“This phenomenon has come on very suddenly and may be catching a lot of school districts unprepared and unsure what to do.”
— Rianna Pfefferkorn, Stanford Internet Observatory
“The volume is going to drastically increase.”
— Lucas Hansen, Civ AI
Smart phones have done a lot to make our lives easier and to put information at our fingertips. And for parents of teens, they’ve made communication with our kids easier and given us new ways to communicate and keep tabs on schedules. They’ve also become a key part of school work, homework, sports scheduling and more.
But they have also had substantial drawbacks. Their impact on teen mental health has been well documented. They’ve allowed bullying that used to be limited to school hours to follow kids home. And, they have launched an explosion of sexting that has led to innumerable court involvement for kids who don’t understand that the pictures they are sending and receiving constitute child pornography since they are under the age of 18.
Recent studies suggest that as many as 40% of teens report having sent or received sexually explicit photographs or videos. That number may be an underreporting since many kids would, for obvious reasons, be hesitant to admit as much. As of late last year, 23 states, including Ohio, still did not have a law to specifically address teen sexting. In those states, sexting offenses are prosecuted under early or mid-20th Century laws that were intended to punish adults who produced child pornography, not teens who were sending photos to other teens. As a result, teens who are caught engaging in that behavior in Ohio often face high-level felony charges and mandatory sex offender registration requirements that may last a decade or more.
But now, a new and even more disturbing trend is combining sexting with AI image creation. Just this week, the New York Times reported on one concerning example from a New Jersey high school. This was not a circumstance in which someone sent an explicit photo to a person they were dating only to have the other person share the photo without their permission. This was, rather, a situation in which entirely fabricated images were shared around a high school but contained the faces of students who had nothing to do with their creation.
In short, a high school student or students took harmless photos of female classmates and attached their faces to artificial photos of nude bodies. Those photos were then shared on social media apps (usually Snapchat) with other students at the school. The students who were victimized only found out about the images when they began to circulate widely. This was not the first instance of this occurring, and it certainly won’t be the last.
The FBI was quick to note that it believes that federal law will make no distinction between actual images of child pornography and AI created images if those created images use the faces of actual, live, identifiable minors, which means that the juveniles creating these images face not only state prosecution, but also prosecution under federal child pornography statutes that have remarkably stiff penalties. But many state laws contain no provisions about how they will treat these “deepfake” images or whether existing laws even apply to them since they are not actual photographs.
Laws are always a step behind technology because the tech changes quickly and with little warning, and laws have to be drafted, edited, debated, passed, signed and then begin to be enforced. But it is time for Ohio to adopt a sexting-specific law that both protects youth from fake images that use their likeness and provides for appropriate penalties for youth who exchange inappropriate images rather than having to shoehorn them into nearly century old laws aimed at adults using archaic technology. Those changes would protect teens in this state from harm and set them up for continued success as adults.
Education is a valuable tool – both County Prosecutor Melissa Schiffel and I have spoken to local middle and high school students about the dangers, harms, and potential consequences of sexting – though it is most effective when coupled with legislation that addresses modern threats.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.
