Sexting: Law Enforcement’s Childish Response to Tasteless, Childish Behavior February 16, 2009

Perhaps law enforcement officials have nothing better to do with their time, but I’m betting they do. This January, three high school girls and three high school boys were arrested and charged with possession of child pornography.

The girls are charged with possession of, and manufacturing and distributing child pornography. While absolutely tasteless, the behavior was in no way criminal.

The girls voluntarily took naked or near-naked self-portraits with their phones, and then sent them to the boys via text message (hence the moniker “sexting”). One Florida cyber crime lawyer points out that these charges make the girls “simultaneously the victims and the perpetrators of the alleged crime — a nonsensical situation.” Indeed.

I admit their acts were tasteless, immature and childish, but law enforcement’s response was even more so. What we have here is a typical situation of teenagers exploring their sexuality. The girls were certainly naïve and lacked foresight, but that’s just par for the course as teens. It is certainly not criminal. To charge them with child pornography is a result that can be reached by using only the most faulty of reasoning.

The problem here is law enforcement officials’ rote application of a rule without thinking. Child pornography laws are intended to protect our youth from adults who seek to exploit them. The laws were never intended to protect teens from their own sexual curiosity or consensual behavior with each other.

If I were the teenagers’ attorney, I would advise them to counter-sue the school and police for violating their right to privacy. The pictures were discovered after a teacher confiscated one of their phones because the owner was using it during school hours.

Where people have a reasonable expectation of privacy, it is illegal for others to intrude. One may argue that the girls did not have an expectation of privacy because they sent the pictures via text message. However, federal law recognizes a right to privacy in telephone conversations. I see no meaningful differences between a phone conversation and a text message.

I doubt that these charges will stand, but this episode is not isolated and should stand as a sharp reminder that we should all think before we misapply a rule or law in contexts where it is not appropriate. Legislatures across the country need to address this problem in their next session.

Otherwise, teens could find themselves subject to lifelong sex offender registration requirements. State legislatures must fix this problem. They would be irresponsible to allow the mindless enforcement of laws out of the context they were intended for to ruin the lives of some teens simply because those teens behaved stupidly.

Putting teens in jail doesn’t protect them or other youths from sexual predators.