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The Practice Corner: The Importance of Knowing Your Web Identity

by Daniel DeWoskin
Trial Attorney

The internet is forever. Many of us who are parents tell our children about this frequently and others of us plan to tell our children as they grow up. It is a lesson and caution that we know, if ignored, may result in rather unforgivable consequences. That picture that is taken in a spontaneous moment, that unfortunate “selfie,” once uploaded, cannot be taken back. Nothing will change the permanent nature of the internet, but we have the ability to engage in activity that will help take ownership of the information and properly frame it in a light that is more accurate.

For instance, what often surprises me these days is the frequency with which my office gets calls from clients and others curious about the many mugshot websites that post arrest photos, agreeing only to remove the photos in exchange for payment of an often exorbitant fee. Many of the callers are at an age when they are aware of the dangers and permanency posed by the information that is available on the internet. Despite the fact that this is precisely their concern about their arrest photo, they still believe that removal of the photo may better erase the event from their personal history.

Even before the mugshots, the common question was whether or not an arrest or conviction could be expunged. Occasionally, someone would call and even ask about a pardon. Most often, the response was centered around the fact that life does not come with erasers. Sure, Georgia’s inadequate expungement laws were addressed in recent years with record restriction legislation that better suits the needs of Georgia citizens. This legislation was long overdue and provided tools for those whose arrests were improper or whose cases were handled by pre-trial diversion to prevent undue prejudice by prospective employers. The new laws made it easier for prosecutors to exercise discretion in appropriate circumstances and for youthful offenders to avoid severe and permanent stigma when their offenses did not call for such repercussions.

As it turns out, the internet is still forever. These mugshot sites are simply modern highwaymen. Some will take down a photo if there is proof of an acquittal in a case. Others will remove the photos if the arrestee can show a dismissal of the charges. Virtually all of them are more than happy to remove the photos if the arrestee simply pays them whatever amount they are asking, most often $300-$500. The concern I have for my clients who choose to pay these website operators is that there is nothing to stop another company, or perhaps even a related company, from reposting the exact same picture. Record restriction legislation has not eliminated this practice.

These photos are often made readily accessible through certain sheriff department websites. In other circumstances, the website operators must pull the photographs, which are public records, and then publish them online. Of course, the mugshot websites claim that this is all a matter of free speech and that they cannot be prevented from conducting business exactly as they have been doing for several years now. They may be right.

Last year, Georgia passed legislation (Georgia House Bill 150) to curtail some of the egregious activity that was taking place with respect to the mugshot websites. Other states have taken similar measures, and I expect that there will be challenges in many states to these types of legislative restrictions. However, people who have been arrested still make call after call about trying to get the photos taken down. More and more, I find myself spending long periods of time explaining that getting a photo removed only makes it minimally harder to discover potentially detrimental information regarding a particular person or incident.
So, what is the solution to the permanency of the internet? There is no easy answer to this question. Not surprisingly, the first step is to understand that ignorance aggravates the situation. If there is negative information readily available to anyone who searches, living in denial is reckless. It is not reasonable to wait until your aunt or friend calls you to ask you about an arrest that you may not have ever had, something she found when innocently researching a family history. A responsible person will want to know what information is available and most closely attached to his or her name.

One does not have to be a private investigator to use Google. With time and practice, even a luddite can quickly become adept at finding information about an opposing attorney, a witness, or just about anyone. Nobody can dispute just how much information has been made readily available online over the past decade and a half. The downside is that the internet does not come with its own filter. Upon finding negative information about a person or event, it is merely information. It does not look different just because it took place ten years ago instead of just one. Thus, the information can give an impression that it not necessarily fair, accurate, or current.

In addition to the advice that parents will be giving their children about thinking long term, a task that young people have difficulty with often only by virtue of being young, parents will have to encourage their children to take ownership of their web identity. It is not reasonable for an adult to fail to Google themselves at least every year or two. I consider this akin to checking one’s credit report, which can be done free of charge in Georgia twice annually. It is not paranoia, but a prudent thing to do for an adult.

Just as the risks of identity fraud should cause people to want to know what the credit reporting agencies show in their credit histories, the risks of misinformation should cause them to be aware of what information is published. Through social media channels, a person can better control where and how the information appears. This is not to say that everybody must have an active Facebook account. It may be helpful for someone to establish one if someone with a similar name, or an identical name, is engaged in social media activity that can have a negative impact on the person’s job prospects.

In the end, it is for us as individuals to be vigilant about what information is available regarding who we are and where we have been. We must do everything we can to be sure that it is accurate and presents us in the light in which we most want to be seen by others. We cannot erase the internet. It is still forever, but we can have a say if we learn how and take the time to do so.

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