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(photo/Wesley Mc Lachlan)
Saundra Sorenson
Published: 05 November 2020

State legislators are concerned about the over-exposure of mugshots.

Currently, most law enforcement jurisdictions in the state post booking information and arrest photos in a searchable database online, and generally remove them within a week. The Oregon Legislature's Joint Committee on Transparent Policing and Use of Force Reform has drafted a bill that would prohibit law enforcement from publishing those images online by default. Under the new bill, agencies could only release “mugshots” under certain circumstances: if requested by other law enforcement agencies or officers, if police are looking for a suspect and request the public’s assistance or by media request if the individual’s arrest is determined to be of public interest.

The committee, which convened last summer, is co-chaired by Sen. James Manning (D-Eugene) and Rep. Janelle Bynum (D-Clackamas). Members include Sen. Lew Frederick (D-Portland), Rep. Alissa Keny-Guyer (D-Portland), and Rep. Akasha Lawrence-Spence (D-Portland).

“I look at this from a broad perspective,” Manning told The Skanner. “One is that, when you see pictures of people with an allegation made of them, it’s flashed all over the television. Those allegations sometimes come up to be inaccurate.

"The damage it’s caused to an individual at that point is almost irreconcilable.

James Manning IntroSen. James Manning (D-Eugene)"The chances of them being able to live their lives once it’s out there in the universe, especially the technological universe? You can never retrieve that.”

The bill is part of an effort to prevent “doxing,” the practice of publishing identifying information about an individual, often on social media or online in general, and often as a form of retaliation.

Doxing came under increased scrutiny in September when several Black Lives Matter protesters alleged conservative activist Andy Ngo had posted their mugshots to Twitter, putting their safety at risk. Now, the Anti-Doxing Work Group is one of three under the committee's umbrella, alongside the Police Identification & Uniform Requirements and Riot and Unlawful Assembly Reform workgroups.

“It’s really crucial in this political moment we address the fact that doxing is really this extra-judicial vigilante justice that really maintains White supremacist status quo,” Rory Elliott, an organizer with Care Not Cops, told The Skanner.

“It gives power to people like the Proud Boys, the KKK, and to other far-right folks to enact the violence.”

Elliott estimates that doxing now happens every night of protesting, and that beyond identifying protesters by name and image, it opens its victims to further online scrutiny.

ryan afunso introRyan Anfuso“People go into their online world,” Elliott said. “This happens all the time, and it’s a very critical and well- utilized strategy of the far-right and the police to enable vigilantism.”

Mohamed Shehk, National Media and Communications Director of Critical Resistance, agreed.

“I think that having more robust safeguards that disallow for the publishing of mugshots when related to civil rights protest activities is extremely important,” Shek said. 

Elliott called the practice of releasing mugshots “dehumanizing and brutal for people experiencing police interaction.”

“What we also see with mugshots, especially on the media, they are used primarily to really give viewers and the public the idea that the individuals were worthy of the violence that was enacted on them, whether that be actually altercations with the police that result in death or serious, serious injury,” Elliott said. 

A Harmful Industry

But booking photos can do damage far beyond the local political sphere. The online availability of mugshots has given rise to the bustling “mugshot industry” -- hundreds of websites that use simple programs to automatically capture and repost booking images and information in perpetuity, with no contextual information when charges were dismissed or if an arrest was errantly made due to mistaken identity. This has led to unfortunate and prominent search results for those even wrongfully arrested, meaning a single arrest resulting in dismissed or no charges can have the same adverse social, economic, employment, educational, and housing impacts as a felony conviction.

Mugshot websites charge fees as high as $399 for a single removal, a practice still legal in many states. And individuals and entities who own such businesses often operate a multitude of identical websites where information is cross-posted, meaning an individual looking to pay for removal may unknowingly make repeated payment to the same organization -- with no guarantee the image won’t pop up elsewhere.

Media investigations have shown that many mugshot website owners simultaneously operate “reputation management” services that target the very individuals whose mugshots they have posted, offering to scour the internet and remove all booking information for a fee of thousands of dollars. In many cases, a person who has emailed a removal request to a mugshot website will immediately be contacted by a supposed online reputation management firm that does not disclose its affiliation with the mugshot website itself.

The damage of a widely-posted booking photo disproportionately impacts the Black community. In Oregon, Black incarceration rates are six times higher than those of Whites, despite the fact African Americans account for only 3% of the state's population, according to the Urban League of Portland's State of Black Oregon report. The Vera Institute of Justice reports that nationally, 80% of arrests are made for low-level offenses.

“Until we get a handle on how we are allowing the use of the electronic data-sharing of these photographs, we’re just at the edge of what I feel is going to be a devastating calamity for how we move forward in a society,” Manning said. “If someone disagrees with you, they smear you on social networks. We need to get control of that. This is one step in doing that.”

Portland criminal defense attorney Ryan Anfuso has testified in favor of such legislation, but acknowledges the benefit of accessible booking information.

“There is a public interest in knowing who law enforcement arrested, and also being able to quickly access the information about that person -- that can serve a legitimate public purpose,” Anfuso told The Skanner. “There are legitimate reasons why the public would want to have access to that information that aren’t just nefarious shaming-type motives. And the media doesn’t want to be in a position where they're buried in public records requests.

“But you need to also then balance, what is the impact of having access to that particular piece of information? What value does it add, and is it worth limiting the access to that particular piece of information to prevent people from becoming victims to this kind of predatory scheme?”

Revisiting Legislation

The new bill is actually a revival of language deleted from House Bill 3467, which was passed in 2013 to provide legal standing for Oregonians seeking to purge mugshots from enterprising commercial websites. Under HB 3467, it is a violation of the Unfair Trade Practices Act to charge a fee for mugshot removal if the individual can prove it was related to an arrest that led to dismissed or expunged charges.

HB 3467 gave Oregonians some recourse against what had been referred to as legal extortion, and it addressed the issue of mugshot websites in state records. But the burden remains on the subjects of those mugshots to track down all the websites that run their image, contact them, and produce evidence they are protected under the law’s criteria. The fact that many mugshot websites are registered outside the U.S. makes enforcement next to impossible in many cases, legal experts have argued.

And during that process, the image remains accessible to potential employers, landlords, mortgage providers, college admission officers, family members and social connections.

“How do you convince them that nothing came about that, it was an allegation and it was dismissed?” Manning said. “The damage it does to your reputation can be beyond repair. So we’re trying to get ahead of this thing. Technology continues to evolve, and we have to evolve with technology.”

Strengthening Protections

Anfuso helped draft the original version of HB 3467, which prohibited law enforcement agencies from publishing booking photos, and which would have required a written request and fee to access a mugshot.

Manning believes the timing is better to push through some of the previous bill’s original, ultimately redlined, intent.

“We are going through a transformational moment in American history,” Manning told The Skanner.

“We are now standing up for things that are unjust, things that should have not been committed years ago, but because of the lack of willpower, we’re trying to play catch-up. We have to take these bold steps to say, ‘This is not right.’

Anfuso spoke with The Skanner after reviewing the initial draft of the new legislation.

“There’s two problems: What do you do with the photos that currently exist on the internet? What do you do to try to prevent this problem going forward? The bill tries to address these problems in a way that I think would help,” he said.

Anfuso recommended the bill contain an access exception for attorneys.

“Something else that will need to be worked out is, (regarding media requests), who’s deciding whether or not the public interest requires disclosure?” Anfuso said. “I would imagine that needs to be parsed out. But I think that it’s great they’re taking a second look at this.”

Anfuso pointed out that even requiring mugshots to be requested individually, rather than providing them all in daily batches, would make them “less appetizing for clickbait.”

Manning is concerned that booking photos could be used for more localized public shaming, explaining that he himself has been threatened with slander on social media.

The new bill is likely to go before the Legislature early next year.

”The purpose of the criminal justice system isn’t to permanently impact somebody’s ability to live their life,” Anfuso said. “An arrest for a DUI shouldn’t be the first thing everybody knows about you. And it’s just wrong we allow for that to happen in a lot of ways.”

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