Police should weaponize the DMCA / by Jason Tashea

I have no love for the mugshot racket.

If you aren't familiar, mugshot websites are privately held sites that post people's mugshots and exploit search engine algorithms to bring a person's worst night to the top of their search results. To be clear, mugshot sites aren't news or crime blotter websites providing a public service. These sites operate under an extortion model that requires a fee to takedown the pictures. However, people often find when they pay a few hundred dollars to take down their photo, their mugshot pops up on a different site. It's an endless game of online reputation whack-a-mole. 

To put it mildly, this practice sucks. The Internet is where landlords and potential employers go to find more information on a person. Even if the person was merely arrested and never charged with a crime, their mugshot lives on in infamy. This creates a plethora of collateral consequences that hurt peoples' ability to move on with their lives (for a lot more on this subject check out the Collateral Consequences Resource Center). Even if the individual can legally expunge the record, the Internet never forgets.

However, over beers with Sarah Lageson from Rutgers, it dawned on me: the only rule that the Internet even comes close to following is the Digital Millennium Copyright Act, and this could be a weapon against mugshot websites. Because the individual in the mugshot doesn't own the copyright of the mugshot, it becomes an opportunity for the police to take a stand on behalf of the citizens they serve and protect.

To put it simply, the DMCA is an American law that codified two international treaties from the 90s that was an attempt to control the illegal use and dissemination of copyrighted material. You've likely come into contact with the DMCA as a sad face and a short message on YouTube.

This is the DMCA in action. Someone with a copyright saw their video on YouTube, hadn't given permission for it to be there, and wrote a letter to YouTube (actually it's a form on the site) saying, "That's mine, under the DMCA please take it down." 

Internationally, 94 parties have joined the World Intellectual Property Organization Copyright Treaty. Most notably, the EU has Directive 2001/29/EC, which is their DMCA. This is important because the Internet doesn't have a jurisdiction like a person does. So, the fact that nearly half of the world is onboard with this treaty matters when it comes to enforcement.

Back to the mugshot issue, the reason why these photos are allowed to be circulated in the U.S. is primarily a First Amendment issue. The press will oppose a police department that tries to shutdown the public release of these photos. They will argue the public has a right to know, and that public safety demands the release of this information. Whether or not you agree with this position is irrelevant to the point I'm making, which is that the First Amendment is going to keep the photos in the public sphere. So, turning off this spigot of mugshots is an unlikely solution.

This all brings me to my clickbait-y headline: where it is allowed police departments should use the DMCA to en masse get mugshots taken off these sites. 

Why the police? The default copyright holder of a photo is the person that took the photo, in the case of mugshots it's the police. The police could write takedown notices that would affect tens of thousands of people in a jurisdiction. Not only would this be a huge benefit to the individuals with mugshots on these sites, it would earn the police a win with the community.

Now, this idea has a couple of potential hurdles. First, some governments do not allow themselves to own copyrights. The feds, for one, do not hold copyrights. In the absence of a copyright, a DMCA takedown notice would not work. One potential work around would be to hire a third party vendor to take the mugshots, grant them the copyrights, and then work with the vendor to send the DMCA notices. 

Second, the Internet is a lawless, apocalyptic hellscape with no justice or jurisdiction. True, but allowing extortion to continue unabated doesn't seem like a good alternative. As I pointed out above, half of the world's countries are signatories of the treaty that was the basis for the DMCA. My understanding is enforcement is not uniform in those countries. Further, mugshot sites could always decide to be hosted in a country that didn't sign/ratify the WIPO Treaty. This is the same struggle with revenge porn websites and "dark net" hubs for child pornography, for example. However, unless we're just going to throw up our hands at the challenges of enforcing our terrestrial laws online, I think this is a battle worth waging.

Last, there's the small hurdle of finding out where mugshots are and which ones come from which police department. Some sites make it easy to know what jurisdiction they pull their mugshots from like TampaCriminal.com. Others, like Mugshots.com, are a national clearing house of these photos. An automated reverse image search could help in this process. This would take some work, but a partnership between a department down to tackle this issue and a savvy developer could overcome this hurdle. Plus, once the tool is built, it should be open sourced and shared with other departments across the nation.

This is just a cursory pitch, but let me know what you think. I'm by no means a copyright expert, and I'm sure there's other issues that I skate by, but I wanted to throw it out there and get some feedback.

UPDATE: Shortly after publishing this piece, I received some helpful feedback from numerous people. One thing that was pointed out was that the reverse image search is an unnecessary step. Instead, the police department or third party contractor could keep a catalog of the image hash from each photo that would allow them to easily search for the images. 

Second, a concern I was unaware of when I wrote the original post is that there are significant privacy issues when someone uses the DMCA. Specifically, in revenge porn cases a person issuing a notice has to provide private information to prove their identity to the site that is hosting the image. That information is then used to dox the victim, which only continues their public shaming. By having the police department or third party contractor send the DMCA, the individual in the mugshot's personal information does not have to be divulged to the site. This will save people with mugshots from further online reprisals.