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Nathan Lambert, 18 and Jennifer Swilik, 19
Nathan Lambert, 18 and Jennifer Swilik, 19
May 13, 2010

Computers and mobile phones allow adults and children to communicate and send information. However, these venues can be used to commit crimes, knowingly and unknowingly.

Some cybercrimes are well-known, such as downloading music without paying for it. Others are less commonplace but can have devastating effects. These include distributing child pornography, sending threats and harassing messages, and using file-sharing technology (such as LimeWire) to steal information.

Lawmakers and the courts have had to define what’s legal and what’s not on the Internet, weighing what constitutes criminal activity versus what may be information guaranteed by the Constitution, such as First Amendment freedoms that protect the expression of ideas.

Sexting is one activity currently under scrutiny of the courts. “My understanding is that sexting is the dissemination or sending of sexually explicit text messages, e-mails, photographs over some sort of electronic media,” says Jennifer Drobac, professor of law at IUPUI Law School. “It’s often an exchange, so the material is sent and the material is received and sometimes commented upon.”

Sexting seems to be on the rise among teenagers. According to a poll released in 2008 by the National Campaign to Prevent Teen and Unplanned Pregnancy, 22 percent of teen girls have sent or posted online nude or semi-nude images of themselves; 25 percent of teen girls and 33 percent of teen boys reported receiving such images.

What many teens may not realize is that, under current laws, these images can constitute child pornography, says Magistrate Judge Kennard Foster, who is on recall status for the U.S. District Court, Southern District of Indiana.

Foster’s work involves applications and affidavits for search warrants, and he is well-versed in federal statutes and rules, including the U.S. criminal code. Part of the code addresses the sexual exploitation of children, and he pointed out that it doesn’t matter if the person possessing nude images of children is a minor or an adult. “If that person happens to be a juvenile, it’s federal juvenile offense,” with a mandatory minimum five-year sentence, he said.

Why would teens, especially girls, engage in sexting at the risk of facing jail time? Jennifer Swilik, 19, and Nathan Lambert-Cheatham, 18, have some ideas. Both are seniors at Pike High School and are taking a Theory of Knowledge class, in which they evaluate sources of knowledge and lines of reasoning.

Both use the Internet for purposes of information gathering and communication. Though they don’t consider themselves cyber experts, they are observant of their peers and their behavior.

Jennifer says she knows no one who has sent or received sexts. But she said girls might take and send nude photos of themselves to spark or continue relationships.

“They might think it’s the only way that a guy would stay with them,” she said.

What if that image is spread beyond its intended recipient? Is the girl guilty of spreading child pornography if the boyfriend forwards it to a friend or friends?

Nathan believes not. “It was meant for her boyfriend,” he said. “If someone continues to spread it, then they’re also at fault.”

But courts in numerous states have charged teens who have taken nude pictures of themselves -- and others who have distributed such shots -- with possession and distribution of child pornography. And, depending on the jurisdiction and the exact nature of the crime, these youth might have to register as sex offenders for the rest of their lives.

Drobac says most teens don’t realize the consequences of their actions. “I would prefer not to see children thrown in juvenile detention for what I call felony stupidity. If they can be rehabilitated and educated that what they did was wrong, then they should make amends, not do jail time.”

She suggests a better penalty is confiscating cell phones and greater parental supervision.

Cyber bullying is another legal gray area. Behind a computer screen, people are less likely to face the direct consequences of posting false or scathing comments, and so they often express ideas that they would never say face-to-face. And applications like Facebook’s Honesty Box and Web sites like, which allow users to post anonymous comments on others’ pages, only encourage the spread of hateful messages with few if any repercussions.

Nathan said most people he knows do not censor what they say when using their phones or the Internet.

“People aren’t nearly as cautious when they’re saying anything on the Internet, where people don’t know who they are,” he said. “I know some people in our school who like to say things to mess with people, and being on the Internet, they can do it without having it reflect on them. It gets a lot of people angry.”

Jennifer believes First Amendment protections should extend to all forms of communication. “Whatever you can say with your mouth you should be able to text, too. Like free speech, I don’t think you should restrict it more with your cell phones at all,” she said.

But free speech doesn’t mean you can say anything you want. If a student says something insulting about someone like a teacher, it could be slander. Indiana Attorney General Greg Zoeller says intent is the key; the more you intend to ruin someone’s reputation, the greater the consequences.

“The more reckless you become or the more of a criminal intent you have, the more you’ve broken the law,” says Zoeller.

Just as spiteful jesting becomes the norm, people have more difficulty discerning threats over the Internet and over phones.

“Saying things like ‘I’m gonna kill you,’ people have used that phrase so much now that you don’t know if it’s an actual threat or not,” said Jennifer.

But people who harass and pose threats can face criminal charges. Drobac explained that you might face charges if the target of your harassment or threat can show that he or she has suffered some kind of damage. “If this type of thing is affecting someone’s ability to function, if the conduct ‘shocks your conscious,’ courts are more likely to find liability,” she said.

Numerous courts have upheld charges against people who have issued “serious expressions of intent to harm” over the Internet. Most recently, nine teens from Northampton, Mass., have been charged in the bullying and cyber bullying of a teenage girl from Ireland who killed herself earlier this year. Charges included violation of civil rights resulting in injury, criminal harassment and stalking.

Other computer crimes may not be as deadly but certainly can be insidious. Peer-to-peer (P2P) networks, such as LimeWire and BitTorrent, allow people to upload and download shared files. But sometimes, files not intended for sharing are uploaded without users’ knowledge.

“In that exchange, you’ve opened up their ability, without your knowledge, of say, getting all of the e-mail addresses for all the people you’ve sent e-mail,” said Zoeller.

From there, these “thieves” can send mass e-mails that appear to be coming from your computer, maybe containing dangerous codes meant to take over as many computers as possible. Or they may steal your passwords and even enough personal information to steal your identity.

All of these acts are illegal, but they still happen every day.
Technology has come a long way in a short span of time, dragging with it legal issues and controversies. The billion-dollar question in technology is, “What’s the next big thing?” The question that immediately follows is, “What will be the legal issues with it?”

“Keep in mind that these are the early days. We’re still struggling within our jurisprudence, trying to keep up with changes in technology that are very rapid,” Zoeller said.
Nathan and Jennifer believe the next big thing might be cell phone technology that produces a holographic image of the person who is calling. On the surface, this doesn’t seem to violate any privacy laws. But what if somebody sends you a nude holographic image? What if someone borrows the phone of a friend and you unknowingly allow his or her holographic image into your home?

Contributing to this story are assistant editors Vince Reuter, 18, and Michael Wang, 18, and reporter Izabella Robinson, 12.

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