Wombs with Friends

Children are like nuclear weaponry. Introduce them into a policy debate and the calculus will become all imbalanced to the point where sober analysis is almost impossible. Now, don’t take anything I subsequently say to mean that I dislike children. Don’t draw any connections between the timing of this article and Jerry Sandusky’s confession. On an individual level, a child is precious, precocious, and brimming with possibilities. But as a collective, The Children could be the death of what it means to be an adult.

Protection of children is deemed so important as to create whole new categories of thoughtcrime.  For example, I am free to draw a picture of a naked woman because it is speech between consenting adults. However, if I were to say that the woman I have drawn is actually only 12, I would have created (and disseminated) child pornography. See 18 U.S.C. § 2252(a)(1)(B). Such creation and dissemination is punishable by jail time, but only because I have said that the otherwise legal painting is a portrayal of a minor. We deem the possibility that such a picture could incite someone to abuse a child that we make whole categories of speech (apart from the conduct itself) punishable and create regimes and needs to manhandle other freedoms in order to stand in the way of a specific set of society’s miscreants.

The history of cases of governmental overreach is littered with familiar case names. E.g., Miller v. California, 413 U.S. 15 (1973); Reno v. ACLU, 521 U.S. 844 (1997), Ashcroft v. ACLU, 542 U.S. 65 (2004). History is similarly littered with overturned, speech-infringing laws and their subsequent incarnations. E.g., CIPA (Children’s Internet Protection Act), COPA (Children’s Online Protection Act), or COPPA (Children’s Online Privacy Protection Act).

For example, in the recent lawsuit filed against the Village Voice‘s Backpage.com, the threat of sex trafficking may destroy the Village Voice‘s ad revenues because the publication enables individuals to post whatever they wish (even though suspicious activity is scanned for and reported and otherwise filtered). Bastions of moralists have decried the publication for even being in the same business that could provide some venue for speech that could possibly cause some harm to The Children.

So now, once again, the flag of “combatting child pornography” has come to wave in favor of government establishing an Orwellian panopticon for the Internet. The proposed H.R. 1981 ostensibly “seeks to make it a federal crime to fund the sale, distribution and purchase of child pornography and to increase the maximum penalty for certain child pornography offenses,” but it also contains a provision that would require Internet service providers (ISPs) to retain the network addresses they temporarily assign to each account for 18 months.” What that means is that the government is both allowing–nay, forcing–ISPs to collect every user’s traffic information (i.e., track and record all online activity to make sure they don’t view, access, or transmit child porn). Incidentally, it also means that not only can the government use all that data, but so too can all of these ISPs and their affiliates because the law explicitly contemplates that ISPs will not be legally liable for releasing the data they have stored under the provisions of this bill. So, we’re using The Children as the reason to hand over every last semblance of privacy? Does anyone else thing this is a cost-benefit analysis gone awry?

Perversely (and not in the sense I’ve previously been using), “thinking of The Children” is the one subject that garners any policy attention in the context of broader issues surrounding individuals’ rights to privacy, including the individual’s online activity, their rights vis-a-vis social networks such as Facebook, and so on. COPPA, the aforementioned Children’s Online Privacy Protection Act has survived constitutional scrutiny because it imposes the burden on the sites themselves to not use tracking cookies or other methods of obtaining personally identifiable information if the user is under 13 years old. Because a website has to obtain verifiable parental consent (or risk suit) before allowing a child to be exposed to tracking cookies, most sites say screw it, “we’re 13 and older only.” Of course, this just creates peer pressure dynamics that induce most parents to lie in order to enable their child’s access to sites that may communicate “questionable” content. And that lying helps to normalize the behavior for the sub-13 child and their subsequent experience in the world and on the Internet. So, once again, the law of unintended consequences trumps the law of Congress. (Side question, to be raised another time: what of the ethical dilemmas facing a parent with a newborn child and an online presence to define for the infant).

Of course, there is some silver lining; some sites have decided to preempt the problem and simply not collect personally identifiable information, thus providing a road map for online content that doesn’t need to snoop on you. Maybe The Children aren’t so bad after all. Maybe we can benefit more broadly from parents’ knee-jerk impulse to protect The Children. Seeing as parents are more concerned with their child’s innocence than their own adulthood, maybe the protections afforded to minors should be extended to the rest of the family. After all, there is a total lack of current policy discussion on the values of privacy and freedom of speech when up against values that are not so easy to weigh (e.g., The Children, national security, etc.). And why do we not allow children to waive their own rights to privacy? Because those children lack the capacity to waive their rights with anything that could be called informed consent. And yet, here we are, with Americans’ infinite capacity to ignore infringements of rights by pretending that none existed in the first place. Maybe a right to privacy isn’t such a leap when you have adults that click through End User License Agreements (i.e, those glowing boxes that say “I Agree”) without so much as a pretend glance. Maybe by respecting the rights of adults, we will do greater service to the rights of children. But, more accurately, birth control is preferable.