Say you wake up in the morning, after a hard night of partying, surrounded by empty bottles, your hungover girlfriend, and your laptop—with windows open to kiddie porn. How the hell did that get there? What the hell is wrong with you? And what legal conundrum will you find yourself in should the police discover your hoards of mysteriously downloaded child pornography? And if, by chance, you like making fannish vids of The Land Before Time set to Prince music, can you legally claim fair use? Yes.
This is the situation that our hero faces in our magnum opus, “Porn in the Closet,” a musical tribute to the great lyrical prodigy R. Kelly. Check out the original R. Kelly song here. “Porn in the Closet” is a scandalous synthesis of modern legal code and case law governing the legality of internet activity, privacy, and free speech in the United States today.
Allow us to explain the twisted tale of our “Porn in the Closet” protagonist. Poor P. Kelly (the “P” of course stands for “Porn”) wakes up to discover child pornography–for decency’s sake, here represented by Sesame Street characters with censored chests. Police officers who thermo-scanned the house, thinking P.Kelly had a marijuana growing operation, enter P. Kelly’s place with a warrant. Their warrant was unlawfully obtained, however, according to the 2001 Supreme Court Ruling in Kyllo v. United States, which found that thermo-scanning violates the Fourth Amendment’s protection against unlawful search and seizure. P. Kelly lets the officers in, and they discover the laptop full of kiddie porn hidden in the closet. The laptop was given away by the sound of a Skype call, which we may legally use in our video because this is created for educational purposes and is therefore not a copyright violation, but rather fair use!
While the officers, P. Kelly, and his girlfriend Polly ponder what do about the kiddie porn situation, two DMCA (Digital Millenium Copyright Act) Agents walk in. While DMCA agents typically issue take-down requests online, the artist formerly known as the Artist Formerly Known as Prince is particularly vengeful with protecting his music online. P. Kelly had created fannish vids, splicing footage from The Land Before Time movies with Prince songs. Thankfully, Judge Pierre Leval is on hand to clear up any confusion about transformative work and fair use. Judge Leval is in midget form, an homage to Chapter 9 of the original “Trapped in the Closet.” Our song is, of course, a parody and therefore fair use. Fannish vids are also, in fact, fair use, according to Section 107 of Title 17 of the U.S. Code.
Another knock comes on the door. P. Kelly questions what else he could have possibly done… Did they eat Roger Whitmore, the cannibalized cave explorer in The Speluncean Explorers? Did they hack into SendMail and create a virus, like the worm that wrought havoc in 1990, created by bored college student Robert Tappan Morris? No, we will never know what other internet crimes or gaffes P. Kelly has committed, because our favorite deus ex machina saves the day. Brad Rosen, in all of his glory, brings our tale to a close.
Follow along with our lyrics:
Seven o’clock in the morning And the rays from the sun wakes me I’m stretchin’ and yawnin’ My laptop is there right beside me And I hear her retching from the bathroom Then along comes Polly, she kisses me And unsurprisingly she’s hungover, skank.
– Now I’ve got this dumb look on my face Like, what have we done? How could I be so stupid to have downloaded all this kiddie porn? Must have blacked out last night Oh, what was on my mind? Met on 4chan, took her home Didn’t plan to sing this song
Knock on the door hearin, “Police, open up!” My girlfag looks at me Tells me to delete the kiddie porn Keep trying to close windows
“Kiddie porn move out my way” Police said “We have a warrant” “Open up sometime today!” “Shit think, shit think, shit quick: put it in the closet.”
“Smelled weed last night, Got a warrant to search your place. Thermo-scanned your house, Think you have a growing space.” “Grow weed? What, we don’t do that. That was just my tanning bed.”
You’re not gonna believe it, but things get deeper as the story goes on Next thing you know they hear my laptop with the kiddie porn
“This is child pornography We’re going to have to take you in” “Whoa, this isn’t our kiddie porn Someone else must have put that there. We’re not into that We only watch porn between legally-consenting, and unionized disease-free adults”
I’m telling you now, I wish this was the worst part of my day But then another knock In walks an agent of the DMCA We’re by the closet, like man, what the fuck is happenin’? “We have a takedown request” From the artist formerly known as Prince Is this about my fannish vids? Those were transformative Land Before Time needed a bit of Prince Fair use from section 107 of Title 17 of the US Code A midget said, “Vidding is fair use.” “Oh I didn’t watch it” And I’m like, “God it’s Judge Pierre Leval from the second circuit!”
“Why is he a midget?” “We needed a midget.” She says, “Baby, we’re in deep shit.” Another knock on the door. We stop, all look at each other Like, Who the hell is that We say, “What else did we do?” We need a jailbreak IRL Did we eat Roger Whitmore? Did we hack into mail? The knocking gets louder I pull out my Baretta They pull out their Tasers Said “Don’t tase me bro!” Midget opens the door I can’t believe it’s Brad Rosen…
OK. Time to open Pandora’s box. Today’s topic? CENSORSHIP.
The idea of censorship is inextricably linked to the concept of information dissemination through the media, be it through more traditional means such as newspapers and television, or, more recently, new technologies such as the Internet. In any case, the act of censorship is also, by definition, associated with some entity that does the censoring.
The first example of a censoring entity that comes to mind (for me at least) is Joseph Goebbels’s Ministry of Public Enlightenment and Propaganda in Nazi Germany, before and during the Second World War. This particular governmental entity (an entity with actual, legal executive power over a large population) is often cited as the ultimate example of a disseminator of propaganda and censorship. Where did this power come from?
Ever since the advent of the first electronic media formats, namely film and radio, it has been relatively easy for governments to control the dissemination of information (barring a legal framework to prohibit such behavior, but we will discuss this later). In other words, virtually unquestionable executive authority and capability to fund high-cost, effective propaganda has often allowed governments to be the censoring entity, as in the case of Goebbels’s Ministry. In the past, the same did not hold true of non-governmental entities. Often lacking in funding or power to affect the masses, businesses, organizations etc. were rarely seen controlling information flow.
Today, more than six decades after Goebbels, things have changed. In this digital age, censorship has taken on new dimensions and applications. With the advent of the Internet, government control over the “masses” has lessened, while big corporations, especially in the technology sector (can anyone guess who I have in mind?) can take part in censoring, or prohibiting censoring for that matter.
But before we move on to specific examples of censorship and its implications today, let’s take a look at the legal ideas and framework behind it.
B. Legal Framework
OK. So let’s start with some connotations; Censorship. Media. Information Dissemination. Information suppression. Propaganda. Government conspiracy. Dictatorship. Totalitarianism. I don’t know about you, but none of the above sound really positive to me.
Well, even if you don’t agree, it seems that enough people do since popular opinion holds that censorship is usually bad, excluding certain exceptions. (The links chosen are just indicative; there are many more interesting discussions if one just googles “censorship is bad”). Indeed, most democratic countries have a legal framework (be it in the form of statutes or precedent court cases) that addresses the issue of censorship. In my analysis, I will use only U.S. law, citing specific examples, but the underlying moral and legal principles are more or less the same for all countries.
In the United States, censorship is considered unconstitutional under the 1st Amendment. The First Amendment states that:
“Congress shall make no law […] abridging the freedom of speech, or of the press […].”
Thus, any attempt by any entity to censor information in the media can be found to infringe on the First Amendment rights of the publisher, as “freedom of press” is compromised.
The unconstitutionality of censorship was upheld by the U.S. Supreme Court in a landmark decision in 1971, when it ruled in the favor of the plaintiff of a case that would be come to be know as the “Pentagon Papers” case.
2) New York Time Co. v. United States
In the Pentagon Papers case. the executive branch (surprise-surprise) of the US had sought an injunction against the New York Times, to prevent it from publishing a report on the Vietnam War. The report, entitled “United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense”, had been leaked by Pentagon analyst Daniel Ellsberg and would humiliate the Johnson administration and the government as a whole if it were published. The Times defended the publication under the First Amendment, leading to a trial that was eventually appealed all the way up to the Supreme Court.
Legally, the Times were in the right; the editors had obtained the material legally, and its publication was supposed to be protected under the First Amendment (freedom of press). Furthermore, the publication of the report would not affect the government’s ability to protect its citizens in any way, so there was no serious argument against publication pertaining to national security.
In a decision which would determine the future of censorship legislation, the Supreme Court ruled that the government had no right to place restraints on the publication of content it sought to suppress, citing Near v. Minnesota: “the chief purpose of [the First Amendment’s] guaranty [is] to prevent previous restraints upon publication.”
3) Exceptions to the Rule
What is a rule without exceptions?
J. Brennan, Associate Justice of the Supreme Court at the time, brings up some very interesting points in his concurrence, concerning specific exceptions where censorship can be tolerated or considered legal.
i) The first and most important exception, Brennan posits, can be inferred by certain past Supreme Court cases, and concerns “a very narrow class of cases”; those affecting national security. Specifically, Brennan mentions that in the instance that “the Nation is at War” or some equivalent situation, “the First Amendment’s ban on prior judicial restraint may be overridden”. But, before it can be overridden, there must be significant “governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea”. In other words, the government must prove an immediate, direct and highly consequential effect on national security. Needless to say, this burden of proof is quite large and not easily met.
ii) The second possible exception (if it can be called that) is the case of obscene material. Once again, this exception arises from another Supreme Court case: New York v. Ferber. The background of the case is not pertinent to our discussion, but the finding is; the Supreme Court held that any material deemed obscene (legally measured by an obscenity standard developed in Miller v. California) can not be protected under the First Amendment. Therefore, any action taken by an entity to censor obscene material is absolutely legal. The reason I mention this rare, peripheral exception now, is that I would like to discuss a modern-day scenario where it applies a bit further down
C. Censorship in the Internet Age
With this legal framework in mind, I would like to discuss four scenarios that have unfolded in the recent past, each of which can help us define the changes in the dynamics of censorship today.
1) Wikileaks: The Richard Stallman of Free Media.
(Please excuse the analogy, but when I thought about the parallels, I couldn’t help but include it).
I start with Wikileaks because it is one of the more clear-cut, legally speaking, situations. In terms of background, the situation differs only slightly from the “Pentagon Papers” case. Indeed, in the “about” page of their website, the editors of Wikileaks directly quote Justice Black’s (also an Associate Justice for the Supreme Court at the time) concurrence: “’only a free and unrestrained press can effectively expose deception in government.’ We agree.”
So what are the parallels with the Pentagon Papers? Well, just like the New York Times, Wikileaks receives its original material legally, by trading for it with secret sources (the methods by which the sources themselves gather the material is legally-speaking completely irrelevant). Furthermore, under the US Constitution, the publication of the material is legally protected by the Freedom of Press clause of the First Amendment.
This being said, there are the aforementioned exceptions to think about. Little if any of Wikileaks’ material can be categorized as legally obscene, so the 2nd exception is out of play. But some of the material released on the site could conceivably have an impact on National security. Indeed, this is the opinion held by many members of the government. But, as Justice Brennan stated in his concurrence, the burden of proof for such a claim would be immense. It would be extremely difficult to prove a direct effect on national security. In the words Robert Gates, former CIA chief: “Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.”
In conclusion, barring extreme cases, all Wikileaks material is legally protected under the First Amendment and censoring it is unconstitutional. This is why most, if not all, attempts to persecute the organizations legally have failed (as the editors blatantly boast on their site). In the absence of a plausible case against Wikileaks, prosecutors have alternatively pursued actual leakers (e.g. Bradley Manning), whose acquisition of the material is arguably illegal.
Now for the fun part: the Richard Stallman parallels. While skimming the “about” section of the Wikileaks site, I detected an underlying tone of “rebellion”, for lack of a better description. There was a certain, vague smugness in it, which, to me, suggested a “stick it to the man” mentality. Don’t get me wrong; I don’t for a moment doubt their belief in absolute freedom of press. But at least part of their mission seemed to be fueled by hatred (justified or otherwise) for demonized governments and multinational corporations. Similarly, Stallman has openly rebelled against the big tech-software companies (e.g. Microsoft) by developing the DNU General Public License. And most people would agree that Stallman is at least partly driven by scorn for the big tech companies who “force people to pay for software.
Let’s take it to another level: Stallman’s purpose in creating the GPL was to help software programmers work together and build on each others’ work (promoting the common goal of improving software), without worrying about copyright infringement. Drawing the parallel, Wikileaks editors advocate the cooperation of all media outlets “to bring stories to a broad international readership” (promoting the common goal of complete freedom of press).
These are the most obvious similarities I can think of currently. But I won’t stop here: following is a funny strip from the infamous xkcd webcomic, an obvious exaggeration of Stallman’s ideology: (I cropped part of the comic, as it is irrelevant to the point I’m trying to make; click on the picture to see the original).
And now my own iteration of the picture, rethought for Wikileaks.
2) Baidu-Google in China
One of the most discussed issues in the history of Internet censorship has been the Chinese government’s Internet search engine policy. Baidu, the largest online search engine in China, allegedly censors a huge list of “undesirable” sites and searches at the behest of the socialist government (rationalized as “according to the policies and regulations of China”). This censorship includes any content that criticizes the ruling Communist Party, which has led to a global outcry from democracy advocates worldwide. In this case, the entity attempting censorship is once again the government. However, unlike in the past, the government has no direct control over the information dissemination. It must instead rely solely on its executive power, which should influence the true information disseminators (Baidu) to do its bidding. As a side note, a lawsuit was recently brought against Baidu in the US for unconstitutional conduct in “blocking prodemocracy speech from search results”. This lawsuit piqued my interest because it opens up all manners of questions about the extent to which a Chinese organization can be held accountable in the US. But that is a discussion for another day.
The case was very similar with Google, at least until last year. The search engine giant had also been the subject to Chinese regulation, which meant that it was obligated to filter results and censor certain topics (same as those censored by Baidu). In much the same way as with Baidu, the socialist government relied on its executive power to influence Google’s policy. But Google is different than Baidu in one key respect: it is not based in China. Thus, when it decided to move out of the country and into Hong Kong last year (a move that Baidu would be unable and perhaps unwilling to perform, considering its base of operations is in China), it was no longer obligated to censor search results, since the Communist Party’s executive and judicial reach did not extend over China’s borders. Thus the entity that has the power to disseminate and censor information in this case, chose to ignore the latter power.
3) The Arab Spring
The beginning of 2011 saw many rebellions start and take hold in various Middle Eastern countries including Egypt, Libya, Tunisia etc. These are the first rebellions to take place in the era of the Internet, and indeed the World Wide Web seems to have played a significant role in the uprisings. During the rebellion against Hosni Mubarak in Egypt, one activist in Cairo tweeted that “We use Facebook to schedule protests, Twitter to coordinate, and Youtube to tell the world.” Another, humorously tweeted:
As is the case with all rebellions, the local governments wanted to quash the uprisings. Recognizing the significance of the Internet, as well as their own inability to effectively monitor and censor it, some states tried different methods of controlling it. In Egypt and Libya, the government went as far as completely denying access to the Internet as a whole, while in Syria, a government-backed organization severely hacked and defaced several social media sites the rebels were using. These are all, of course, acts of censorship and suppression of the citizens’ freedom of speech, as well as publishers’ freedom of press. Which I guess partly justifies the rebellions in the first place.
4) Google and Child Pornography
I will end on a more optimistic note, with another instance of positive change in the dynamic of censorship (it also relates to the obscenity exception I promised to talk about). In a wholly agreeable step, Google has recently attempted to tackle the problem of child pornography on the Net. It has reconfigured one of its filtering algorithms to recognize and filter certain patterns that are indicative of pedophilic of other such obscene conduct. By practically any and all social norms, child pornography passes any obscenity test, which means that, under the New York v. Ferber precedent, it is not protected under the First Amendment. So, in a sense, filtering such results is not censorship per se, since it doesn’t violate any constitutional rights. Therefore Google can legally exclude all such results from its searches without being sued for suppression of the freedom of press. Once again the entity that has the power to disseminate and censor information has chosen to ignore the latter option. However, this time it is not influenced by another entity (e.g. a government), as it was in the Baidu case, but rather by the social norms (or standard) of the community which would condemn it if it didn’t act so.
The advent of the Internet has radically changed the nature and synamic of censorship in the media. While in the past the censoring entity was usually a government, resulting in propaganda, the Net has ushered in a new era. A government’s ability to censor has been radically decreased, now that it cannot directly control the information flow to its citizens (even if it did control the Internet, which it doesn’t, the sheer volume of information on the Web should make monitoring and control it extremely hard).
So who is the new censoring entity? You got it. Big technological corporations that can control information flow over the Internet: Google, Facebook, Baidu. It is easy to demonize these entities, just as it was easy to demonize the propaganda and censorship conducted by governments in the past. Indeed, who’s to say that there aren’t incentives for these entities to censor (e.g. profit), just as there was for governments (e.g. public opinion). We saw that Baidu is basically a marionette for the Chinese government when it comes to Internet censorship. But this is not always the case; we also saw that Google has both declined to censor material the Chinese government asks it to and tackled the problem of child pornography. Definitely better than if the Communist Party was in charge… Don’t you agree?
Ranging from apparently harmless to incredibly graphic, the “Adult Services” section of Craigslist has long provided people far and wide with the ability to search for and find others looking for “adult services”, whatever that may mean. That is, until last week, when Connecticut Attorney General Richard Blumenthal, along with 17 other state attorneys general, told Craigslist to permanently remove their adult services section worldwide.
Before delving into the obvious issues with censoring Craigslist (net neutrality, questions of jurisdiction, website application immunity), it’s important to understand what Craigslist is and its history. Founded in 1995 by Craig Newmark, Craigslist is a website that serves as a sort of virtual bulletin board for local postings. With subdomains for major metropolitan areas around the world, users can post solicitations for anything from old TV’s, to job inquiries, to requests for relationships. Listed as the most used classifieds service in any medium, Craigslist sustains its operating revenue mostly from small fees required to post job openings in major metropolitan areas. The site’s annual net income is undisclosed.
However, the seemingly noble intentions of Craigslist have not stopped many from abusing its site. For example, in early 2009, Julissa Brisman, a young masseuse, was murdered in a hotel room by a man who hired her through Craigslist. Then, earlier this year James Sanders, a father and devout Christian, was gunned down in his home by criminals who responded to an ad he posted on Craigslist to sell his wife’s diamond ring. (Credit to NBC and NewsRoomJersey)
Three weeks ago, 17 state attorneys general jointly wrote to Craigslist telling owner Craig Newmark to permanently remove its adult services section worldwide. Two weeks after that, four other private, Washington D.C. based non-profit organizations spoke out about their disapproval of the site’s adult services. In response, this past week Craigslist put a black and white “CENSORED” bar where the adult services hyperlink had previously been. However, as of today, the black and white bar has officially been removed and there is no adult services section on the site’s home page.
So, now that we’re all on the same page, I would like to throw something out there: I believe Richard Blumenthal is putting up this huge front in order to be elected to the U.S. Senate. What? “No!” You cry out, “This cannot be!” Well, consider the following conversation between two average voters:
Joe the Plumber: Gosh, the Senate election is coming up, soon. Bob the Builder: Well, who’s running? Joe the Plumber: Looks like it’s **Googles for ten seconds** Linda McMahon and Richard Blumenthal. Bob the Builder: Wasn’t she a wrestler? And who is Richard Blumenthal? Joe the Plumber: I don’t know. But apparently **Googles for five more seconds** Blumenthal is really against prostitution and human trafficking on Craigslist. And Linda McMahon never said she didn’t like prostitution or human trafficking. Looks like I know who I’m voting for. Bob the Builder: I second that. I am no fan of the Internets or prostitution.
Take it for what it is, that is my personal opinion. Beyond the questions of political pandering and insincerity raised by the timing of his attack on Craigslist, Blumenthal’s offensive raises several other important issues. Unfortunately, I do not have time to discuss all of them, but I would like to discuss what I think is the most important: net neutrality.
What do we mean when we use the term net neutrality? Generally network neutrality means that for any network (be it peer to peer or the Internet), the principal service provider (i.e. Comcast, Charter), the government, or any other regulatory body should have no right to censor the content posted by members of the network. In fact, the original design choices of this Internet such as decentralization and the FCC’s Broadband Policy Statement lend the Internet to being an open, neutral network.
Blumenthal and the attorneys general joining his suit are directly challenging the fundamentals of net neutrality by forcing Craigslist to remove its adult services section. I want to make a very clear and unequivocal distinction. Telling Craigslist it needs to seek out and remove postings soliciting illegal activities such as prostitution or human trafficking is NOT challenging net neutrality. Without the rule of law, the Internet would become a safe haven for criminals and create an environment no one would feel comfortable entering. However, Craigslist should not be told to remove a whole section because certain users abuse the site’s services.
If users demanded content controlled by a single source, with government interference and site material changing based on mere political whims, everyone would still be getting their Internet content from Compuserve. Think I’m wrong? Why do we have Google, Facebook, MySpace, Amazon, ESPN.com, streaming video of any sort (thanks porn industry), or all of the amazing web applications we have today?
For now, Blumenthal will not let sleeping dogs lie. Although Craigslist has removed the whole adult services section Blumenthal insists, “Simply removing one portion of your site where you permitted and profited from prostitution ads is insufficient if ads go elsewhere.” (Credit to The Associated Press)
Vinton Cerf, father of net neutrality and, the best thing it brings with it, competition on a previously unparalleled scale, we salute you. Richard Blumenthal may be thinking that Craigslist is “thumbing their nose at the public interest”, but let’s be honest: since when did a 64 year old whose alma maters include Yale and Harvard ever represent the public interest?
On January 15th, 2010, the case of Miller v. Skumanick continued in the Third Circuit Court of Appeals. For those of you unfamiliar with the case, in Pennsylvania, Tunkhannock School District officials discovered cell phone photos of high school girls posing “provocatively” in late October 2008. The two photos discussed in Miller’s suit involve one depicting a teenager with a towel wrapped around her waist and her breasts exposed (like she just took a shower), and another depicting two girls in training bras making “peace signs” for the camera. School officials handed the cell phones over to the office of the District Attorney, George Skumanick, who decided to meet with all students involved and offer them a deal: either they would take an education course or face prosecution on charges of distributing child pornography. Parents would have to pay the course enrollment fee and the course itself would discuss, among other things, “what it meant to be a girl in today’s society” and an essay each student would have to write describing why what they did was wrong.
[Notice that, in last month’s proceedings, the defense refers to the admission of guilt as having to write an essay about why it was “unwise to send those photographs” – the word ‘wrong’ being intentionally omitted].
At any rate, the plaintiffs, feeling that their constitutional rights were being infringed upon, filed an injunction to prevent District Attorney Skumanick from taking prosecutorial action.
Although this case touches on a host of today’s hot issues, what is interesting to note is the concept consistently raised by the defense that Skumanick’s office was “protecting the children from themselves”. This post is a mixture between a response to and an analysis of an article from Reason.com (aptly titled “Ruining Kids in Order to Save Them”).
So, what do the defendants mean in describing their prosecutorial discretion as ‘saving the kids from themselves’? In this, the defense is very clear: “Children are immature, children are vulnerable. The entire basis of the juvenile code is to protect children from themselves…When kids disseminate pictures of themselves through the Internet they are putting themselves and other children at risk.” (Miller – Oral Arguments, pp. 15-16).
The defense is adamant and clear in its stance. What is more important though is to ask whether or not this line of thinking applicable. What are we really trying to accomplish in doing this? Certainly, children who are abused and exploited become victims the moment the action takes place. Disseminating images of this child pornography does create a huge problem in our society, and provokes and encourages this socially unacceptable behavior.
But what if a teenager posted a picture to Facebook of herself posing in a bikini, or himself not wearing a shirt on the beach, or some other scenario where the youth was, simply put, not dressed in accordance with Sharia law. We may laugh at the ridiculousness of calling such a photo pornography, but I should remind you that two of the girls facing prosecution had opaque training bras on, and no genitalia or breasts exposed, in the “pornographic” photo.
From the reaction of the girls in this case, it’s clear to see that they felt no more victimized by these photos than if their parents had taken pictures of them on the beach in two piece bathing suits. In fact, District Attorney, in his meeting with the children, had commented that he could prosecute teenagers who appeared in pictures wearing bikinis, based on his enforcement of the Pennsylvania statute on child pornography.
Given what I’ve said, it’s easy to dismiss Mr. Skumanick as a reactionary zealot, and these photos as incredibly innocent and, more importantly, victimless. But, perhaps the plaintiffs are truly too immature, and unable to understand whether or not they are being victimized. Whether one buys the argument that until one is older than 18 years old they are not mature enough to make serious decisions is an entirely different issue, one too lengthy to delve into here.
However, if these children are indeed too immature, are their parents wrong in deciding that the photos of their children are not obscene? Do public officials have the right to enforce their judgment over the head of parents? And if so, where do we draw the line on what issues those officials have the right to meddle in?
In this case, at the very least, it would seem that the prosecution is making a mountain out of a molehill. And honestly, since Skumanick pursued prosecution against the teenagers at the beginning of an election year, it’s pretty transparent to see what he was trying to accomplish (Hint: it rhymes with “me-election”). However, in noting all the shortcomings of our legal system, and the loopholes that a few avaricious public officials will claw their way through to assume the national spotlight, we should reflect on the importance of the laws that occasionally harm our citizens.
Stockholm syndrome, a serious psychological effect, occurs when a hostage falls in love with the person who has captured them. Related, but slightly different, is when a victim falls in love with their tormenter. Hypothetically, if a child had had photos taken of them by a parent or guardian where they appeared fully clothed, but in provocative poses, and had willingly disseminated those photos at the request of the parent or guardian (because they still loved and obeyed him or her), the state would have no recourse against said parent. Although contrived, the case still applies; as in the scenario no physical abuse would take place, but inappropriate photos of a juvenile would be distributed, and the crime would not be “victimless”.
The issue of government intervention in parenting has always been contentious. But as kids get access to newer, more powerful technological tools at earlier and earlier stages of life, the issue of morality, parenting, and technology will more often rear its ugly head.
The U.S. law prohibits the possession, dissemination, and possession of child pornography (18 U.S.C. §2252). If a politician makes a speech upholding this law, most citizens would applaud him. Children must be protected to the fullest extent of the judicial system, right? But what if the socially and criminally condemned predator were a 14-year-old girl who decided to move to the next step in the relationship with her boyfriend and started to trade nude pictures via text message? An arrest of a teenager has already been made in Michigan, and similar cases are taking place in different parts of the USA. Apparently, the new “cool thing” for teenagers is not holding hands in the movies or exchanging hidden kisses at school, but rather engaging in what is called “sexting”, a practice that may seem inoffensive at first (after all, it’s the hormones that are talking) but that could have tragic consequences.
In a survey by the National Campaign to Support Teen and Unplanned Pregnancy together with CosmoGirl.com, more than 1,200 teenagers were asked if they have already sent/posted nude or semi-nude pictures or videos of themselves. The result confirms the concerns of moms, dads, and educators around the country: 1 out of 5 has already engaged in some kind of sexting, being the rate higher for teen girls (22%) than young boys (18%). It’s obvious why a father does not want his daughter to take nude pictures of herself and send them to her boyfriend. Nevertheless, what’s the real problem with sexting? One could argue that sexting provides a safe way for teenagers to discover their sexuality without risking STDs or unwanted pregnancy. It’s pretty harmless, isn’t it?
Jessica Logan’s case tells us the contrary.
Last year, Jessica, an eighteen-year-old girl from Ohio, committed suicide some months after her ex-boyfriend had sent her nude pictures to other girls in their high school. No longer able to stand the vicious comments she would constantly hear of herself, she decided to hang herself in her bedroom. In a NBC News report, Cynthia Logan, Jessica’s mom, declared that her daughter “was being attacked and tortured.” In grief, she says, “I just had a scan of the room, her closet doors were open. I walked over into her room and saw her hanging. The cell phone was in the middle of the floor.”
The horrific outcome of this case tells us that the problem of sexting is not the action itself, but what might happen after that. It seems that as soon as girls and boys have nude pictures of each other, a lovely, healthy relationship may turn into one based upon dominance, subordination, and manipulation. Tragic cases usually occur right after teenagers break up: a sense of vengeance seem to take over resentful girls and boys who make the atrocious decision to spread their partner’s pictures on the Internet or mass mailing them to other people.
The law prohibiting child pornography is being invoked. Teenagers are being charged with manufacturing, disseminating or possessing child pornography – and many people are freaking out because the label of sex offender seems too harsh. Florida cyber crimes defense attorney David S. Seltzer, for example, does not believe that our child pornography laws were designed for regulating sexting. Commenting on the severity of the sentences, he writes: “A conviction for possession of child pornography in Florida draws up to five years in prison for each picture or video, plus a lifelong requirement to register as a sex offender.” How will these teenagers go to college with “sex offender” written in their record? How will they explain in a job interview why they had been charged with a federal felony? These teenagers are paying with their lives for a silly mistake they made in following a fad.
We don’t want teenagers to live with this stigma. Instead of locking them up, we should remove the “sex offender” label from their criminal record and have them spend some hours of community service. In addition, parents and teachers should alert their children about the risks of sexting. ConnectSafely.org, for instance, has some tips to prevent sexting, such as open dialogue with parents or trusted adults. The rigorousness of child pornography law should be invoked in cases that involve viciousness and criminal intent (e.g. Jessica Logan’s case), not when teenagers impulsively send nude pictures to their boyfriend or girlfriend.
Sexting can be harmful or harmless. The law must be able to differentiate one from the other.