We Can Make This Disappear for a Fee

There are schemes for making money so sleazy that they ought to be illegal. I ran into one recently that isn’t illegal — but just barely so.

There is a website called whosarrested.com that gathers up mugshots and arrest records from those counties that make this information publicly available. This doesn’t bother me; arrest records are considered public records. There is no right to privacy on this. Courts may order the government to expunge arrest records where there was no indictment, but they are not required to do so for each and every case where the arrest led to no charges.

I can see that there might be some value to having this information available. Increasingly, employers are using the services of companies such as Social Intelligence Corporation to scour the Internet for every embarrassing, stupid, or out of context remark that you have ever made. A recent article in the Daily Mail reports, “One applicant found himself out of the running for a job after being branded racist because he once joined a Facebook group called ‘I shouldn’t have to press one for English. We are in the United States. Learn the language.’” Knowing if a potential employee or tenant has been previously arrested would seem at least as useful as knowing if you have made a fool of yourself by saying something sensible on the Internet.

Still, lots of people get arrested by mistake. Sometimes the police or prosecutor realizes this, and charges are dropped. Sometimes the person is found innocent at trial. There is probably a good argument that in such situations, the arrest record should not be considered a public record. But once posted on a sheriff’s department web site, it is impossible to pull it back.

Now, here’s what sticks in my craw. You were arrested by mistake — perhaps for something mildly embarrassing, like drunk driving, perhaps for something really horrifying, such as possession of child pornography. Your mug shot and what you were arrested for go up on whosarrested.com where it will follow you around for the rest of your life. If you are a career criminal, of course, your arrest record won’t be a problem at all. It may even give you bragging rights: “Hey, I’m up on the web!”  But for middle class people who have never done anything wrong, this arrest record is going to be a major problem.

Potential employers will find it — and may not even give you a chance to explain that it was a mistake and all charges were dropped. Potential landlords will find it — and decide that they don’t want someone like you renting from them. Someone you just started dating finds it, and decides that you are a monster — even though that one arrest was a big mistake, and you did nothing wrong at all. What can you do about it?

It turns out that whosarrested.com will be happy to remove that mugshot and arrest record from their website and from search engines for a fee: $99.  Since this removal is an automated process, it should cost them no more than one cent to do this —  easily a 9900% profit.

At this point, some of you are saying, “Cool! A way to make a huge profit by exploiting fear of arrest record exposure!” It turns out that this is very close to being a criminal offense. The definition of extortion varies slightly from state to state, but in California, for example, extortion is defined as “to obtain property from another by a wrongful use of threats to expose any ‘deformity, disgrace or crime’ or ‘any secret affecting [the victim or his family].” This secret or disgrace need not be a criminal matter. Similar wording applies in federal law.

So how does whosarrested.com get away with this? Very simple: they do not make a threat to expose this disgrace and demand money: they publish the disgrace, and then let the victim come to them and offer payment to unpublish it. And that seems to be what makes this all just barely legal — but utterly despicable.

Who is behind this not-quite-extortion scheme?  When you try to find out who owns whosarrested.com, you find that the domain registration is anonymous, done through GoDaddy.com. This is perfectly legal, but I am reminded of how cockroaches scatter when you turn on the lights. However, Steven A. Gibson attempted to trademark whosarrested.com on behalf of Whos Arrested LLC, Las Vegas, Nevada, last year.  And who is Steven A. Gibson? An attorney most notorious for Righthaven LLC, the copyright troll that has been filing hundreds of copyright infringement suits to force quick settlements.

Righthaven’s suits have demanded $75,000 or $150,000 from people who in many cases could not afford legal representation — and now it turns out that Righthaven does not even have any legal standing to file those suits. The settlements were coerced based on a false claim that Righthaven owned the copyright, when the courts have determined that it did not. (Disclosure: I am one of many hundreds of defendants in these suits.) I think I am beginning to see a pattern to how Gibson operates.

There’s a saying, “99% of lawyers give the other 1% a bad name.” This really isn’t true. In my experience, most lawyers are actually pretty ethical and care about more than simply getting rich. Still, it does not take too many situations like whosarrested.com to make the legal profession look really sleazy.