Playboy’s newly released 2009 College Sex Survey found that 49% of college students admitted to “Sexting” (having sent or received sexually explicit messages and pictures via cell phones). A survey conducted a year ago by the National Campaign to Prevent Teen and Unplanned Pregnancy and CosmoGirl.com found that 20% of teens (13-19) and 33% young adults (20-26) have “sent/posted nude or seminude pictures or video of themselves.” Together, these two studies give us a sense of just how prevalent sexting is.

Since nude photos of minors under 18 can be considered “child” pornography even if taken and shared voluntarily by the minor, there’s a very real possibility that minors will be prosecuted for common (if inappropriate) interactions with their peers under laws that were intended to prevent adults from exploiting children sexually. This is serious stuff indeed when one considers the dire consequences of being convicted not just of a felony, but a “sex offense.” Depending on state law, “sexters” put on a sex offender registry may spend the rest of their lives on sex registries as social pariahs with difficulty in finding a job, housing, being banned from using “social networking sites,” etc.

The study conducted last year offered some excellent advice for teens, young adults, and their parents. Perhaps we ought to spend more time focused on education than on criminalization.  The tips are worth repeating here.  First, for teens and kids: “Five Things to Think about Before Pressing Send:”

Don’t assume anything you send or post is going to remain private. Your messages and images will get passed around, even if you think they won’t: 40% of teens and young adults say they have had a sexually suggestive message (originally meant to be private) shown to them and 20% say they have shared such a message with someone other than the person for whom is was originally meant. There is no changing your mind in cyberspace—anything you send or post will never truly go away. Something that seems fun and flirty and is done on a whim will never really die. Potential employers, college recruiters, teachers, coaches, parents, friends, enemies, strangers and others may all be able to find your past posts, even after you delete them. And it is nearly impossible to control what other people are posting about you. Think about it: Even if you have second thoughts and delete a racy photo, there is no telling who has already copied that photo and posted it elsewhere. Don’t give in to the pressure to do something that makes you uncomfortable, even in cyberspace. More than 40% of teens and young adults (42% total, 47% of teens, 38% of young adults) say “pressure from guys” is a reason girls and women send and post sexually suggestive messages and images. More than 20% of teens and young adults (22% total, 24% teens, 20% young adults) say “pressure from friends” is a reason guys send and post sexually suggestive messages and images. Consider the recipient’s reaction. Just because a message is meant to be fun doesn’t mean the person who gets it will see it that way. Four in ten teen girls who have sent sexually suggestive content did so “as a joke” but many teen boys (29%) agree that girls who send such content are “expected to date or hook up in real life.” It’s easier to be more provocative or outgoing online, but whatever you write, post or send does contribute to the reallife impression you’re making. Nothing is truly anonymous. Nearly one in five young people who send sexually suggestive messages and images, do so to people they only know online (18% total, 15% teens, 19% young adults). It is important to remember that even if someone only knows you by screen name, online profile, phone number or email address, that they can probably find you if they try hard enough.

And tips for “parents to talk to their kids about sex and technology:”

Talk to your kids about what they are doing in cyberspace. Just as you need to talk openly and honestly with your kids about real life sex and relationships, you also want to discuss online and cell phone activity. Make sure your kids fully understand that messages or pictures they send over the Internet or their cell phones are not truly private or anonymous. Also make sure they know that others might forward their pictures or messages to people they do not know or want to see them, and that school administrators and employers often look at online profiles to make judgments about potential students/employees. It’s essential that your kids grasp the potential short-term and long-term consequences of their actions. Know who your kids are communicating with. Of course it’s a given that you want to know who your children are spending time with when they leave the house. Also do your best to learn who your kids are spending time with online and on the phone. Supervising and monitoring your kids’ whereabouts in real life and in cyberspace doesn’t make you a nag; it’s just part of your job as a parent. Many young people consider someone a “friend” even if they’ve only met online. What about your kids? Consider limitations on electronic communication. The days of having to talk on the phone in the kitchen in front of the whole family are long gone, but you can still limit the time your kids spend online and on the phone. Consider, for example, telling your teen to leave the phone on the kitchen counter when they’re at home and to take the laptop out of their bedroom before they go to bed, so they won’t be tempted to log on or talk to friends at 2a.m. Be aware of what your teens are posting publicly. Check out your teen’s MySpace, Facebook and other public  online profiles from time to time. This isn’t snooping—this is information your kids are making public. If everyone else can look at it, why can’t you? Talk with them specifically about their own notions of what is public and what is private. Your views may differ but you won’t know until you ask, listen, and discuss. Set expectations. Make sure you are clear with your teen about what you consider appropriate “electronic” behavior. Just as certain clothing is probably off-limits or certain language unacceptable in your house, make sure you let your kids know what is and is not allowed online either. And give reminders of those expectations from time to time. It doesn’t mean you don’t trust your kids, it just reinforces that you care about them enough to be paying attention.

As Berin mentioned last week, we have a new paper out on proposals to expand the Children’s Online Privacy Protection Act (COPPA) of 1998.   We generically refer to those COPPA-expansion efforts as “COPPA 2.0.” Hence, the title of our paper: “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.”  To recap what Berin already noted, in the name of improving online child safety, some legislators and state attorneys general (AGs) are advocating the expansion of COPPA’s “verifiable parental consent” model of age verification before certain sites or services may collect, or enable the sharing of, personal information for children.

Unlike “COPPA 1.0,” however, which only applied to children under the age of 13, “COPPA 2.0” would apply to all minors up to age 17.  Moreover, the range of sites covered by the new law would generally be expanded to include just about any site or service with social networking functionality.

Since Berin has already summarized our general concerns with efforts to expand COPPA’s “verifiable parental consent” online age verification system to cover more online users and sites, I thought I would focus here on what I believe will be the most controversial (and important) part of our paper — our discussion about how COPPA 2.0 affects the speech rights of both adults and adolescents.

Remember COPA?

To understand why COPPA expansion will raise serious First Amendment issues, we first need to step back and recall the legal battle over the Children’s Online Protection Act (COPA), another 1998 law sometimes confused with COPPA.  Both COPPA and COPA rest on a stratification of users by age, but the approach of the two laws is very different: While COPPA requires age verification if content is “directed at” minors under age 13, COPA would have required that all website operators restrict access to material deemed “harmful to minors” by minors under the age of 17 and therefore requires age verification of all users who attempt to access such content (in order to identify minors). COPPA is focused on certain kinds of potentially harmful contacts while COPA is focused on potentially harmful content.

But by expanding the age range of COPPA to include adolescents, COPPA 2.0 proposals essentially converge with COPA, reaching the same practical consequence: age verification mandates for large numbers of adults as users (not as parents). Only the scope of sites covered by the laws is different: under COPA, sites deemed “harmful to minors,” and, under COPPA 2.0, adolescent-oriented or certain social networking sites. Thus, to the extent that COPPA 2.0 proposals require age verification of adults, they would be subject to constitutional attacks similar to those against COPA.  But COPPA 2.0 proposals would also burden the rights of adults to communicate with adolescents and the free speech rights of adolescents.

Finally, the fact that COPPA (like COPA) applies only to commercial sites would do little to protect it from constitutional attack, because in a world of user-generated content, the commercial nature of a site has little to do with the commercial/non-commercial nature of the speech carried on it. For example, obviously commercial sites like MySpace and Facebook serve as platforms for a wide variety of not-for-profit and political communications.

How COPPA 2.0 Would Impact the Free Speech Rights of Adults

After a decade-long court battle over the constitutionality of COPA, the U.S. Supreme Court in January 2009 rejected the government’s latest request to revive the law, meaning it is likely dead. Three of the key reasons the courts struck down COPA would also apply to COPPA 2.0 proposals.

(1) First, like COPA, COPPA  2.0 would raise burden the speech rights of adults to access information subject to age verification requirements, both by making speech more difficult and by stigmatizing it.  In 2003, the Third Circuit noted that age verification requirements “will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial.” In 2008, in striking down COPA for the third and final time, the Third Circuit approvingly quoted the district court, which had noted that part of the reason age verification requirements deterred users from accessing restricted content was “because Internet users are concerned about security on the Internet and because Internet users are afraid of fraud and identity theft on the Internet.” The district court had held that: “Requiring users to go through an age verification process would lead to a distinct loss of personal privacy” by threatening their anonymity.

By imposing broad age verification requirements, COPPA 2.0 would restrict the rights of adults to send and receive information anonymously just as COPA did. If anything, the speech burdened by COPPA 2.0 deserves more protection, not less, than the speech burdened by COPA: Where COPA merely burdened access to content deemed “harmful to minors” (viz., pornography), COPPA 2.0 would burden access to material by adults as well as minors not because that material is harmful or obscene but merely because it is “directed at” minors! Thus, the content covered by COPPA 2.0 proposals could include not merely pornography, but communications about political nature, which deserved the highest degree of First Amendment protection.

(2) Second, like COPA, COPPA expansion threatens the speech rights of website operators. The necessary corollary of blocking adults from accessing certain content anonymously — and thereby deterring some users from accessing that content — is that COPPA 2.0, like COPA, would necessarily reduce the audience size of websites subject to age verification mandates. Furthermore, such mandates would encourage websites to self-censor themselves to avoid offering content they fear could be considered “directed at” adolescents because doing so might subject them to an age verification mandate — or to legal liability if they fail to implement age verification. The substantial cost of age verification could significantly impact, if not make impossible, the business models of many personal information-collecting (PI) sites, which generally do not charge for content and rely instead on advertising revenues. The Third Circuit cited all of these burdens on the free speech rights of website operators in striking down COPA.

(3) Third, less restrictive alternatives are available to COPPA 2.0, just as they were for COPA.

The Third Circuit drew on the Supreme Court’s 2004 decision striking down COPA on the grounds that “blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children’s access to materials harmful to them.” Similarly, parental control software already empowers parents to restrict their kids’ access to PI-collecting sites. (It’s particularly easy for parents to restrict access to the leading social networking sites that seem to be driving so much of the push for COPPA 2.0, so that their kids.)

Thus, the free speech rights burdened COPPA 2.0 proposals are at least as important as those burdened by COPA, and blocking software already empowers parents to restrict their kids’ access to PI-collecting sites, just as it allows parents to restrict access to pornography. Of course, if COPPA 2.0 laws were actually enacted and subject to legal challenge, the outcome of the case would depend largely on the level of constitutional scrutiny involved. COPPA 2.0 advocates might argue that, whatever the rights at stake, a lower level of constitutional scrutiny should apply because COPPA 2.0 does not target a special category of content. If true, this could mean that, although age verification mandates to restrict access to “harmful” material are unconstitutional, far more sweeping mandates restricting access to non-harmful information could be constitutional. Such inconsistency is indeed a perverse consequence of the fact that our First Amendment jurisprudence focuses not on the rights at stake, but on whether a regulation is “content-neutral” in deciding what level of scrutiny to apply—which, in turn, often determines the outcome of the case. But in this case, COPPA 2.0 proposals likely would be subject to strict scrutiny to the extent that they are, like COPA, focused on a certain category of content: that “directed at” adolescents (rather than “harmful to minors”).

Legislators who attempt to escape strict scrutiny by defining the scope of their bill not by its targeted audience but by reference to specific functional capabilities (in the definition of “social networking site”) will likely find that a court will see through such window-dressing: If they recognize that such bills are nonetheless aimed at a certain category of adolescent-oriented content, they will apply strict scrutiny anyway. But even under intermediate scrutiny, COPPA 2.0 proposals would be subject to serious attack.

Minors Have Speech Rights, Too!

In addition, in COPPA 2.0 approaches, the government would restrict the ability of adolescents to access content, not because it could be harmful to them or because it is obscene, but merely because it is “directed to” them. While the First Amendment rights of minors may not be on par with those of adults, adolescents do have the right to access certain types of information and express themselves in certain ways. The Supreme Court has held (in Planned Parenthood of Cent. Mo. v. Danforth) that “constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority.” It remains unclear how an expanded COPPA model might interfere with the First Amendment rights of adolescents, but it is clear that privacy and speech rights would come into conflict under COPPA 2.0, as they do in other contexts.

For example, how might the parental-consent based model limit the ability of adolescents to obtain information about “safer sex” or how to deal with trauma, depression, family abuse, or addiction. Would an abusive father authorize a teen to visit a website about how to report child abuse? Would a parent of an adolescent struggling with their sexual identity let their kid participate in a self-help social networking page for gay and lesbian youth? What rights are at play here and how do we reconcile them?

Maintaining the ability of kids to participate online interactions goes beyond content that most people would recognize as “serious”—from the perspective of both First Amendment values and the education of children. As a recent MacArthur Foundation study of the online youth Internet use concluded:

Contrary to adult perceptions, while hanging out online, youth are picking up basic social and technological skills they need to fully participate in contemporary society. Erecting barriers to participation deprives teens of access to these forms of learning. Participation in the digital age means more than being able to access “serious” online information and culture.

It was at least in part in recognition of such difficult First Amendment questions that Congress removed the requirement in the initial legislative draft of COPPA that would have required PI-based sites to “use reasonable efforts to provide the parents with notice and an opportunity to prevent or curtail the collection or use of personal information collected from children over the age of 12 and under the age of 17.”

Even if parents have an absolute right to block their adolescents’ access to such data, they can already exercise that right by applying strict controls on the computers in their home. COPPA 2.0 proposals go well beyond recognizing this right by setting the default to “parental consent required” for adolescents to access a wide range of content—meaning that parents must “opt-in” on behalf of their children before their children can participate in PI-collecting sites. This, in turn, burdens the ability of adolescents to communicate, because their parents might censor (rightly or wrongly) certain information, or simply fail to understand the technologies involved or to be actively engaged. But whatever the free speech rights of adolescents, if anyone should be interfering with those rights, it should be their parents — not the government.

Some parents may object that, however effective parental control software may be in the home, it does not allow parents to control what their kids’ access outside the home. This argument is understandable on some level, but in the end, it amounts to a demand that roadblocks be put up everywhere for the sake of particularly sensitive parents at the expense of everyone else in society, including potentially huge numbers of adult users — and of online anonymity in general.

But Illinois’s COPPA 2.0 proposal goes even further, not merely expanding COPPA to cover a particular variety of social networking sites, but requiring that such sites “allow the parent or guardian of the minor unrestricted access to the profile webpage of the minor at all times.” Congress considered just such a parental access mandate in the initial draft of COPPA legislation back in 1998, but ultimately removed it from the final version of the legislation, apparently because even some of COPPA’s supporters worried, given the bill’s initial application to the 13-16 age bracket, that “The establishment of a parental right to access all personal information about a teenager may intrude on older minors’ privacy, rather than protect.”

What about Communication between Adolescents & Adults?

Finally, COPPA 2.0 could infringe on the free speech rights of adults to communicate with adolescents online by driving PI-collecting sites to segregate users by age or to attempt to block access by adolescents. The vast majority of adult-minor interactions online are not of a harassing or predatory nature—indeed, they generally involve adults looking to help or assist minors in various ways. As the MacArthur Foundation study cited above concluded:

In contexts of peer-based learning, adults … have an important role to play, though it is not the conventionally authoritative one. In friendship-driven practices, direct adult participation is often unwelcome, but in interest-driven groups we found a much stronger role for more experiences participants to play. Unlike instructors in formal educational settings, however, these adults are passionate hobbyists and creators, and youth see them as experienced peers, not as people who have authority over them. These adults exert tremendous influence in setting communal norms and what educators might call “learning goals,” though they do not have direct authority over newcomers.

A substantial portion of those interactions involve parents talking to their own kids, older and younger siblings communicating with one another, teachers and mentors talking to their students, or even co-workers of different ages communicating. Even when adult-minor communications involve complete strangers, there is typically a socially-beneficial purpose. Think of two people — one an adult and one a minor — debating politics on a discussion board, or creating a Wikipedia entry together. What about a presidential campaign website that involves millions of volunteers of all ages communicating and collaborating to a common purpose? There are countless other examples. How would such interactions be affected by COPPA 2.0? Restricting such interactions would raise profound First Amendment concerns about freedom of speech as well as of association.

In any First Amendment analysis, a court must consider not only the free speech rights at stake and the availability of less restrictive alternatives to regulation, but the governmental interest being advanced. Again, neither COPPA nor the COPPA 2.0 proposals discussed herein (e.g., the New Jersey and Illinois proposals) requires exclusion of older users from a website, nor directly governs the sharing of personal information among users (where that sharing does not also constitute collection by the site itself). But separation of adolescents from adults is likely to be an indirect effect of COPPA 2.0 requirements—as COPPA 2.0 advocates probably realize—because, once PI-collecting sites are required to age-verify users, they will face reputational, political and potentially legal pressure to make interactions between adolescents and children more difficult in the name of “child safety.” More subtly, if PI-collecting site operators have an incentive to avoid being considered “directed at” adolescents, they will also have an incentive to discourage adolescent participation on their site—which achieves a similar result.

Here, one must further ask if attempting to quarantine children from adults (however indirectly) actually advances, on net, a strong governmental interest in child protection. Such a quarantine is unlikely to stop adults with truly nefarious intentions from communicating with minors, as systems designed to exclude participation by adults in a “kids-only” or “adolescents-only” area can be easily circumvented. Given the lack of strong identity records for minors, it’s much easier for an adult to pretend to be a minor than vice versa. The effect of age stratification on truly bad actors is likely to be marginal at best—or harmful at worst: Building walls around adolescents through age-verification might actually make it easier for predators to target teens, since a predator who gains access to a supposedly teen-only site will be less likely to be exposed as a predator by targeting an adult they think is a teen. So for the sake of marginal (if any) gains in child protection, would we not be excluding beneficial interaction between adults and minors?

To hear some of the advocates of COPPA 2.0 talk about how teens currently behave online, one might think that online environments in which adolescents were left to their own devices—imagine a “Teen MySpace” for the 13-17 crowd, walled off from the rest of MySpace—would be far worse, perhaps an online version of Lord of the Flies. These concerns are clearly exaggerated: The critics frequently complain about “the way kids talk to each other these days” while looking at their own past adolescent banter with rose-colored lenses. What is clear is that adolescents (and young adults) behave better in online environments where adults are present, too. Perhaps the best demonstration of this fact has been the uproar from adolescents and young adults that has accompanied Facebook’s explosive growth in popularity among older users in recent months. Many kids hate the idea of adults joining Facebook precisely because the presence of adults encourages kids to “self-regulate” by exercising better judgment and following better netiquette.

Anne Collier, founder and executive director of the child safety advocacy organization Net Family News, Inc. and editor of NetFamilyNews.org and ConnectSafely.org, suggests that the push for “segregation” by age (e.g., creating a teen-only version of Second Life) for safety’s sake is “losing steam” because:

it’s a response to the predator panic teens and parents have been subjected to in U.S. society, not to the realities of youth on the social Web. What nearly a decade of peer-reviewed academic research shows is that peer-to-peer behavior is the online risk that affects many more youth, the vast majority of online kids who are not already at-risk youth offline. Segregating teens from adults online doesn’t address harassment, defamation, imposter profiles, cyberbullying, etc. It may help keep online predators away from kids (even though online predation, or abuse resulting from online communication, constitutes only 1% of overall child sexual exploitation…), which is a great outcome, but it’s not enough unless all that parents are worried about is predators.

Collier discusses the particularly acute problem of “actual or perceived sexual orientation and gender expression,” which the Salt Lake Tribune has noted are “two of the top three reasons secondary school students said their peers were most often bullied at school.” This kind of harassment recently attracted widespread public attention after two 11-year-old boys committed suicide after experiencing anti-gay harassment and bullying at school. Nationwide, “Lesbian, gay, bisexual, transgender and questioning youth are up to four times more likely to attempt suicide than their heterosexual peers.” This child safety risk is painfully real, with anti-gay harassment being only its most obvious form. But “segregating” teens from adults seems likely to aggravate this problem by removing adults from the mix as a potential source of discipline.

Of course, adults play a critical role in disciplining interaction among the 0-12 age bracket, but not as direct participants in on-site interaction. Again, how many adults actually want to use Club Penguin? Instead, parents can supervise what their kids do online through parental control software. Parents could, of course, use that same software to monitor what their adolescent kids do, too. But as kids get older, most parents realize that the training wheels have to come off at some point. Few parents will want to spy on their 17-year old until the day before the kid starts college (or enlists in the military or gets married). But most parents probably would prefer that, if their kids are interacting in an online environment, they think twice about what they do and say online. It is by no means clear that restricting online interaction between teens and adults will serve that end.