People have been using media to talk about sex for a long time. Love letters, phone sex, racy Polaroids. There's even a story of a girl who eloped with a man that she met over the telegraph in 1886. Today we have sexting, and I am a sexting expert. Not an expert sexter. Though, I do know what this means — I think you do too.
[it's a penis]
I have been studying sexting since the media attention to it began in 2008. I wrote a book on the moral panic about sexting. And here's what I found: most people are worrying about the wrong thing. They're trying to just prevent sexting from happening entirely. But let me ask you this: As long as it's completely consensual, what's the problem with sexting? People are into all sorts of things that you may not be into, like blue cheese or cilantro.
Sexting is certainly risky, like anything that's fun, but as long as you're not sending an image to someone who doesn't want to receive it, there's no harm. What I do think is a serious problem is when people share private images of others without their permission. And instead of worrying about sexting, what I think we need to do is think a lot more about digital privacy.
The key is consent. Right now most people are thinking about sexting without really thinking about consent at all. Did you know that we currently criminalize teen sexting? It can be a crime because it counts as child pornography, if there's an image of someone under 18, and it doesn't even matter if they took that image of themselves and shared it willingly. So we end up with this bizarre legal situation where two 17-year-olds can legally have sex in most US states but they can't photograph it. Some states have also tried passing sexting misdemeanor laws but these laws repeat the same problem because they still make consensual sexting illegal. It doesn't make sense to try to ban all sexting to try to address privacy violations. This is kind of like saying, let's solve the problem of date rape by just making dating completely illegal. Most teens don't get arrested for sexting, but can you guess who does? It's often teens who are disliked by their partner's parents. And this can be because of class bias, racism or homophobia. Most prosecutors are, of course, smart enough not to use child pornography charges against teenagers, but some do.
According to researchers at the University of New Hampshire seven percent of all child pornography possession arrests are teens, sexting consensually with other teens. Child pornography is a serious crime, but it's just not the same thing as teen sexting. Parents and educators are also responding to sexting without really thinking too much about consent. Their message to teens is often: just don't do it.
And I totally get it — there are serious legal risks and of course, that potential for privacy violations. And when you were a teen, I'm sure you did exactly as you were told, right?
You're probably thinking, my kid would never sext. And that's true, your little angel may not be sexting because only 33 percent of 16- and 17-year-olds are sexting. But, sorry, by the time they're older, odds are they will be sexting. Every study I've seen puts the rate above 50 percent for 18- to 24-year-olds. And most of the time, nothing goes wrong. People ask me all the time things like, isn't sexting just so dangerous, though? It's like you wouldn't leave your wallet on a park bench and you expect it's going to get stolen if you do that, right? Here's how I think about it: sexting is like leaving your wallet at your boyfriend's house. If you come back the next day and all the money is just gone, you really need to dump that guy. (Laughter) So instead of criminalizing sexting to try to prevent these privacy violations, instead we need to make consent central to how we think about the circulation of our private information.
Every new media technology raises privacy concerns. In fact, in the US the very first major debates about privacy were in response to technologies that were relatively new at the time. In the late 1800s, people were worried about cameras, which were just suddenly more portable than ever before, and newspaper gossip columns. They were worried that the camera would capture information about them, take it out of context and widely disseminate it. Does this sound familiar? It's exactly what we're worrying about now with social media and drone cameras, and, of course, sexting. And these fears about technology, they make sense because technologies can amplify and bring out our worst qualities and behaviors. But there are solutions. And we've been here before with a dangerous new technology.
In 1908, Ford introduced the Model T car. Traffic fatality rates were rising. It was a serious problem — it looks so safe, right? Our first response was to try to change drivers' behavior, so we developed speed limits and enforced them through fines. But over the following decades, we started to realize the technology of the car itself is not just neutral. We could design the car to make it safer. So in the 1920s, we got shatter-resistant windshields. In the 1950s, seat belts. And in the 1990s, airbags. All three of these areas: laws, individuals and industry came together over time to help solve the problem that a new technology causes. And we can do the same thing with digital privacy. Of course, it comes back to consent. Here's the idea. Before anyone can distribute your private information, they should have to get your permission. This idea of affirmative consent comes from anti-rape activists who tell us that we need consent for every sexual act. And we have really high standards for consent in a lot of other areas.
Think about having surgery. Your doctor has to make sure that you are meaningfully and knowingly consenting to that medical procedure. This is not the type of consent like with an iTunes Terms of Service where you just scroll to the bottom and you're like, agree, agree, whatever.
If we think more about consent, we can have better privacy laws. Right now, we just don't have that many protections. If your ex-husband or your ex-wife is a terrible person, they can take your nude photos and upload them to a porn site. It can be really hard to get those images taken down. And in a lot of states, you're actually better off if you took the images of yourself because then you can file a copyright claim.
Right now, if someone violates your privacy, whether that's an individual or a company or the NSA, you can try filing a lawsuit, though you may not be successful because many courts assume that digital privacy is just impossible. So they're not willing to punish anyone for violating it. I still hear people asking me all the time, isn't a digital image somehow blurring the line between public and private because it's digital, right? No! No! Everything digital is not just automatically public. That doesn't make any sense.
As NYU legal scholar Helen Nissenbaum tells us, we have laws and policies and norms that protect all kinds of information that's private, and it doesn't make a difference if it's digital or not. All of your health records are digitized but your doctor can't just share them with anyone. All of your financial information is held in digital databases, but your credit card company can't just post your purchase history online. Better laws could help address privacy violations after they happen, but one of the easiest things we can all do is make personal changes to help protect each other's privacy. We're always told that privacy is our own, sole, individual responsibility. We're told, constantly monitor and update your privacy settings. We're told, never share anything you wouldn't want the entire world to see. This doesn't make sense. Digital media are social environments and we share things with people we trust all day, every day.
As Princeton researcher Janet Vertesi argues, our data and our privacy, they're not just personal, they're actually interpersonal. And so one thing you can do that's really easy is just start asking for permission before you share anyone else's information. If you want to post a photo of someone online, ask for permission. If you want to forward an email thread, ask for permission. And if you want to share someone's nude selfie, obviously, ask for permission.
These individual changes can really help us protect each other's privacy, but we need technology companies on board as well. These companies have very little incentive to help protect our privacy because their business models depend on us sharing everything with as many people as possible. Right now, if I send you an image, you can forward that to anyone that you want. But what if I got to decide if that image was forwardable or not? This would tell you, you don't have my permission to send this image out. We do this kind of thing all the time to protect copyright. If you buy an e-book, you can't just send it out to as many people as you want. So why not try this with mobile phones? What you can do is we can demand that tech companies add these protections to our devices and our platforms as the default. After all, you can choose the color of your car, but the airbags are always standard.
If we don't think more about digital privacy and consent, there can be serious consequences. There was a teenager from Ohio — let's call her Jennifer, for the sake of her privacy. She shared nude photos of herself with her high school boyfriend, thinking she could trust him. Unfortunately, he betrayed her and sent her photos around the entire school. Jennifer was embarrassed and humiliated, but instead of being compassionate, her classmates harassed her. They called her a slut and a whore and they made her life miserable. Jennifer started missing school and her grades dropped. Ultimately, Jennifer decided to end her own life.
Jennifer did nothing wrong. All she did was share a nude photo with someone she thought that she could trust. And yet our laws tell her that she committed a horrible crime equivalent to child pornography. Our gender norms tell her that by producing this nude image of herself, she somehow did the most horrible, shameful thing. And when we assume that privacy is impossible in digital media, we completely write off and excuse her boyfriend's bad, bad behavior. People are still saying all the time to victims of privacy violations, "What were you thinking? You should have never sent that image."
If you're trying to figure out what to say instead, try this. Imagine you've run into your friend who broke their leg skiing. They took a risk to do something fun, and it didn't end well. But you're probably not going to be the jerk who says, "Well, I guess you shouldn't have gone skiing then." If we think more about consent, we can see that victims of privacy violations deserve our compassion, not criminalization, shaming, harassment or punishment. We can support victims, and we can prevent some privacy violations by making these legal, individual and technological changes. Because the problem is not sexting, the issue is digital privacy. And one solution is consent.
So the next time a victim of a privacy violation comes up to you, instead of blaming them, let's do this instead: let's shift our ideas about digital privacy, and let's respond with compassion.
Sexting, like anything that's fun, runs its risks — but a serious violation of privacy shouldn't be one of them. Amy Adele Hasinoff looks at problematic responses to sexting in mass media, law and education, offering practical solutions for how individuals and tech companies can protect sensitive (and, ahem, potentially scandalous) digital files.
Amy Adele Hasinoff studies gender, sexuality, privacy and consent in new media.
Amy Adele Hasinoff studies gender, sexuality, privacy and consent in new media.