Hartzog and McClurg discuss reviving “implied confidentiality” which is a productive way of understanding that personal sexual images are obviously meant to be private and that distributing them is a violation.
2. Decriminalize consensual sexting
Repeal all new sexting laws, or at least amend these new laws to exempt teens who produce, distribute, and possess images consensually from prosecution.
Example: In North Dakota, legislators created an age-neutral misdemeanor offense in 2009 for distributing or publishing “sexually expressive” images that are created surreptitiously or without consent, intended to cause “emotional harm or humiliation,” or distributed after notice has been given by the people depicted or their legal guardians that they do not consent to distribution (North Dakota century code § 12.1-27.1-03.3). The implication is that sexting is legal when it is consensual, and like rape, lack of consent to a sex act defines it as sexual assault.
Add close-in-age exceptions to child pornography laws, which would bring them in line with age-span exemptions for statutory rape.
Nebraska and New Mexico currently exempt teens who consensually possess child pornography from prosecution; I argue that teens who create, share, and/or possess images consensually should be exempt as well.
If there is a state anti-sexting law, make sure it exempts consensual sexting among close-in-age teens. Here’s a great example of an affirmative defense from a proposed Massachusetts sexting law:
“It shall be an affirmative defense for any crime alleged under G.L. c. 272, § 29A, 29B, 29C, [these are the child pornography laws] or this section that (a) the image portrays no person other than the defendant; or (b) the defendant was less than nineteen, the image portrays only a teen older than fifteen and was knowingly and voluntarily created and provided to the defendant by the teen in the image, and the defendant has not provided or made available the visual depiction to another person except the child depicted who originally sent the visual depiction to the defendant.”
3. Create better tech industry regulations to help protect users’ privacy