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As teenagers explore their sexuality and seek to memorialize and exchange information related to their sexual development, their instantaneous ability to memorialize and share images with others, via cell phones or the Internet, presents a host of new problems to which our society must respond intelligently. The recent trend of harshly punishing these teens under the child pornography regime is not an intelligent solution. In light of this wave of prosecutorial overreaching, state and federal child pornography laws should be revised to specifically exempt sexting by minors from the reach of such laws. Child pornography laws were created to punish and deter a far different class of conduct—the conduct of adult pedophiles creating and disseminating images that depict sexual abuse of their child victims in a commercial context—not the conduct of older minors using technology to explore their sexuality and voluntarily exchange images with one another. Non-obscene depictions of nudity or sexual conduct created by teens and exchanged voluntarily among themselves for noncommercial purposes should be specifically excluded from the applicable definitions of child pornography and similar crimes.

Instances of sexting, however, should not necessarily go unpunished, as they may constitute harmful invasions of the subject’s privacy. In cases in which nude or sexually themed images of minors, which were initially created with the subject’s consent, are disseminated or otherwise made available without or beyond the scope of the subject’s consent, such conduct should be cognizable as actionable invasions of the subject’s privacy under the publication of private facts branch of this common law tort. The subject should be able to seek relief not only against the individual who made such images available without her consent, but also against a website that continues to host such images after being notified of their presence. Websites that continue to facilitate the hosting of such images after the subject requests their removal should lose their immunity for hosting such content and should be held liable for facilitating the invasion of the subject’s privacy.

GW Paper Series

GWU Law School Public Law Research Paper No. 2017-48; GWU Legal Studies Research Paper No. 2017-48

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