Protecting Children's Right to Privacy in the Digital Age: Parents as Trustees of Children's Rights
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Protecting Children's Right to Privacy in the Digital Age:
Parents as Trustees of Children's Rights
By Shannon Sorensen*
T[hat] the individual shall have full protection in person and in property is a
principle as old as the common law; but it has been found necessaryfrom time to
time to define anew the exact nature of such protection.
- Samuel D. Warren and Louis D. Brandeis, 18901
I. INTRODUCTION
Parents who post about their children online are hard pressed to view themselves as a threat.
The constant stream of photos and videos is a public display of love and pride for their little ones.
But the simple fact is that parents post photos of private moments with their kids all the time
without their children's permission. While it is uncomfortable to point the finger at parents as
compromising their children's rights, it is time to consider how we might protect children's privacy
from even loving parents because even the most well-intentioned parent may be unknowingly
compromising the autonomy of their child. The advent of social media has led to a new frontier in
individual privacy, particularly so for children, whose appearance on social media is involuntary.
Pictures that were reserved for the family photo album are now available to the entire online world
through social media. Most people post about their own lives and it's common for parents to post
about their children.
Academic discourse has not yet addressed the question of whether children have a right to
choose online publicity or anonymity. Current discussions regarding children's privacy rights in
social media center around two ideas: protecting children from online predators and the right of
older children to interact online free from parental intrusion. Scholars have addressed the question
of whether parents have a right to monitor their children's activity online and many advocate that
doing so protects children's safety.2 Some argue for increased protection of the right of parents to
raise their children, free from unnecessary state intervention that results when law enforcement
agents or government officers discover questionable photos posted online and take them out of
context.3 Numerous resources promote increased parental responsibility and restraint in what they
post online to protect their children from online predators.4 But no scholars have engaged the next
* Shannon Sorensen, J.D. J. Reuben Clark Law School 2015, Bachelor's Degree in Sociology, Brigham Young
University 2012.
' Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARv. L. REV. 193, 193 (1890).
2 See, e.g., Benjamin Shmueli & Ayelet Blecher-Prigat, Privacyfor Children, 42 COLUM. HUM. RTS. L. REV. 759, 759-
60 (2011) [hereinafter Shmueli & Blecher-Prigat].
3 For example, in one instance, a Florida mother posted what she intended to be a humorous photograph of her baby
next to drug paraphernalia (a bong), and she was investigated by the state. LORI ANDREWS, I KNOW WHO You ARE
AND I SAW WHAT You DID: SOCIAL NETWORKS AND THE DEATH OF PRIVACY, 139 (2012). Other situations include
when parents have lost custody in divorce disputes. A woman who posted sexually explicit comments on her
boyfriend's Myspace page lost custody of her child as a result. Id. at 142. When a woman created Myspace pages
for her seven- and ten-year-old daughters and friended them, they could then view her Myspace page, which contained
photos that the judge said showed her posing provocatively in lingerie. Id. at 143.
4 See, e.g., INTERNETSAFETY101.ORG, http://www.internetsafetyl0l.org (last visited March 24, 2016) (this website
lists the dangers of the Internet for children as including pornography, predators, and cyber bullying); Net Smartz](ViewImageLocal?handle=hein.journals/clrj36&div=22&collection=&method=preview&ext=.png&size=3)
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Protecting Children's Right to Privacy in the Digital Age: Parents as Trustees of Children's Rights
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