(Updated below)
The Prince George's County Police Department in Maryland this week that it will be live-tweeting a prostitution sting. With breathless glee, the press release tells us that "PGPD's Vice Unit will conduct a prostitution sting that targets those soliciting prostitutes and we'll tweet it out as it happens." Cops on the beat will document their day arresting suspected johns and plastering their stunned faces on social media in real time. PGPD calls their plan "progressive" and "unprecedented."
In fact, it's terrible. Live-streaming arrests of legally innocent people is a bad call for both privacy and the role of law enforcement in our society.
It's critical to have public access to court records — it's how we hold the system accountable. The ACLU has been at the forefront of efforts to peel back unnecessary layers of secrecy in our criminal justice system to uncover things like the exact "" used for lethal injections or the rules that govern federal prosecutors' use of GPS trackers.
But not every bit of data the government collects or creates is fair game for publicity — think of someone's DNA profile from a swab or a social security number filed in court documents. We want meaningful oversight of the court system without destroying the personal privacy of individuals who pass through it. The public release of a (very limited!) selection of records can create enough of a risk to privacy to outweigh the benefits of sunshine.
One rule isn't in question: once a government record is put into the public's hands, it's fully protected under the First Amendment. We should be thoughtful about the records we make public, because you can't ever rebottle that genie.
So where do mugshots lie on this spectrum? We want arrest records to be public to ensure cops are arresting the right people and to lay bare potentially problematic policing patterns. But do we need the image itself? Traditionally, mugshots have been public, and the press tended to print the mugs of Lil' Wayne and the Andre the Giant while generally leaving the little guy alone.
But the widespread digital availability of mugshots has a dark side. Arrest records, including booking photographs, now live forever on the web for every mother, romantic interest, and employer to see. Mugshot websites turn arrest photos into twisted fodder for entertainment and profit. That momentary mistake at 19 can now be frozen in digital carbonite — a never-ending badge of unwanted celebrity. It can lose you a job or ruin a relationship. And of course, all this is true even if you're never charged with a crime, because mug shots are taken when people are arrested. Some people who are arrested are never charged, and others are charged but not convicted.
The U.S. Marshals Service has recently announced a not to release mugshots unless the release serves law enforcement needs, like issuing a fugitive alert. Instead, anyone can request an individual mugshot, which will be provided if "the public interest in the requested booking photograph outweighs the privacy interests at stake." So you might get a mugshot if it documents evidence of alleged police abuse, but you can't get it just because you want to see Lindsay Lohan's latest booking look. That's a thoughtful balance.
But PGPD isn't interested in this kind of nuance. Not only do they make all mugshots public, they're planning to snap a passel of new ones on the fly, racing to document arrests before suspects even make it to central booking. In real time, it's not hard to imagine how an innocent bystander could be caught up in the sting and mistaken for a john. But this live-tweet drama won't just be bad for the privacy of folks caught in the snares of a sting for non-violent crimes, who are, it bears repeating, legally innocent. It's also really bad for the profession of policing.
The draw of media celebrity is perverting the profession of law enforcement. When Phoenix Sheriff Joe Arpaio allowed Steven Seagal onto someone's property, it's hard to believe anything was motivating this level of military-grade force more than Seagal's fame and the rolling reality show cameras. And that's a damn shame. We don't want police running around and snapping photos like paparazzi. Officers should be occupied first and foremost with getting their jobs done — with the professionalism, dignity, and rigor our justice system is supposed to embody. We have procedures and safeguards in place (yes, including mugshots) to ensure the cops are fulfilling the public trust we place in them. Live-tweeting an arrest isn't one of them. And while there's a risk that anyone who's arrested is truly innocent, the obsession with instant publicity is certain to increase the chance that innocent people will have their faces plastered on the internet to be gawked at, reposted, presumed guilty, and publicly shamed — just as PGPD intends.
We should have more trust in our cops than our Kardashians. But PGPD is too busy trying to keep up with them.
Update 5/07/14:
According to reports, the PG police carried out a sting yesterday, but did not make any arrests or do any "prostitweeting."
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.