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It’s “the law” in most countries but kids still have very few digital rights

There has been a great deal of talk about online child protection but precious little about children’s rights.
There are laws on the books of the United States and numerous other countries designed to protect kids against marketers, adult predators and even in each other, in the form of anti-cyberbullying legislation. And there is an entire industry dedicated to helping parents and other adults monitor what kids are doing with connected devices or limit what they can access.


So, I was pleased to see that Chatham House: The Royal Institute of International Affairs has just published a thorough look at children’s rights in the digital age titled One in Three: Internet Governance and Children’s Rights. It’s written by three of Europe’s leading thinkers on Internet safety and children’s rights, Sonia Livingstone, Jasmina Byrne and John Carr.  Both Livingstone and Carr are part of ConnectSafely’s blogger network. You can download the report here.

The first three words in the report’s title signify that an estimated one in three Internet users in the world today are under 18 and the paper argues that “Internet governance bodies give little consideration to children’s rights.”  It goes on to point out that “Typically, when children are acknowledged it is in the context of child protection while their rights to provision and participation are overlooked.”

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The paper is referencing the so-called “3Ps” of protection, provision and participation which are a convenient way to break down children’s rights as outlined in the United Nations Convention on the Rights of the Child (UNCRC) that was ratified by nearly all the world’s countries with the notable exception of the United States. Why the U.S. didn’t ratify the convention would be an entirely different post.

I was excited to see the  publication of this paper because it touches on a subject very dear to me. I’ve written and spoken extensively about the need to include children’s rights as part of any conversation or policy debate around Internet safety and child protection. One of the paper’s co-authors, John Carr, and I have addressed this issue together in two back-to-back Internet Governance Forum (IGF) workshops in 2013 and 2014 that focused on the potential conflict between child protection and child rights.

What is a child?

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When these pictures were taken, both were considered “children.” Image on right is Nobel Peace Prize winner Malala Yousafzai. (Creative Commons licenses for images)

One of the biggest problems when it comes to children’s’ rights stems from the definition of “child.” The UNCRC defines a child as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”  We can all agree that infants and toddlers are children and I think that most would agree that child applies to any pre-pubescent girl or boy up to say, 11 or 12. But beyond that, the definition gets a bit blurry. In most countries, “child” is defined as anyone under 18, though even in the U.S. there are states that prosecute people as young as 13 as adults in some criminal cases and the age of sexual consent varies by jurisdiction.

There is also a patchwork of laws with ages that change depending on what they cover. In the United States it is legal for anyone 18 and older to vote, serve in the military or buy tobacco products, but they aren’t allowed to buy or consume alcoholic beverages. In some states in the U.S., teens as young as 16 are allowed to consent to have sexual relations yet, in all states it is illegal for a young person to be depicted in a sexual manner before they are 18. There was a recent case in North Carolina where two high school students who were involved in a legal sexual relationship were charged as adults for creating, possessing and distributing illegal child pornography because they were over 16 but under 18. Had they been over 18, no crime would have been committed.
The reason that “what is a child” is an important question is because — whatever the law — every parent knows that a child’s rights, privileges and responsibilities depend, to an extent, on how old they are. Even among siblings, a 17-year-old is almost always granted more freedoms than a 7-year-old. Yet the world’s official document on children’s rights treats all minors as if they are the same.

UN’s codification of children’s right of free speech and assembly
Article 13 of the UNCRC states:

1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.
2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; or

(b) For the protection of national security or of public order, or of public health or morals.

Provision 1 of this article couldn’t be clearer. There is no ambiguity when it comes to children’s rights to “to seek, receive and impart information and ideas of all kinds” and even though this document was written before kids had access to the Internet, there is no doubt that it is covered under “any other media of the child’s choice.”

Provision 2 raises some interesting caveats. As with any legal document, it’s subject to interpretation but I would argue that the first section (a) could be interpreted to limit a child’s right to harass, cyberbully, defame or impersonate others. Provision 2B is a bit more problematic. “National security” and “public order” can be used as an excuse to suppress legitimate speech and assembly as we’ve seen many times throughout the world as recently as this decade. “Public health or morals” is also quite ambiguous. I think it can be interpreted as legitimizing using technology and other means to prevent children from accessing pornography, hate speech and other material that could be deemed harmful, but “moral” is a very vague term, subject to personal, national and religious values. What is immoral in one community could be considered desirable in another. One only has to think about the struggles for gender, sexual orientation and sexual identity equality to know that behavior that some people consider to be “immoral” others consider to be acts of love and respect.

Social media is speech & assembly

In an age where social media is, for many, the predominant form of news, expression and assembly, allowing any country or any government agencies within a country to ban it is a violation of children’s rights.

Despite the ambiguities in the “certain restrictions clause” of the UNCRC, there is no question that provision 1 can be interpreted as to include social media. Social media sites and apps have emerged as a major form of media for the expression of ideas as well as news and information. Plus, social media is now used as a gathering place or, in the words of UNCRC’s article 15, a place for “assembly.” Article 15 recognizes “the rights of the child to freedom of association and to freedom of peaceful assembly” and further states that “no restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”

Just as with article 13, there is ambiguity in the “other than” section but I think it’s fair to say that a reasonable person — at least by the standards of most countries — would agree that children’s rights to access and contribute to social media are protected by both articles 13 and 15.

And it’s not just governments and schools that need to think about free speech rights. It wasn’t until fall 2013 that Facebook even allowed teens to post publicly. Prior to that, even extremely well known teens like Malala Yousafzai, who received the Nobel Prize when she was 17, were unable to share her thoughts publicly on Facebook even though she was allowed to speak on TV, at the United Nations and numerous other public forums. Facebook wisely changed its policies about teens ability to express themselves despite some criticism at the time from privacy advocates.

Some entire countries and many public schools ban social media

Yet, there are countries that have signed the UNCRC that outright ban access to social media to everyone, not just children. And I’m betting that every country on earth — including the United States — allows schools, libraries and other government agencies to prevent youth from accessing social media on its networks. In fact, it is common for U.S. schools to ban access to Facebook, Twitter and other social media sites and there are even some colleges that selectively ban certain social media apps like YikYak because a small percentage of users on those sites have been abusive.

Many U.S. schools and libraries have installed filters to comply with the Children’s Internet Protection Act (CIPA), which was enacted by Congress in 2000. The law prevents schools and libraries from receiving essential telecommunications discounts from the country’s E-rate program unless they certify that they have an Internet safety policy that includes technology protection measures. According to the Federal Communication Commission, “The protection measures must block or filter Internet access to pictures that are: (a) obscene; (b) child pornography; or (c) harmful to minors (for computers that are accessed by minors).”

CIPA doesn’t require filters and it says nothing about blocking social media. Yet, the way most schools and libraries comply is to install technology that blocks access to sites and apps that are deemed harmful. That, of course, is a value judgement and many school districts have decided to use these filters to block social media along with pornography and hate sites.

Even though the U.S. hasn’t ratified the UNCRC, it does have its First Amendment which accords everyone the rights of free speech and assembly. And, last time I checked, there were no age restrictions on that amendment. It’s supposed to apply to everyone in the U.S.

I’m not arguing against schools using porn filters, though in these BYOD days where students have devices connected via their own cellular accounts, I’m not sure how effective they are. I’m also not suggesting that students have the freedom to peruse social media during class without the teacher’s permission any more than I would argue against rules prohibiting them from reading newspapers or watching TV news shows during class or writing letters to their friends. But I don’t know of any schools that prohibit students from carrying newspapers to school or ban the use of paper and pen to limit students’ ability to communicate.

In an age where social media is, for many, the predominant form of news, expression and assembly, allowing any country or any government agencies within a country to ban it is a violation of children’s rights.

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