South Florida Cyber Crime Lawyer Revisits Sexting and Child Pornography Debate

January 21, 2009 by David S. Seltzer

About a month ago, I posted to this blog about "sexting," the media's name for the practice among teenagers of sending naked or near-naked pictures to one another in text messages. More recently, I actually spoke to a writer for Wired, in my capacity as a Miami cyber crimes defense attorney, on the subject. I haven't seen those quotes online yet, but I did notice that the magazine's Threat Level blog has picked up on the story. In a post from Jan. 15, the blog interviews online privacy experts about the rash of prosecutions for teens caught sending naked pictures of themselves.

The most recent case cited by the blog is the prosecution of six teenagers in Pennsylvania. Pittsburgh's WPXI reported Jan. 13 that three girls, ages 14 to 15, voluntarily took naked or near-naked self-portraits with their phones, then sent them to three boys ages 16 to 17. They were caught after a teacher confiscated one of the phones. The boys are charged with possession of child pornography, and the girls are charged with possession as well as manufacturing and distributing child pornography. As the Wired piece notes, this makes the girls simultaneously the victims and the perpetrators of the alleged crime -- a nonsensical situation.

More importantly, as the article also notes, child pornography laws were never intended to protect teens from their own sexual curiosity or consensual behavior with each other. Laws against making, possessing or distributing child pornography were intended to protect children and teens from adults who use force or age to exploit them. Consensual sexual behavior among teenagers is a controversial subject, but every state, including Florida, has laws that distinguish between that behavior and actual rape or sexual assault. No such distinction is written into Florida child pornography laws, perhaps because they are relatively new.

Teenagers should absolutely be aware that there could be serious consequences when they post inappropriate pictures of themselves online. But given the harsh penalties carried by child pornography statutes -- including lifelong sex offender registration requirements in many states -- criminal prosecution seems like overkill. Putting kids in jail doesn't protect them or other kids from sexual predators. As a Fort Lauderdale cyber crime criminal lawyer, I would support efforts by lawmakers to modify state and federal child pornography laws to reflect that.