , and on the defendant’s request read the complaint to the defendant.

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          • identicon
            dondoo, 24 May 2018 @ 4:24pm

            Re: Re: Re: Them today, you tomorrow

            They committed the other crimes by virtue of:
            "As of January 1, 2015, California Civil Code Section 1798.91 .1, Subdivision makes it unlawful for any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph. By posting the booking photograph online, and requiring a fee to have it removed, the owners and operators of Mugshots.com and Unpublisharrest.com are operating their websites for an unlawful purpose."
            Like "collusion" is not a crime, it is a requisite for the crime of conspiracy.

            reply to this | link to this | view in chronology ]

      • icon
        Ninja (profile), 24 May 2018 @ 7:35am

        Re: Them today, you tomorrow

        Interesting. I gave you the first word because your argument is very reasonable and it's very easy to dismiss the severity of this just because they are acting in a very sleazy way. I was surprised with a little warning in yellow when I was about to grant the FW to you that said your comment has been flagged quite a few times and that if it is hidden I may 'lose' my credit.

        It was a very didactic moment for me and I wanted to share with you and the rest of the community. I can understand those flagging your comment. The behavior these people are displaying is disgusting, it feels like extortion for sure and they come out of this generally looking bad. But we should not let that feeling of "they got what they deserve" swipe our reason. They have not committed any crime under current laws and they are protected by the Constitution. As you said, it leaves a foul taste like when I remind people that ACLU protected despicable kkk members on 1st amendment grounds and won. Thankfully. And I say thankfully with a very bad taste in my mouth. But if we want to make sure we preserve our freedoms and our protections from government overreach we should devote special care for the cumbags of the world that are despicable but deserve the same protections. Because when we decide that somebody doesn't deserve them it's a situation where everybody loses.

        I urge my fellow readers who flagged the comment to take a moment and rethink it. That One Guy is not defending the scumbags. He is defending our collective freedom of speech. Sadly but fortunately it is valid to the scum of the world as well.

        reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 23 May 2018 @ 2:07pm

    Taken together, the arrest warrant concludes, the site operators are guilty of extortion and conspiracy to commit extortion. But to prove extortion prosecutors must show that the accused threatened a victim either with violence, the accusation of a crime, or the exposure of a secret, if they didn't pay the accused. Yet the defendants are accused of none of these things. Not only is there no issue of threatened violence, but what the site operators are alleged to have done in no way involves revealing a secret or accusing another of a crime. Instead it is the state that has already accused the site operators' purported "victims" of a crime, and its having done so is no secret. The state's accusation against these people became public when it originally released the mugshots, meaning there is nothing that the site operators could have been threatening to reveal that wasn't already revealed.

    You're operating under the implicit assumption that "accusing another of a crime" is a thing that can only be done one time by one entity. I see no good reason why this should be considered the case. Seems to me their business model consists of accusing people of crimes (that the state has also accused them of), in a centralized location that is easier for the public to find than wherever the various states publish them, and then extorting them to get it taken down.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 23 May 2018 @ 2:27pm

      Re:

      Seems to me their business model consists of accusing people of crimes (that the state has also accused them of), in a centralized location that is easier for the public to find than wherever the various states publish them, and then extorting them to get it taken down.

      That strikes me as a similar argument that I've seen in other cases, where the one bringing a lawsuit claims that republishing something defamatory(generally in the form of reporting on it) is the same thing as making the defamatory statement in the first place. The state is the one making the accusations, they are merely republishing them with a 'what they said'.

      Now if they were accusing them of different crimes that would of course be an entirely different manner, but if simply repeating what the state has already said counted as a new accusation then the only people who would ever be able to use mugshots and the info related to them would be the state.

      Centalization I don't see as an issue either, as unless the state has taken steps to make it more difficult to find booking info then it seems it's merely a difference in who's running the database with the info in question, the state or a private individual.

      Is what they were/are doing incredibly slimy? Absolutely. The question though is does it rise to the level of extortion, and while it certainly comes across as veering very close to it, the fact that the 'incriminating' information is already made available to the public by the state would seem to undercut that.

      This is one of those cases that leave a foul taste in your mouth. What they're doing is disgusting, but it does seem to be constitutional, which means it should be legal, and as such to defend my rights I'm in the position of defending the rights of some right sleazeballs.

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 23 May 2018 @ 3:15pm

        Re: Re:

        What they're doing is disgusting, but it does seem to be constitutional, which means it should be legal

        What do you mean by this? Taking it to its logical conclusion (nothing the Constitution does not forbid should be illegal) would involve a bunch of truly absurd things, considering that the constitution says nothing about murder, robbery, or rape, just for starters. Since that's clearly not what you actually meant, would you mind clarifying?

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 23 May 2018 @ 3:32pm

          Re: Re: Re:

          Constitutional in the sense of free speech and the exercise thereof, which at times like this can involve free speech by scumbags.

          Yes what they're going with the information they're posting is sketchy as hell, and skirts very close to extortion with their 'pay us to take it down', but at the core they're reposting something someone else(in this case the state) said, which would seem to fall under the cover of free speech and therefore protected.

          reply to this | link to this | view in chronology ]

    • identicon
      Agammamon, 23 May 2018 @ 4:43pm

      Re:

      They're not accusing anyone of a crime.

      All they're doing is collecting in one place, all the accusations the state has made.

      Look - if we allow these guys to be prosecuted, we basically allow the state the power to shut down anyone who posts publicly available information.

      Yeah, these guys are scum. No argument there. But there's larger stakes in play here.

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 24 May 2018 @ 8:53am

        Re: Re:

        Look - if we allow these guys to be prosecuted, we basically allow the state the power to shut down anyone who posts publicly available information.

        No. It's not the posting of publicly available information that's objectionable; it's the extorting people into paying them to remove it, and I'm just fine with allowing the state the power to smack down people who do that!

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 24 May 2018 @ 9:08am

          Re: Re: Re:

          Exactly. There are 3 acts here essentially:

          - Copying publicly available information
          - Posting it on another website
          - Demanding payment from people to remove it from that website, with the implication that embarrassing publicity would occur if not paid, that would not be happening with the original source

          It's the third act that's being prosecuted here, and it's independent of whether or not the information itself is public. It would make the case for extortion more clear cut if this we previously private/hidden info. But, it's not necessary for the third activity to be extortionate. As I said above, if I threaten to advertise your home address and phone number on a website if you don't pay me, it shouldn't matter that I originally obtained the info from a phone book or directory enquiries. It's still an attempt at extortion.

          I am no lawyer, nor American, of course. But, that's how I'm reading it. I'll welcome corrections, but the legal availability of the photos is not the thing at question here.

          reply to this | link to this | view in chronology ]

  • icon
    discordian_eris (profile), 23 May 2018 @ 2:16pm

    It really sucks when the 'bad guys' are in the right and should have all charges dismissed. Are y'all sure Kamala Harris wasn't involved in this?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 May 2018 @ 2:24pm

    This entire article is forgetting something: the presumption of innocence. They were extorting money from people who had their charges dismissed or who were acquitted, and therefore in the eyes of the law were innocent. They in no way updated the mugshot profiles to reflect that, thus they were accusing people of crimes they (legally) did not commit. Hence, extortion.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 May 2018 @ 3:01pm

      Re:

      If they are presumed innocent, should the mugshots even be released? Are those records required to be public or has the state chosen to do it? Not releasing the information before a conviction would be a more direct way to avoid harming the falsely accused.

      reply to this | link to this | view in chronology ]

    • identicon
      Agammamon, 23 May 2018 @ 4:44pm

      Re:

      The state doesn't remove mugshots or arrest records from public access upon a finding of not-guilty either.

      Why would these guys have a greater responsibility to do so than the state?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 May 2018 @ 7:32am

        Re: Re:

        The state doesn't remove mugshots or arrest records from public access upon a finding of not-guilty either.

        In some cases they do. There are people who have been found not guilty or had the charges against them dismissed with the court ordering the records of their arrest to be expunged. This is because those ever arrested can still face ruinous discrimination. For example, there are many employers and landlords who exclude anyone who has ever been arrested, whether they were convicted or not. Mugshots.com extorts people to remove those records.

        reply to this | link to this | view in chronology ]

    • identicon
      Name, 24 May 2018 @ 3:19pm

      Re:

      Exactly. Friend of mine got arrested for driving under the influence. He wasn't. After they booked him and took his mugshot they dropped the charges. There wasn't any evidence. He tried to get his picture removed from the website and was told he would have to pay $300. He refused and they refused. To this day, whenever he goes to apply for a job, he has to inform the employer about the issue.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 23 May 2018 @ 2:29pm

    Your usual legalisms in favor of sleazy grifters.

    People felt desperate to have their mugshots removed from the Internet, and the site operators profited from that desperation.

    Clearly unlawful by the statute you quote...

    It feels criminal, but just because they may have had nefarious intent does not mean that they committed a crime.

    Oh, yes it does! If to We The People it "feels criminal" to gain money for REMOVING shaming, then basically it is. Add the "nefarious intent" that you admit, and in formal setting / decision process of a court (esp a jury), it's "extortion" beyond reasonable doubt.

    If site operators don't want to risk outraged citzens who find their actions over some line you think vague, then let THEM stay well clear of our notions of common decency, NOT society tolerate ever more SLEAZY ways to gain money.


    By the way, ain't it amazing that I'M against publishing mugshots to shame people accused of crimes? That's because I'm a real libertarian, and this is a corporation profiting from human misery: this corp produces nothing, gets its content for free, as always is the "new business model" here at Techdirt.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 May 2018 @ 3:05pm

      Re: Your usual legalisms in favor of sleazy grifters.

      I think it's hilarious that you have no idea what a law is.

      reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 24 May 2018 @ 7:40am

      Re: Your usual legalisms in favor of sleazy grifters.

      Please cite the law that makes it illegal. Remember they are PUBLIC information. If they refused to remove anything no court in the US would be able to force them. So if they are going to lose content then they might as well charge for the process.

      It must be added that I'm not defending their actions. It's slimy and disgusting as hell but it's not illegal. If you are uncomfortable with it then go talk to your legislators and see if a law can be put on the books to avoid such behavior. A Constitutional law of course.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 24 May 2018 @ 10:14am

        Re: tl;dr

        Please cite the law that makes it illegal.

        Huh? It's cited in the article.

        As of January 1, 2015, California Civil Code Section 1798.91 .1, Subdivision makes it unlawful for any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph.

        The question isn't "what law says this is illegal?"; that question's been answered. The question is, does that law pass constitutional muster, and is it a good law?

        reply to this | link to this | view in chronology ]

        • icon
          Ninja (profile), 25 May 2018 @ 4:33am

          Re: Re: tl;dr

          Oh, reading fail. But it's a civil offense is I understand well, no? So why jail time?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 25 May 2018 @ 10:12am

            Re: Re: Re: tl;dr

            But it's a civil offense…

            California Civil Code § 1798.91.1

            (e) In addition to any other sanctions, penalties, or remedies provided by law, a subject individual may bring a civil action . . .

            Very plainly, this statute does not contemplate the available civil action as excluding “other sanctions, penalties, or remedies”. Clearly, it's not exclusive.

            “[P]rovided by law” may mean other civil or criminal law.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 May 2018 @ 2:35pm

    There are several states, California included, that make it illegal for mugshot sites to charge a fee to remove a mugshot, and allow for civil penalties against sites that do charge. This does not strike me as "alarming statutory language."

    I'm not sure why California decided to make this a criminal issue though.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 May 2018 @ 2:45pm

    Important issue not addressed

    I hope that the site operators' mugshots are, in turn, posted to Mugshots.com, at least until they make bail. Fair's fair, right?

    reply to this | link to this | view in chronology ]

  • identicon
    stine, 23 May 2018 @ 3:04pm

    sounds like Georgia

    Or at least Gwinnett County. They passed a law a ?few? years ago making it a crime to repost mugshots, and making you fill out a form before obtaining them.

    Probably because somebodies little peach got a DUI at 17 and she offed herself.

    It probably wasn't because some sheriffs officers arrested a County Commissioner on trumped up DUI charges ang got his mugshot on the front page of the AJC.

    If they had gone for "DUI Less Safe", he'd have never been able to buy his way out of it.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 23 May 2018 @ 6:19pm

    I think the big issue is that they refused to remove the mugshots of people who they knew were found innocent unless they paid up. They knew that leaving the information up would damage the persons ability to find work and damage their reputation. They used this as a lever to get paid. Sure seems like extortion to me.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 May 2018 @ 8:17pm

      Fair Report Privilege [was Re: ]

      … and damage their reputation.

      California Civil Code § 47

      A privileged publication or broadcast is one made:

            (a) . . .

            (b) . . .

            (c) . . .

            (d) (1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) . . . , or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.

                  (2) Nothing in paragraph (1) shall make privileged any communication to a public journal that does any of the following:

                        (A) – (C)  . . .

            (e) . . .

      “Fair and true report” is the language used in the California statute, but it's generally referred to, in most states, as simply the fair report privilege.

      reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 23 May 2018 @ 6:47pm

    It's capitalizing on societal attitudes.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 23 May 2018 @ 7:17pm

      Re: It's capitalizing on societal attitudes.

      Let's try again (<enter> in the Subject field posts right away)

      Employers in the current clime don't like people who've had even a run-ins with the law. It doesn't matter if they were found innocent or arrested for resisting arrest or whatever, our job market is such that they can choose between people who've encountered law enforcement and those that have not.

      Since such prejudice exists, it would be like listing known gays or known Jews or known Klan members and then facilitating a payment schedule to keep one's own record off the database.

      While I can't speak for good real solutions to it, a good counter list will be a list of known employers who don't hire people who have a mug shot would help.

      reply to this | link to this | view in chronology ]

  • identicon
    Canuck, 23 May 2018 @ 7:48pm

    It's simple extortion

    Yes, they're using public information, but it's still extortion.

    Hey, I found out that you've got some nasty convictions on your record - after all, it's public information. But none of your neighbors or cow orkers are aware of your transgressions, so pay me or I tell them.

    That's extortion/blackmail, plain as day, using nothing more than public information.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 May 2018 @ 8:34pm

    The problem is that, as shown on this site, the police arrest people for petty things that are not illegal in the first place all the time.

    It also goes to what seems what I see as a common problem' It amounts to extrajudicial punishment being handed out when you haven't been convicted of anything.

    I don't know the answer as I do believe in the 1st amendment. I do know however that it's unfair to punish someone who has don't nothing more than be at the whim of an officer in a bad mood.

    reply to this | link to this | view in chronology ]

  • icon
    Hugo S Cunningham (profile), 23 May 2018 @ 11:10pm

    Blackmail-- can two legal acts be combined to make a crime?

    It is legal to post mugshots and legal to ask for money. Is the combination of these two legal acts a crime?
    This question has been around long enough to post to Wikipedia:
    https://en.wikipedia.org/wiki/Blackmail#Objections

    An analogy is sometimes made to drunk driving: it is legal to get drunk and legal to drive, but combining the two poses a criminal risk to other drivers on the road.

    On the general subject of dirtbags on the edge of the law, I prefer California's approach to one witnessed by Sherlock Holmes:
    https://en.wikisource.org/wiki/The_Adventure_of_Charles_Augustus_Milverton

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 24 May 2018 @ 7:42am

      Re: Blackmail-- can two legal acts be combined to make a crime?

      Good point. But if anything this should be decided in a lawsuit. So far the owners have been denied due process it seems.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 May 2018 @ 11:13pm

    separating fools from their money

    Desperate & deluded people do desperate & deluded things, and exploiting that fact seems to be this website operation's primary business model. Paying a few hundred dollars for "reputation laundering" might seem like a good deal if somehow, perhaps even magically, doing so rewarded the person with employment, friendship, romance, and a host of other benefits that these people feel were deprived from them specifically due to their arrest record.

    But the cold hard reality is that the person's mugshot and arrest record will remain publicly available, essentially forever, from the same police databases it was originally harvested from, and besides its continued availabity on official sources, there's nothing to prevent additional copycat websites from continually popping up, each demanding payment to remove a person from its site.

    Just as the Church of Scientology (and Barbara Streisand) discovered long ago, sooner of later these fools will realize that you can't fight the internet.

    reply to this | link to this | view in chronology ]

  • identicon
    Kev, 24 May 2018 @ 4:41am

    They should've left CA alone!!

    The scum that run the website used the loopholes in the law
    to LEGALLY screw people over for $ and NOW that some states that did something about it LATER (after the fact) and assumed this "West Indies" company would RESPECT THE LAW!!!
    Clearly they belong in jail and the author doesnt relize
    his first point of the "Mugshot law" IS the extortion!!
    Just like how cyberbullying was filed under "Stalking"
    in most states, Mugshot removal fees was filed under CA
    law as part of the "Extortion" statute of the state and
    over 3 years ago at that!! So SO glad criminals in the past
    screwed it up for Sarid and Keesee, by extorting people in
    another state and factually being safe until the extortion laws started to change to include cross-state extortionist acts!! The MAIN reason they're screwed is because they went
    with the VICTIM'S jurisdiction and NOT offender's!!

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 24 May 2018 @ 7:49am

      Re: They should've left CA alone!!

      "Clearly they belong in jail"

      For doing something questionable but lawful? Let's try something: let's suppose you are a cartoonist and you specialize in drawing erotic content that's somewhat violent and you create a cartoon that depicts rape in it's all, uncensored and explicit glory. I may find it questionable, tons of moral police govt folks might find it questionable. You keep creating such material over and over and making it public on your site. Should you be arrested because you are doing stuff that people think it's disgusting and generally sleazy?

      So don't be so fast to condemn when it's not explicitly criminal under the law. I'm with you when you say they are sleazy bastards but I don't want pseudo-laws being wielded around to arrest people because it may be turned against me.

      reply to this | link to this | view in chronology ]

      • icon
        Hugo S Cunningham (profile), 24 May 2018 @ 8:17am

        Re: Re: They should've left CA alone!!

        Your cartoonist analogy fails, because pornographic drawing is a victimless offense.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 May 2018 @ 9:21am

        Re: Re: They should've left CA alone!!

        "For doing something questionable but lawful?"

        I don't understand. California has the following law:

        >It shall be unlawful practice for any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph.

        So how can you call it "lawful"?

        Yes, you can publish booking photos. That's your First Amendment right. But you aren't allowed to then require a payment to take them down. it's the payment, not the publishing, which is illegal, so I don't think this law violates the First Amendment.

        reply to this | link to this | view in chronology ]

        • icon
          Sharur (profile), 24 May 2018 @ 10:54am

          Re: Re: Re: They should've left CA alone!!

          And such a law is subject to strict scrutiny as it imposes limits on the freedom on what can said/not said, for consideration. It is legal, for example, for a private actor require payment to evaluate and certify a product (I believe the MPAA, for example, requires such payment for movie ratings).

          *Nit pick, I don't think this is a free speech issue. I think its a free press issue. But the particulars are not particularly important.

          Via "Lex iniusta non est lex", the action may be considered lawful if the law that outlaws it is invalid (such as for being unconstitutional).

          Not saying it is; just saying it potentially is.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 May 2018 @ 10:25am

    Stone Cold Look

    Yesterday, Scott Greenfield over at Simple Justice posted his short take, “Neither Mugshots Nor Schadenfruede Is A Crime (May 24, 2018), linking back to this Techdirt article.

    Cathy Gellis takes the stone cold look

    (Embedded hyperlink points here.)

    reply to this | link to this | view in chronology ]


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