NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8731
SPONSOR: Braunstein TITLE OF BILL: An act to amend the criminal procedure law and the
civil rights law, in relation to when booking photographs shall be made
available
PURPOSE OR GENERAL IDEA OF BILL: To prevent booking photographs, also
known as "mug shots," from being made available to the public, with
certain exceptions.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1. Amends Subdivision 3 of Section 160.10 of the Criminal Proce-
dure Law, which permits a booking photograph and palmprints to be taken
of an arrested person or defendant. The amendment to this section
requires that a photograph taken pursuant to this subdivision may not be
made publicly available during the pendency of the charge or charges
brought with respect to the arrest. However, there are three exceptions.
The first exception is release to a person, agency or entity performing
a criminal justice function, as defined in subdivision 10 of section 835
of the executive law; the second exception is release of the photograph
pursuant to a court order directing the release of such photograph; and
the third exception is release to the arrested person or defendant, upon
his request.
Section 2. Amends Section 51 of the Civil Rights Law to correct a refer-
ence to Section 50 of the Civil Rights Law. This change is non-substan-
tive.
Section 3. Contains the effective date.
JUSTIFICATION: In recent years, booking photographs, or "mug shots"
as they are commonly known, have become available on the Internet. The
mug shots are often released by police departments to local newspapers
and other media. Following the release of mug shots to the press, Inter-
net website owners and operators search local newspapers for mug shots
to post on their websites. These owners may also obtain the mug shots
from filing requests for public records. These websites are often the
first results when an individual is looked up on search engines.
It is important to note that mug shots are not proof of a conviction.
Many of the individuals whose mug shots are on the Internet were not
charged or have not been convicted. In 2012 in New York, 44% percent of
individuals arrested were not convicted. However, because of the mug
shots, they may be prevented from obtaining or keeping their jobs, and
there could be other negative consequences as a result. Mug shot website
owners have been taking advantage of these individuals by charging exor-
bitant fees for the removal of these photographs from their websites and
this legislation would help to prevent such extortion from taking place.
This legislation would prohibit mug shots from becoming publicly avail-
able until conviction, with certain exceptions for criminal justice
functions and compliance with court orders. A valid law enforcement
purpose also includes use by defense attorneys, and allows for publica-
tion by newspapers to aid in the arrest or apprehension of wanted crimi-
nals. The mug shots are also available upon request to the arrested
person.
Persons who use any image for purposes of advertising or trade without
consent may, under existing law, be subject to civil suit.
PRIOR LEGISLATIVE HISTORY: None.
FISCAL IMPLICATIONS: None to state.
STATE OF NEW YORK
________________________________________________________________________
8731
IN ASSEMBLY
February 5, 2014
___________
Introduced by M. of A. BRAUNSTEIN -- read once and referred to the
Committee on Codes
AN ACT to amend the criminal procedure law and the civil rights law, in
relation to when booking photographs shall be made available
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 3 of section 160.10 of the criminal procedure
2 law, as amended by chapter 762 of the laws of 1971, is amended to read
3 as follows:
4 3. Whenever fingerprints are required to be taken pursuant to subdivi-
5 sion one or permitted to be taken pursuant to subdivision two, the
6 photograph and palmprints of the arrested person or the defendant, as
7 the case may be, may also be taken. During the pendency of the charge
8 or charges brought with respect to such arrest, summons or appearance
9 ticket, a photograph taken pursuant to this subdivision may not be made
10 publicly available, but shall be made available (a) to a person, agency
11 or entity performing a criminal justice function, as defined in subdivi-
12 sion ten of section eight hundred thirty-five of the executive law, upon
13 its request, for any such function, which may when appropriate include
14 public release of such photograph; (b) pursuant to a court order direct-
15 ing the release of such photograph; and (c) to the arrested person or
16 defendant, upon his or her request.
17 § 2. Section 51 of the civil rights law, as amended by chapter 674 of
18 the laws of 1995, is amended to read as follows:
19 § 51. Action for injunction and for damages. Any person whose name,
20 portrait, picture or voice is used within this state for advertising
21 purposes or for the purposes of trade without the written consent first
22 obtained as [above] provided in section fifty of this article may main-
23 tain an equitable action in the supreme court of this state against the
24 person, firm or corporation so using his name, portrait, picture or
25 voice, to prevent and restrain the use thereof; and may also sue and
26 recover damages for any injuries sustained by reason of such use and if
27 the defendant shall have knowingly used such person's name, portrait,
28 picture or voice in such manner as is forbidden or declared to be unlaw-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13577-02-4
A. 8731 2
1 ful by section fifty of this article, the jury, in its discretion, may
2 award exemplary damages. But nothing contained in this article shall be
3 so construed as to prevent any person, firm or corporation from selling
4 or otherwise transferring any material containing such name, portrait,
5 picture or voice in whatever medium to any user of such name, portrait,
6 picture or voice, or to any third party for sale or transfer directly or
7 indirectly to such a user, for use in a manner lawful under this arti-
8 cle; nothing contained in this article shall be so construed as to
9 prevent any person, firm or corporation, practicing the profession of
10 photography, from exhibiting in or about his or its establishment speci-
11 mens of the work of such establishment, unless the same is continued by
12 such person, firm or corporation after written notice objecting thereto
13 has been given by the person portrayed; and nothing contained in this
14 article shall be so construed as to prevent any person, firm or corpo-
15 ration from using the name, portrait, picture or voice of any manufac-
16 turer or dealer in connection with the goods, wares and merchandise
17 manufactured, produced or dealt in by him which he has sold or disposed
18 of with such name, portrait, picture or voice used in connection there-
19 with; or from using the name, portrait, picture or voice of any author,
20 composer or artist in connection with his literary, musical or artistic
21 productions which he has sold or disposed of with such name, portrait,
22 picture or voice used in connection therewith. Nothing contained in
23 this section shall be construed to prohibit the copyright owner of a
24 sound recording from disposing of, dealing in, licensing or selling that
25 sound recording to any party, if the right to dispose of, deal in,
26 license or sell such sound recording has been conferred by contract or
27 other written document by such living person or the holder of such
28 right. Nothing contained in the foregoing sentence shall be deemed to
29 abrogate or otherwise limit any rights or remedies otherwise conferred
30 by federal law or state law.
31 § 3. This act shall take effect on the sixtieth day after it shall
32 have become a law.
