Extortion Through the Public Record: Has the Internet Made Florida’s Sunshine Law Too Bright?

In recent years, privately owned websites around the country have begun to gather arrest records directly from law enforcement websites and republish them on their own sites. Often, the images are displayed without regard to the ultimate disposition of the arrestee’s case. Images and arrest records of individuals who were eventually convicted or acquitted are stored on these websites indefinitely, and specifically designed search algorithms ensure that potentially damaging information is just a click away on commonly used search engines such as Google. Some websites categorize images under derogatory headings based solely on the individual’s appearance and allow users to leave comments. Most provide links to social media outlets such as Facebook and Twitter, which allow users to further disseminate this information. Although this information is in the public record, these new privately owned websites have dramatically increased the visibility of mugshots and arrest records. The information can severely damage a person’s reputation and greatly limit employment opportunities. It can also cause embarrassment and psychological trauma. Understandably, many individuals who are displayed on such websites want the information taken down. In response to these wishes, additional websites have emerged offering to have the images removed for a fee. The amount charged for this service is often quite high, which forecloses many individuals’ opportunities to have them removed. The website owners currently use liberal public records laws in many states to justify their actions and claim that they provide a public service by facilitating access to information in the public record. This scheme is known as the Mugshot Racket. Using Florida as a case study, this Note examines many issues in connection with the Mugshot Racket. The threshold issue is whether this activity is illegal or simply immoral. In attempting to answer this question, this Note explores the evolving relationship between public records laws and privacy rights in the Internet age. It asks whether an individual has a right to privacy in his mugshot and explores potential causes of action against the perpetrators of the Mugshot Racket under Florida’s extortion law and the Racketeer Influenced and Corrupt Organizations Act. Finally, this Note argues that legislatures should * J.D., expected May 2014, University of Florida Levin College of Law; B.A. 2009, University of Florida. I would like to thank my family for their constant support, encouragement, and advice while writing this Note. I would also like to thank the editors of the Florida Law Review for their hard work and attention to detail. 1 Polatsek: Extortion Through the Public Record: Has the Internet Made Florid Published by UF Law Scholarship Repository, 2015 914 FLORIDA LAW REVIEW [Vol. 66 outlaw the exploitation of one’s past for personal profit, and explores other nonlegislative, nonlitigious solutions. INTRODUCTION 914 I. PRIVACY RIGHTS AND THE PUBLIC RECORD 921 A. A Brief History of the Freedom of Information Act 5 U.S.C. § 552 922 B. Splitting the Circuits—The Scope of Exemption 7(C) and Privacy Rights in a Mugshot 924 1. United States Department of Justice v. Reporters Committee for Freedom of the Press 925 2. Detroit Free Press, Inc. v. United States Department of Justice 927 3. Karantsalis v. United States Department of Justice 928 4. World Publishing Co. v. United States Department of Justice 929 C. Circuit Decisions and the Mugshot Racket 930 II. PRIVACY AND THE PUBLIC RECORD IN FLORIDA 931 A. Florida’s Very Public Record 931 B. Privacy in Florida 934 1. The Florida Supreme Court’s Interpretation of Article I, Section 23 936 2. Article I, Section 23 and Access to Public Records 939 3. How Florida Courts Might Apply Article I, Section 23 to Mugshots 944 III. EXTORTION THROUGH THE PUBLIC RECORD 946 IV. SOLUTIONS 950 A. Florida’s Racketeer Influenced and Corrupt Organizations Act 950 B. Statutory Reform 953 C. Shifts in Policy 957 CONCLUSION 958