The Communications Decency Act and Why Mugshot Sites Are Hard to Shut Down

February 19, 2025 Legal Tips

The Communications Decency Act (CDA), passed as part of the Telecommunications Act of 1996, was designed to regulate online communications while balancing free speech and user protection.

One of its most significant provisions, Section 230, grants online service providers broad immunity from civil liability for third-party content.

While originally intended to protect internet freedom, it has led to legal challenges, particularly with controversial platforms like mugshot websites that publish arrest records for profit.

What Is the Communications Decency Act?

The Communications Decency Act (CDA) was enacted in 1996 to regulate online services and address concerns about offensive material, particularly sexual or excretory activities, that might be accessible to minors. Originally, the act sought to restrict access to obscene content and impose federal criminal law penalties on those who distributed patently offensive material.

However, the Supreme Court ruled in Reno v. American Civil Liberties Union (1997) that many indecency provisions of the CDA violated the First Amendment, striking down several key restrictions. The court’s decision emphasized that online speech deserves the same protections as traditional media, reinforcing internet freedom.

Section 230: The Foundation of Online Content Moderation

Section 230 of the CDA has become one of the most influential internet laws. It states that an interactive computer service shall not be treated as a publisher or speaker of third-party content.

This immunity provided to online forums, social media platforms, and other communication services has helped shape the modern internet by allowing websites to host user-generated content without being held liable for what users post.

Key elements of Section 230 include:

• Protection for Online Platforms: Online service providers and interactive computer services cannot be sued for information provided by users unless they directly create or modify the content.
• The Good Samaritan Provision: Platforms that moderate content in good faith to remove harmful content or offensive material are still protected under the law.
• Limits on Immunity: Section 230 does not protect websites from lawsuits related to intellectual property claims, sex trafficking law violations, or criminal prosecution under federal law.

How Mugshot Websites Use Section 230 to Avoid Liability

What Are Mugshot Websites?

Mugshot websites collect and publish arrest records obtained from law enforcement agencies and public databases. These sites often claim to serve the public interest by providing access to public records. Still, many critics argue that they exploit individuals for financial gain by charging fees for mugshot removal services.

Despite widespread criticism, mugshot websites have avoided liability by citing Section 230. Because these platforms do not create arrest records themselves, they argue that they are simply information content providers rather than publishers or speakers, shielding them from civil liability.

Legal and Ethical Concerns

The existence of mugshot websites raises several legal and ethical issues, including:

• Reputation Damage: People with dismissed charges or expunged records often struggle to remove their mugshots, leading to employment discrimination and social stigma.
• Extortion and Blackmail: Some mugshot sites demand payment for removal, creating a financial burden on individuals trying to restore their online reputation.
• Privacy Violations: While public records are legally accessible, many argue that publishing them indefinitely—often without context—violates privacy rights and contributes to long-term harm.

Why Is It Difficult to Shut Down Mugshot Websites?

Efforts to shut down mugshot sites have been complicated by legal protections under Section 230 and free speech arguments. These platforms claim that:

• They are not responsible for third-party content as defined by Section 230.
• The publication of arrest records is a form of protected speech under the First Amendment.
• State attempts to regulate them would constitute unlawful censorship of public information.

Additionally, many mugshot sites operate overseas, making enforcement difficult under U.S. law.

Challenges in Regulating Mugshot Websites

1. The Role of Federal and State Laws

Some states have passed laws to limit mugshot website practices, including:

• Restricting pay-for-removal services.
• Prohibiting the publication of mugshots for profit.
• Allowing individuals to request mugshot removal if charges were dropped.

However, these laws face legal challenges, with courts ruling that mugshot websites have First Amendment protections.

2. Supreme Court and Federal Court Cases

Court cases involving mugshot sites, free speech, and Section 230 continue to shape legal discussions. Some argue that:

• The CDA protects these sites under interactive computer service immunity.
• Congress should amend Section 230 to prevent abuse of public records.
• Federal criminal law should limit the publication of mugshots without proper context.

So far, courts have largely sided with online platforms, leaving the regulation of mugshot websites in legal limbo.

Potential Solutions and Future Regulation

1. Reforming Section 230

Some lawmakers propose amending Section 230 to:

• Remove protections for platforms that profit from mugshot removal services.
• Ensure accountability for sites that harm individuals through content posted without clear public interest justification.
• Create legal pathways for individuals to request mugshot removals if they were wrongfully arrested or had their cases dismissed.

2. Strengthening Federal and State Regulations

Proposed solutions include:

• New laws that prohibit mugshot websites from charging for removal.
• Allowing individuals to take legal action against these sites under consumer protection laws.
• Requiring websites to remove outdated mugshots after a certain period.

3. Encouraging Good Faith Moderation by Platforms

Social media platforms and search engines like Google have started de-indexing mugshot sites, making them less visible in search results. Encouraging more online services to take a “good faith” approach in removing harmful content could further reduce the damage caused by these sites.

Final Thoughts: Balancing Free Speech and Privacy Rights

Mugshot websites expose the challenges of balancing internet freedom, free speech, and privacy rights. While Section 230 was designed to protect online forums and social media platforms, it has also allowed exploitative websites to avoid liability.

Reforming laws and policies could help protect users while maintaining an open internet. As Congress, courts, and tech companies continue to debate these issues, the future of mugshot websites and online content moderation remains uncertain.

Ultimately, individuals must stay informed about their rights, advocate for change, and take steps to protect their online reputations in an era of digital permanence.