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Proposed restriction on use of mugshots moves step closer to law

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State lawmakers are moving to make it illegal to publish someone’s publicly available booking photos on the internet for commercial purposes.

But it won’t keep anyone with a computer or cell phone from searching for – and finding – embarrassing criminal information, which appears to be the goal of the main proponent. And what’s worse, according to Sen. Eddie Farnsworth, R-Gilbert, is that HB 2191 appears to start the state down the trail of making it illegal for some people to publish something that’s already publicly available.

HB 2191, approved Wednesday by the Senate Committee on Transportation and Public Safety is being pushed by Steve Scharboneau, a 32-year-old who told lawmakers of being affected by having his arrest when he was 18 show up on web sites that are in the business of publishing them.

“When I was 17, I was a bit of a knucklehead and did some things I shouldn’t have done,” he said, resulting in his arrest shortly after he turned 18. He provided lawmakers with no details.

What made the issue personal, Scharboneau said, was his 7-year-old nephew putting his name into a search engine.

“And the first thing that pops up on top of Google is my mug shot and criminal justice information,” he said.

“I understand that I did something that I have to pay for, and I did pay for it,” Scharboneau said, saying he now is in his last year of law school.

The measure which now goes to the full Senate says that makes it illegal to publishe criminal justice records on a publicly available web site for commercial purposes. That is specifically defined to include, but not limited to, requiring payment of a fee to remove or revise the information.

It allows anyone whose information is published this way and who is “adversely affected” to sue to recover any actual damages, along with penalties of $100 per day for the first 30 days of the violation, $200 daily for the next 30 days and $500 a day for anything after that.

“I abhor what people are doing on the Internet,” Farnsworth said. But he questioned whether this is the correct approach to the problem.

The key, said Farnsworth, is that the information being used by these sites comes from public records. More to the point, he said, anyone already has access to that information now.

And he rejected Scharboneau’s contention that people are powerless to act when the information is inaccurate – not a claim Scharboneau is making – citing libel laws.

Farnsworth also said that extortion laws cover situations where the operator of a web site demands money to remove information.

“Now we’re saying that publicly accessible information is now going to be punishable if you regurgitate that information,” he said.

“Nobody’s doing anything wrong getting the information,” Farnsworth said. “But now we’re going to say that you can’t use it.”

The legislation is crafted to exempt the news media from the prohibition on publishing the information or mug shots. But Farnsworth said that doesn’t make the bill better. In fact, he argued, it may actually make it worse.

“You have an inconsistency here,” he said, based on how someone is using the information.

“So it’s OK for that to be a commercial enterprise where they use the information and their name,” Farnsworth said. “But it’s not OK in a different commercial enterprise.”

Despite his concerns, Farnsworth voted for the bill in committee to allow it to go to the full Senate with a 7-0 vote.

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