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Should newspapers make money off of mugshot galleries?

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For the past year, Fusion has investigated how shady websites like mugshots.com profit off of police booking photos by charging people to keep their mugshots off the internet. But to capture the full story about the publication of police photos on commercial websites, we had to also look at ourselves and our colleagues in the media.

Tens of millions of people’s images are scraped and republished by mugshot websites, and many people who spoke with Fusion for Mugged, our hourlong investigative documentary on the controversial business, say that what these sites do is extortion. Some states have tried fixes to the problem, and they often run into the same vocal opponents: news organizations.

That challenge is especially fierce in Florida, because the state has some of the most expansive public records laws in the nation. Legislators in the Sunshine State have been trying to stymie the mugshot industry since 2013 with bills that would block access to arrest records by parties who publish them online and charge for their removal.

But the Florida Press Association, which represents the state’s news media in the capital, has generally opposed the broadest versions of those proposals. Their priority is to protect freedom of information and speech, and they argue that restricting access to booking photos infringes on those rights. They make a vital point: Journalists rely on arrest records to track crime trends and keep law enforcement accountable.

“We believe the digital mugshots provide important information to the public regarding oversight of the criminal justice process and information of importance to citizens,” Florida Press Association general counsel Samuel Morley said last summer.

But does that mean every single mugshot should be on public display? How does one balance the rights of a free press with an individual’s right to privacy?

We started looking more closely and found that the media have their own major stake in the mugshot game, including local television stations and newspapers who are desperate for new revenue streams in the internet age.

Fusion looked at 74 U.S. newspapers, most owned by newspaper chains like Tribune Publishing and McClatchy. We found that 40 percent of them publish mugshot galleries, including the Chicago Tribune, the South Florida Sun-Sentinel and the Tampa Bay Times. Only a handful of past or present editors agreed to talk to us about it.

“With the advent of the internet, a lot of editors and publishers started noticing that stories that had crazy looking mugshots tended to do really well, and people started clicking on them,” said Matt Waite, a journalism professor at the University of Nebraska in Lincoln.

In 2009, Waite created one of the first mugshot galleries when he worked as a reporter and computer programmer for the Tampa Bay Times.

The gallery he built was hugely successful, giving the newspaper millions of extra pageviews at a monthly cost of only about $150. And he started getting calls from other editors to see if they could buy the software to create their own galleries.

According to Neil Brown, editor of the Times, the mugshot gallery accounts for 5 percent of the paper’s total web traffic. “That traffic is not insignificant,” he told Fusion.

But the business model raised some ethical concerns.

“We immediately recognized that we’re basically creating a digital scarlet letter here,” Waite said. “And we’ll be the first result in Google for anybody’s name, anytime, ever. And none of us were comfortable with that.”

Crime reporting has always been an important part of news coverage. And mugshots, which are public records, have often accompanied these stories.

But mugshot galleries offer no context or follow-up information on arrests. And by running ads against mugshot galleries, it appears that newspapers are monetizing police photos and public humiliation in a manner that’s strikingly similar to exploitive private sites like mugshots.com.

In fact, news sites scrape law enforcement databases automatically, using the same kinds of software bots that less-savory mugshot websites use to upload booking photos to their sites.

That posed a particular challenge for the Tampa Bay Times — which is owned by the Poynter Institute, a nonprofit dedicated to professionalizing the journalism industry ethically. The Times took extra steps to protect the people who end up in their mugshot gallery. They don’t index their site on Google, and they drop the mugshots after 60 days.

However, they don’t generally run corrections or remove mugshots before the two-month cutoff, even if the charges were dropped, the arrest was wrongful, or the information accompanying the image was incorrect.

That’s the case for a lot of people, says Jay Stanley, a senior policy analyst with the ACLU’s Speech, Privacy and Technology Project.

“If there’s a public interest and a public important reason why a mugshot should be released, like you need to spread the word that a dangerous person is on the loose,” then publishing the images makes plenty of sense, Stanley says. “But on a routine basis, so many people are arrested. Many of them are completely innocent.”

In those cases, he says, “the right balance between privacy and oversight is for those photos not to be released.”

“We’re struggling to find a new balance in the age of digital information.”

The American attitude toward access to arrest records dates back to our founding fathers and the Constitution. In colonial America, secret arrests of Americans by English authorities were commonplace; abuses in the English criminal system led the Framers to create a more open judiciary, with government accountability. The Supreme Court has long recognized that the public has a First Amendment right of access to court proceedings.

“The issue is, government can’t prohibit the downstream use of information lawfully obtained,” said Barbara Petersen, president of the Florida-based First Amendment Foundation. “So long as mugshots are public record — and I believe they should be — companies like Mugshots.com can post them to the web.”

Not all civil libertarians agree on that bright line. “We need to make sure that we have oversight over the government. And so for that, you need to know who’s arrested and why they’re arrested,” the ACLU’s Stanley said. “But you don’t necessarily need to see the mugshot in order to provide that oversight and prevent abuse.”

In the tech-saturated 21st century, the relationship between individual privacy and a free press is complicated, as Facebook might say. There’s a difference between publishing information in the public interest and putting it out to appeal to “mere prurient curiosity,” Stanley said. “We’re struggling to find a new balance in the age of digital information.”

Even Waite expressed his ambivalence over mugshot galleries during an on-camera interview with Fusion for Mugged.

“Some places see it as a business opportunity and a reflection of the times that we’re in, the desperate need for revenue,” he said. “And the arguments that it’s journalism and it’s a public service are really thin.”

Still, Brown, the Times editor, defended the paper’s decision to run mugshot galleries.

“I would in no way put newspapers in the same category as some of these sites that are extorting people by putting their mugshots up and then indexing them, so that Google can find them,” he said.

“We put all kinds of content online, there’s advertising around it. Period.”