Snapchat, Sexting, and the “Selfie Exception”

As many of you probably heard, a major leak of Snapchat photos was posted online this past week (dubbed “the Snappening”), resulting in a fair amount of discussion reminiscent of the nude celebrity photo leak from this August. For the unaware, Snapchat is a popular texting app with the gimmick that anything you text will be deleted on the receiving device after viewing. The appeal is pretty obvious: you can send photos (or short video clips) without worrying about the photos being further distributed. Snapchat shows your friends the picture and then promptly deletes it; your privacy is protected.

But of course, life is never as simple as marketers would have you believe, and apps that salvaged the “deleted” Snapchat photos emerged almost immediately. After all, the sender might not want the photos to hang around, but everyone receiving them does. These apps work in a few different ways, but the important point is that Snapchat doesn’t really do a great job of deleting the files, and other apps exploit this fact. It was through one of these Snapchat scraper apps that the leak was perpetrated, and hundreds of thousands of images were posted online. Cue screaming, or yawning, depending upon how jaded you are.

But here’s where it gets complicated: Snapchat’s primary demographic is children aged 13-17 (50% of its userbase), and the reason they use Snapchat? Sexting. Which means this leak isn’t just a PR nightmare for Snapchat and an invasion of privacy for its users, it’s also a gigantic violation of child pornography laws. Cue screaming (no yawning this time). Snapchat has faced allegations of facilitating teen sexting before, and while it has always stated its firm opposition to the app’s use in this way, there’s no feasible technical solution to prevent it. And Snapchat isn’t even the biggest offender in this area: mobile devices in general have made teen sexting a huge source of child pornography violations.

A quick primer on the First Amendment: in general, freedom of speech is hard for the government to overcome. (“Speech” is very broad: pictures, movies, etc., all are forms of speech.) A law restricting freedom of speech normally receives “strict scrutiny,” the most demanding legal standard. Suffice it to say the First Amendment is batting pretty close to a thousand. However, there are certain categories of speech that the First Amendment doesn’t apply to – First Amendment law basically revolves around these categories – one of which is child pornography. So when the speech at issue is child pornography, as is likely the case with the Snapchat photos, the First Amendment no longer applies. Batter up!

But that’s not all. After all, there’s also a First Amendment exception for “obscenity,” (adult porn, basically), but the Supreme Court says we have a privacy right to possess obscenity in the privacy of our own homes, notwithstanding the government’s regulation of obscenity generally. It can be made illegal to buy or sell, but not to possess. So might these Snapchat photos fall under a similar “mere possession” exclusion? No. Even among First Amendment exceptions, child pornography is uniquely strict. Unless your state has altered its child pornography laws, (few have), teen sexting is a violation.

So what do we do about sexting? The Snappening may be the most recent iteration, but it is ultimately just a symptom of a more systemic problem. Estimates say 20% of teens have sent a sext, and nearly double that have received one. To start, I think it’s fair to say that sexts are normatively different from the target of child pornography laws. This is not a recording of abuse; it’s a form of self-expression, if an ill-advised one. Are we willing to condemn a generation of youths as sex offenders? I think the clear answer is no. The harder question is how to implement it.

We might say there is implied amnesty in these situations. Police rarely investigate teen sexting, and the culprits are children; so while technically illegal, it won’t be enforced. And in many cases this is true. Teens caught sexting often only receive warnings, or probation. Police officers typically don’t want to sentence teenagers to life as a sex criminal. Yet this prosecutorial discretion is not a guarantee, and the threat of additional felony convictions with the lifelong label “sex offender” are powerful bargaining chips. So while sexting might not be the impetus for police investigations, it will still have repercussions.

Another option is a “selfie exception.” For instance, we could grant immunity to the selfie-taker. Yet this only solves half of the problem, as sexts by definition have another party. So this might require inclusion of the intended recipient. But this wouldn’t address photo sharing between friends, an extremely common practice among teens. And perhaps it shouldn’t. Photo sharing adds another level of ambiguity: if we allow sharing between friends, who qualifies as a friend? But criminalizing sharing doesn’t make it much simpler. Do we criminalize just the sharer, or the receiving party too? Remember, mere possession of these photos is a crime. We could also redefine our laws to exclude selfies generally. But this too seems undesirable, as the law would turn on who took the picture, a difficult and possibly misleading inquiry. After all, sexts may be solicited by adults or coerced from abusive relationships, and these should be treated differently. As is so often the case with privacy, the details matter.

Invariably its going to be difficult to write clear laws that reflect the range of perspectives on this issue. Some might think teen sexting is always wrong, others might object to photo sharing, whereas others might object only to sharing online, and that’s to say nothing of appropriate punishments. But more worrying is how often people don’t even know what their perspective is. New technologies tend to create new privacy issues, and the users often haven’t considered what their expectation of privacy is, whereas society hasn’t discussed what the expectation should be. Teens in particular are renowned for doing things without considering the consequences, and crafting a law that reflects their expectation of privacy is nearly impossible when they don’t know what their expectation of privacy is.

So maybe the solution is to avoid the sexters entirely and put the impetus on Internet Service Providers (ISPs). As it stands, ISPs are largely immune from suit for the illegal conduct of their users. This is a complicated area, but ISPs generally are not liable for underage sexts sent over their networks. Altering this might better incentivize technical solutions for filtering sexts. But the feasibility of this is questionable, and would implicate other privacy concerns nonetheless, as every photo sent would have to be monitored (which Gmail already does). The great irony is that Snapchat was created largely as a solution to this problem, but technical realities make Snapchat’s removal of digital images difficult to ensure. And cloud computing has only exacerbated the problem. While once at least we knew where the file was stored, now many users are unaware which of their files are on their phone and which are in the cloud. And with the prevalence of automatic backups and redundant storage, control over these images is increasingly out of our hands.

I don’t have the perfect solution to this problem. Some states have proposed laws that are steps in the right direction, but they are difficult to pass. Any law that decriminalizes sexting tends to reinforce it, something legislators want to avoid. As always, we can argue for better education, explaining to teens the potential consequences of their actions and discouraging sexting. We can also argue for better education about apps generally, about the limitations of privacy protections, and the dangers of unchecked information sharing. But we were already doing all of those things. We may tell teens not to sext, but that doesn’t seem to be stopping them.

The real problem (if you want to call it that) stems from our relationship with technology, and how it alters our perception of societal norms. “The online disinhibition effect” refers to the sense of freedom we feel when we interact with others through an electronic medium. It helps explain the internet troll, the anonymous confessor, and it helps explain sexting. This ODE is mediated through several factors: anonymity, invisibility, asynchronicity, lack of immediate facial feedback, and so on, and our different online interactions are enabled by different traits. But the central point is clear: when using digital media, we feel like the normal rules don’t apply.

Snapchat capitalizes on many of these factors. Invisibility: even though you are sharing photos of yourself, you are invisible to the people you share them with. And perhaps more importantly, they are invisible to you. The removal of immediate facial feedback tends to dehumanize those we interact with, allowing us to project onto them the traits we desire. Asynchronicity: when you send a “snap,” you don’t have to deal with any immediate consequences. You send it out into the aether, and can defer looking at responses for as long as you want. There’s a certain thrill to casting inhibitions aside and just hitting send, knowing you can consciously avoid the consequences. And most of all, it feels like a game. Despite the thrill of breaking the rules, it’s just a “snap”; what harm could it do?

And to some degree I can sympathize. We all enjoy the online disinhibition effect to varying extents, and whether it’s a net good is a difficult question. It facilitates free speech, open debate, and emotional candor on sensitive issues, ranging from medical to religious. Yet it also abets the troll, the flamer, the hacker, and the cyberbully, and is at the root of the recent sexting phenomena.

But perhaps this view is too myopic. Sexting can also be a form of intimacy. It allows couples to interact when physically separated, it provides teens a safer medium for sexual expression, and it can just be harmless fun.  This is arguably a natural product of a generation raised with smartphones. And notions of privacy are always evolving, so perhaps in the future sexts won’t be such a concern.

For now, I’ll leave you with these words of wisdom I hope we all can agree on: don’t sext and drive.

-Scott

One thought on “Snapchat, Sexting, and the “Selfie Exception”

  1. Pingback: Revenge!! | The CACR Supplement

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