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Jan 28, 2019 4:08 PMPublication: The Southampton Press

Cuomo Measure Seeks To Ban Release Of Police Records, Mugshots

Governor Andrew Cuomo is proposing banning the release of both arrest information and mugshots by New York state’s police departments.   PRESS FILE
Jan 29, 2019 3:34 PM

Governor Andrew Cuomo’s desire to target nefarious websites that charge exorbitant fees to remove the booking information and photographs of arrestees falls in step with a national trend: At least 15 states, including New Jersey, have passed laws in recent years designed to punish those committing the online extortion.

But unlike other states that are going after those committing the alleged extortion, the governor has proposed banning the release of both arrest information and mugshots by New York State’s police departments.

If passed, the measure—which would require amending the state’s Freedom of Information Law—would essentially keep arrests a secret from the public, or leave the release of such information to the discretion of local law enforcement. The release of booking photos, commonly referred to as “mugshots,” also would be prohibited under the governor’s vision.

The proposal was included in Gov. Cuomo’s 2020 executive budget, during which he reportedly stated that the release of an individual’s arrest information and booking photographs constitute an “unwanted invasion of personal privacy.” The courts have traditionally ruled that arrestees involuntarily sacrifice their right to privacy when they are charged with a crime.

The governor’s suggestion comes in response to the continued and growing operation of websites that attempt to charge people—including those who have had the criminal charges filed against them later dropped—to scrub their arrest information and booking photos from the internet. In some instances, the victims, including those who were convicted and served their sentences, are told that they must pay hundreds or even thousands of dollars to have such information permanently removed from the web, even though such guarantees are impossible considering the scope and complexity of the internet.

The victims of these criminal enterprises often have a difficult time finding work and living accommodations because potential employers and landlords can easily view their police records and mugshots with a simple online search.

Robert Freeman, executive director of the State Committee on Open Government, said this week that he opposes any such amendment to the law, arguing that the proposed changes would protect criminals and keep the public in the dark.

Others have expressed concerns about public safety, pointing out that under the governor’s proposal they would no longer know if a neighbor or a teacher or a police officer in their community had been charged with a crime.

“I’ve said it 1,000 times: We don’t have secret arrests in this country,” said Mr. Freeman, adding that he intends to write a memo to the governor strongly suggesting that he alter course. “I think it would be a big mistake to carve out an exemption on booking records.”

Though sympathetic to the victims of these online criminal operations—he acknowledges that it is virtually impossible for individuals to have their arrest records and booking photographs expunged from the web once they are shared publicly—Mr. Freeman said the governor should redouble efforts to instead punish those who are committing the actual extortion.

“The authorities should go after the companies that are engaging in this antisocial media behavior, rather than changing the laws that allow access to public records,” Mr. Freeman said. “I’m not sure if they really thought this through,” he continued, referring to the governor’s office.

Gov. Cuomo’s press office did not respond to multiple requests seeking additional information about the proposal, including whether he would have enough support in both the State Senate and Assembly to get it approved.

“I look on this proposal with great skepticism,” State Assemblyman Fred W. Thiele Jr. said on Monday, referring to the governor’s plan. “It’s very broad and sweeping, and while there are many abuses of how these documents are used, from my perspective, it is too broad. It is too sweeping, and I think it would be used to deny the public’s right to know.”

A spokeswoman for the governor, Jason Conwall, is identically quoted in two different publications as stating that the intent of the governor’s idea is to “curtail an unethical practice that amounts to extortion of formerly incarcerated individuals.” He goes on to say that attempts by other states to target those websites committing the extortion are not working.

One of the criticisms of those laws is that victims still have a difficult time recouping damages from the operators of the online platforms, many of which continue to charge fees for the removal of arrest information.

In May 2018, Xavier Becerra, the attorney general for California—one of the states to adopt its own mugshot extortion law—announced the arrest of four individuals who were allegedly running of one of the targeted websites, Mugshots.com. As part of the alleged scheme, those seeking to have their arrest information deleted from the site are directed to a secondary website, Unpublishedarrest.com, that was run by the same individuals and charged a fee—normally several hundred dollars—to have the content removed, according to Mr. Becerra’s office.

The four defendants—identified by authorities and in a criminal complaint as Sahar Sarid, Kishore Vidya Bhavnanie, Thomas Keesee and David Usdan—are accused of extorting more than $2 million from approximately 5,700 people across the country between 2014 and 2017, according to the attorney general.

“This pay-for-removal scheme attempts to profit off of someone else’s humiliation,” Mr. Becerra states in a press release announcing the filing of criminal charges against the four men. “Those who can’t afford to pay into this scheme to have their information removed pay the price when they look for a job, housing, or try to build relationships with others. This is exploitation, plain and simple.”

In 2016, a federal class-action lawsuit was filed in Illinois by several victims of the same website, alleging that Mugshots.com purposely posts the incomplete records of arrestees so its sister website could charge the takedown fees. Illinois Attorney General Lisa Madigan has since intervened in that suit, stating that the company’s practice is prohibited by a 2014 state law, and unprotected by the First Amendment.

“That’s pretty much extortion,” Mr. Freeman said, referring to the practices employed by websites that charge individuals money for the removal of the information. “Other jurisdictions have gone after those committing the extortion.”

Mugshots.com, which is still operational, now lists a disclaimer in all capital letters on its homepage, stating that it does “not accept payment for removal of arrest information and/or booking photographs.” The disclaimer later adds: “Simply put: If the court saw fit to expunge your record, so will we, free of charge.”

David Ferrucci, an attorney for Mugshots.com, did not immediately respond to requests for an interview this week.

Mugshots.com and similar websites are republishing arrest information that is readily made available to the public. Mugshot-related laws adopted in other states, including Florida, Texas, Colorado, Virginia and New Jersey, among others, do not outlaw the release and publishing of mugshots, and do not forbid the release of arrest records. Rather, they go after those companies that charge fees to remove the photographs and other information.

Mr. Freeman argues that it is impossible to outlaw mugshots in New York State. “If you can see so-and-so’s face during a court proceeding, and that proceeding is open to anyone, how can it be that a mugshot is anything but public?” Mr. Freeman asked rhetorically.

Southampton Town Police Lieutenant Susan Ralph said her department would modify its policies if the state’s FOIL law is ultimately overhauled by the State Legislature, and mugshots and arrest records reclassified as private information.

“The Southampton Town Police are committed to protecting the public and privacy of all citizens,” Lt. Ralph wrote. “The current law requires us to release information of public interest and concern, and the current laws, under the FOIL law, requires us to release certain information with exception of specific identifying information regarding a person, such as date of birth, Social Security numbers, driver’s license numbers, etc.”

East Hampton Town Police Chief Michael Sarlo declined to comment on the governor’s proposal.

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I speak from firsthand experience -- it is embarrassing and unnecessary to feature people's arrests in local newspapers and on-line. I was once younger and dumber and never hurt anyone but my name has been in the police blotters more than once -- I had a lot of fun ; )
By Aeshtron (431), Southampton on Feb 1, 19 1:03 PM
1 member liked this comment
Several of the local rags have a "police blotter" and I have always found it objectionable and my name has never appeared in one. Innocent people are arrested, charged or accused everyday. There is a presumption in this country of innocence. I believe that presumption is thwarted when a mugshot is published based upon an accusation of guilt
By PatrickKing (15), Sah Harbor on Feb 1, 19 1:46 PM
so we will never know if one of our neighbors is thief, rapist or otherwise in trouble with the law. I agree innocents are arrested , charged and accused but where is our press (27east or press) when these charges are dropped. nowhere because the press NEVER follows a case except for the splashy headline. time for follow up on cases splashed across the front page and police blotter.
By xtiego (698), bridgehampton on Feb 1, 19 5:57 PM
1 member liked this comment