When Professor Amy Adele Hasinoff’s new book landed on my desk, I took one look at the title and thought, “Yes!” Sexting Panic: Rethinking Criminalization, Privacy, and Consent eloquently articulates many of the ideas I have personally been shouting at the endless parade of TV news reports about the “sex-crazed teen sexting trend.” Hasinoff, a communications professor a University of Colorado, Denver, points out that teens—specifically teen girls—bear the brunt of our collective anxiety about sexting. But what we should be worried about are the problems caused by people who distribute sexy photos without their creators’ consent. Hasinoff also clearly notes the hypocrisy of online privacy: We have strong laws protecting companies against pirating and sharing of movies, books, and music, but we’re quick to blame individuals when their private personal information is stolen and disseminated online.
Sexting Panic comes out in April from University of Illinois press. I talked with Hasinoff recently about technology, privacy, and why society freaks out about teenage sexuality.
SARAH MIRK: You write in your book that teen sexting is often framed as a legal, sexual, and moral crisis. But it’s not just teens who are sexting. Tell me what misconceptions people often have about sexting.
AMY ADELE HASINOFF: Why is that when we talk about sexting, the conversation is about teen girls? I guess the short answer is we’ve done this for a long time. We’ve been panicking about girls for a long time. This occurs again and again over the years, especially in this country. We tend to worry about teen sexuality in ways we don’t worry about adult sexuality and we tend to worry about girls in ways we don’t worry about boys. The discussion is often well-intentioned. We’re worried about girls and we want to protect them from being victimized because sexual violence against girls is a real problem. But at the same time, people tend to blame girls for that problem. That is not unique to sexting, it’s a problem for how we think about sexual violence in general. The term “slut-shaming” really sums up how girls who are seen as being sexual are then shamed for the problems of sexual violence.
For a lot of people, sexting is a normal part of their romantic and sexual relationships. Actually, right at the beginning of the panic about sexting, there was an article in the AARP magazine advocating sexting as a fun way to spice up your love life for the 50-plus set. So, there’s a radically different discourse about sexting for teenagers compared to adults. For adults it’s kind of seen as normal and maybe a fun thing to do, in general the practice is not demonized. But for teeangers, it’s a whole different story, because people tend to worry about teen sexuality. Some studies of young adults show that 60 percent of young people are sexting. Of course, it depends on how you define “sexting”—people are more likely to send text messages than sexual photos, but sending photos is quite prevalent as well. There’s not a lot of middle school kids sexting, but it’s really teens as they get older and young adults [who sext more often]. A lot of the discourse about this is focused on teen girls: “Oh my gosh, look at these teen girls taking and sending photos of themselves.” People aren’t worried about sexting breaking up the fabric of relationships for adults, but for teens, it is seen as an immoral and “sex-crazed” trend.
But this isn’t just a moral thing, there’s also a legal angle to this. There are laws against this behavior and in your book, you point out a couple cases, one in Oregon and one in Seattle, where young girls were prosecuted for sexting. Can you tell us about those cases?
We have child pornography laws at the federal and state level that criminalize the production and distribution of sexual images of minors, but you don’t have to be an adult to be charged with those laws. So if you are 17 and you take a photo of yourself, you are potentially liable for producing and distributing child pornography of yourself. We end up with bizarre legal situations where people can be charged for sexting consensually with their partners. I don’t have good data on who is being prosecuted for this, but we do know that with the criminal justice system in general and sex crimes in particular, the people who tend to be prosecuted for these crimes are people of color, LGBT teens, and people from low-income families who can’t afford a really expensive lawyer to defend them. That’s probably what’s happening with sexting. I don’t have data, but I do have an example. In Oregon, there was a case where a 17-year-old girl was dating a 19-year-old woman. The mother of the younger girl didn’t like that her daughter was gay and she thought the relationship was inappropriate and deviant. She took the younger girl’s cellphone and turned it over to police. The older girl ended up being prosecuted, pleading to “luring a minor.” She ended up with a criminal record and spent time in a jail for a completely consensual relationship. Both of those girls were African American. When you look at the data of the justice system and how people of color are disproportionately prosecuted for crimes, it’s hard to look at that case and think that race didn’t play a role in the prosecutor’s decision to pursue that case.
One thing you point out clearly is that these laws and most news reports rarely make a distinction between consensually shared images and images that are stolen and shared without permission. Can you explain that disconnect and how we don’t talk about consent when we talk about sexting?
Yes, what’s illegal has nothing to do with consent. What’s illegal is the production of the image. Actually, someone who creates an image and send it to a partner can be charged with two crimes: producing and distributing. Then if someone takes that image and shares it without consent, they could get less of a penalty. That’s backwards, because one person was doing absolutely nothing wrong and one person was maliciously violating someone’s privacy. The reason for this is that people just think sexting is wrong, they think it’s not part of a normal relationship so they think they can just prohibit it. It’s the same approach to teen sex education, where the idea that teen sex is wrong and we have to stop it. People say that you should be abstinent about sexting and the only way to reduce your risk is to not sext at all. But people are going to sext whether you want them to or not and you wind up with these laws that punish consensual sexting and privacy violations as if they’re the same thing. I think when people write news stories about sexting, they think, “Oh, this is a terrible thing and everyone’s at fault here.” That reflects the rape myths that have been around for a long time.
I think this is where people really split on this issue. Do you think people who send sexy images of themselves to someone else have an expectation of privacy? Or should we assume that everything we share digitally will someday be public, because of how easy it is to share digital images broadly?
If you create a sexual image of yourself, it certainly could be shared and someone could easily do that. But just because someone could be violated doesn’t mean that someone should be violated. I’ve done a study where we asked people about their expectations of privacy and what we found is that if you ask people, “Okay, you’re in a relationship with someone, you send them a sexy photo of yourself, is it okay for them to pass it along to someone else?” Overwhelmingly, our participants said, “No, that’s not okay.” It’s kind of a myth that people have no expectation of privacy when we use digital technology. Some studies have showed that around 10 percent, among teenagers, have experienced this privacy violation. The other 90 percent are sending out these images and are not being violated, because they know that a sexual image is a private image. I don’t think there’s anyone out there who thinks that because a sexual image is in a digital format that it’s not a violation to send it to anyone else. I think the problem is that we live in a culture that authorizes the sexual violation of women in so many ways, from street harassment to rape culture, we tend to think that women who are sexually active deserve to be violated. That’s a completely different thing than saying that women who send out these images have no expectation of privacy.
So given the sad reality of our world, how would you tell people to go about sexting? If you were to teach a class on, say, technology, privacy, and sexuality, would you tell people, “Look the risks are too great. You shouldn’t sext because there’s a 10 percent chance your photo will get stolen.” Or would you tell people, “Look, here’s the risk. That’s where we’re at. Good luck.”
The thing about any sexual behavior is that there are always risks. Except for solo sex. But if you’re involving a partner in any way, there’s always risk. You’re constantly having to weigh the risk versus the benefit of any sexual activity—you might have sex with someone using a condom, even though you know there’s a small risk that condom might fail. Just like any sexual risk, you have to think about your own relationship. If you’re sending an image to someone you just met, your risk is going to be a lot higher than someone you’re in a long-term relationship with. It’s obviously possible for a digital image to be distributed. It’s possible for your privacy to be violated. It’s also possible for someone to infect you with an STI. Those are risks that you have to understand and accept before you do any kind of sexual activity.
But we can all contribute to helping this culture by resisting slut-shaming, so that when images are distributed, they matter less. Right now they matter for women in ways that they don’t matter as much for men—when images of boys are passed around, it’s seen as funny or just a prank, but when images of girls are passed around, they’re shamed and humiliated for this. This is something we can all do as a culture is think about how unfair that double standard is and try to resist it.
I think that sexting is such an interesting example of how our ideas about sexuality and privacy are evolving. We take intimate photos of ourselves and put them into the most public medium in the world. Even if you’re just sending them to your partner, there’s still a chance that it’s going to leak out and be all over the internet. I wonder how you think digital technology is changing our ideas of privacy.
I think there’s kind of a myth that privacy is impossible online. It’s certainly easier for your privacy to be violated online, but people still have expectations for privacy in the way they use social media. Just because a text message is digital doesn’t mean that the person you’re texting with doesn’t understand that if you tell them something private, they’re meant to keep that private. I think one of the forces that’s making us think about our privacy differently is the way companies make money online. The way Facebook becomes profitable is by sharing your private information. Those types of companies really have shaped our current discourse that privacy is impossible online. People tend to believe that because Facebook has told us that. Oh yeah, you can have your privacy settings and tweak little things, but the general ethos of social media is, “Just forget about your privacy, it’s not possible. Just give up on your privacy and engage with this website. Let us have control over your private information.” I think this is a dangerous trend. We’re buying into it and it really benefits those media companies because the more information we give them, the more money they can make. At the same time, those companies are very invested in protecting their intellectual property. So at the time same that they’re telling us that digital media means we can no longer have privacy, the same companies are saying, “We need stronger copyright laws and we need to protect our content from being stolen by users.” So if you make a movie and that movie is being pirated, you have a legal avenue for recourse. The laws are there. At the same time, as individual users, we have very little control over our information.
That is such a good point. If I’m a company and I make a movie that’s illegally uploaded and shared around the internet, I have a legal avenue to demand it be taken down and to demand damages. But if a sexy photo of me is stolen and posted around online, I don’t have any legal recourse to get that image down and to seek damages.
Interestingly enough, you can try copyright law to enforce your ownership of your image. If you took a selfie, you own that image. But that often doesn’t work unless you have a financial interest in the image—unless someone is profiting off the image, copyright law won’t help you. There are some privacy laws, but they’ve had mixed results in the courts. I think the problem we’re seeing here is both the law and our cultural discourse have not caught up to the way the technology enables privacy violations. But we’ve been very swift in creating laws that protect profits. We say that it’s possible to restrict the flow of information in digital media when profit is at stake. But when your privacy and reputation are at stake, we say, “Oh, you shouldn’t have been sexting.” I think we should expect privacy in digital media. I don’t think that because it’s easier to violate peoples’ privacy, we should just give up. We certainly haven’t given up on behalf of media companies.
I feel like I should say that I have given up. In my own personal life, I create a divide between my private life, which is not online, and anything I share digitally I assume could someday come back to me. I try not to say anything in emails or in text messages that I would be horrified to someday see in USA Today. That comes from an expectation that the companies that control my media—my phone company, Gmail, Facebook—aren’t going to protect my interests. But also, it comes from a government surveillance aspect. I have zero faith that my phone company wouldn’t turn over every photo I’ve taken on my phone to a government official who asked.
I don’t think you’re giving up. I think you’re negotiating within a system that doesn’t protect your interests. You’re doing the best you can to reduce your personal risk and to protect yourself against these interests that are larger than you. You’re right, these companies wouldn’t think twice about sharing your information. You’re making a rational choice within a system that you have no control over. But at the same time, I don’t think we have to give up on the idea that we deserve privacy. There is a difference between trusting the people we’re close to in our lives and [trusting] government agencies and media companies. If we’re trying to address the issue in a big way, like to affect companies, we need policy solutions. That’s been slow, but I think it possible.
Then when we talk about your personal relationships with friends, I don’t think we have to give up there either. But we do have to be cautious and, like I said, navigate the cost and benefits. Do you never put things in an email to a partner or friend because you can’t trust that they won’t forward that email? I hope no one has a relationship where they can’t trust their own partner to keep a secret that they put in an email. I think most people understand that violating your privacy in that way would be an offense worthy of dumping.
So how could we think about technology differently and fight for our privacy rights?
I think there should be minimum policy requirements built into the design of technology. For example, currently if you receive an image on your phone, there’s nothing to prevent you from forwarding on that image. The system allows you to do that. At the same time, if you buy an ebook on your Kindle, you can only send that to so many people. There is digital property protection built into the design of the technology, in order to protect the author and the publisher. But if you get a photo on your phone, you can send that to anyone because that’s in the interest of the phone company—the more people you share photos with, the more you’re using your device. There are fractions of pennies they’re racking up every time you send images back and forth. If we had policies that really protected our privacy, we could say, “Here’s the rules. On any digital platform, any image you create, you get to decide what the digital rights are for that image.” This would not solve the problem of privacy violations, but it would help translate our existing privacy norms into digital technology. Because right now, we’ve just let commercial interests decide how our personal content can be shared. We’ve said, “They can do whatever they want.”
Related Reading: Teen Sexting Isn’t the Problem. Lack of Consent Is.