A study conducted in 2010 found that 92% of two-year-olds in the United States had an online presence. See Digital Birth: Welcome to the Online World. In the last decade, social media has taken over as a dominant form of social interaction, and, recently, the COVID-19 quarantine has left many even more dependent on Facebook, Twitter and Instagram to stay in touch with friends and family. Today, any adult would be hard-pressed to browse one of these applications without encountering photos, videos and stories about their friends’ children, grandchildren or other young relatives. While “sharenting,” using social media to share news and images about one’s children, provides a wonderful opportunity for parents to update relatives, chronicle the growth of their children and connect with other parents, many are unaware of the risks associated with spreading detailed information about minors on the Internet. While some of these risks are an evolution of traditional parental fears such as stalking and kidnapping, more novel dangers have emerged with the development of technology like artificial intelligence and facial recognition software. It is critical that parents understand these risks and realize that their child’s right to privacy and consent in developing his or her own digital footprint supersedes the benefits of sharenting.

Parents are not solely responsible for the creation of their child’s digital footprint. Nationwide, schools continue to expand their online presence by sharing photos and videos of students on websites and social media. While many parents appreciate the opportunity to get a glimpse into the academic and extra-curricular lives of their children, an increasing number of student photos and videos are used for institutional marketing purposes. Using standard parental release forms, schools have been granted wide discretion over the use of student information, including photos and videos.

What are the risks?

Let us take another look at the statistic at the beginning of this blog post. Of the 92% of children with an online presence, one-third are posted on social media on the date of birth and, depending on the platform, approximately half of the posts include the child’s first name. See Stacey B. Steinberg, Sharenting: Children’s Privacy in the Age of Social Media, 66 Emory L.J. 839, 849 (2017). On day one, viewers have access to the child’s first and last names, date of birth and general address (often conveyed through a geo-tagged location), which can be sufficient for identity theft. This data can be stored in large databases that can be accessed once the newborn has reached adulthood. Given the increase in this type of parental behavior, Barclays predicts sharenting will account for two-thirds of identity fraud by 2030. See ‘Sharenting’ Puts Young at Risk of Online Fraud.

Oversharing information about a child on social media poses a litany of immediate and long-term risks to the child’s physical and emotional well-being. For example, frequently sharing a child’s location through a geo-tag or by “checking in” on Facebook can lead to stalking or even kidnapping. Parents often find a false sense of security by being able to curate who sees this information, such as friends and family, but do not realize that a majority of kidnappings and violent crimes against minors are committed by acquaintances and relatives. Another, more intangible risk, is digital kidnapping — the practice of reposting another person’s child as one’s own across social media platforms.

Sharing embarrassing or harmful content without a child’s consent can also negatively impact the child’s long-term emotional and psychological development, leading to issues of identity, independence and trust. Often, embarrassing content shared during childhood or adolescence leads to later bullying by both peers and strangers and can impede the natural development of the child.

Perhaps the least understood risks of sharenting are the legal and professional consequences. By chronicling the good and the bad of a child’s growth and development, parents often unintentionally provide “dataveillance” firms with enough data to develop academic, economic and personality profiles, which are then sold to potential employers, advertisers and even college admission offices. See Keltie Haley, Sharenting and the (Potential) Right to Be Forgotten, 95 Ind. L.J. 1005, 1010 (2020). Thus, parents shape their children’s professional and personal opportunities in ways they may not fully appreciate. An even more daunting prospect is the expansion of facial recognition software and the inevitability that many young adults who grew up or will grow up during the rise of social media can be extensively tracked due to content posted without their consent. This prospect should be alarming to anyone who values a right to privacy.

What protections are afforded to children and young adults?

Federal privacy laws broadly protect children from disclosure of sensitive data. The Health Insurance Portability and Accountability Act (HIPPA) protects any individual’s medical information, while the Family Educational Rights and Privacy Act of 1964 (FERPA) restricts schools from sharing a student’s records to anyone but the student’s parents. The Children’s Online Privacy Protection Act (COPPA) protects minors under the age of thirteen from websites that collect personal information by requiring parental consent before such action. (See our earlier blog discussing these laws.) What these laws have in common, however, is that parents maintain the role of guardian over the information.

Children in the United States do not have a right to privacy that supersedes parental interest, nor do they have any tangible legal recourse to challenge the unconsented sharing of personal information by a parent. Courts at both the federal and state level have historically and vigorously protected the parental right to raise children without government interference. Further, the American emphasis on protecting freedom of speech means that courts and legislators will almost always tip the scale in favor of protecting parental expression. Scholars suggest that laws protecting children from parental abuse may offer some recourse, but that children would still have little control over the process. It is also important to remember that once content is shared, it is nearly impossible to erase, meaning most legal recourse would be ineffective. Current laws place upon parents the responsibility of acting in their child’s best interest, so parents must understand the risks associated with sharing photos and videos of their young children.

Schools contribute to their students’ digital footprint

Alongside parents, schools play an increasingly active role in developing children’s digital footprint by using student photos and videos for school-related purposes, especially through promotional materials on websites and social media. Although schools generally secure parental permission to use student images, many parents may be unaware of the potential consequences of signing the school’s release forms. Parents must read school release forms carefully and be wary of overly broad forms that permit schools to use student images for any and all purposes.

Schools that accept federal funding are also required to comply with FERPA, and many states have adopted similar policies. Under FERPA, photos and videos of a student created by the school are considered part of the student’s educational record and are protected information. However, some schools classify this media as “directory information,” which is often included under general release forms. In that scenario, schools are authorized to share photos and videos without receiving student or parental consent in each instance.

Although private schools typically focus on online marketing more than public schools, all schools have dramatically increased their online presence in recent years. Standard release forms have evolved to include broad language authorizing schools to use student information and images for publicity purposes without consulting parents beyond the initial release form. For example, this form allows recording for:

(1) purposes of safety, including the maintenance of order and discipline in common areas of the school or on school buses; (2) a purpose related to a co-curricular or extracurricular activity; (3) a purpose related to regular classroom instruction; (4) media coverage of the school; or (5) a purpose related to the promotion of student safety.

More detailed release forms could provide specific examples of what might be anticipated in the coming year in a separate document, while leaving open the option to include other instances that fall within the broader categories as unforeseen opportunities arise. Only rarely are parents  presented with an option to require the school to digitally remove or censor students from unwanted photos. While this alternative succeeds in preventing the sharing of unwanted images, the student may be subject to bullying or other unintended consequences of straying from the new norm.

An educated and active parent is the best check on unwanted or inappropriate school use of student images. If school practices are questionable, parents (and PTAs) should hold schools to a higher standard by reviewing school privacy policies, ensuring consent is not bundled with other general release terms and creating a culture of privacy among students, faculty and the administration. Parents may insist that schools take an active role in the creation of a culture of privacy by ensuring that release forms use specific language and state precisely the purpose of collecting and sharing student images.

School Photographers

Third-party photographers contracted by a school to photograph students should also be aware of these issues and ensure that their contracts appropriately account for the special considerations associated with photographing or filming minors. Photographers must be familiar with the federal and local laws concerning photographing minors, as well as school privacy policies. Whether or not the school requires a signed contract or parental consent, it is wise for photographers to proactively seek these legal protections by drafting their own tailored and specific release agreements. Schools should ensure that agreements with photographers properly resolve copyright ownership of the images, whether in the photographer, the school or the parents. At the very least, addressing ownership is essential for dealing with a possible  Digital Millennium Copyright Act (DMCA) takedown request to remove abusive postings of the photographs.

In Summary

Data collection and facial recognition software will certainly continue to improve, and the potential issues facing children whose lives have been shared with the world may be limitless and unforeseeable. All parties involved in the development of a child’s digital footprint, especially the child’s parents,  guardians or schools, must be aware of the consequences of oversharing on social media. Before hitting that “post” button, consider how you might feel if your embarrassing video was shared with all of your middle school peers.

Of course L&L is available to help parents, children grown to adulthood, schools and photographers address these complex sharenting issues. Don’t hesitate to contact us!