State senators are taking aim at a shady business practice, but instead of chasing cash-grabbers into the sunlight, they’ve decided we’d all be better off in the dark.
Sen. Tim Moffitt, R-Henderson, introduced the Booking Photograph Privacy Act on Wednesday. Designated as Senate Bill 104, the legislation would exempt jail booking photos from North Carolina public records laws and prohibit law enforcement agencies from publishing or releasing them.
The bill targets clickbait websites that feature large batches of mug shots and charge defendants and their families exorbitant fees to take them down. Some reserve the pricy privilege for dismissals, acquittals and expungements, while others make mug shots disappear for anyone who pays the proverbial ransom.
Knowing that online searches for a person’s name that turn up unflattering jail snapshots can be ruinous, mug shot aggregators profit from people’s misdeeds and misfortune. They’ve helped spawn a cottage industry of reputation management companies that clients hire to purge the pictures or bury them by flooding search engines with links to positive or neutral content.
Senators correctly diagnosed the problem — online rogues’ galleries that make obscene profit on people trying to clear their names or put past mistakes behind them. But when it comes to finding a solution, bill sponsors came up short. Hiding law enforcement photos from the public and press is the wrong approach.
This is a consumer protection issue, not a public records issue. Couldn’t lawmakers rein in the mug shot websites by prohibiting removal fees or creating a lesser included offense under the extortion statute?
Of course they could. In the last decade, Arkansas, Georgia, Florida, Maryland, Texas, Illinois, Utah, California and Oregon already have, according to the National Conference of State Legislatures.
While a handful of states have banned the release of mug shots altogether, regulating clickbait websites is the superior remedy. By focusing on commerce instead of content, lawmakers resolve the issue while steering clear of open government and First Amendment concerns.
Other states have figured this out, yet North Carolina’s honorables seem determined to step on the same rake session after session. Bills to make mug shots secret go back to at least 2016. This year’s iteration has bipartisan support, with Sen. Paul Lowe, D-Forsyth, joining Moffitt and three Republican cosponsors.
Law enforcement leaders aren’t asking for this change. While serving as chief deputy of the Nash County Sheriff’s Office in June 2021, current Fuquay-Varina Police Chief Brandon Medina noted that booking photos eliminate confusion when arrestees have common names.
For example, the N.C. State Board of Elections voter database lists two Timothy Moffitts — only one of whom is SB 104’s primary sponsor. And that’s just registered voters. If a gentleman who shares the senator’s name should ever find himself behind bars, we’d wager Sen. Moffitt would be grateful that a booking photo helped prevent a case of mistaken identity.
This year’s bill allows law enforcement to release mug shots in missing person investigations. There’s no exception for fugitives or wanted suspects, however — just a provision allowing judges to order a picture released when they determine that “disclosure is actually necessary for immediate law enforcement needs.”
The petition process is incompatible with immediacy. When authorities are searching for someone accused of a serious crime, they should be able to alert the public without playing a high-stakes game of “Mother, May I?”
Unscrupulous mug shot websites are the primary target. A secondary impulse is preventing public shaming. Conservative group Americans for Prosperity of North Carolina raised that issue in its 2023 legislative agenda, calling on the General Assembly to “(p)rotect due process rights of the citizens of North Carolina including their presumption of innocence as it applies to the dissemination of booking photographs.”
However compassionate it sounds, AFP’s rationale is misguided. All defendants are guaranteed the constitutional presumption of innocence and due process of law. Those rights apply in the courtroom, not the court of public opinion. It’s a shame that some people believe arrestees are automatically guilty. What makes senators think that perception will suddenly change if arrests are reported without photos?
In a free society, the public has a right to know when law enforcement officers detain, confine and accuse. Keeping mug shots under lock and key may not be tantamount to secret Soviet police raids, but it’s an unmistakable swing in that direction.
If legislators have an appetite to tinker with North Carolina’s public records laws, they ought to study reforms that make our communities more transparent and accountable rather than considering more government secrecy.