We are all amazed by the power of those technologies that connect us together. The cell phone, the wirelessly connected laptop and the smart phone enable us to be in almost constant contact with similarly equipped people. We can send text, audio and pictures including movies to each other in an instant. And there lies the problem. On the positive side, each of these tools enables us to send and receive information as a matter of course. On the negative side, each of these tools enables us to send and receive information as a matter of course. Teenagers are using email and their cell phones to send sexually inappropriate pictures, messages and movies of themselves and others to each other causing serious legal and ethical problems for themselves and the ones they are taking pictures of as well as those to whom they are sending the pictures.
In a report called Sex and Tech sponsored by the National Campaign to Prevent Teen and Unplanned Pregnancy 20% of teens over all had sent or posted nude or semi-nude pictures or video of themselves. In the same report 33% of young adults have done the same. The same report indicated that many of these people are sending the material even though they know that doing so can have serious consequences.
The impulsivity of adolescents and the need to belong often contributes to both bullying and sending sexually inappropriate messages and pictures. Both are complex causing states to review free speech, search and seizure issues, and child pornography laws. Is a 13 year old who takes a picture of him or herself nude and sends the picture to their 14-year-old friend guilty of distributing child pornography? Is the 14-year-old friend who received it also guilty? Should they be listed as sexual predators?
Does a student, using his or her own computer at home have the right to post on their blog belittling and offensive remarks about a fellow student, a teacher in the school or the principal? Using the school’s property is obvious, using his or her personal equipment away from school, is not.
Does a principal, collecting cell phones from students because they violated the schools cell phone policy have the right to look at or listen to the contents of the cell phones? As schools develop and enforce policy the issue of due process (the 14th Amendment) comes into question.
This is where one has to understand that an attorney is not writing this. The reader should review a report to the New York State School Board’s Association. “Sexting” – Code of Conduct Violation or More? Student use of Cell Phones and Other Electronic Devices: The Emerging Legal and Technological Issues. http://tinyurl.com/yf7tvxh
The report seemed to be saying the following:
1. Taking, possessing and transmitting pictures of a sexual nature of children under the age of consent is illegal and as a result should be reflected in school district policy.
2. While Schools have a right to set up policies that include taking cell phones from students, they do not have a right to search the phones (listen to voice mail, read text messages or view pictures) without probable cause. Just having the cell phones because there is a policy against them is not probable cause.
3. Students’ speech about, even it is generated away from the school using their own technology, can be deemed inappropriate and addressed by the schools code of conduct rules if it is threatening or disrupts the discipline of the school.
4. “The Due Process Clause of the 14th Amendment assures, procedurally, notice and the opportunity to be heard before educational property rights may be suspended and, substantively, that only laws (student code of conduct infractions) which are rational will be enforceable.”
Item number one, the one about taking pictures of young children does not help the students who have impulsively taken inappropriate pictures of themselves and others and distributed them to their friends. Vermont, Ohio and Utah are a couple of the states that appear to be trying to write legislation that differentiates true child pornography from the adolescent that is impulsive or just wants to belong. Ellen Goodman writing in the truthdig blog (http://www.truthdig.com/report/item/sexting_–_and_common_sense/) describes the rationale for making the difference in a post called Sexting – and Common Sense. There is a difference and it actually goes beyond the Sexting. Ellen points to the sexism in sexting.
Let’s not forget the sexism in the sexting. It’s mostly girls’ pictures that get passed around. It’s often boyfriends—or ex-boyfriends—who hold the trump photo. It’s girls who pay a social price in humiliation. It’s girls who get tagged in the mean-girl lingo as “sluts.”
Technologies are always going to change but the need for young people to be accepted and educators to protect the people who are under their charge will stay the same. The question is, as it always has been, what do we want our citizens to consider the norm? Understanding what it means to be a good “Digital Citizenship” should be our goal. Adolescence is a time of sexual exploration and development and it is irresponsible to not engage adolescents and their parents in a dialog on what is appropriate and respectful. Only changing policy is short sited. Digital Citizenship in Schools by Mike Ribble and Gerald Bailey reviews nine elements of Digital Citizenship:
1. Digital Etiquette: electronic standards of conduct or procedure.
2. Digital Communication: electronic exchange of information.
3. Digital Literacy: process of teaching and learning about technology and the use of technology.
4. Digital Access: full electronic participation in society.
5. Digital Commerce: electronic buying and selling of goods.
6. Digital Law: electronic responsibility for actions and deeds
7. Digital Rights & Responsibilities: those freedoms extended to everyone in a digital world.
8. Digital Health & Wellness: physical and psychological well being in a digital technology world.
9. Digital Security (self-protection): electronic precautions to guarantee safety.
The conversation about Digital Citizenship needs to include parents. Raising a Digital Child, also by Mike Ribble contains much of the same information as Digital Citizenship in Schools but is meant to guide the parent as they work with their children through the issues of being responsible users of very powerful technologies.
In October 2008 the Protecting Children in the 21st Century Act was passed requiring that schools receiving educational technology funds teach students Internet safety. The Schools and Libraries Division of the Universal Service Administrative Company (USAC) is currently waiting to hear from the Federal Communications Commission and that will not happen until after a process of rulemaking, which will include hearings. Hopefully any rules will go beyond “Internet Safety” and include Digital Citizenship, which includes elements 6 and 7:
• Digital Law: electronic responsibility for actions and deeds
• Digital Rights & Responsibilities: those freedoms extended to everyone in a digital world.