Latest Posts

The Care & Feeding of Digital Natives

On the day my first child was born in New York City in 1993, my wife told me she was kept awake that night by all the sirens.  These wails that most New Yorkers instinctively ignore suddenly had new meaning; they became a chorus singing the refrain of all the terrible things that can happen to a person.  I suspect most new parents are familiar with this initial moment of terror, the foreverness of the child;  and it doesn’t take long to see a future when you will not always be there to protect him from the hazardous world, or even from himself.  It is a very brief interval between embracing a newborn and the realization that your whole job as a parent will be a strategically organized process of letting go.  And when the hopes and fears that come with that understanding collide with the riot of theories, advice, toys, foods, classes, and gadgets all promising to help give one’s children competitive advantages in life, contemporary parents can become paralyzed by the anxiety that they’re doing everything wrong or militant in their confidence that they are doing everything right.

While that baby was just beginning to crawl around the apartment, a new sound, less melodious than sirens, was added to our lives.  The dial-up modem I’d bought squealed and scratched out its staticky attempts to connect to AmericaOnline. After several loud and dissonant failures, my wife asked what the hell I was doing.  “Trying to get online,” I said.

“Why?” she asked.

“I don’t know yet,” I replied.  And maybe I’m still trying to answer that question. But no matter what, the boy on the floor and the siblings who followed would be identified in the lingo of marketing and demographics as “digital natives,” and we were their parents.

With each new development in the range of products, apps, games, and content, comes a smattering of editorials asking the same fundamental  questions about how to monitor and/or regulate the role of technology in the lives of our children.  These articles typically focus on topics like Internet safety for teens or limits on “screen time” for younger children; and nearly all the articles I’ve read in this vein cite statistics indicating that parents of digital natives are not nearly involved enough in their children’s digital lives.  This is probably true, though there are so many factors that affect parental involvement in any aspect of their kids’ lives that I’m not going to open that can of sociological worms in this article.

Of course, we not only have to deal with the matter of our kids’ use of technologies, but also our own use, especially any technologies through which we interact with our kids.  As mentioned, we parents have been bombarded with “new” ideas in childcare for over 20 years, and it can be a little crazy-making. And for all the stereotypes about millennials appended to their devices, we Gen-Xers ought to cop to the fact that we were the early adopters of all these gadgets we then handed to our children.  It’s our parents who still have AOL email accounts, who raised us in a world without bike helmets and who had one book by a guy named Spock (not that Spock) on the subject of childcare. We new parents of the late 80s and early 90s have been the consumers of billions of dollars in “solutions” to make our kids smarter, stronger, and just get them into a damned NYC pre-school.  So, when it comes to tech innovations, we are culturally primed to reverse the adage and believe that invention is the mother of necessity.  There’s an app that makes my kid eat broccoli?? Download that puppy!!

Okay, maybe it’s not quite that crazy yet, but consider this TV spot for Dropcam by Nest. It features a precocious toddler adorably resigned to the installation of a home surveillance camera that will now catch him engaging in his favorite, destructive shenanigans. Never mind the fact that any child as committed to catastrophe as this boy is going to disable the Dropcam the day it arrives; but more importantly, child surveillance of this kind is a damn weird way to market this product.  Then again, Nest is owned by Google, and Google moves in mysterious ways.

Comedian Bill Maher rightly mocked this commercial on his blog, describing it as a great way to prepare your child to live in a surveillance state. I also think Maher is on target when he concludes, “But if kids never have a moment when no one is watching, how are they ever supposed to develop character?”  This refers back to the aforementioned job of the parent, which is to let go in stages.  In short, if parents envision using Dropcam as it is literally portrayed in this spot — to monitor their kids rather than show them age-appropriate trust, they probably need to rearrange their priorities and set aside whatever it is they’re doing instead of raising the child.  This is one of those moments when technology is offering a solution looking for a problem that, if employed, probably creates a brand new problem.

But I doubt the spot is meant to be taken so literally. I think the commercial probably wants to imply the more likely scenario in which the Dropcam captures that adorable child moment you might otherwise have missed. Plus, according to the online marketing materials, if you subscribe to the optional cloud storage for your video clips, you can choose to share any serendipitous cuteness on social media.  And there’s nothing inherently wrong with this, though it is unquestionably a step closer toward normalizing 24/7, 360˚ self-surveillance, which is not without potential hazards.  Considering the incidents of hacked data, Facebook surveillance, Smart TVs accidentally listening to us, the ability of hackers to surreptitiously enable webcams, and Google reading G-Mail, how comfortable are we with the idea of filling our homes with networked web-cams continuously sending video to cloud servers owned by Google or any other company with a vested interest in data mining?

Of course, the primary reason to employ home video surveillance is security, and there are certainly attractive qualities to networked monitoring systems that are remotely viewable and controllable. But it remains to be seen, as these technologies evolve, whether consumers will feel the security and convenience benefits outweigh the security risks involved. And as the oldest digital natives are just becoming parents themselves, it will be interesting to see if their adoption of “smart home” technologies is as innate as their adoption of other networked devices.  No matter what, I hope they don’t raise their kids in an atmosphere of surveillance as this TV commercial implies. Because the implications of that are anything but adorable.

Should Revenge Porn Be a Federal Crime?

First, for those lucky enough not to know, “revenge porn” is the term used to describe the practice (usually by disgruntled ex-boyfriends) of distributing nude or sexually explicit images of people via the Internet without permission.  Once out there, as we all know, images and videos can end up anywhere, copied and redistributed by anyone; and this includes websites designed specifically to profit from traffic drawn to revenge porn.  In some cases, owners of these sites have even extorted money from victims in exchange for removing their likenesses from these sites.  Nobody writing editorials or legal opinions on the matter defends the practice itself.  We all agree that posting these intimate images without permission and violating that trust is a despicable practice. Where opinions diverge is what to do about it from a legal perspective.

Representative Jackie Speier (D-CA) is the lead sponsor of a bill that would make revenge porn a federal crime in the U.S., and the bill is set to be introduced in the House in coming weeks.  While some states have passed laws prohibiting revenge porn, and other existing laws already criminalize several of the actions required to perpetrate revenge porn (e.g. hacking or stealing data), the rationale for making revenge porn itself a federal crime is apparently Sec. 230 of the Communications Decency Act.  Section 230 provides safe harbors for site owners, who cannot be held liable for the actions of third parties using their sites.  These safe harbors do not apply to liability for federal crimes such as child pornography and copyright infringement; so enacting Speier’s bill would not only provide the grounds for prosecuting the individual perpetrators of revenge porn, but it would provide a legal basis for prosecuting site owners anywhere in the U.S. that host revenge porn.  On the other hand, some concerns have been raised that if Speier’s bill were to become law, it would jeopardize free speech by circumventing the intent of Sec. 230 of the CDA.

Last April, Mike Masnick at Techdirt wrote a post that dispassionately suggests this bill could undermine safe harbors and foster censorship of legal and sanctioned material.  To quote:

“By spreading liability, you guarantee over-censorship. It’s easy for people who are narrowly focused on a single issue to not recognize the wider impact that issue may have. Trying to accurately describe what “revenge porn” is for the sake of criminalizing its posting, will almost certainly have chilling effects on third parties and undermine the very intent of the CDA’s Section 230.”

I don’t think Masnick is quite right to say that it is hard to describe what revenge porn is. I defined it above, he defined it in his post, others have defined it in other editorials. Admittedly, though, revenge porn is a problem different from child pornography, which is addressed simply by making all sexually explicit material involving minors illegal to produce, distribute, or possess.  But in the world of adults, how does one distinguish between an amateur nude shared by permission and one distributed without permission; and then where do we draw the lines of responsibility for that distribution given the chaotic nature of digital reproduction and distribution?  Still, it seems as though fears of “guaranteed,” rampant censorship are a bit overwrought in this context.

With regard to criminalizing revenge porn, the results I imagine we want ought to be legislatively achievable without chilling free speech.  We should want to prosecute the individual who initiated the unauthorized distribution, and we’d want to prosecute the site owner who knowingly and specifically trades in revenge porn.  And it is not clear why this narrowly-focused goal must lead to censorship anymore than statutes criminalizing child porn.

The concern Masnick and others appear to be raising is that innocent site owners, fearful of criminal liability, will be motivated to over-censor their own sites through TOS policies, and that will have a chilling effect on speech.  But this seems reactionary, given the very specific nature of the crime.  For instance, one way to indemnify site owners in this case would be to create a DMCA-like provision that enables a victim of revenge porn to demand removal of her/his private images and gives the site owner no option to refuse. If the site owner complies with the request, no liability should exist.  At best, victims of revenge porn should have as easy a mechanism as possible for removal of the unauthorized content; at worst, if the claimant isn’t really a victim of revenge but simply wants her photos removed, can anyone rationally claim free speech will suffer from this “abuse” of the new law? In such a case, she may be falsely accusing an individual of a crime, which is a serious offense, but not a First Amendment issue.  Regardless, the claimant should have to be the victim herself, so abusing the law to chill speech seems unlikely.

Another factor to consider with proposed criminalization of anything is whether or not the law would act as a deterrent.  Unfortunately, criminal penalties often do not deter criminal behavior; but in this case, I suspect making revenge porn a federal crime would have demonstrative mitigating effect, if, in fact, most of the sources of these images are grumpy ex-boyfriends acting rashly.  Criminals with profit or survival motivations and individuals with various psychoses are not easily deterred by the threat of prosecution, but regular guys just being stupid often are deterred by the law.  And in this regard, criminalizing revenge porn is an important step toward a more enlightened and civilized, digital future. It has become too easy to cause harm to someone by remote control, cloaked in anonymity, and normalizing this behavior is a betrayal of the original goals of the Internet.

Interestingly enough, last month, Google announced and then retracted new policy for its blog-hosting site Blogger that would appear to have censored legal and consensual, sexual content.  Originally meant to take effect on the 23rd of this month, Google stated that sexually explicit material would not be allowed on Blogger unless it provides “public benefit, for example in artistic, educational, documentary, or scientific contexts.” I have to say that’s some rather subjective language coming from a company that repeatedly states it “cannot be responsible for policing the Internet” with regard to criminal or offensive activities. Ever since the Deep Throat case, nothing in the law even presumes to make such distinctions with regard to censorship of explicit material, but Google’s TOS almost did, if it were not for the backlash from thousands of users, particularly those who post sexually explicit articles, photos, and videos. One of these bloggers, Zoe Margolis, even used the words “it breaks the Internet” to describe Google’s proposed policy to make all sex-oriented blogs private rather than public. Was Google motivated to change the Blogger TOS in anticipation of the success of Congresswoman Speier’s proposed bill, or was the company’s sudden priggishness motivated by some other factor?  Margolis suggests a financial incentive — that Google didn’t want to be hosting “free porn,” and this ought to at least give my friends with copyright interests reason to chuckle at that particular hypocrisy.

Regardless, I think the point in this context is that the amount of “censorship” on the web is a dynamic (dare we say evolving?) process that is driven as much by the business interests of the major site owners as by any particular statutes.  While I agree that free speech must always be a foundation of these debates, I believe it is incumbent upon us as a decent society to address the fact that new technologies create new ways for bad actors to rather casually cause great harm to individuals who cannot defend themselves. And this is hardly the first time we’ve had to seek a balance between liberty and justice.  Avoiding criminalization of a behavior like revenge porn for fear of some very improbable forms of censorship sounds like a cop out to me.