Your “Digital Tattoo” – Help for Minors and Victims of Revenge Porn

“I hope you know this will go down on your Permanent Record.”
– Numerous teachers, parents (including mine) and Van Halen

I’ve been talking for a while about the digital detritus of our lives, and how that information is used/misused in ways we don’t even think about.

A recent article from Bernard Marr provided the analogy I’ve been looking for to tie it all together – your online data creates a “digital tattoo.”

People get tattoos for a lot of reasons – some good (as a memorial, as a celebration, or as a statement of spirituality); some bad (peer pressure or under the influence of drugs, alcohol or emotionally-induced bad judgment) and sometimes (as history has shown) unwillingly for truly evil reasons. According to a study reported by the British Association of Dermatologists, “nearly 1/3 of people who get tattoos regret it afterwards.” In the US some states even regulate tattooing of minors.

Even if you’re doing it for a good reason, a tattoo can end up being done poorly or have unintended consequences – including on your ability to get a job.

“…[A]ppearance matters. For the most part, we don’t live in a very ‘forgiving’ society. Studies have been done where people are asked to judge a Doctor’s level of competence by looking at photographs. Study after study has surmised that our brains are wired to equate good looks with competence. If someone has visible tattoos there is an automatic lifestyle judgment (whether we admit it or not). …[V]isible tattoos or piercings prompt assumptions about the person.”

Moving into the online world, like their real world analog, “digital tattoos” can adversely impact your ability to get a job. CareerBuilder.com recently released the results of a survey it conducted looking into the use of social media and hiring of potential employees. The results show that what you put out in social media can have a negative impact on your ability to get hired. According to the survey:

43% of responding hiring managers and HR professionals said they found information on social media that caused them not to hire a particular applicant. This number is up from 35% in 2012.

The main reasons cited for concern were:

> Provocative/inappropriate photos/information: 50%

> Information posted about drinking/using drugs: 48%

> Candidate bad mouthed previous employer: 33%

> Poor communication skills: 30%

> Discriminatory comments about race, gender, etc: 28%

> Lies about qualifications: 24%

(Note to those who actually do the hiring, using social media is a dangerous way to evaluate candidates. Read this before you look at the Facebook profile of that applicant.) Social media is also now being used to evaluate creditworthiness.

The “Permanent Record” our parents warned us about is here and, for the most part, we’re creating it ourselves.

Even though many states regulate minors getting real tattoos, teens are getting “digital tattoos” – including the equivalent of a “Scarlet A” – without being old enough to appreciate the consequences. Adults who ought to know better are doing it, too, but then many adults who ought to know better make real mistakes in getting tattoos, too.

At the most basic level, kids, teens and adults who ought to know better are posting things online without realizing that, like a tattoo, unless you make it small and put it in a very private place, more people than you planned are going to see it and judge you based on it.

    One Small Step Towards Tattoo Removal for Minors

Legislation recently signed by California Gov. Jerry Brown will require web companies, starting in 2015, to remove online activity – whether it be scandalous or simply embarrassing – upon request from a California minor.

Unfortunately, a law like this can only do so much. Like removing a real tattoo, you can’t erase the memory of everyone who saw it, and you can’t erase every picture your friends took that shows it. If that picture of you hammered in the French Quarter at Mardi Gras, or that nude/nearly nude picture you sent to your boyfriend/girlfriend is posted by someone else, it’s not covered by the law. If the image is copied and posted to another web site, that’s not covered, either. The game of internet “Whack-a-Mole” trying to remove material will continue.

The law also doesn’t require web companies to remove the data from their systems; it just requires them remove the requested item from public viewing. Under the law, sites can offer ways for users to make the redaction directly, or provide an avenue for users to request one.

The protection under the law is a nice concept, but since it only applies to sites where a user posted his/her own information, it doesn’t actually provide too much help since most social media companies allow users to delete their own data. For those sites that don’t allow users to delete their own data there’s an additional catch: the law doesn’t extend to adults who want to go back and delete material they posted as minors.

Some have argued that laws like this will cause social media companies to lock out minors, or force minors to claim to be adults as happened with under 13-year olds and the Children’s Online Privacy Protection Act. Another potential problem, opponents say, is that California will have a different policy than other states, creating a patchwork of regulation that could be difficult for the industry to navigate. While this is true, California has led the way in privacy and data breach notification laws, and this leadership has caused a number of states to enact laws that follow California’s model.

    Dealing with Revenge Porn

Another area where California is leading is dealing with what’s called “revenge porn”. “Revenge porn” sites feature explicit photos frequently posted by ex-boyfriends/husbands/lovers, and are often accompanied by identifying details, like where the women live and work, as well as links to their social media sites – Twitter accounts, Facebook pages, etc. And, according to this article from the NY Times, the effects on the victims can be substantial –

Victims say they have lost jobs, been approached in stores by strangers who recognized their photographs, and watched close friendships and family relationships dissolve. Some have changed their names or altered their appearance.

That was the case for Holly Jacobs, who discovered a month after she and her boyfriend broke up, her naked picture had been posted on her Facebook profile. (As noted in the Today show video, her ex-boyfriend claims his computer was hacked.) Regardless of how they got online, the photos went viral and less than a year later, Jacobs’ photo was on as many as 200 websites, as were her name, email address and place of business. She tried to get the photos removed, she changed her phone number, she changed her name, she quit her job, but she wasn’t able to escape the digital tattoo that had been applied to her online persona.

Despite repeated stories of teens and adults who share intimate photos with people they believe they can trust only to have that trust violated, as another revenge porn victim said in the NY Times:

“You don’t want to really think that five years down the line, your boyfriend at the time could be your not-boyfriend and do something really bad to you,”

so people keep sharing intimate photos. And like every other aspect of your digital tattoo, once the images are online they spread to other web sites, and these sites are, unfortunately, largely immune to legal action.

But that may be changing. California recently became the first state to enact a law specifically aimed at revenge porn sites. Other states that are supposedly considering revenge porn legislation include Florida, Texas, Wisconsin and Georgia.

The California law makes it a misdemeanor to distribute sexual images “with the intent to cause serious emotional distress” and would carry a fine of as much as $1,000 and as long as six months in jail — even if the pictures were originally taken with consent. The law bans only images taken by the person posting them, meaning that self-photos taken and sent to the poster aren’t protected. While there are some issues with the idea of criminalizing posting online material that was created with consent at the time, and laws like California’s will have to be carefully crafted, this is behavior that shouldn’t be protected.

Unfortunately, the majority of postings of this type come from pictures taken by the subject in a mirror (“selfies”) and sent to the person’s love interest. Despite the myriad stories about how this can go wrong, people continue to send these pictures out – with predictably unfortunate results:

“My friend, she was VC-ing,” or video chatting, “this guy she was kind of dating,” Melissa said. “He sent so many nudes to her, but she wasn’t trusting that he wouldn’t show the pictures to other people. So she Skyped him and showed him nudes that way. He took a screenshot without her knowing it. He sent it to so many people and the entire baseball team. She was whispered about and called names. It’s never gone away. He still has it and won’t delete it.”

I asked if they knew girls who posted provocative pictures of themselves. They all said yes.

So, in the absence of discretion, the next step in legislation will be figuring out how to extend the type of protection offered by this new California law to “selfies.”

    Changing Behavior

Hopefully the tattoo analogy might help people think about the long-term consequences of what they post. Even a besotted teen would think twice about getting a real tattoo for his/her love interest, and we should all consider the permanence of what we place online.

About John Nicholson

I'm a transactional attorney who focuses on structuring and negotiating large outsourcing transactions (both on and offshore). As part of my work, I've specialized in: - Structuring and negotiating large outsourcing transactions (both on and offshore) including IT outsourcing and various BPOs (including HRO, Facilities Management, Procurement, Finance and Accounting), large systems development and implementations; - Assisting with development of RFPs, proposal evaluation, down select, and negotiation; - US and European privacy laws, including US Safe Harbor, and state privacy and data breach notification laws; and - Privacy, security, legal and contractual issues associated with cloud computing. I'm a frequent speaker on outsourcing, privacy and security issues. Before becoming a lawyer, I was the acting IT director for a mid-size company prior to hiring the CIO and project manager for the company's Oracle Financials implementation.
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