Is Sexting by any other Name Still Wrong?

It’s still all over the news, but in case you’ve been avoiding media or vacationing in Fiji for the past few weeks, here’s a summary: Congressional Representative Anthony Weiner (D-NY) sends randy photos of himself through social networking to young women. Denies it. Then says computer was hacked. Then ‘fesses up and loses job. Journalists are all over the story, and one wonders if his name didn’t contribute exponentially to interest in the incident.

And with this juicy news item comes a lot of commentary about how to address sexting with youth. Because, you know, even though Weiner is a full-fledged adult, the story always comes back to youth making stupid mistakes. Adults apparently don’t need to be told about the dangers of the internet, though I am coming this close to suggesting that Congress hold a mandatory orientation on social networking and its proper usage.

Among all the usual comments about the importance of talking to your teen about sex and sexting (though a tired mantra, I do support the idea that this news story is a GREAT icebreaker for parents to talk to their kids about what can potentially happen if you send a photo to someone online) are danah boyd’s reflections, which are particularly insightful, as they address full-on the complexity of the issue. Her talk is long, but it contains TONS of great information. I think the important takeaway here is that we are still immersed in laws that punish the sender of erotic images, even though the motives for sending them can vary tremendously.

I believe that investigating the motives behind the act of sexting is crucial to crafting effective laws and policies related to this behavior. I commented about the importance of differentiating between different types of sexting before, but it bears repeating. Two essential questions:

1. Is the person sending pictures of themselves or others? If self, it’s possible that no punishment is necessary (unless that person was coerced into sending the picture — then punishment may apply to the person doing the coercion). If others, the incident needs to be looked at more closely.

2. Was was the intent behind the sending? boyd provides case studies of several motivations behind sexting including to gain approval, to be romantic, to shame or hurt someone. There are countless other reasons, but considering a few of the major ones can help shape policy.

Knowing the answers to the above questions on a case-by-case basis can help us come up with solutions as to “what to do about it.” It also might cause us to reflect on the “it” — sexting — and conclude that we should expand our vocabulary to call out the different types. Most crimes don’t have names that can be used for legal and illegal acts: “murder,” ” stealing,” “espionage” — these terms are pretty much used when someone breaks a law.

So perhaps “sexting” can be the legal term, and we can come up with a term for sending sexually explicit pictures illegally. Or maybe it’s best to do it the other way around, since “sexting” has such a negative connotation already. Whatever the solution, creating labels to distinguish categories can help the public see that this behavior is more complex than many realize.

"The Right to be Forgotten"

This Forbes article is a great premise for some sort of psychological thriller movie or Grisham novel — but it’s grounded in some semblance of reality. It highlights the idea — bandied about by policymakers and advocacy groups such as Common Sense Media — of allowing us to “erase” our internet histories. Wish you hadn’t posted that unflattering 3rd grade school picture? Poof — take it down. What were you thinking when you wrote all about your ex in that blog? No worries — just erase the whole thing. And that YouTube clip of you trying to re-enact the entire season finale of Lost after a few too many? Fear no longer….

Sure we can already take down the stuff we posted on our own, without any laws or protections needed. But what if that blog post goes viral? What if your wild high school buddy lacks any filters when deciding to post those keg party moments? What if someone shares a video of you again, and again, and again? “Right to be Forgotten” laws would allow for the deletion of ALL references to material about you not needed for “legitimate purposes” (so forget about fantasizing about getting rid of your online billing or credit score..).

On some level, this makes sense. After all, if I don’t like something publicly available, and it’s about me, I should be able to get rid of it. Especially if I posted it in the first place. Don’t I have the right to retract? However, as writer Adam Thierer states, such actions would be a huge violation of freedom of speech. Not to mention technologically impossible (as of now).

But the law does have some appealing applications. All those posts written by cyberbullies could be gone just like that. And easily erased if re-posted, thus discouraging future attempts. If someone is trying to change after being afflicted by addiction, or involved in a gang, they can remove that social networking history to avoid stigmatization.

Bottom line is, though, that there is no such law and probably will never will be. And people DO have the right to express themselves (within certain limits) and we have the right to access information, no matter how unsavory. So, we should think about every post we make before putting them up there for everyone to see. And share. Because, once it’s up there, you lose control over its future, and to some extent, your past.

Not all sexting is the same

Love this! A recent report from the Crimes Against Children Research Center in New Hampshire does something sensible and useful (not an easy feat in the research world). Using data from several sources, it delineates between two types of sexting — (1) “experimental,” in which a young person takes a picture of themselves willingly for the purpose of pursuing romance or for sexual experimentation — both of which are considered normative, and (2) “aggravated,” in which there is either adult involvement and/or “intent to harm” whether through force, malice, and/or bullying.

Why is this so important? Because it helps law makers determine which instances of sexting should be prosecuted! Only those considered “aggravated” would be considered to result in any legal recourse. “Experimental” sexting would not be considered legally (though educators/parents/trusted adults may want to intervene as a teachable moment).

While I may be oversimplifying this, I think it’s a great start to determining how to protect — not punish — youth who are simply using tools available to them to establish and maintain romantic and sexual relationships. And what teen doesn’t want to do that?

Sexting Laws Abound

The uproar over sexting continues — this time policy makers try to take a stab at curbing the practice of minors sending sexually explicit photos of each other.

1. In Kelso, WA the school board approved a policy that allows for school administrators to confiscate and search a student’s phone if there is “reasonable cause” to suspect that the sexting took place at school. Students can face suspension or expulsion if found guilty. I fear that this sort of policy is a slippery slope that can be used to target certain teens; the ACLU is already fighting this as an invasion of privacy — could these school administrators be charged with the viewing of child pornography (or at the very least, accused of being voyeuristic?) if they keep confiscating phones and having a peek?

2. According to the Huffington Post the New York Department of Education is also trying to ban sexting and students could get in trouble for sending photos from home as well as school.

3. In Texas there is a bill under consideration that would lessen the penalty for youth found guilty of sexting to being found guilty of a Class C misdemeanor for first offenders (currently they might be charged with distribution of child pornography and possibly have to register as a sex offender). While that sounds reasonable, the bill also stipulates that youth and their parents would both have to take educational classes about the “harmful consequences” of sexting. Two things about this seem odd: (1) from a research standpoint, we don’t really know what the harmful consequences of sexting are. So, not sure where they are going to get course content from. (2) And what are the parents going to learn? Is the implication here that parents somehow were supportive of the sexting and also need to be told it isn’t a great idea? I doubt it. But someone over at The Stir already beat me to making fun of this sort of logic.

This is only the beginning, folks. Look for many new sexting laws and policies being proposed and adopted at the school, state, and possibly even federal level.

"Possession is Nine-Tenths of the Law"

An interesting case here in Oregon sheds light on the concept as to how the internet is completely disrupting the ways in which pornography is defined by law. Earlier this month, the Oregon Supreme Court ruled that it is not illegal to look at child pornography online, as long as those images are not downloaded, printed, or paid for. In other words, if you do not actually take some sort of action to “own” the images, you are not in possession of the material, and therefore cannot be punished for simply looking at it. Quoting the article in the Oregonian:

“Looking for something on the Internet is like walking into a museum to look at pictures — the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them.” — Justice Michael Gillette.

Clearly, this protects people who stumble across images they did not intend to view (though for child pornography, how likely is this, really?). However, child pornography laws were first created in the 1970s for the distinct purpose of protecting the actual children (defined as anyone under 18 in 1984 through that year’s Child Protection Act) involved in making the materials. It wasn’t until 1990, in the case Osborne v. Ohio, that the high courts ruled a state could punish someone for “possessing” the images. The justification of this law was that making it illegal to possess images would decrease the market for them, and thus protect children.

However, as the internet became more established, it was clear that the laws related to child pornography were by no means designed to deal with images distributed electronically. Additionally, there have been several legal battles to define what child pornography actually is. Since earlier laws were written to protect children, what if a person created an image that only looked like a child engaging in sexual acts (using computerized image construction), but in reality no child was actually used in creating the image? With all the programs out there, this is a pretty easy thing to accomplish.

Currently, the courts go back and forth as to whether creating images of child pornography without actually using children is legal. To my knowledge, the legality of childless child pornography is “winning” in most cases, thanks to a Supreme Court ruling in 2002.

Other problems arise in the enforcement of child pornography laws. With the international accessibility of the internet, the United States needs to acknowledge that not all countries have child pornography laws, and even those that do have varying ages of consent and definitions of a “minor.” In fact, according to this study, most countries have NO child pornography laws. How can the US uphold its rules about making and possessing child pornography now if it (A) can be made legally in many other countries — or virtually through computer-generated images, and (B) be accessed online without penalty, as long as the images are not saved or purchased? It’s a surprising dilemma.

What hurts the case for restricting child pornography is that there is essentially no research on the effects of its viewers. Such taboo topics need to be examined — no matter how difficult it is to do so — if laws restricting access to and viewing of images are to be upheld. Because right now, child pornographers are finding legitimate legal loopholes which allow them to view images. Just so long as they don’t store them anywhere.

California Law Targets Cyberbullying

Happy New Year to All!

‘Tis the season for all things new –resolutions, calendars, and laws! In California, there is a new law on the books that makes it illegal to create a fake social networking profile “to harm others.” Violation of the law can result in a year jail time and/or up to a $1000 fine.

Will be interesting to see if something like this makes a difference — probably not until it is tested in courts and people become more aware of it.

CA schools could possibly take advantage of this by connecting it to safe school policies to strengthen those. It’s difficult to enforce a bullying policy if the actual bullying takes place either off campus and/or through the use of personal devices such as computers or cell phones. But, perhaps, with this impersonation law, schools can demonstrate that the bullying of students is still against school regulations even if it happens after the bell rings. I’m no lawyer (though I do love me some SVU!), but perhaps this logic will help build a case against a serious offender?