Posted By: Joseph Duerst
In an episode of the television show Seinfeld, when George is caught with large prints of semi-nude photos of himself taken for a photo shop woman he was trying to impress, Jerry Seinfeld calls it, “the timeless art of seduction.” The episode made light of the lengths that people will go in the pursuit of romantic relationships, but when it aired in the mid-1990s, nobody knew the technological advances that would occur in the following years. In the year 2010, rather than making prints of those photos, George would have likely just sent an email or a photo message to the woman’s cell phone, and that such activity could create legal liability for George should the photos end up in the wrong hands. While in television this activity could create comedic scenarios, in real life, those scenarios could devastate the people involved.
Technological advances have supplied us all with the means to share information, photos, music and other content instantaneously through various channels including the internet and wireless telephone lines. The possibilities are nearly limitless as to the kind and quality of the information and content we can share with each other, beamed directly to our laptops and our cell phones. However, the kind of content we send can create substantial legal problems, if that content turns out to be illegal. Unsurprisingly, people have chosen to use these new methods of communication to share sexually explicit messages and nude photos of themselves to romantic partners. Sexting, as it is called, because it usually involves the sending of text messages to cellular telephones, can be perfectly harmless if both parties consent to the activity and do not abuse the trust of the other, but this is not always the case. Likewise, in cases involving the nude photos taken by minors, the legal implications become staggering.
The Berkman Center For Internet & Society at Harvard University recently released a report on sexting, which maps out sexting among youths and the legal problems that surround such activity. The report provides statistical information regarding different situations in which sexting occurs, and some background on the repercussions of those situations. According to the report, states have growing concern with youths the sext, and have responded in a myriad of ways, including prosecuting minors for posting their own nude photographs on MySpace or sending them to other youths. Most charge the youths with violations of child pornography laws, which is troubling, because the youths face the same penalties for photographing themselves and sharing the photos, as would an adult who photographs a youth nude, such as prison sentences and sex offender registration. One must ask the question, is self-exploitation by children really what child pornography laws are meant to protect against? Child pornography cases of the past imply that this kind of voluntary action by a child may be protected speech under the First Amendment. Even more troubling is prosecution in the context of a romantic relationship among two youths who swap naked photos. But even when both parties consent to swap photographs, if one party abuses that trust and shares the photos with friends, as youths would be likely to do, both the sharer and the friends may be subject to liability.
The Berkman Center’s report discusses the basis for charging these youths and the defenses to the charges, but the fundamental problem seems to be a matter of public policy. Charging a youth under child pornography laws for photographing himself or for sharing a girlfriend’s photographs with his friends seems unduly harsh. Children lack the ability to understand the repercussions of their actions and often have knowledge that their conduct may be illegal. They are given the ability to share photographs via their cell phones and computers, and they are rarely told what is conduct is allowable and what is not. The report suggests modifying child pornography statutes to include an affirmative defense that exempts children who photograph themselves and share with other minors they choose, and including lesser penalties for children than adults would face, in such cases where activity is more harmful than mere sharing of personal nude photographs and thus would not be exempted. Some states have done exactly that.
However, the Berkman Center’s report does not address issues of adult sexting that does not involve child pornography. Largely, adults sharing sexual images and messages with each other is perfectly legal, but this activity can still expose adults to exploitation and liability. Imagine a situation in which a man sends a nude photograph to his girlfriend’s phone, but a child that she babysits sees the photograph. Or imagine a scenario where the man accidentally sends to photo to the wrong email address. Emails and texts are instantaneous and nearly impossible to retract. Both scenarios could cause the man considerable trouble, including embarrassment, legal liability for obscenity, or public ridicule. At the rapid pace we send our texts and emails, we often think little of these possible consequences, but perhaps we should. Fifteen years ago, to send a photo to someone would require physically taking it to that person, providing more time for reflection and reconsideration of sending the photo, but with an email, this time for reflection is non-existent and the possibility that photo reaches an unintended party is great. Today, “the timeless art of seduction” could send George to jail.
A PDF copy of the Berkman Center’s report can be accessed here.