{"id":1365,"date":"2013-06-11T22:46:55","date_gmt":"2013-06-11T22:46:55","guid":{"rendered":"http:\/\/jolt.richmond.edu\/?p=1365"},"modified":"2019-03-08T19:52:35","modified_gmt":"2019-03-09T00:52:35","slug":"snapchat-and-sexting-a-snapshot-of-bearing-your-bare-essentials","status":"publish","type":"post","link":"https:\/\/blog.richmond.edu\/jolt\/2013\/06\/11\/snapchat-and-sexting-a-snapshot-of-bearing-your-bare-essentials\/","title":{"rendered":"Snapchat and Sexting: A Snapshot of Baring Your Bare Essentials"},"content":{"rendered":"

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Cite as: Nicole A. Poltash, Snapchat and Sexting: A Snapshot of Baring Your Bare Essentials<\/em>, 19 Rich. J.L. & Tech. 14 (2013), available at<\/em>\u00a0<\/em>http:\/\/jolt.richmond.edu\/v19i4\/article14.pdf.\u00a0<\/p>\n

by Nicole A. Poltash*<\/sup><\/p>\n

\u00a0<\/em><\/p>\n

I.\u00a0 Introduction<\/b><\/h3>\n

[1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The usurpation of personal pictures posted on social media websites is not uncommon.\u00a0 Cheryl Smith was unknowingly made the face of a dating website.[1] \u00a0A headshot of popular blogger Sara Pinnix was used \u201cto promote an overseas Tarot card reader named Cristal.\u201d[2] \u00a0And eighteen-year-old Arielle Goldfinch\u2019s pictures were used on Tagged, a website \u201caimed at meeting people for sexual relationships.\u201d[3]\u00a0\u00a0<\/p>\n

[2]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Such potential for misuse is particularly unsettling in light of the fact that three hundred million photos are uploaded to Facebook every day.[4]\u00a0 Yet a careful reading of Facebook\u2019s privacy policy dispels any notion that information a person chooses to share will not be disclosed to anybody else\u2014even if shared with only one friend.[5]\u00a0 Communications can be disseminated \u201cby the friends with whom [users] share it, or even by Facebook at its discretion.\u201d[6]\u00a0 Indeed, Facebook recently sent its users notice of a pending class action which claims that \u201cFacebook unlawfully used the names, profile pictures, photographs, likenesses, and identities of Facebook users in the United States to advertise or sell products and services . . . without obtaining those users\u2019 consent.\u201d[7]<\/p>\n

[3]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Enter Snapchat, a mobile phone application that sends self-destructing messages.[8]\u00a0 The company touts: \u201c[S]imply set the timer up to ten seconds and send.\u00a0 [Recipients will] have that long to view your message and then it disappears forever.\u201d[9]\u00a0 And disappear it does.\u00a0 \u201c[T]he company deletes any videos or photos off its servers after the content has been viewed. . . . [T]he data is completely deleted and could not be recalled even if law enforcement came looking for [it].\u201d[10]\u00a0 Unsurprisingly, this has led to the use of Snapchat for sexting[11] since its launch in September 2011.[12]\u00a0 \u00a0 \u00a0\u00a0<\/p>\n

[4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This comment explores sexting between minors and its inseparable link to Snapchat.\u00a0 Part II provides background information on the practice and prevalence of sexting.\u00a0 Part III explains the Snapchat application and its various uses. \u00a0Part IV discusses the implications of sexting, legal and otherwise.\u00a0 Part V examines how Snapchat directly conflicts with current law.[13]\u00a0 Lastly, Part VI proposes possible solutions.<\/p>\n

 <\/p>\n

II.\u00a0 Background<\/b><\/h3>\n

[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Sexting has been defined as \u201c[t]he practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular phones . . . or over the Internet.\u201d[14]\u00a0 Typically, a person takes a digital photo of himself or herself and sends it via mobile phone as a text message.[15]\u00a0 Children as young as twelve years old have engaged in the practice.[16]<\/p>\n

\u00a0[6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Between 2004 and 2009 the portion of teenagers[17] who owned cell phones increased from forty-five to seventy-five percent.[18]\u00a0 Of those teens, four percent admitted to having sent a sext to another person and fifteen percent said they had received a sext of someone they know.[19]\u00a0 Those figures nearly parallel the percentage of adults who have sent and received sexts,[20] and have increased significantly since 2009.[21]<\/p>\n

[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A 2012 survey of over six hundred private high school students revealed that nearly twenty percent of students had sent a sext via cell phone, and nearly twice as many had received a sext.[22]\u00a0 Over a third of those who had sent a sext had done so \u201cdespite believing that there could be serious consequences.\u201d[23] \u00a0More than a quarter had forwarded a sext that they had received to others.[24]<\/p>\n

[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The National Campaign to Prevent Teen and Unplanned Pregnancy sponsored a similar survey of 1,280 teenagers and young adults, which largely uncovered the same figures.[25]\u00a0 Nearly twenty percent of teenagers found nothing wrong with text messages containing images of full nudity, while forty percent considered being topless acceptable.[26]\u00a0 In addition, \u201c[s]ending and posting nude or semi-nude photos or videos starts at a young age and becomes even more frequent as teens become young adults.\u201d[27]<\/p>\n

[9]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Sexting itself is strongly linked to sexual behavior.[28]\u00a0 According to the Archives of Pediatrics and Adolescent Medicine<\/i>, \u201c[a]bout 77% of girls aged 14 to 19 who had sent a sext reported having had intercourse, compared with 42% of those who hadn\u2019t sexted.\u00a0 For boys, 82% of those who had sexted had had sex, while 46% of non-sexters had done so.\u201d[29]\u00a0 Finally, girls who sext are also more likely to engage in unsafe sex.[30]\u00a0<\/p>\n

 <\/p>\n

III.\u00a0 Snapchat<\/b><\/h3>\n

A.\u00a0 Application, Terms, and Loopholes<\/b><\/h4>\n

[10]\u00a0\u00a0\u00a0\u00a0\u00a0 Snapchat was born in the spring of 2011 in a Kappa Sigma fraternity house.[31]\u00a0 Stanford alum Bobby Murphy and Stanford dropout Evan Spiegel created the picture and video messaging application as a project for a product design class.[32]\u00a0 The company\u2019s description of the application, which is rated for users twelve and older, is short:<\/p>\n

Snapchat is the fastest way to share a moment with friends.\u00a0 You control how long your friends can view your message\u2014simply set the timer up to ten seconds and send.\u00a0 They\u2019ll have that long to view your message and then it disappears forever.\u00a0 We\u2019ll let you know if they take a screenshot!\u00a0 Build relationships, collect points, and view your best friends.\u00a0 Snapchat is instantly fun and insanely playful.\u00a0 Show your friends how clever you can be and enjoy the lightness of being![33]<\/p>\n

[11]\u00a0\u00a0\u00a0\u00a0\u00a0 Once Snapchat is downloaded from Apple\u2019s iTunes or Google Play, a user must register a username and set a password.[34]\u00a0 Snapchat then \u201caccesses your contacts on your cell phone to load friends to the application, or you can add other friends beyond your contact list.\u201d[35]\u00a0 After two users approve each other, they can begin messaging.[36]<\/p>\n

[12]\u00a0\u00a0\u00a0\u00a0\u00a0 Pictures and videos are sent the same way: \u201cby taking the picture or video, setting a timer from 1-10 seconds for the content to disappear after the user opens it, and sending it to another user.\u201d[37]\u00a0 Messages can be sent to one or more persons at a time.[38]\u00a0 But with pictures, there are\u00a0 additional options; they can be edited with captions or doodles, saved to a user\u2019s phone, or uploaded directly to Instagram.[39]\u00a0 Snapchat also tracks who each person messages, creating a \u201cbest friends\u201d group for those messaged most,[40] with the top three people listed in order on each user\u2019s public Snapchat profile.[41]<\/p>\n

[13]\u00a0\u00a0\u00a0\u00a0\u00a0 What makes the application so unique, however, is what happens to messages after they are viewed.\u00a0 Pictures and videos sent via Snapchat are not just deleted from the recipient\u2019s phone, but also from Snapchat\u2019s network.[42]\u00a0 \u201c[T]he company deletes any videos or photos off of its servers after the content has been viewed. . . . [T]he data is completely deleted and could not be recalled even if law enforcement came looking for the information.\u201d[43]\u00a0<\/p>\n

[14]\u00a0\u00a0\u00a0\u00a0\u00a0 But Snapchat does not and cannot entirely live up to this claim, giving users a false sense of security.\u00a0 Indeed, the company\u2019s privacy policy acknowledges a
\ns much:<\/p>\n

Although we attempt to delete image data as soon as possible after the message is received and opened by the recipient . . . we cannot guarantee that the message contents will be deleted in every case. . . . Messages, therefore, are sent at the risk of the user.[44]\u00a0 \u00a0 \u00a0 \u00a0 \u00a0\u00a0<\/p>\n

[15]\u00a0\u00a0\u00a0\u00a0\u00a0 There are additional loopholes.\u00a0 For example, recipients can simply take a screenshot of the message, although this will notify the sender.[45]\u00a0 Alternatively, recipients can take a picture of their phone, thereby circumventing the screenshot notification.\u00a0 Even then, a more complicated approach exists.\u00a0 \u201cSnapchat saves [videos] on the phone\u2019s local memory, which you can then recall by installing a file browser, such as iFunBox, and plugging the phone into a computer.\u00a0 You then search through the file browser, copy and save the content to a computer, and you\u2019re done.\u201d[46]<\/p>\n

[16]\u00a0\u00a0\u00a0\u00a0\u00a0 Nevertheless, Snapchat has risen rapidly in popularity since its launch in September 2011.[47]\u00a0 By the end of December 2012, the application was being used fifty million times a day,[48] up from thirty million in November and ten million in October.[49]\u00a0 In 2012 alone, more than five billion messages were sent through Snapchat.[50] \u00a0In February 2013, the application \u201cwas the second-most popular free photo and video app for the iPhone . . . just behind YouTube and ahead of Instagram.\u201d[51]\u00a0 Snapchat is especially popular among individuals under twenty-five, and in December 2012 the company received eight million dollars from Benchmark Capital, the financial backer behind Instagram.[52]\u00a0<\/p>\n

[17]\u00a0\u00a0\u00a0\u00a0\u00a0 The application\u2019s success has led other companies to copy the concept.[53]\u00a0 In December 2012, for example, Facebook created the Poke app, which allows users to \u201csend self-destructing photos, videos, and Facebook messages.\u201d[54]\u00a0 Unlike Snapchat, however, Facebook \u201ckeeps data you\u2019ve deleted for a certain amount of time on its servers.\u201d[55]\u00a0 The new Facebook application has been largely unsuccessful, even being derided as \u201can obvious ripoff,\u201d and appears to have launched Snapchat to new heights.[56]<\/p>\n

 <\/p>\n

\u00a0B.\u00a0 Uses<\/b><\/p>\n

[18]\u00a0\u00a0\u00a0\u00a0\u00a0 Snapchat is meant to bring fun and spontaneity back into the digital world.\u00a0 \u201cPeople are living with this massive burden of managing a digital version of themselves,\u201d co-founder Evan Spiegel explained.[57]\u00a0 \u201cIt\u2019s taken all of the fun out of communicating.\u201d[58]\u00a0 The application gives users a strong sense of inconsequentiality to their actions, enabling them to take \u201cthe ugliest, silliest, most compromising photos they want.\u201d[59]\u00a0 But emphasis should be placed on compromising.\u00a0 The company\u2019s deletion of messages from its servers has led to a widespread alternative use for Snapchat: sexting.[60]<\/p>\n

[19]\u00a0\u00a0\u00a0\u00a0\u00a0 Snapchat has been recognized as a sexting application since its inception.[61]\u00a0 Because messages are ultimately deleted from the company\u2019s servers, Snapchat has even been dubbed \u201cthe greatest tool for sexting since the front-facing camera.\u201d[62]\u00a0 The New York Times<\/i> put it aptly: \u201cAll of this sexting . . . creates an opening for technology that might make the photos less likely to end up in wide circulation.\u00a0 This is where a free and increasingly popular iPhone app called Snapchat comes in.\u201d[63]\u00a0<\/p>\n

[20]\u00a0\u00a0\u00a0\u00a0\u00a0 Spiegel is unpersuaded, saying, \u201cI\u2019m not convinced that the whole sexting thing is as big as the media makes it out to be. . . . I just don\u2019t know people who do that.\u00a0 It doesn\u2019t seem that fun when you can have real sex.\u201d[64]\u00a0 Yet the application is rated for users twelve years of age and older due, in part, to \u201csuggestive themes\u201d and \u201cmild sexual content or nudity.\u201d[65]<\/p>\n

[21]\u00a0\u00a0\u00a0\u00a0\u00a0 Proof of Snapchat\u2019s use for sexting is found in \u201cSnapchat Sluts,\u201d a website featuring photos of naked women that were taken using Snapchat.[66]\u00a0 The website was created in early December 2012 by party photographer Kirill Bichutsky and was \u201cborn from an open call for submissions posted on Bichutsky\u2019s Twitter account.\u201d[67]\u00a0 All participants submitted pictures willingly and were over eighteen.[68]\u00a0 The photos have since been removed, but the website clearly demonstrates that Snapchat \u201cis being used in ways not intended by its creators.\u201d[69]<\/p>\n

[22]\u00a0\u00a0\u00a0\u00a0\u00a0 Snapchat is also used for other improper purposes, such as for \u201ccrude drawings\u201d and \u201cto flaunt underage drinking.\u201d[70]\u00a0 In addition, \u201ca growing number of teens [are] using Snapchat for cheating on tests.\u201d[71]\u00a0<\/p>\n

 <\/p>\n

IV.\u00a0 Implications of Sexting<\/b><\/h3>\n

<\/b>A.\u00a0 Legal Implications<\/b><\/h3>\n

[23]\u00a0\u00a0\u00a0\u00a0\u00a0 In New York v. Ferber<\/i>, the Supreme Court held that \u201c[s]tates are entitled to greater leeway in the regulation of pornographic depictions of children.\u201d[72]\u00a0 Because the child pornography laws of most states classify a child as someone under the age of eighteen, a teenager who sexts may commit four different crimes: solicitation, production, distribution, and possession of child pornography.[73]\u00a0 In effect, such laws criminalize a large fraction of American teenagers\u2019 behavior.<\/p>\n

[24]\u00a0\u00a0\u00a0\u00a0\u00a0 The nature of sexting, however, makes \u201ctypical legal questions about the action, the actors, and the consequences difficult if not impossible to answer.\u201d[74]\u00a0 Thus state legislatures, while not ignoring the problem, have been slow to make progress.[75]\u00a0 States have taken a variety of approaches to regulating teenagers who sext.[76]\u00a0 Vermont, for example, created a total exception for consensual sexting between teenagers of specific ages.[77]\u00a0 Vermont Senate Bill 125 amended child pornography laws to exclude persons \u201cless than 19 years old, [when] the child is at least 13 years old, and the child knowingly and voluntarily and without threat of coercion used an electronic communication device to transmit an image of himself or herself to the person.\u201d[78]<\/p>\n

[25]\u00a0\u00a0\u00a0\u00a0\u00a0 Other states established entirely new sex offender laws in response to sexting.\u00a0 In February 2012, South Dakota criminalized a minor\u2019s intentional creation, transmission, possession, or distribution of \u201cany visual depiction of a minor in any condition of nudity . . . or involved in any prohibited sexual act.\u201d[79]\u00a0 With the exception of two affirmative defenses, any violation constitutes the offense of juvenile sexting, which is a class one misdemeanor.[80]<\/p>\n

[26]\u00a0\u00a0\u00a0\u00a0\u00a0 Diversionary programs are an alternative approach.\u00a0 New York Assembly Bill 8131 \u201c[d]irects the attorney general to establish a 2 year juvenile sexting and cyberbullying education demonstration program in not less than 3 counties as a diversionary program for persons under 16 who have engaged in cyberbullying or sexting, in lieu of juvenile delinquency or criminal proceedings.\u201d[81]<\/p>\n

[27]\u00a0\u00a0\u00a0\u00a0\u00a0 Many state laws, however, do not adequately address the problem of sexting and how to punish it.\u00a0 Illinois\u2019 sexting law, for example, does not punish persons who repeatedly request sexts nor does it provide persons who receive unwanted sexts with a means to stop the sender.[82]\u00a0 Further, the law fails to \u201cgo far enough to punish minors who recklessly send sext images on to unintended third parties and . . . to prevent the images from being created in the first place.\u201d[83]\u00a0\u00a0<\/p>\n

[28]\u00a0\u00a0\u00a0\u00a0\u00a0 In those states without\u00a0 sexting laws, prosecutors are left to follow the laws already in place.\u00a0 These laws are \u201cmainly child pornography or obscenity laws, and some legislators have followed in turn with sex offender punishment guidelines. . . . [A] conviction . . . could result in teens being labeled sex offenders and subject to lifetime registration and reporting requirements.\u201d[84]<\/p>\n

[29]\u00a0\u00a0\u00a0\u00a0\u00a0 Section 2256(8) of the Protection of Children Against Sexual Exploitation Act of 1977, for example, provides that child pornography \u201cis any visual depiction of sexually explicit conduct when the visu
\nal depiction is a digital image, computer image, or computer-generated image of a minor engaging in sexually explicit conduct.\u201d[85]\u00a0 Although many sexts do not fall within the purview of \u201csexually explicit,\u201d[86] teenagers across the United States have been charged with child pornography offenses.[87]\u00a0 Such teenagers may face a difficult choice: \u201ceither mount a case-by-case \u2018as applied\u2019 challenge to a prima facie valid law (and risk decades in jail) or plead guilty to a lesser charge.\u201d[88]<\/p>\n

 <\/p>\n

B.\u00a0 Non-Legal Implications<\/b><\/h4>\n

[30]\u00a0\u00a0\u00a0\u00a0\u00a0 Sexting also has non-legal implications, such as damaging careers and future job prospects.[89]\u00a0 \u201cAccording to a recent survey by Microsoft, 75 percent of U.S. recruiters and human-resource professionals report that their companies require them to do online research about candidates, and many use a range of sites when scrutinizing applicants\u2014including. . . photo- and video-sharing sites.\u201d[90]\u00a0 Further, \u201c[s]eventy percent of U.S. recruiters report that they have rejected candidates because of information found online.\u201d[91]<\/p>\n

[31]\u00a0\u00a0\u00a0\u00a0\u00a0 More importantly, the distribution of pictures and videos depicting juveniles engaged in sexual activity is \u201cintrinsically related to the sexual abuse of children\u201d in two notable ways.[92]\u00a0 \u201cFirst, the materials produced are a permanent record of the children\u2019s participation and the harm to the child is exacerbated by their circulation.\u00a0 Second, the distribution network for child pornography must be closed if the production of [such] material \u00a0\u00a0. . . is to be effectively controlled.\u201d[93]<\/p>\n

[32]\u00a0\u00a0\u00a0\u00a0\u00a0 Sexting may also lead to bullying.[94]\u00a0 Eighteen-year-old Jessica Logan of Cincinnati, for example, was harassed after an ex-boyfriend forwarded nude pictures of her to other high school girls.[95]\u00a0 A few months later, Logan took her own life.[96]<\/p>\n

 <\/p>\n

V.\u00a0 Conflicts with the Law<\/b><\/h3>\n

[33]\u00a0\u00a0\u00a0\u00a0\u00a0 With all the risks associated with the application\u2019s improper use, Snapchat has added limited liability and indemnification clauses.[97]\u00a0 Its limitation of liability states, in relevant part, that the company will not be held liable for any damages resulting from \u201cthe conduct of other users of the application, even if Snapchat has been advised of the possibility of such damages.\u00a0 You assume total responsibility for your use of the application.\u201d[98]<\/p>\n

[34]\u00a0\u00a0\u00a0\u00a0\u00a0 Damages aside, Snapchat itself may be illegal because it functions as a distribution network for child pornography.\u00a0 The Supreme Court has held that a state\u2019s interest in \u201csafeguarding the physical and psychological well-being of a minor\u201d is \u201ccompelling.\u201d[99]\u00a0 \u201cA democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens . . . .\u201d[100]\u00a0 Accordingly, the Court has \u201csustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.\u201d[101]<\/p>\n

[35]\u00a0\u00a0\u00a0\u00a0\u00a0 One concern articulated in Ferber<\/i> applies directly to teen sexting: the creation of a \u201cpermanent record.\u201d[102]\u00a0 As explained in Osbourne v. Ohio<\/i>, \u201cpornography\u2019s continued existence causes the child victims continuing harm by haunting the children in years to come.\u201d[103]\u00a0 This \u201chaunting\u201d presupposes underlying sexual abuse, but abuse is not required:<\/p>\n

[P]ornography poses an even greater threat to the child victim than does sexual abuse or prostitution.\u00a0 Because the child\u2019s actions are reduced to a recording, the pornography may haunt him in future years . . . . A child who has posed for a camera must go through life knowing that the recording is [or could be] circulate[ed] . . . .[104]<\/p>\n

[36]\u00a0\u00a0\u00a0\u00a0\u00a0 Similarly, \u201cit is the fear of exposure and the tension of keeping the act secret that seems to have the most profound emotional repercussions.\u201d[105]\u00a0 Sexting itself is also harmful to teenagers.[106]\u00a0 These harms justify the suppression of self-made pornography, even if it interferes with teenagers\u2019 interest in expressing themselves as they wish.\u00a0<\/p>\n

[37]\u00a0\u00a0\u00a0\u00a0\u00a0 In practice, however, courts treat sexting differently than traditional child pornography.\u00a0 Between 2008 and 2009, for example:<\/p>\n

nearly 3,500 cases of sexual images produced by teens came to the attention of law enforcement agencies in the U.S. . . . . Two-thirds of these cases, however, had \u201caggravating\u201d factors \u2014 such as involvement of an adult or use of the images by a teen to harass, bully or intimidate the victim.\u00a0 Teens were arrested in 18% of cases where there was no aggravating factor, and registration as a sex offender occurred in only 10 cases, nine of which involved actual sexual assault . . . .[107]\u00a0<\/p>\n

Forty-five-year-old Randy T. Davis Jr., by contrast, was sentenced to almost fourteen years in federal prison for downloading traditional child pornography from the Internet. [108]<\/p>\n

[38]\u00a0\u00a0\u00a0\u00a0\u00a0 Even if sexting by minors is distinguishable from traditional child pornography,[109] it is still illegal under prima facie valid law.[110]\u00a0 Snapchat\u2019s self-destructing messages make users feel immune from repercussions.\u00a0 This has encouraged and led directly to the application\u2019s widespread use for sexting.\u00a0 Thus, Snapchat is \u201cdirected to inciting or producing imminent lawless action and is likely to incite or produce such action.\u201d[111]\u00a0<\/p>\n

[39]\u00a0\u00a0\u00a0\u00a0\u00a0 But the application adds an additional layer of complexity.\u00a0 Because Snapchat deletes photos and videos from senders\u2019 phones, recipients\u2019 phones, and its servers,[112] there is no \u201cpermanent record of the children\u2019s participation.\u201d[113]\u00a0 On the one hand, Snapchat functions like contraception, protecting teenagers who are going to sext regardless of the consequences.[114]\u00a0 On the other hand, it is used to both distribute child pornography and destroy the evidence.<\/p>\n

[40]\u00a0\u00a0\u00a0\u00a0\u00a0 Once deleted from Snapchat\u2019s network, messages cannot be recovered, putting them beyond the reach of any subsequent investigation.[115]\u00a0 Thus, short of real-time interception by law enforcement, Snapchat\u2019s use deprives victims of recourse, even when aggravating factors are present.[116]\u00a0<\/p>\n

[41]\u00a0\u00a0\u00a0\u00a0\u00a0 Such aggravating factors are becoming increasingly common.\u00a0 One reason is trends like \u201crevenge porn,\u201d in which males post naked pictures of their ex-girlfriends online to websites such as PinkMeth.[117]\u00a0 Again, these harms greatly outweigh the benefits of freely taking \u201cthe ugliest, silliest, most compromising photos.\u201d[118]<\/p>\n

 <\/p>\n

VI.\u00a0 Conclusion<\/b><\/h3>\n

[42]\u00a0\u00a0\u00a0\u00a0\u00a0 All states should create educational programs for teenagers about sexting.[119]\u00a0 These programs should be taught using \u201cgist\u201d-based reasoning because \u201cteens who are taught to focus on potential catastrophic, negative outcomes, rather than the odds, make fewer risky [ ] decisions.\u201d[120]\u00a0 These outcomes should include, among other things, bullying and career implications.\u00a0 The curriculum can be incorporated into both Family Life Education and rehabilitation programs.<\/p>\n

[43]\u00a0\u00a0\u00a0\u00a0\u00a0 In addition, applications such as Snapchat must be made less readily available to minors.\u00a0 Accordingly, Snapchat should be restricted to adults age eighteen and older, and the application\u2019s content rating should be changed on Apple\u2019s iTunes and Google Play.\u00a0 As to the former, Snapchat should implement a customer protection block until a user confirms that he or she is eighteen years of age or older.[121]\u00a0 As to the latter, a changed rating will put parents on alert on the front end, decreasing the need to look through their children\u2019s phone records to unearth red flags.\u00a0<\/p>\n

[44]\u00a0\u00a0\u00a0\u00a0\u00a0 States should also pass legislation imposing fines on minors who use Snapchat.[122]\u00a0 Authorities can uncover the age and identity of many Snapchat users simply through their usernames: \u201c[s]ince Sn
\napchat presents itself as private\u2014basically offline\u2014many people use the same username as they use for other social media accounts. . . . [A] quick Google search of [people\u2019s] usernames pulled their Instagram and Twitter accounts right up.\u201d[123]\u00a0 A user\u2019s operation of the application can then be monitored in part through his or her public Snapchat profile.[124]\u00a0 Over time, such fines would reduce Snapchat\u2019s network effect and use amongst minors.[125]<\/p>\n

[45]\u00a0\u00a0\u00a0\u00a0\u00a0 Alternatively, Snapchat could be ordered to implement nudity detection software such as Snitch[126] or PORNsweeper.[127]\u00a0 Such software searches files \u201cfor the color of human pigmentation in the pixels, since nude or pornographic images contain more skin pixels than other images where skin is present.\u201d[128]\u00a0 This would detect most sexts, though the software may also flag \u201c[b]aby pictures and pictures of people on vacation at the beach . . . because they contain large amounts of skin.\u201d[129]<\/p>\n

[46]\u00a0\u00a0\u00a0\u00a0\u00a0 Once a message is flagged as containing nudity, Snapchat can do one of three things: delete the message, pixelate the message, or forward the message to authorities.[130]\u00a0 Of these three options, deletion is the most practical.[131]\u00a0 Moreover, deletion would allow teenagers to continue to use Snapchat while simultaneously reducing its ability to be used for sexting.[132]<\/p>\n

[47]\u00a0\u00a0\u00a0\u00a0\u00a0 In conclusion, many legislatures are failing to keep pace with sexting amongst minors.\u00a0 The legal implications are problematic, and are only compounded by applications like Snapchat.\u00a0 The above steps to prevent the baring of one\u2019s bare essentials via Snapchat are not exclusive or exhaustive.\u00a0 But they are steps in the right direction.<\/p>\n

\n
\n
\n

* B.S. Commerce and B.A. German Language and Literature, University of Virginia, J.D. Candidate, University of Richmond School of Law.\u00a0 I would like to thank Michael Poltash, Spencer Martin, and Tina Hoellerer for the invaluable roles they played in the publishing of this comment.<\/p>\n

 <\/p>\n

[1] Riva Richmond, Can You Protect Your Image While on Facebook?<\/i>, N.Y. Times (July 24, 2009, 7:17 PM), http:\/\/gadgetwise.blogs.nytimes.com\/2009\/07\/24\/can-you-protect-your-image-while-on-facebook\/; Lee Mathews, Facebook Sez, \u201cDon\u2019t Mind Us, We\u2019re Just Whoring Out Your Photos\u201d<\/i>, Huffington Post Tech (July 16, 2009, 9:00 PM), http:\/\/downloadsquad.switched.com\/2009\/07\/16\/facebook-sez-dont-mind-us-were-just-whoring-out-your-photos?icid=sphere_blogsmith_inpage_downloadsquad.<\/p>\n<\/div>\n

\n

[2] David Griner, Mom Blogger Shocked to See Her Photo in Ad for Spanish Psychic<\/i>, Adweek (Nov. 12, 2012, 9:23 AM), http:\/\/www.adweek.com\/adfreak\/mom-blogger-shocked-see-her-photo-ad-spanish-psychic-145134.<\/p>\n<\/div>\n

\n

[3] Chloe Johnson, Teen\u2019s Pictures Stolen for Site<\/i>, New Zealand Herald (Dec. 8, 2012, 5:30 AM), http:\/\/www.nzherald.co.nz\/nz\/news\/article.cfm?c_id=1&objectid=10852809.<\/p>\n<\/div>\n

\n

[4] Casey Chan, What Facebook Deals with Everyday: 2.7 Billion Likes, 300 Million Photos Uploaded and 500 Terabytes of Data<\/i>, Gizmodo (Aug. 22, 2012, 10:30 PM), http:\/\/gizmodo.com\/5937143\/what-facebook-deals-with-everyday-27-billion-likes-300-million-photos-uploaded-and-500-terabytes-of-data.<\/p>\n<\/div>\n

\n

[5] Data Use Policy<\/i>, Facebook (Dec. 11, 2012), http:\/\/www.facebook.com\/full_data_use_policy (\u201c[I]nformation you share on Facebook can be re-shared.\u00a0 This means that if you share something on Facebook, anyone who can see it can share it with others.\u201d).<\/p>\n<\/div>\n

\n

[6] McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, <\/i>2010 Pa. Dist. & Cnty. Dec. LEXIS 270, at *7\u00a0 (Pa. Cnty. Ct. 2010).<\/p>\n<\/div>\n

\n

[7] Christina Warren, Facebook Starts Sending Out Notices for Sponsored Stories Settlement<\/i>, Mashable (Jan. 3, 2013), http:\/\/mashable.com\/2013\/01\/03\/facebook-settlement-email\/; Kashmir Hill, Yes, That Legal Notice You Got From Facebook Is Real<\/i>, Yahoo Fin. (Jan. 28, 2013), http:\/\/finance.yahoo.com\/news\/yes–that-legal-notice-you-got-from-facebook-is-real-190343914.html.<\/p>\n<\/div>\n

\n

[8] See generally <\/i>Snapchat, Inc., Snapchat: Description<\/i>, Google Play (Dec. 17, 2012), https:\/\/play.google.com\/store\/apps\/details?id=com.snapchat.android.<\/p>\n<\/div>\n

\n

[9] Id.<\/i><\/p>\n<\/div>\n

\n

[10] Meghan Kelly, Sorry, Guys\u2014Snapchat Videos Can be Saved (Updated)<\/i>, Venture Beat (Dec. 28, 2012, 7:52 AM), http:\/\/venturebeat.com\/2012\/12\/28\/save-snapchat-content\/.<\/p>\n<\/div>\n

\n

[11] See <\/i>Nick Bilton, Disruptions: Indiscreet Photos, Glimpsed Then Gone<\/i>, N.Y. Times (May 6, 2012, 5:24 PM), http:\/\/bits.blogs.nytimes.com\/2012\/05\/06\/disruptions-indiscreet-photos-glimpsed-then-gone\/ (\u201cAll of this sexting . . . creates an opening for technology that might make the photos less likely to end up in wide circulation.\u00a0 This is where a free and increasingly popular iPhone app called Snapchat comes in.\u201d); see also <\/i>Kate Knibbs, What\u2019s So Special (and So Dangerous) About Snapchat<\/i>, Digital Trends (Dec. 12, 2012), http:\/\/www.digitaltrends.com\/mobile\/whats-so-special-and-so-dangerous-about-snapchat\/ (noting Snapchat is \u201cthe greatest tool for sexting since the front-facing camera\u201d).<\/p>\n<\/div>\n

\n

[12] See, e.g.<\/i>, J.J. Colao, Snapchat: The Biggest No-Revenue Mobile App Since Instagram<\/i>, Forbes (Nov. 27, 2012), <\/i>http:\/\/www.forbes.com\/sites\/jjcolao\/2012\/11\/27\/snapchat-the-biggest-no-revenue-mobile-app-since-instagram\/.<\/p>\n<\/div>\n

\n

[13] Snapchat touches many areas of law, including intellectual property, contract, tort, and constitutional law.\u00a0 The scope of this Comment is limited to Snapchat\u2019s relationship to sexting.<\/p>\n<\/div>\n

\n

[14] Complaint \u00b6<\/b> 7, Miller v. Skumanick, 605 F. Supp. 2d 634 (M.D. Pa. 2009) (No. 3:09cv540).<\/p>\n<\/div>\n

\n

[15] See id. <\/i>\u00b6\u00b6<\/b> 8-9.<\/p>\n<\/div>\n

\n

[16] Sexting Occurring as Young as 5th Grade<\/i> (CBS television broadcast Aug. 1, 2012), available at <\/i>http:\/\/health.usnews.com\/health-news\/articles\/2012\/09\/17\/health-buzz-sexting-teens-more-likely-to-have-risky-sex.<\/p>\n<\/div>\n

\n

[17] A teenager has been defined as a person between the ages of twelve and seventeen.\u00a0 See<\/i> Amanda Lenhart et al., Teens, Adults & Sexting: Data on Sending & Receipt of Sexually Suggestive Nude or Nearly Nude Images by American Adolescents & Adults<\/i>, Pew Internet & Am. Life Project 1, 2 (Oct. 23, 2010), available at <\/i>http:\/\/www.pewinternet.org\/Presentations\/2010\/Oct\/Teens-Adults-and-Sexting.aspx.<\/p>\n<\/div>\n

\n

[18] Id. <\/i>at 3.<\/p>\n<\/div>\n

\n

[19] Id. <\/i>at 6.<\/p>\n<\/div>\n

\n

[20] Six percent of adults have sent a sext and fifteen percent of adults have received a sext.\u00a0 Id. <\/i>at 7.<\/p>\n<\/div>\n

\n

[21] Cf.<\/i> id<\/i>. at 3.<\/p>\n<\/div>\n

\n

[22] Donald Strassburg & Valoree Dowell, U Study Finds \u2018Sexting\u2019 More Common Among Teens Than You Might Think<\/i>, U News Center: The U. of Utah (June 14, 2012), http:\/\/unews.utah.edu\/news_releases\/u-study-finds-sending-sexually-explicit-photos-by-cell-phone-more-common-among-teen-than-you-might-think\/.<\/p>\n

 <\/p>\n<\/div>\n

\n

[23] Id.<\/i><\/p>\n<\/div>\n

\n

[24] Id.<\/i><\/p>\n<\/div>\n

\n

[25] See <\/i>Cosmogirl.com & The Nat\u2019l Campaign to Prevent Teen and Unplanned Pregnancy, Sex and Tech, Results from a Survey of Teens and Young Adults 1-2 (2008), available at <\/i>http:\/\/www.thenationalcampaign.org\/sextech\/pdf\/sextech_summary.pdf [hereinafter Cosmogirl Survey].\u00a0 This survey defines a teenager and young adult as ages 13-19 and 20-26, respectively.\u00a0 Id. <\/i>at 1.<\/p>\n<\/div>\n

\n

[26] Glenda Cooper, Sexting: A New Teen Cyber-Bullying \u2018Epidemic\u2019<\/i>, The Telegraph\u00a0 (Apr. 12, 2012), http:\/\/www.telegraph.co.uk\/technology\/facebook\/9199126\/Sexting-a-new-teen-cyber-bullying-epidemic.html.<\/p>\n<\/div>\n

\n

[27] Cosmogirl Survey, supra <\/i>note 25, at 1.<\/p>\n<\/div>\n

\n

[28] Laura McMullen, Health Buzz: Sexting Teens More Likely to H
\nave Risky Sex<\/i>, U.S. News & World Rep. Health (Sept. 17. 2012), http:\/\/health.usnews.com\/health-news\/articles\/2012\/09\/17\/health-buzz-sexting-teens-more-likely-to-have-risky-sex.<\/p>\n<\/div>\n

\n

[29] Maia Szalavitz, Nearly 1 in 3 Teens Sext, Study Says. Is This Cause for Worry?<\/i>, Time (July 2, 2012), http:\/\/healthland.time.com\/2012\/07\/02\/nearly-1-in-3-teens-sext-study-says-is-this-cause-for-worry\/?.<\/p>\n<\/div>\n

\n

[30] See id.<\/i> (including unprotected sex, more sexual partners, and using drugs or alcohol before sex); see also<\/i> McMullen, supra <\/i>note 28.\u00a0<\/p>\n<\/div>\n

\n

[31] Felix Gillette, Snapchat and the Erasable Future of Social Media<\/i>, Bus. Wk. (Feb. 7, 2013), available at <\/i>http:\/\/www.businessweek.com\/articles\/2013-02-07\/snapchat-and-the-erasable-future-of-social-media.<\/p>\n<\/div>\n

\n

[32] Colao, supra <\/i>note 12.<\/p>\n<\/div>\n

\n

[33] <\/i>Snapchat Inc., supra <\/i>note 8; iTunes Preview: Snapchat<\/i>, Apple, https:\/\/itunes.apple.com\/us\/app\/snapchat\/id447188370?mt=8 (last visited Mar. 28, 2013).<\/p>\n<\/div>\n

\n

[34] Wayne Parker, Snapchat \u2013 A Popular App for Teens but with a Dark Side<\/i>, About.com, http:\/\/fatherhood.about.com\/od\/fathers-social-media\/p\/Snapchat.htm (last visited Mar. 26, 2013).<\/p>\n<\/div>\n

\n

[35] Id.<\/i><\/p>\n<\/div>\n

\n

[36] J.J. Colao, Snapchat Adds Video, Now Seeing 50 Million Photos a Day<\/i>, Forbes (Dec. 14, 2012), available at <\/i>http:\/\/www.forbes.com\/sites\/jjcolao\/2012\/12\/14\/snapchat-adds-video-now-seeing-50-million-photos-a-day\/ (\u201cThe update introduces a new \u2018friending\u2019 process that requires users to approve each other before exchanging photos.\u201d) .<\/p>\n<\/div>\n

\n

[37] Billy Gallagher, Snapchat Releases Video Sharing, Is Prototyping Monetization Features (Oh, and It\u2019s Still Not for Sexting)<\/i>, TechCrunch (Dec. 14, 2012), http:\/\/techcrunch.com\/2012\/12\/14\/snapchat-does-video\/.\u00a0<\/p>\n<\/div>\n

\n

[38] Joey Creighton, What Is Snapchat?<\/i>, Infospace (Nov. 29, 2012), http:\/\/infospace.ischool.syr.edu\/2012\/11\/29\/what-is-snapchat\/.<\/p>\n<\/div>\n

\n

[39] Id.<\/i><\/p>\n<\/div>\n

\n

[40] Id.<\/i><\/p>\n<\/div>\n

\n

[41] Katie Notopoulos, The Snapchat Feature That Will Ruin Your Life<\/i>, BuzzFeed\u00a0 (Dec. 2012), http:\/\/www.buzzfeed.com\/katienotopoulos\/the-snapchat-feature-that-will-ruin-your-life.<\/p>\n<\/div>\n

\n

[42] Kelly, supra <\/i>note 10.<\/p>\n<\/div>\n

\n

[43] Id; see also How Snaps Are Stored and Deleted<\/i>, Snapchat (May 9, 2013, 7:23 P.M.), blog.snapchat.com (\u201cWhen a snap is viewed and the timer runs out, the app notifies our servers, which in turn notify the sender that the snap has been opened.\u00a0 Once we\u2019ve been notified that a snap has been opened by all of its recipients, it is deleted from our servers.\u00a0 If a snap is still unopened after 30 days, it too is deleted from our servers.\u201d).<\/p>\n<\/div>\n

\n

[44] Privacy Policy<\/i>, Snapchat, http:\/\/www.snapchat.com\/privacy (last updated Feb. 20, 2013).<\/p>\n<\/div>\n

\n

[45] Id.<\/i><\/p>\n<\/div>\n

\n

[46] Kelly, supra <\/i>note 10 (\u201cA hole in its iPhone version . . . lets you grab video content before it\u2019s viewed.\u201d); see also<\/i> Katie Notopoulos, How Anybody Can Secretly Save Your Snapchat Videos Forever<\/i>, BuzzFeed (Dec. 27, 2012, 6:22 PM), http:\/\/www.buzzfeed.com\/katienotopoulos\/how-anybody-can-secretly-save-your-snapchat-videos (providing the exact steps on how to save Snapchat videos).<\/p>\n<\/div>\n

\n

[47] Colao, supra <\/i>note 12.<\/p>\n<\/div>\n

\n

[48] Our Biggest Update Yet: v4.0 Phantom!<\/i>, Snapchat (Dec. 14, 2012: 12:54 PM), blog.snapchat.com\/post\/37898594536\/our-biggest-update-yet-v4-0-phantom; Laurie Segall, Snapchat\u2019s \u2018Disappearing\u2019 Videos Don\u2019t Actually Vanish<\/i>, CNN Money (Dec. 28, 2012, 3:27 PM), \u00a0<\/i>http:\/\/money.cnn.com\/2012\/12\/28\/technology\/security\/snapchat-security-flaw\/index.html.<\/p>\n<\/div>\n

\n

[49] Colao, supra <\/i>note 12.<\/p>\n<\/div>\n

\n

[50] Willard Foxton, Revenge Porn and Snapchat: How Young Women Are Being Lured into Sharing Naked Photos and Videos With Strangers<\/i>, The Telegraph (Feb. 13, 2013), http:\/\/blogs.telegraph.co.uk\/technology\/willardfoxton2\/100008808\/revenge-porn-and-snapchat-how-young-women-are-being-lured-into-sharing-naked-photos-and-videos-with-strangers\/.<\/p>\n<\/div>\n

\n

[51] Gillette, supra<\/i> note 31.<\/p>\n<\/div>\n

\n

[52] Knibbs, supra <\/i>note 11.<\/p>\n<\/div>\n

\n

[53] Jared Keller, Facebook\u2019s Poke Is a Wild Success\u2014for Rival Snapchat<\/i>, Bus. Wk. (Dec. 28, 2012), available at <\/i>http:\/\/www.businessweek.com\/articles\/2012-12-28\/facebooks-poke-is-a-wild-success-for-rival-snapchat.<\/p>\n<\/div>\n

\n

[54] Id.<\/i><\/p>\n<\/div>\n

\n

[55] Meghan Kelly, This Snapchat Video Will Destruct in 5\u2026 4\u2026 3\u2026 2\u2026 Haha Took a Screenshot<\/i>, VentureBeat (Dec. 14, 2012, 2:53 PM), http:\/\/venturebeat.com\/2012\/12\/14\/snapchat-video\/.<\/p>\n<\/div>\n

\n

[56] Keller, supra <\/i>note 53.<\/p>\n<\/div>\n

\n

[57] Colao, supra <\/i>note 12.<\/p>\n<\/div>\n

\n

[58] Id.<\/i><\/p>\n<\/div>\n

\n

[59] Id.<\/i><\/p>\n<\/div>\n

\n

[60] See generally <\/i>Billy Gallagher, No, Snapchat Isn\u2019t About Sexting, Says Co-Founder Evan Spiegel<\/i>, Tech Crunch (May 12, 2012), http:\/\/techcrunch.com\/2012\/05\/12\/snapchat-not-sexting\/.<\/p>\n<\/div>\n

\n

[61] See, e.g.<\/i>, <\/i>Kashmir Hill, \u2018This Sext Message Will Self Destruct in Five Seconds<\/i>, Forbes (May 7, 2012, 12:51 PM), http:\/\/www.forbes.com\/sites\/kashmirhill\/2012\/05\/07\/<\/p>\n

fantastic-theres-a-quick-erase-app-for-sending-your-nude-photos\/; Katie Heaney, Snapchat Adding Video To Allow Longer Sexts<\/i>, BuzzFeed (Dec. 14, 2012, 12:54 PM), http:\/\/www.buzzfeed.com\/katieheaney\/snapchat-adding-video-to-allow-longer-sexts.<\/p>\n<\/div>\n

\n

[62] Knibbs, supra <\/i>note 11.<\/p>\n<\/div>\n

\n

[63] See, e.g.<\/i>, <\/i>Bilton, supra <\/i>note 11.<\/p>\n<\/div>\n

\n

[64] Gallagher, supra <\/i>note 60 (internal citations omitted).<\/p>\n<\/div>\n

\n

[65] iTunes Preview: Snapchat<\/i>, Apple, https:\/\/itunes.apple.com\/us\/app\/snapchat\/id447188370?mt=8 (last visited Mar. 28, 2013).<\/p>\n<\/div>\n

\n

[66] See <\/i>Max Read, \u2018Snapchat Sluts\u2019 Shows Why Snapchat Isn\u2019t the Consequence-Free Sexting App We\u2019d All Hoped For, <\/i>Gawker (Dec. 10, 2012, 6:30PM), http:\/\/gawker.com\/5967303\/snap<\/p>\n

chat-sluts-shows-why-snapchat-isnt-the-consequence+free-sexting-app-wed-all-hoped-for (describing Snapchat as \u201ca new way for teens to send each other nudes\u201d); Andrew Couts, Terms & Conditions: Snapchat\u2019s Privacy Policy Has Too Many Secrets<\/i>, Digital Trends (Dec. 16, 2012), http:\/\/www.digitaltrends.com\/mobile\/terms-conditions-snapchat\/.<\/p>\n<\/div>\n

\n

[67] \u2018Snapchat Sluts\u2019 Hit the Internet on New Website<\/i>, The Inquisitr (Dec. 11, 2012), http:\/\/www.inquisitr.com\/433154\/snapchat-sluts-hit-the-internet-on-new-website\/.<\/p>\n<\/div>\n

\n

[68] Id.<\/i><\/p>\n<\/div>\n

\n

[69] Id.<\/i>; see also<\/i> Couts, supra <\/i>note 66.<\/p>\n<\/div>\n

\n

[70] Grace Jensen, Snapchat Screenshots Reveal Teens Acting Like Teens<\/i>, BuzzFeed (Dec. 3, 2012, 5:02PM), http:\/\/www.buzzfeed.com\/googlegracie\/snapchat-screenshots-reveal-teens-acting-like-teen-7d2i.<\/p>\n<\/div>\n

\n

[71] Snapchat: Online Photos that Self-Destruct<\/i>, Your Teen for Parents (Mar. 25, 2013), http:\/\/yourteenmag.com\/2013\/snapchat-teens-photos\/ (\u201cStudents quickly take pictures of their test answers and snapchat it to other students in the class.\u201d).\u00a0 On the extreme end, Snapchat could also be used in the commission of crimes and terrorism.<\/p>\n<\/div>\n

\n

[72] 458 U.S. 747, 756 (1982).<\/p>\n<\/div>\n

\n

[73] Carrie L. M. Thompson, Let\u2019s Talk About Sext: Illinois\u2019 Legislative Response to Sexting<\/i>, 24 DCBA Brief 22, 22-23 (2011); see, e.g.<\/i>, Child Pornography, 720 Ill. Comp. Stat. 5\/11-20.1(a) (2009).<\/p>\n<\/div>\n

\n

[74] Thompson, supra <\/i>note 73, at 23.<\/p>\n<\/div>\n

\n

[75] Cf. 2012 Sexting Legislation<\/i>, Nat\u2019l Conf. of St. Legislatures (Dec. 14, 2012), http:\/\/ncsl.org\/issues-research\/telecom\/sexting-legislation-2012.aspx.<\/p>\n<\/div>\n

\n

[76] See generally id.<\/i><\/p>\n<\/div>\n

[77] S. 125, 2009 Leg., Reg. Sess. (Vt. 2009), available at <\/i>http:\/\/www.leg.state.vt.us\/docs\/2010\/Acts\/ACT058.pdf.<\/p>\n<\/div>\n

\n

[78] Id.<\/i><\/p>\n<\/div>\n

\n

[79] S. 183, 2012 Leg., 87th Sess. (S.D. 2012), available at <\/i>http:\/\/legis.state.sd.us\/sessions\/2012\/Bill.aspx?File=SB183P.htm.<\/p>\n<\/div>\n

\n

[80] Id.\u00a0 <\/i>(\u201cIt is an affirmative defense to the offense of juvenile sexting that the minor has not solicited the visual depiction, that the minor does not subsequently distribute, present, transmit, post, print, disseminate, or exchange the visual depiction, and that the minor deletes or destroys the visual depiction upon receipt.\u00a0 It is an affirmative defense . . . that the visual depiction is of a single minor, created by that minor, who does not subsequently distribute, present, transmit, post, print, disseminate, or exchange the visual depiction.\u201d).<\/p>\n<\/div>\n

\n

[81] See <\/i>Assemb. B. No. A08131, 2011 Leg., Reg. Sess. (N.Y. 2012), available at <\/i>http:\/\/assembly.state.ny.us\/leg\/?default_fld=&bn=A08131&term=2011&Summary=Y&Text=Y.<\/p>\n<\/div>\n

\n

[82] See <\/i>Thompson, supra <\/i>note 73, at 25.<\/p>\n<\/div>\n

\n

[83] Id.<\/i><\/p>\n<\/div>\n

\n

[84] Id. <\/i>at 22-23.<\/p>\n<\/div>\n

\n

[85] Isaac A. McBeth, Prosecute the Cheerleader, Save the World?: Asserting Federal Jurisdiction Over Child Pornography Crimes Committed Through \u201cSexting\u201d<\/i>, 44 U. Rich. L. Rev. 1327, 1330 (2012).<\/p>\n<\/div>\n

\n

[86] \u201cSexually explicit conduct includes (1) all forms of sexual intercourse (including oral or anal) where the genitals, breasts, or pubic area of any person is exhibited; (2) bestiality; (3) masturbation; (4) sadistic or masochistic abuse; and (5) lascivious exhibition of the genitals or pubic area.\u201d\u00a0 Id.<\/i><\/p>\n<\/div>\n

\n

[87] See, e.g.<\/i>, <\/i>John A. Humbach, \u2018Sexting\u2019 and the First Amendment<\/i>, 37 Hastings Const. L.Q. 433, 433-35 (2010) (\u201cTwo Florida teenagers took over one hundred photographs of themselves engaging in unspecified but lawful \u2018sexual behavior.\u2019\u00a0 The two were subsequently charged with \u2018promoting a sexual performance of a child,\u2019 a second degree felony under Florida law . . . . In Ohio, a fifteen-year-old girl used her cell phone to send nude photos of herself and was charged with \u2018illegal use of a minor in nudity-oriented material.\u2019 . . . Factual situations like these are not isolated.\u201d).<\/p>\n<\/div>\n

\n

[88] Id. <\/i>at 451.<\/p>\n<\/div>\n

\n

[89] See <\/i>Jeffrey Rosen, The Web Means the Ending of Forgetting<\/i>, N.Y. Times (July 21, 2010), <\/i>http:\/\/www.nytimes.com\/2010\/07\/25\/magazine\/25privacy-t2.html?pagewanted=all&_r=0.<\/p>\n<\/div>\n

\n

[90] Id.<\/i><\/p>\n<\/div>\n

\n

[91] Id.<\/i><\/p>\n<\/div>\n

\n

[92] New York v. Ferber, 458 U.S. 747, 759 (1982).<\/p>\n<\/div>\n

\n

[93] Id.<\/i><\/p>\n<\/div>\n

\n

[94] See <\/i>Cooper, supra <\/i>note 26.<\/p>\n

\u00a0[95] Mike Celizic, Her Teen Committed Suicide Over \u2018Sexting\u2019<\/i>, Today (Mar. 6, 2009, 9:26 AM), http:\/\/today.msnbc.msn.com\/id\/29546030\/ns\/today-parenting_and_family\/t\/her-teen-committed-suicide-over-sexting\/#.UN8jHInjn_V; Phuong Ly, The Lowdown on Sexting<\/i>, GreatSchools, http:\/\/www.greatschools.org\/parenting\/behavior-discipline\/2079-sexting.gs (last visited June 3, 2013).<\/p>\n<\/div>\n

\n

[96] Id.<\/i><\/p>\n<\/div>\n

\n

[97] See Terms of Use<\/i>, snapchat, www.snapchat.com\/# (last updated Feb. 20, 2013) (under the \u201cTerms\u201d tab).<\/p>\n<\/div>\n

\n

[98] Id.<\/i><\/p>\n<\/div>\n

\n

[99] Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982).<\/p>\n<\/div>\n

\n

[100] Prince v. Massachusetts, 321 U.S. 158, 168 (1944).<\/p>\n<\/div>\n

\n

[101] New York v. Ferber, 458 U.S. 747, 757 (1982) (denying child pornography films constitutional protection); see also<\/i> FCC v. Pacifica Found., 438 U.S. 726, 749-50 (1978) (holding that the government\u2019s interest in the youths\u2019 well-being justified special treatment of indecent broadcasting received by both adults and children); Prince<\/i>, 321 U.S. at 167-70 (holding valid a statute prohibiting the use of a child to distribute literature on the street despite its effect on a First Amendment activity).<\/p>\n<\/div>\n

\n

[102] 458 U.S. at 759; see also <\/i>Ashcroft v. Free Speech Coal., 535 U.S. 234, 249 (2002).<\/p>\n<\/div>\n

\n

[103] 495 U.S. 103, 111 (1990).<\/p>\n<\/div>\n

\n

[104] Ferber<\/i>, 458 U.S. at 759 n.10 (quoting David P. Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act<\/i>, 17 Wake Forest L. Rev. 535, 545 (1981)).<\/p>\n<\/div>\n

\n

[105] Ulrich C. Schoettle, Child Exploitation: A Study of Child Pornography<\/i>, 19 J. Am. Acad. Child Psychiatry 289, 292 (1980)).<\/p>\n<\/div>\n

\n

[106] See supra <\/i>Part IV.B.<\/p>\n<\/div>\n

\n

[107] Szalavitz, supra <\/i>note 29.<\/p>\n<\/div>\n

\n

[108] Man Gets Nearly 14 Years for Downloading Child Porn<\/i>, Journal Star (Jan. 10, 2013, 9:30 PM), http:\/\/www.pjstar.com\/news\/x1671799911\/Man-gets-nearly-14-years-for-downloading-child-porn.<\/p>\n<\/div>\n

\n

[109] See <\/i>Szalavitz, supra <\/i>note 29 (\u201cIn an adolescent period characterized by identity development and formation, sexting should not be considered equivalent to childhood sexual assault, molestation and date rape.\u201d).\u00a0 See generally<\/i>, Humbach, supra <\/i>note 87 (arguing that sexting and autopornography should not be categorically excluded from First Amendment protection).<\/p>\n<\/div>\n

\n

[110] See, e.g.<\/i>, Child Pornography, 720 Ill. Comp. Stat. 5\/11-20.1(a) (2009);<\/p>\n

S. 125, 2009 Leg., Reg. Sess. (Vt. 2009), available at <\/i>http:\/\/www.leg.state.vt.us\/docs\/2010\/Acts\/ACT058.pdf.\u00a0 As noted previously, sexting may induce four different crimes: solicitation, production, distribution, and possession of child pornography.\u00a0<\/p>\n<\/div>\n

\n

[111] Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002) (citing Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam)).<\/p>\n<\/div>\n

\n

[112] Kelly, supra <\/i>note 10.<\/p>\n<\/div>\n

\n

[113] New York v. Ferber, 458 U.S. 747, 759 (1982).<\/p>\n<\/div>\n

\n

[114] See <\/i>Nicholas Carlson, Sexting with Snapchat, Teenagers Prove They Aren\u2019t as Dumb as We Thought<\/i>, Bus. Insider (Dec. 31, 2012, 8:25 AM), http:\/\/www.businessinsider.com\/sexting-with-snapchat-teenagers-prove-they-arent-as-dumb-as-we-thought-2012-12.<\/p>\n<\/div>\n

\n

[115] Kelly, supra <\/i>note 10.<\/p>\n<\/div>\n

\n

[116] Szalavitz, supra <\/i>note 29.\u00a0 This is also true in cases involving an adult who sexually exploits a minor.\u00a0 For example, someone can set up a group to which persons subscribe via their Snapchat username.\u00a0 These users are then sent multiple, short child pornography videos.\u00a0<\/p>\n<\/div>\n

\n

[117] Foxton, supra <\/i>note 50 (\u201c[H]osted in the US, [sites like PinkMeth] are protected by laws which state that companies cannot be prosecuted for user-generated content. Only the (usually anonymous) individual who posted the pictures can be fined.\u00a0 So, if the woman wanted her pictures removed from the site, she would have to work out who shared her pictures, then prosecute them. The site owners won’t lift a finger\u2014and they are making millions of dollars from young women’s pain.\u201d).<\/p>\n<\/div>\n

\n

[118] Colao, supra <\/i>note 12.<\/p>\n<\/div>\n

\n

[119] The primary purpose of this comment is to draw attention to the legal issues Snapchat poses.\u00a0 This section introduces possible solutions to the sexting problem, but is not intended to be exclusive or exhaustive.<\/p>\n<\/div>\n

\n

[120] Maia Szalavitz , Why the Teen Brain Is Drawn to Risk<\/i>, Time (Oct. 2, 2012), http:\/\/healthland.time.com\/2012\/10\/02\/why-the-teen-brain-is-drawn-to-risk\/.<\/p>\n<\/div>\n

\n

[121] Practically speaking, a customer protection block is unlikely to have a great impact on restricting Snapchat\u2019s use by minors.<\/p>\n<\/div>\n

\n

[122] The fines should be significant enough to act as a deterrent, but not so substantial that parents must come to their child\u2019s assistance in paying them (i.e., minors will pay the fines using their own money). \u00a0<\/p>\n<\/div>\n

\n

[123] Notopoulos,
\nsupra <\/i>note 41.<\/p>\n<\/div>\n

\n

[124] This also eliminates the need for real-time interception and monitoring of the messages.<\/p>\n<\/div>\n

\n

[125] Network Effect<\/i>, Investopedia, http:\/\/www.investopedia.com\/terms\/n\/network-effect.asp#axzz2IHv0IokI (last visited Mar. 29, 2013) (network effect is \u201ca phenomenon whereby a good or service becomes more valuable when more people use it\u201d).<\/p>\n<\/div>\n

\n

[126] Snitch<\/i>, Hyperdyne Software, http:\/\/www.hyperdynesoftware.com (last visited Mar. 20, 2013).<\/p>\n<\/div>\n

\n

[127] Software Blocks Nudity: Content Technologies\u2019 Software Detects Nude Photos on E-Mails, Blocks E-Mails<\/i>, CNN Money (Sept. 20, 2000, 12:41 PM), http:\/\/money.cnn.com\/2000\/09\/20\/technology\/porn_sweep\/.<\/p>\n<\/div>\n

\n

[128] Id.<\/i><\/p>\n<\/div>\n

\n

[129] Id.<\/i><\/p>\n<\/div>\n

\n

[130] Only one of the alternatives should be implemented, and once implemented should be automatic.\u00a0<\/p>\n<\/div>\n

\n

[131] Notifying authorities would have the most profound impact, but also carries the risk of tying up valuable executive and judicial resources. \u00a0Pixilation is similar to deletion, but pixilated messages may still possess an allure similar to sexts.<\/p>\n<\/div>\n

\n

[132] The implementing of nudity detection software would interfere with adults\u2019 right to use Snapchat for sexting, but this comment does not address that issue.<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Download PDF Cite as: Nicole A. Poltash, Snapchat and Sexting: A Snapshot of Baring Your Bare Essentials, 19 Rich. J.L. & Tech. 14 (2013), available at\u00a0http:\/\/jolt.richmond.edu\/v19i4\/article14.pdf.\u00a0 by Nicole A. Poltash* \u00a0 I.\u00a0 Introduction [1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The usurpation of personal pictures posted on social media websites is not uncommon.\u00a0 Cheryl Smith was unknowingly made the face of […]<\/p>\n","protected":false},"author":4287,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1228],"tags":[],"class_list":["post-1365","post","type-post","status-publish","format-standard","hentry","category-articles"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/paMHOZ-m1","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/1365","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/users\/4287"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/comments?post=1365"}],"version-history":[{"count":0,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/1365\/revisions"}],"wp:attachment":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/media?parent=1365"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/categories?post=1365"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/tags?post=1365"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}