Any one of the tens of thousands of people who are being adversely affected by parasitic mug shot websites can use a powerful federal law, originally used to prosecute the Mafia, to bring down the entire mug shot website industry. The Racketeer Influenced and Corrupt Organizations Act (RICO) enables private individuals to file a civil suit against those who engage in a wide-range of crimes, including extortion and wire fraud.
Mugshot Site Business Model
The past few years have seen a dramatic increase in mug shot publishing sites. These sites differ from the government and newspaper websites that have a genuine First Amendment purpose for publishing the images. The business model of these mug shot sites centers on charging people a fee to remove their image from the website; their behavior strips nearly all claims to First Amendment protection. The rate at which new sites are appearing and the expansion of the existing sites, in addition to the large number of complaints on websites and message boards by those affected, strongly suggests that the business model is profitable.
How They Have Avoided Lawsuits Thus far
These sites, like most scams, avoid repercussions for their actions by extracting a cost that is not significant enough for any plaintiff to want to spend thousands of dollars fighting in court. They further reduce their risk by creating enough uncertainty about the quantity and location of their assets, thereby making them an unattractive defendant for an attorney to go after on a contingency basis. These sites also have avoided prosecution from law enforcement, because they are harming a relatively small, not to mention a politically unpopular and unorganized, group of people.
The operators of these sites also attempt to avoid public scrutiny for their unscrupulous actions by trying to remain anonymous. They do not publish addresses or phone numbers on their websites. Nor do they register their business with any state or local government. They also register their domain names anonymously. Some of these companies make reference to being organized offshore, which, if true, makes it even more difficult to locate them.
How They Make Their Money
Most of these sites claim to have a public service mission behind what they do, but a quick visit to any of them reveals clearly that making a profit is the main motive. They do this by optimizing the content on the page they create so to appear on the first page of search results and then place ads on the page that solicit a price for removing the information. Some companies charge directly, while others funnel the money through a proxy company, such as UnpublishArrest.com. The prices charged for removal range from $30 to $400 per image.
A person might be asked to make multiple payments to the same site before their arrest/photo is finally removed – if it ever is. Even then, the person may have to make additional payments to other sites where their arrest/photo is also published. This can result in an individual having to pay thousands of dollars, depending on the number of different sites they are on and the number of arrests they have. Many or most of these sites could very well be owned/operated by the same greedy person or persons. They are defrauding and making a profit from thousands of individuals, while hiding behind the protection of their anonymity. People who are defrauded by one of these sites often have no recourse because the ownership, location and other identification information behind the site are not revealed and could not easily be traced.
RICO Law Gives Sweeping Power to Attack Organized Corruption
This could all change if a plaintiff filed a lawsuit that alleged a violation of RICO, which provides both criminal and civil penalties for any person or business that has engaged in a “pattern of racketeering activity.” 1 Racketeering activity is defined very broadly. Any violation of the over 100 federal and state offenses that are listed (including extortion, theft, mail fraud, securities fraud, bribery, identity fraud, wire fraud, etc.) could be considered a racketeering activity, and could therefore serve as a predicate act for a RICO lawsuit. 2 A pattern of racketeering activity simply means two or more such acts committed within 10 years of each other. 3
These mug shot sites are likely violating several laws that could be used to make a case for racketeering activity. Extortion, which is based on common law, would be easy to prove under the laws of almost any state. The elements necessary to prove extortion are similar under the laws of each state and the federal extortion statute.
Potential Extortion Charges
Florida defines extortion as an act by anyone who “either verbally or by a written or printed communication… maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace… with the intent thereby to extort money or any pecuniary advantage whatsoever… shall be guilty of a felony of the second degree…” 4
A plaintiff would only have to show the following three elements are met to successfully prove extortion in Florida:
Florida Element 1. “verbally or by written or printed communication…” A plaintiff would simply need to testify to a verbal conversation about receiving an offer to exchange money (which constitutes property) for the company to not publish the mug shot in the future, or provide a copy of an email or website content that asks for money in exchange for not publishing the mugshot in the future.
Florida Element 2. “… maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace…” A plaintiff could satisfy this element by making the logical connection that the threat to continue publishing the mug shot on the internet will either (1) cause injury to his or her reputation or (2) expose him or her to disgrace.
Florida Element 3. “with the intent thereby to extort money…” A plaintiff could satisfy this element by showing that the request for money (verbally, by email or on a website) is in connection with the two elements above. The company is continuing to publish the information for the purposes of receiving money.
As another example, Arizona’s extortion law requires that a plaintiff making a RICO case prove two similar elements:
Arizona Element 1. “A person commits theft by extortion by knowingly obtaining or seeking to obtain property or services by means of a threat to do in the future any of the following:…” 5 A plaintiff would need to show that the defendant sought to obtain money (property) by threatening to continue to publish the mug shot.
Arizona Element 2. “…Expose a secret or an asserted fact, whether true or false, tending to subject anyone to hatred, contempt or ridicule or to impair the person’s credit or business.” 6 A plaintiff would need to show that the continued publication of the mug shot could expose them to hatred, contempt or ridicule or could impair his or her credit or business.
Any act or threat that involves “extortion” under state law (and if punishable in prison for more than a year) could serve as a predicate for a RICO civil lawsuit. Thus, suppose a person sees his or her arrest/mug shot photo published on a website, and then sends the website a request to remove the information. In response, the website threatens to continue publishing the arrest/photo unless the person pays the site a fee. Under this scenario, the website’s action of demanding payment would likely amount to extortion under state law and thus be a basis for a federal RICO lawsuit.
Lawsuit Against Mugshot Websites
A plaintiff who files a law suit will have various, powerful discovery tools at their disposal, including the ability to subpoena credit card companies, internet service providers, and web registrars. With those tools, it would not take long to locate the names of the people who are operating the sites. Furthermore, the court has the power to provide injunctive relief, even before a trial is complete. This means that a court could order credit card companies to suspend the defendant’s account and banks to freeze the defendant’s assets. Additionally, the court could seize the defendant’s domain name. 7
Who Could File a Lawsuit Against These Sites?
Both the government and private individuals can bring civil lawsuits under RICO. To win a civil lawsuit, a private plaintiff would have to show that his business or property was injured as a result of the defendant’s engagement in a “pattern of racketeering activity.” 8 The plaintiff does not need to show that the defendant has been convicted or even charged with any crimes in order to sue and win a RICO civil lawsuit. Additionally, it is important to note that under state and federal extortion law, the following do not have to be shown:
- That the plaintiff actually paid money to the publisher;
- That the plaintiff was actually harmed from the mug shot being published;
- That the content being published is false.
A plaintiff who wins a civil RICO lawsuit could recover treble damages (three times the amount of his loss/injury), plus court costs and attorney’s fees. 9 Furthermore, the court could issue injunctions and other orders against the defendant—such as dissolve its business, disgorge its funds from illegal activity, or whatever else may be necessary to prevent it from resuming its racketeering activities. 10
There are two major challenges, however, in bringing a RICO suit against any business whose sole presence appears to be on the internet. The first challenge would be locating the defendant’s owners, officers or agents in order to formally serve the defendant. While the lawsuit itself could be filed in any federal district court where the defendant conducts its business, the defendant would still have to be served before the court could legally enter a judgment or issue any orders against the defendant. Secondly, even if the defendant could be served and the plaintiff wins the lawsuit, it could still be very difficult to enforce a judgment or other order against the defendant if its funds and assets could not be located or are located in a foreign country/territory where they cannot be seized. Even in that scenario, a lawsuit will likely at the least tarnish the defendant’s online reputation and therefore affect its business. But even then, the defendant could simply rename itself, take on a new identity, and resume its fraudulent activities all over again.
Anti-SLAPP Statutes Will Not Protect Those Charging To Take Down Mug Shots
Anyone bringing a lawsuit against a mug shot publisher using a violation of state law as the predicate offense under RICO might have to contend with a law designed to protect political speech. Twenty-eight states have enacted anti-SLAPP laws, which are designed to protect people from being sued for engaging in various forms of protected speech. While these laws differ slightly, they all make it difficult, costly and risky to sue someone for engaging in protected forms of speech.
The good news is that it is very unlikely that a court would find the content and manner of publication of the content as deserving protection under anti-SLAPP. Additionally, there is no federal Anti-SLAPP statute. The Ninth circuit has held that if you are suing in federal court and your RICO claim is based on a violation of federal law, then the state Anti-SLAPP statute would not be a defense. 11
For example, “wire fraud” (18 U.S.C. § 1343) is one federal offense, which could serve as a basis for a RICO civil lawsuit, and allow the plaintiff to avoid the Anti-SLAPP statutes. To show that a defendant committed wire fraud, the plaintiff would have to show that the defendant devised a scheme or artifice to defraud, and did so through the use of an interstate wire communication. This could be easily applied to a situation involving a website that publishes mug shot photos. If an individual makes payment with a debit card to have the mug shot removed, and the company does not remove the image and does not refund the money, and Plaintiff can show that this occurs regularly (a scheme), that would constitute wire fraud and could be the basis of a RICO lawsuit.
Anyone interested in being a plaintiff in a lawsuit against a mugshot publisher, please use the comment form below and list the name of the mugshot company in the comment field (we will redact any personal identifying information).
1 18 USC § 1962
2 18 USC § 1961(1)
3 18 U.S.C. § 1961(5).
4 Florida Statutes § 836.05
5 ARS 13-1804 – Theft By Extortion
7 In some instances the domain name may be worth more than $50,000
8 18 USC 1964(c)
9 18 USC § 1964(c)
10 18 USC § 1964(a)
11 Restaino v. Bah (In re Bah) (B.A.P. 9th Cir. 2005), 321 B.R. 41
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