Posted by Edmund R. Folsom, December 20, 2018.

DISCLAIMER:  The following is not legal advice.  It is not intended as legal advice and should not be taken as legal advice.  I offer it to potentially aid understanding only.

The Brunswick Police Department has joined the Auburn Police Department, publishing booking photos on their department Facebook pages of people they arrest for shoplifting.  Often, people charged with Class E shoplifting theft are not arrested but are instead summonsed to court.  But when police summons a person to court, they do not put the person through a booking process, which means they don’t end up with a booking photo to post on their Facebook page.  Police can cure this by making sure to arrest the person instead, which is what they routinely do in Auburn and Brunswick.

Some are complaining that posting booking photos and arrest information on the department Facebook pages amounts to an unfair police practice of convicting people without a trial.  The police claim the strategy is effective.  They cite statistics showing that it has led to a reduction in shoplifting, and they point out that the law allows them to do it.  The police might be correct about the legal issue.  The Criminal History Records Information Act classifies the booking photos and arrest information they are posting as “public criminal history record information.”  The public nature of this type of information accounts for the stories you see in newspapers and on T.V. news, accompanied by booking photos, about people who have been arrested for any number of crimes.   When it comes to shoplifting, the Auburn and Brunswick Police Departments have combined the technologically possible with the legally permissible and their own sense of the pragmatic to create a modern, electronic version of the stocks — except that to view a person who was placed in the stocks, villagers had to walk to the town square where the person was clamped, arms and neck, into the shaming device.  On the other hand, what the departments are doing might fit the definition of the Class D crime of stalking, defined as follows: “A person is guilty of stalking if…[t]he actor intentionally or knowingly engages in a course of conduct directed at or concerning a specific person that would cause a reasonable person…to suffer…emotional distress.” Wouldn’t a reasonable person suffer emotional distress from this police practice and don’t the police know it would cause a reasonable person emotional distress? The only real question is whether police engage in a “course of conduct” when they do it. A “course of conduct” is defined as “2 or more acts, including but not limited to acts in which the actor, by any action, method, device or means…communicates to or about a person.”* So maybe the police are limiting themselves to 1 “act” when they communicate about these people, but then again…

Armed with the far-reaching communication capacity of a Facebook page, aided by the legal permissibility (maybe) of posting a booking photo and other arrest information, Auburn and Brunswick police make it possible for anyone in the world to view, with the click of a mouse or the tap of a smart phone screen, those they shame in their digital stocks.  It’s part of a natural progression that brings the pubic shaming device from the ancient to the post-modern.  And once the information is on the internet, the shaming can last for eternity, which nearly perfects it.

The police say they aren’t in the business of shaming anyone.  They claim they are merely deterring people from shoplifting.  They want you to believe that their pragmatic means to their noble end are backed only by righteous motives.  Is it unfair for police to do this to people who have not been convicted in a court of law?  The police tell us they don’t arrest people for no reason, and they often have video of these people in the act of shoplifting, so what’s the problem(?) they ask.

The Chinese are working on a “social credit” scoring system that will rate the trustworthiness of every Chinese citizen.  Each person’s score will determine whether a person is allowed to fly, take trains, place children in certain schools, you name it.  Think how convenient it would be to have a single score you could refer to that would allow you to instantly size-up anyone you come in contact with.  Won’t that be a tremendous deterrent to undesirable behavior?  Plus, the system should be reliable.  With all the surveillance cameras in China, there can’t be much a person does that isn’t the subject of surveillance.  If the government assigns demerits for undesirable behavior, they surely won’t do it for no reason – in fact they will probably have plenty of video and other evidence to support each decision.  Maybe Auburn and Brunswick Police and the Chinese in charge of social credit scoring should have a cultural exchange.  Each should find lots to admire in the other’s use of technology in pursuit of their desired ends, and maybe they could teach each other a lot about the most effective means for achieving them.   Anything that technology makes possible will be done. Then, once it is done, it creates its own set of expectations and suddenly must be done.  Why fret over moral and ethical questions about what should be done? Let technology be your guide!


* Seem absurd?  I’m with you. You’d almost think that a people who realize it’s absurd to write a law that makes it a crime to, as a general proposition, commit more than one act of communication about a particular person in a way that the communicator knows would cause a reasonable person to suffer emotional distress wouldn’t write a law that criminalizes such conduct as a general proposition.  But once a law is written that criminalizes such communicative acts as a general proposition, all such communicative acts are defined as criminal, no matter who the communicative actor is and no matter how true the content of the communication may be.  In Maine, such a law has been written and enacted.  It is the stalking statute.