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Introduction

Published onAug 26, 2019
Introduction
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Introduction

If Tom Sawyer were a real boy, alive today, he’d be arrested for what he does in the first chapter of Mark Twain’s famous novel.1 Tom skips school. He beats up the new kid in town, then sneaks into his guardian’s house in the middle of the night. In the 1840s, towns along the Mississippi River lacked professional police forces,2 so Tom escaped the fate he would face today.

Let’s call today’s Tom Sawyer “Tommy S.” to avoid confusion with the classic. Today Tommy S. would be known to the local police. Officers, teachers, and court officials would be monitoring and logging his activities using digital technologies. And in the legal case of In re Tommy S., Tommy would inadvertently give the government all the evidence it needed to find him delinquent. By chronicling his activities on Instagram, Snapchat, and other digital platforms, Tommy himself would create exhibits A through Z in the court case against him.3

This book is not about Tommy’s self-incriminating conduct, however. It’s about his Aunt Polly, Tommy’s guardian. It’s about how she might well write her own Facebook post about the affair: “Blue lights flashing outside my bedroom window. Cops woke me up again tonite. Tommy!!! How do you deal with #teentroubles? #bailmoney #xtralargecoffee.”

This book is about what Aunt Polly says and does. It’s about her role in shaping Tommy’s narrative by sharing information about him through many new digital means without knowing all of the ways in which her choices affect her young charge. Aunt Polly is a sharent. This new term is still in limited circulation but already has a variety of meanings.4 Here, it refers to a parent, teacher, or other adult caregiver who publishes, transmits, stores, or engages in other activities involving private information about a child in her or his care via digital channels.5

Today, we are all in Aunt Polly’s position. This book examines how parents, teachers, and other adult caregivers in the United States make decisions to disclose digital data about children that invade traditional zones of privacy and threaten kids’ and teens’ current and future opportunities, as well as their ability to develop their own sense of self.

Privacy means different things to all of us. This book proceeds from a broad understanding that privacy is about self-creation, “establishing a locus which we can call our own without undue intervention or interruption—a place where we can vest our identities.”6 And it invites individual reflection on whether that definition, a similar one, or an entirely different one resonates in your own life.

Sharenting decisions impact individual kids and teens. Collectively, they also disrupt any common understanding we may have of childhood and adolescence as protected spaces for play. How can our kids and teens discover who they are when we adults are tracking them, analyzing them, and attempting to decide for them—based on the data we gather—who they are and should become? We owe them greater freedom, in many ways, than we give ourselves to engage in self-discovery.

This book offers a legal analysis of the sharenting problem, both to identify the ways that our laws enable it and also to offer some initial direction on how we could fix it. This direction takes as its North Star the following vision of youth: kids and teenagers should have room to play, to mess up, and to grow up better for having done so.

Like privacy, the concepts of childhood and adolescence can be defined in countless ways. This book advances a play-centered theory: childhood and adolescence should be valued as unique life stages that are anchored in play so that agency and autonomy can be developed through bounded experimentation.7 Exploration is essential. Making and learning from mistakes is inevitable, even beneficial. Especially in the early years, boundaries between the imagined and the real are minimal.

This play paradigm breaks from the dominant view that today’s legal system has of youth, which is grounded in parental and state control of kids and teens.8 However, it may resonate with us on an intuitive, experiential, cultural, or other level, suggesting that we should think about reconceptualizing the law’s understanding of youth.9 This book also invites you to explore your personal paradigm of how youth should be understood, whether you are using legal or other lenses as your starting point.

You may be wondering why this book is necessary. Aunt Polly meant well. So what’s the problem? The problem is that meaning well still leaves our children at risk. We adults are not consciously trying to mess up our children’s lives. Sharenting decisions tend to be made with the best of intentions. At worst, they tend to be negligent, even though under the current legal regime, they are lawful. They also occur as part of an often unacknowledged and misunderstood economic bargain between adults and the providers of the tech products and services they use. Adults give up valuable information about children to get free or low-cost devices and services. Tech providers then use that information in myriad profit-oriented ways. Kids and teens are not full participants in this bargain and so may be marginalized in the deal.

The underlying technology itself isn’t to blame. Nothing about the connections between computers that brought us the internet, the machine learning that is now giving us artificial intelligence (AI), and many other innovations needs to be inherently threatening to youth. Tech could be an adventure for youth. Twain’s Tom had his band of pirates and buried treasure. Today’s Toms can make their own robot pirates and try to teach them to trade cryptocurrency. Unfortunately, we’re a long way off from unearthing the full wealth of opportunities that digital tech could bring to youth. Instead, different sets of stakeholders are making choices about how to structure, use, and monetize existing and emerging digital technologies in ways that threaten kids and teens both today and tomorrow.

In its focus on parents, teachers, and other caregivers, this book zooms in on certain grown-ups. Others are not off the hook. Tech providers, lawmakers, regulators, and many others also contribute to the threatening turn that digital tech is taking.

And the tech community has been taking the lead. Providers generally want a digital “wild west.” This term is thrown around a lot with respect to digital life and can mean different things at different times. Here, it means a landscape where the sheriff spends his days drinking at the local salon and waving his gun around from time to time and where prospectors mine for and use the gold of personal digital data however they think best, with little respect for the sheriff and the law he represents. They are supposed to hang up signs in their camps that explain what they’re up to, but the signs are darn hard to read. People pay them about as much attention as the tumbleweed. In this town, lawlessness isn’t on the menu. But a nice cold can of law lite sure is. Crack one open, and give a toast as your answers to surveys on a Facebook app are mined to microtarget you for digital ads in a presidential election.10

Much has been said already about the impact that tech providers, lawmakers, and other familiar players in the digital tech ecosystem have on privacy. This book will not attempt to say it all again. What this book does have to say is that privacy and related tech choices made by parents and other trusted adults need to be looked at more closely. These everyday decisions play an underappreciated yet outsized role in determining youths’ digital dossier, as well as their life prospects in childhood, adolescence, and adulthood.11 Youth “currently enjoy almost no privacy rights vis-à-vis their parents,” and because parents are typically gatekeepers for their children’s privacy rights in educational and other settings outside the home, the lack of youth privacy rights may be even more acute with respect to nonparental adults, like teachers.12 The privacy and related tech choices that adults make so fundamentally shape our children’s current lives and future prospects that we are almost unaware of their magnitude.

Parents, teachers, and other caregivers also make many tech choices that have positive impacts on young people’s lives.13 But there is a significant trend that runs in the opposite direction. This trend has implications both for adult choices about individual children and for the types of laws, regulations, policies, companies, nonprofits, and other structures that adults put in place more broadly. This default setting of poorly understood and problematic adult behavior is the concern of this book.

How can we as parents, teachers, and other caregivers make privacy and related choices about children’s digital lives that protect and empower the children and teenagers we care for and the life stage of childhood itself?14 These choices are about what we do in our individual lives. They are also about what we can do as individuals to drive change in our institutions, including legislative bodies, regulatory agencies, and tech companies.

To answer this question, this book sets up a dialogue, inspired by the traditional “case method” approach of law school classrooms.15 Professors take students through decisions that judges have written to resolve past disputes. Through dissecting a specific situation, students come to understand the broader type of legal problem it contains. They start to think about other manifestations of that problem and similar ones, both those that exist and those that could exist. They unpack the rules that apply to solve that problem, the bedrock legal principles that shape those rules, and the places where there may be gaps or room to improve those rules. They argue about whether and how the law could be used to improve individual and institutional behavior and to avoid that problem or similar ones—by establishing norms that inspire people and institutions to uphold the values embodied in the law beyond what the law requires. And they learn where the law may not be the best or the only way to solve the problem.

The study of law is for everyone, not just law students and their professors. We study law all the time, although we may not realize it. Our daily lives are one long “Law & Ordinary” episode. When we look at the speed limit sign on the highway and figure we can go five miles over without much risk because everyone else is doing it, we’re making a snap judgment about how to interpret the letter of the law. When we comfort a friend who feels wronged in a divorce settlement by explaining all the reasons she’s right to be upset, we’re doing legal analysis. When we look at the health insurance options available to us and develop opinions about how they could be better, we’re identifying avenues for law reform.

All of us are students of law out of fear. We live under a “government of laws” rather than of people or robots (yet).16 If we want to avoid being arrested and incarcerated, we need to understand how to follow the law. We are also students of law because we hope. Whatever we aspire to for ourselves, our families, and our society, we implicitly or explicitly look to the law to help actualize that hope. We all need to study law, especially for a part of society as complex and rapidly changing as the digital tech realm and especially as it affects a group of people as vitally important to us as our children. We need to understand better what the existing laws cover; what they don’t cover; and where, why, and how we might want to think about changing them. We also need to talk about the tools that we have that go beyond the law. We want our kids to grow up finding treasure within themselves rather than being mined as part of the adult world’s digital gold rush. How can we get them there?

Let’s discuss. The study of law in this book proceeds in four parts:

First, the book tells a short story. The story is pretend, but it’s not fantasy. It is Tommy S.’s story, a representative real-world scenario of adult decision making about youth digital data. This story reveals just how much private information adults share about youth on a regular basis. Think of this story as the “case” part of our law study. It’s not a case in the technical sense of the term—a legal dispute resolved by a court. Think of it more as a “case study”—information tailored for exploring a set of challenges. This book discusses many existing digital technologies, often in hypothetical circumstances. It also discusses hypothetical but realistic near-future digital technologies (some closer than others) as well as the situations likely to accompany them.

Second, the book builds on Tommy’s tale to bring in other examples and outline current and future problems that data disclosures from sharenting can pose for children and teenagers, as well as key areas of positive opportunities these disclosures can facilitate. It also shines a spotlight on a subgenre of sharenting—“commercial sharenting,” in which parents use their families’ private experiences, with a focus on their children, to try to make money.

Third, the book unpacks the faulty assumptions that our legal system makes about children, parents, families, privacy, and related areas that enable and even encourage the sharenting problem.

Fourth, it proposes a “thought compass” to reorient adults to how best to navigate digital terrain such that childhood and adolescence are protected as unique and valuable life stages that empower youths’ current and future selves. All life stories begin here. Just as a real compass is grounded in cardinal directions, this compass is oriented toward the everyday ethical principles of play, forget, connect, and respect. All of the principles are laid out at a high level. This design is intentional. It invites debate and different ways to think about “walking the walk” of these principles. Some of these principles are accompanied by mapping of concrete legal or related reforms. Others are not. But the singular ability of the law to set societal norms that go beyond specific statutory, regulatory, or policy requirements means that the law almost always could play some role in charting any new collective course, even if it’s not the only or best way.

What would it look like to stop sharenting and reclaim parenting, teaching, and other caregiving? Would digital tech still have a role as we reboot? Or is it a search for fool’s gold to speculate on how we might reprogram our relationship to our kids and digital life? As a feature, not a bug, this book has more questions than it does answers. Questions anchor every chapter. Some of these questions are focused; others are more foundational, such as the meaning of privacy or childhood and adolescence. This book is a conversation starter, not a “how to fix all the things” book. It is for everyone who wants to think and talk about how adults’ choices around children’s digital lives impact youth privacy, opportunity, and sense of self, as well as our collective treatment of childhood and adolescence.

Because this book is for students of “Law & Ordinary,” it is not intended as a strictly scholarly analysis. Its heart is in the author’s past work as a legal aid lawyer who represented youth clients in school discipline, special education, and similar cases, thereby gaining “expertise . . . in the gritty fisticuffs of legal culture’s trenches,”17 in the words of another public-interest lawyer turned legal academic. It draws on media and other popular accounts of the tech transformation of daily life, with the goal of connecting with people’s real-life experiences and participating in the wide-ranging public dialogue on digital life.

The book is filled with ideas and findings from academic literature, primarily from the legal academy. There are many other valuable modes of academic inquiry into the sharenting problem, including media studies, sociology, anthropology, ethics, and more.18 And the conversation here draws on some of these insights, arguments, and questions to focus the legal analysis.

It also draws on literary, pop culture, and similar references. These tidbits are not proffered as literary, media, or related academic analysis. They are meant to keep the conversation going and to help find some shared points of reference, especially around stories about childhood.

Has the book gotten off on the right foot? Let’s tackle a question that may come to many minds: should there still be a spot for Tom Sawyer in the twenty-first century? He is a white, cisgender, able-bodied, Christian boy. He was born in this country to American parents. He isn’t rich, but thanks to Aunt Polly, his basic needs are met.

The identities and experiences of a growing number of kids and teens in the United States today are nothing like Tom’s. This disconnect is not just because he’s a fictional character. It is because he embodies prejudices, privileges, and power dynamics that could make his representation of American childhood one of exclusion and domination of those who are not like him.

As an archetype, Tom Sawyer is imbued with the “original sin” of this country—enslavement and extermination of native peoples, Africans, and other minorities. He uses the n-word, which has earned him the distinction of being banned in schools. (His best buddy, Huckleberry Finn, does help a former slave escape along a river, but one rafting trip does not make Huck an abolitionist.)

Twain’s Tom was a product of his time, which tolerated many beliefs, practices, and institutions that today we find reprehensible. The Tom that’s conjured up here isn’t meant to be limited to Twain’s creation. The Tom Sawyer archetype evoked here aims to be timeless. This book uses Tom and other make-believe figures as touchstones to evoke a spirit of childhood as a protected space for exploration and development that every child should have. This book incorporates these stories because they are familiar to many of us as part of a childhood literary canon, not because they are immune from criticism. This book leaves those powerful analyses to others. Here, Tom Sawyer, Peter Pan, and other creatures of childhood fantasy are presented as being for everyone.

In addition to old characters from old stories, this book uses a new word for our new lived experiences. In this book, the word sharenting is understood as the publication, transmission, storage, or other uses of private information about children through digital channels by parents, teachers, or other adult caregivers. In other contexts, this term may have different connotations. It may refer to parents’ actions or be focused on social media. This specificity is appealing. If a term is grounded in the word parent, why should it include people other than parents? And it’s accepted to say that we share information on social media. It’s less accepted to talk about sharing information with our smart refrigerators or other nonsocial media digital services and products.

What this more limited definition gains in precision, it loses in power to facilitate a big-picture discussion. Today, kids and teens grow up within a circle of trusted adults who routinely share details of their lives through an ever-expanding range of digital affordances with an ever-growing number of other people and institutions for a never-ending set of reasons. Parents play a uniquely important role and are likely to account for the majority of the sharing, either directly or indirectly. However, they are not the only grown-ups with their fingers on the Post, Submit, and Accept buttons. Also, they are doing more than what we conventionally think of as sharing. The term technically should be “shar-using-enting-eaching-other-ing.” Unfortunately, the portmanteau police won’t issue a permit for terms with more syllables than Brangelina.19 Thus, sharenting it is!

As students of the law, we can push back on this word from more than one angle. One of the many fun things about studying law is strength-testing an idea by trying to destroy it. Let’s move away from the accuracy argument and launch a more substantive attack: is it fair to speak of sharenting when parents, teachers, and other adults inhabit a confusing, ever-evolving digital tech landscape? Implicit in the concept of sharenting is some degree of individual choice: an adult is choosing to act in certain ways with respect to information about her children.

Today, tech providers tend to lack transparency about what data they are collecting, why they are collecting it, what they will do with it, and whether users can set meaningful boundaries. There is a lack of comprehensive data privacy protection from the legal system, for youth and adults alike. There is almost a necessity to be digital in one’s work and social doings. So are we making choices to sharent? Or are we “sharent-trapped”20 and stuck in our routine by forces outside ourselves?

The short answer to both questions is yes. The relationship between choice and structural context is not “either/or.” It’s “yes and.” In general, people have capacity for individual decision making. Our legal system relies on these first principles of agency and autonomy. We justify sending people convicted of crimes to jail because they chose to violate the law. We garnish the wages of absentee fathers who don’t pay child support because they chose to have sex, thereby choosing to become parents. We require people to perform their end of a contract or pay damages because they chose to make the bargain. But if they can prove that they entered into the contract under duress, they are off the hook because it is not fair to hold them to a bargain they did not choose to make.

Even when people may not be subject to coercive power, the full exercise of their decision-making capacity will be impacted and sometimes limited by external variables. These variables include difficult or dangerous circumstances they are experiencing through such adversity as poverty, discrimination, or violence. They also include less toxic factors, such as lack of full information on which to make decisions or pressure from social norms. These factors significantly shape sharenting for all of us. And for those of us experiencing more toxic factors as well, decision making becomes far more difficult. We’re doing our best, but it’s hard to know what that should look like.

Sharenthood can feel as clunky as the word itself sounds. We’re riding on a bumpy, makeshift, Tom and Huck–style raft down the rapids of the digital world. The gadgets are sleek, the goals are lofty, but our process is age-old. We’re passing down folk wisdom to one another while having quick chats in supermarket lanes or watching our kids on a play date.

But is our wisdom really ours, or is it just shared content from social media? We’re deciding on the fly: Do we post that picture or not? Do we give our kids the Fitbit they want for Christmas? Do we send a YouTube holiday message or an old-fashioned card? If we’re using a card, do we use a website to upload a picture and send a personal one? Do we have time to read the privacy policies and other terms of use for any of these options that are more complex than a pen and paper? We don’t even have time to find our reading glasses. Or a pen. But in a few years, our pen and our glasses will have nowhere to hide, courtesy of our in-home robot and its sensor-based tracking system. We mostly think this is awesome, although we also find it a little weird.

The currents are swift. They’re also swirly. We’re dragged this way and that. But we haven’t gone under yet. We have some open water now. Our society is paying more attention to digital privacy, to data breaches, to digital information quality, to the crossover between the virtual world of play to the brick and mortar one. We’re thinking more comprehensively, compassionately, and creatively about the digital lives we’re living.

We’re at an interesting moment: we think we’re in the depths of the rapids, but we are probably only at the start. The robots aren’t firmly entrenched. We still have parents who remember what a VCR looked like and how to make a mix tape. We can build a better raft. Let’s pause for breath, keep our heads above water, and chart the currents. True north: that goes somewhere.21 Now where?



Notes



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