Governor Gavin Newsom signed on Friday AB 1475 in the law that prohibits police from sharing arresting photographs (photos) of individuals accused of non-violent offenses on social media.
The bill was sponsored by Assembly Member Evan Low (D-Sillocan Valley) who took to social media saying “social media should not be used as a weapon against innocent people until their guilt is proven.”
Low accused police departments of using their social media accounts to “shame suspects” by posting their ID photos, names and alleged crimes. These accounts include Facebook, Twitter, Instagram, and Nextdoor.
The bill was passed by 74-0 in the State Assembly on July 12 and in the State Senate by 39-0 on July 8.
According to the bill:
This bill would prohibit a police department or sheriff’s office from sharing, on social media, photos of an arrested person suspected of having committed a non-violent crime, as defined, unless there are circumstances specified do not exist. The bill would require a police department or sheriff’s office that shares, on social media, a booking photo of an individual arrested for the alleged commission of a non-violent crime to remove information from their network page social, on request, except in the same specified circumstances exist. The bill would require a police department or sheriff’s office to remove the booking photo of a person who has committed any other social media crime if the individual’s record has been sealed, the individual’s conviction has been dismissed, expunged, pardoned or eradicated in accordance with the law, the person has received a certificate of rehabilitation, the person is found not guilty of committing the crime for which he was arrested, or the person ultimately did not been charged with the crime or the charges were dismissed.
Here is an overview of the law:
The legislator notes and declares all the following:
(a) In our criminal justice system, suspects are considered innocent until proven guilty.
(b) In recent years, law enforcement agencies have started using social media platforms like Facebook, Twitter, Instagram and Nextdoor to communicate with the public.
(c) Some departments post reservation photos of suspects on their social media accounts, even if the suspect is no longer on the run or no longer poses a continuing threat to public safety.
(d) Information posted on these social media accounts may remain on the Internet for years, seriously affecting the life of the person depicted.
(e) In 2016, the United States Sixth Circuit Court of Appeals stated in Detroit Free Press Inc. v. United States Department of Justice (829 F. 3d 478, 482) that reservation of photos is “more than mere” living symbols of criminal accusation, reservation of photos conveys guilt to the viewer, “effectively eliminating” the presumption of ‘innocence and replacing it with an unmistakable badge of criminality’.
(f) The Sixth Circuit also noted that booking photos are “taken” in the vulnerable and embarrassing moments immediately after. [an individual is] accused, detained and deprived of most freedoms ”, placing them in the realm of“ embarrassing and humiliating information ”. (Identifier.)
(g) Section 1 of Section 1 of the California Constitution protects the privacy of Californians, including limiting the disclosure of information about arrests unless such disclosure serves a compelling state interest (Central Valley Ch. 7th Step Foundation, Inc. v. Younger (1989) 214 Cal.App.3d 415, 151).
(h) In July 2020, San Francisco Police Chief Bill Scott instituted a ministerial directive prohibiting the posting of reservation photos under most circumstances because their posting creates an “illusory correlation for viewers that favors racial prejudice and greatly overestimates the propensity of black and brown men to engage in criminal behavior.
(i) The legislature believes that posting reservation photos on social media when there is a low risk to public safety is detrimental to the right to a fair trial, as it diminishes the presumption of innocence and potentially violates rights. Californians’ privacy rights without a commensurate public safety benefit.
Article 13665 is added to the Penal Code, to read:
(a) A police department or sheriff’s office shall not share, on social media, booking photos of a person arrested on suspicion of having committed a non-violent crime, except in the one of the following circumstances:
(1) A police department or sheriff’s office has determined that the suspect is a fugitive or an imminent threat to an individual or to public safety and disclosure or dissemination of the suspect’s image will assist in locating or apprehending suspect or reduce or eliminate the threat.
(2) A judge orders the disclosure or dissemination of the suspect’s image on the basis of a finding that the disclosure or dissemination serves a legitimate law enforcement interest.
(3) There is an emergency situation which requires the dissemination of the suspect’s image in pursuit of an urgent and legitimate law enforcement interest.
(b) (1) A police department or sheriff’s office that shares a booking photo on social media of an individual arrested for the alleged commission of a non-violent crime must remove the booking photo from their social media page within 14 days, at the request of the person who is the subject of the social media post or their representative, unless one of the circumstances described in subsection (a) n ‘exist.
(2) A police department or sheriff’s office that shares, on social media, a booking photo of an individual arrested for the alleged commission of a crime identified in subsection (c) of the article 667.5 must remove the booking photo from its social media page within 14 days, at the request of the person who is the subject of the social media post or their representative, if the person or their representative demonstrates the one of the following:
(A) The individual’s file has been sealed.
(B) The individual’s conviction has been dismissed, struck out, pardoned or eradicated in accordance with the law.
(C) The person has received a rehabilitation certificate.
(D) The individual has been found not guilty of the crime for which he was arrested.
(E) The individual was ultimately not charged with the crime or the charges were dismissed.
(3) This subsection applies retroactively to any reservation photo shared on social networks.
(c) For the purposes of this article, the following terms have the following meanings:
(1) “Non-violent crime” means a crime not identified in subsection (c) of article 667.5.
(2) “social media” has the same meaning as in section 632.01, except that social media does not include a website or electronic data system developed and administered by the police department or the sheriff’s office.