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William A. McComas: The hazards of edu-tech

This fall, news broke that an unidentified male was targeting Baltimore private school students online. He reportedly used social media to engage in sexually explicit communications, including indecent videos, with a number of local teenagers. Several private schools sent out letters to parents, warning them of the threat and urging them to monitor their children’s online activities. That was the right response, but more should be done by website operators, legislators, parents, and schools to protect our children.

While the man’s actions were morally bankrupt, he may have legal defenses that would interfere with prosecution. Understanding why demands attention to the fine print in those website terms-of-service agreements to which we so often consent without reading.

Social media sites like those used to target the private-school students generally require account holders to stipulate that they are at least 18 years of age or have “legal parental or guardian consent.” These sites often prohibit anyone under the age of 13 from holding an account, or they may route under-age account holders to versions of their sites that prevent interaction with other users. The upshot: anyone interacting with other users on that site has legally stipulated that he or she is an adult or a minor acting with adult consent.

In reality, though, minors often operate social media accounts without adult consent. If an adult sends indecent, sexual messages to a child via social media, he may, if caught, defend his conduct on the grounds that the recipient was supposed to have been at least 18. Otherwise, what was the recipient doing on that site?

Arguably, the recipient misrepresented him or herself intentionally or unintentionally, by not reading the terms and conditions or failing to have obtained proper parental consent.

Based on the typical terms and conditions for most websites, an alleged perpetrator who clearly knew that the recipients were under age likely has no defense; for those without such knowledge, a strict liability standard may nevertheless apply and allow prosecution to proceed. Yet, a perpetrator could mitigate prosecutorial claims on the grounds that he believed himself to be communicating with an adult.

Given the ubiquity of social media among youth, and given the difficulty of bringing online sexual predators to justice, we can expect to hear of more stories like the one mentioned above. Despite the hazards such websites pose to our children, they have become all but essential.

One reason is that schools often require their use.

In recent years, schools across the country have rushed to embrace the “edu-tech” craze. Some schools tout their engagement with technology in marketing materials to show that they are cutting edge and provide a superior educational environment. While the technology can enhance an education, save money and aid instruction, stakeholders must fully appreciate the risks.

For example, it is not uncommon for schools to request that parents grant them authority to establish online accounts, so as to facilitate technology-driven instruction. Yet online threats multiply with each of these accounts, particularly those that have a social-media based component, such as Google. More significantly, many parents are not fully informed or are unaware of the risks when providing blanket approval at the start of the school year. And they may not be aware that students are using these accounts not only for educational purposes, but also as a social outlet.

Academic institutions that serve kindergarten through grade 12, as well as parents, should recognize that simply managing privacy settings and “friends links” does not make today’s children safe. The Internet is a moving target and online threats are not always obvious. Before schools shift any portion of their curriculum online, or use email available to external sources that attach student names to their school, they should consider the hazards and work to mitigate them. After all, the safety and security of children should take priority over educational excellence; you don’t get a second chance to make up for a mistake when it comes to the security of our children.

Schools should design curriculum that teaches students and parents about online dangers. For example, it is not unusual to see 10-year-olds taking photos of friends and posting them online, or tagging people in existing photos. No parent should have to learn that a school, another family, or a well-meaning friend inadvertently created a security risk for their child by tagging him or her in a school photo posted to a personal Facebook page.

Once a child’s identity and location are made public in this fashion, there is no putting the proverbial genie back in the bottle.

Of course, schools are not primarily to blame for these situations. Technology companies should be held more accountable. Website designs allowing random adults to contact, communicate with, or gain information about anyone under age 18 should be changed to limit information access and lines of communication.

For website operators who choose not to invest in these precautions, we may need legislation that requires social media sites to identify explicitly any user under the age of 18 as a minor, even if the child has parental consent. Think of those bracelets that those under age 21 are sometimes required to wear at functions where alcohol is served.

What stakeholders need to understand is that the Internet, while full of learning opportunities, is still something of a minefield. Until website operators better limit children’s exposure to online dangers, and until children and parents better appreciate the risks of online connectivity, schools and legislators need to be more mindful of security risks arising from curricula built around online technology.

William A. McComas, a partner at Shapiro Sher Guinot & Sandler, practices technology and corporate law. He can be reached at wam@shapirosher.com.