It’s been an interesting summer for those of us who study the legal and cultural developments surrounding mobile devices. At the end of June, the US Supreme Court unanimously(!) ruled that law enforcement officials must get a search warrant before reviewing the contents of of a cellphone seized during an arrest. [See Riley v. California, 573 U.S. ___ (2014)]. This may well have been the most important pro-privacy decision in the past 45 years, and it deserved far more attention and celebration than it received.
The discussion of the Court’s cellphone decision, however inadequate, was utterly swamped by the media monsoon following the news that nude photos of numerous celebrities (perhaps more than 100, including such cultural icons such Jennifer Lawrence, Kate Upton, Mary E. Winstead, and Kirsten Dunst) had been hacked from their Apple iCloud accounts. Wholly apart from sucking the oxygen out of the global news cycle for the better part of a week, the massive celebrity hack made it clear that when it comes to privacy, nothing sells like sex.
President Obama took the stage today to discuss the ongoing NSA scandal and call for broad reform and oversight of the NSA's phone data collection program exposed by the Edward Snowden leaks. During his address, we were again reminded of the fragile balance between national security and civil liberty that's played out in one form or another throughout the relatively short history of our country. While the current NSA revelations likely constitute the largest, most brazen incursion into the privacy of US citizens yet discovered, the justification behind many of the programs that Snowden exposed—justifications echoed yet again in Obama's speech today—are continuations of forces and motivations that began in the nascent days of the country and have changed very little throughout the years, despite explosive advances in communications technology.
The scandal that cost Anthony Weiner his seat in Congress may seem to many parents like yet another reason to turn off the news. That's an understandable reaction: parenting is challenging enough without the added burden of explaining why a Congressman would want to send an explicit photo of himself to someone he didn't really know.
But believe me, your kids already know a lot more about sexting than you might suspect (or like). After all, former-Rep. Weiner is hardly the first high-profile sexter, and your children don't have to be news junkies to know that Rep. Christopher Lee, ex-quarterback Brett Favre, celebrity mechanic Jesse James, and golfing legend Tiger Woods have all been caught with their cell phones down. And it's even more likely that your kids have followed the sexting exploits of celebrities closer to their own age, like "Hannah Montana" alter ego Miley Cyrus or "High School Musical" star Vanessa Hudgins.
In middle schools and high schools around the country, it's common knowledge among students that some of their classmates take and exchange nude photos. The exact percentage of kids engaging in this behavior is a matter of debate (1 in 10? 1 in 5?), but the fact that it happens and that large numbers of kids know about it is not.
That's one of the main reasons that I wrote my newest book, Cybertraps for the Young." It is designed to educate parents and teachers about the legal trouble that kids can get into online. Whereas most Internet child safety books approach the topic from the perspective of the child of victim, I think that the time has come to seriously discuss the potential dangers of the child as perpetrator.
So rather than turn off the news in disgust or try to change the channel, parents should embrace the Weiner scandal for it what it is: a great opportunity to educate their children about the risks of online behavior. The conversation obviously need to be adjusted to reflect each child's age and maturity level, but here are some basic concepts that every child should be taught if they're using electronic devices, regardless of their age:
1. It's WAY TOO EASY to Be Stupid Online Rep. Weiner is actually one of the more technologically-savvy members of Congress. But as Bianca Bosker of the Huffington Post Tech page pointed out, he got into trouble because he made a simple, careless mistake: typing the "@" symbol instead of "D" for "direct message," which meant that the photo of his briefs went to the general Twitter feed rather than directly to his intended recipient. The so-called "direct message fail" is merely one of the seemingly endless number of ways your child can be tripped up online. Everyone makes mistakes, of course, but what kids need to understand is that if they make a mistake online, the consequences can be much more far-reaching and longer-lasting than they realize.
2. Just Because You Can Do Something Online Doesn't Mean You Should Technology makes it all too easy to take inappropriate photos or type inappropriate messages, and share them with the entire world. Often, it's only a couple of clicks of a button, which can make it incredibly tempting to do. But just because something is easy doesn't mean it's the right thing to do. Tell your child to THINK!! and then to ask herself, will posting something online hurt her family, friends, or future?
3. If It's Digital, It's Public As the Weiner fiasco painfully demonstrates, if your child digitizes something, it is virtually inevitable that he will lose control of it. That's even more true if he shares it on a social network site or via e-mail. Even if former Rep. Weiner had typed his tweet as he no doubt intended, the simple fact of the matter is that he was still sending a digital file to someone who could save it, re-tweet it, post it to the Web, or sell it to a news outlet or blogger (most of which happened). As Stewart Brand once said, "Information wants to be free."
4. Employers, Colleges, and Journalists Will Find Out All major employers and most of the better colleges are looking at social media sites when they review job or college applications. If your child has posted an embarrassing or inappropriate image of himself on a social media page, the odds are very good (regardless of his privacy settings) that it will be seen by someone making a decision about his future.
5. They're Called "Privates" for a Reason Your child (or your boyfriend, for that matter) may think it's hysterically funny or irresistibly flirtatious to take explicit self-portraits and distribute them online, but it is stupid, embarrassing, and dangerous to do so. Rep. Weiner may be an adult, but if your child is under the age of 18, he or she is violating state and federal child pornography laws by following his example. The potential penalties are severe, including expulsion from school, incarceration, and/or registration as a sex offender. None of that looks good on a college or job application.
In my previous book, American Privacy: The 400-Year History of Our Most Contested Right, I describe in some detail the corrosive impact that technology has had on the concept of personal privacy. The core value in the concept of privacy is the ability to control what information you release and to whom, and to control how that information is used. The value of individual control over one's personal information is infused into the Bill of Rights, and is essential not only to our individual safety and freedom, but also to the long-term well-being of our democracy. We may laugh at the late-night jokes told at Anthony Weiner's expense, but they mask the far more significant issues raised by the relentless collection of information about our shopping habits, our preferences, our opinions, and our beliefs.
The time to talk to your kids about these types of issues (particularly the avoidance of criminal activity) is always about three years before you think they're ready. It may be five years before YOU'RE ready to have these conversations, and that's understandable. If you just don't think either you or your child is prepared to discuss this right now, don't worry: there'll undoubtedly be other high-profile cases for you to discuss in the months and years to come. But remember, the goals here are not only to help your kids avoid serving as an object lesson for some other generation of kids, but to help them understand the importance of personal privacy in our democracy. They'll thank you for it someday.
Almost thirty years ago, a young Justice Department attorney was assigned to assist Sandra Day O'Connor in preparing for her upcoming Supreme Court confirmation hearings.
"The approach," John Roberts said in a memo written in the summer of 1981, "was to avoid giving specific responses to any direct questions on legal issues likely to come before the Court." In effect, Roberts was advising O'Connor that she had the right to remain silent, because anything she said could and would be used against her. It is an approach that has been followed religiously by Supreme Court nominees ever since, including Roberts himself during his 2005 confirmation hearings to succeed the deceased Chief Justice William Rehnquist.
For conservatives, it is clear that silence has been golden.
On Christmas Day, Yemeni student Umar Farouk
Abdulmutallib nearly blew up a flight from Amsterdam to Detroit using three
ounces of the explosive PETN sewn into his underwear. Only a faulty detonator
prevented more than 300 people from perishing. As is so often the case in
instances like this, the only real casualty of the abortive terrorist attack
will be personal privacy.
Just a few days after the attack, the Dutch government
announced that all passengers emplaning for the United States will be required
to go through a "full body scanner." The more technical term is a
"backscatter X-ray," a device that uses high energy X-rays to scan
under an individual's clothing and reveal whether they are concealing any
weapons or contraband. If Abdulmutallib had been required to go through such a
device, security experts say, it is likely that technicians would have detected
the presence of the PETN in his underclothes.
Since the 9/11 tragedy, the Transportation Security
Administration has been pushing for the installation of full body scanners
around the nation, but the roll-out has been slow. Currently, just 19 airports
are using a total of 40 machines, although TSA has another 150 ready for
installation in the coming year. The agency is also planning to buy an
additional 300 machines, each of which costs between $130,000 and $170,000.
The devices have sparked opposition from a variety of
quarters, chiefly due to the fact that the backscatter x-ray technology is
capable of producing highly detailed images of the body of each person who
steps into the machine. The images are so accurate that the American Civil
Liberties Union describes the experience as a "virtual strip
search." A European child rights advocate believes that the
images are so revealing, in fact, that scans of teens and pre-adolescents could
qualify as child pornography.
Few addresses have gained so much notoriety so quickly as 133 C Street SE in Washington, D.C. The slim brick townhouse, nestled on a quiet street behind the Madison Building of the Library of Congress, was recently outed as an enclave of fundamentalist Washington insiders by Jeff Sharlet, author of The
Family: The Secret Fundamentalism at the Heart of American Power, and a contributing editor to Harper's and Rolling Stone. (Editor's note: Sharlet is also co-editor, with Peter Manseau, ofBeliever Beware: First-Person Dispatches from the Margins of Faith.) With typical Christian duality, C Street has reportedly been a place for some members of Congress both to hold assignations with non-spousal partners and to seek refuge from them.
Last month, I stayed half a block from 133 C Street while in Washington doing research for a book. It was like bumping into Dennis Kucinich in a DC bookstore (which also happened during my visit); buildings, like people, can take on a weird sense of familiarity when you've seen them repeatedly on television or the Internet. As I walked or jogged past the townhouse each morning, it occurred to me that C Street is neatly located at the intersection of my last two books, The Court and the Cross: The Religious Right's Crusade to Reshape the Supreme Court and American
Privacy: The Four-Hundred-Year History of Our Most Contested Right. The recent spotlight shining through the curtained windows of C Street begs an important question: can we defend a pluralistic democracy from religious zealots without critically wounding core American values, such as freedom of religion and the right to privacy? Not coincidentally, that's a question that has become particularly pressing since 9/11.
Photo of the C Street house that is home to "The Family," taken by the author.
So just how far into C Street should the media (or governmental) spotlight shine? The answer lies in a bit of constitutional topology.
In its various decisions on privacy, the Supreme Court has ruled that there is a zone of privacy that surrounds each of us, a zone limned in large part by the rights guaranteed to us in the Constitution. For private individuals, that zone of privacy is a portable sphere that surrounds us and protects us, to varying degrees, from unreasonable governmental interference. But for elected officials, like the Congressional denizens of C Street, the zone of privacy is more like a toroid, or doughnut, hanging around their midsection.
During questioning by Senator Al Franken (what a pleasure to finally write those words!), Judge Sonya Sotomayor noted that the U.S. Constitution is a mixture of broad principles ("due process," "free speech," etc.) and specific commands.
While broad principles allow room for adaptation and interpretation, the specific instructions are meant to be followed. For instance, she said, the Constitution states that an individual must be at least 30 years old in order to serve in the United States Senate. There's not a lot of wiggle room in that provision.
Another example is contained in Article
I, Section 2 of the Constitution (and the 14th
Amendment), which states that the members of the United States House of Representatives shall be apportioned among the various states "according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed." "The actual Enumeration," the Constitution says, "shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct."
The use of the word "shall" is a pretty clear tip-off that the Framers meant what they said; the nation is required to conduct a head count each decade, and Congress is given the discretion to determine how the Census should be conducted. Initially, under the direction of Secretary of State Thomas Jefferson, Census takers limited themselves to just six questions, all of which were designed to count various categories of people in a given household. Over the succeeding decades, however, Congress expanded the Census beyond a raw headcount by adding questions designed to collect a wide range of information necessary for creating and implementing public policy. The specific questions varied from decade to decade, but popular topics included levels of education, employment, property ownership, types of illness, national origin, and so on.
Not surprisingly, as the information collected by the Census expanded beyond mere enumeration, a tension arose between civic duty and personal privacy. In 1850, for instance, when Census takers began collecting information about individuals by name, the practice of posting Census results in public locations was stopped. By the time the 10th Census rolled around in 1880, Congress was sufficiently worried about non-compliance that it established a $100 fine for individuals who refused to answer a census taker's questions (the same fine still applies today). At the same time, it also created a $500 fine for census takers who disclosed an individual's private information without authorization. In addition, individual census responses are sealed for a period of 70 years; only the aggregate data is reported to Congress and the public.