Tuesday, 27 November 2012

Children and privacy rights within the family: are we normalising a surveillance culture?

A question which seems to come up with increasing frequency is whether children have privacy rights from their parents or carers (including schools, etc).

A really good starting point on this is a 2011 paper by Schmueli and Blecher published in the Columbia Human Rights Law Review.

Schmueli and Blecher highlight the lack of privacy rights enshrined in US law (and within the EU, as far as I can ascertain) for children in a family setting.

That is, children have little or no legal right to privacy from their parents.

But they also discuss why this is. Parents have a duty of care:
"To be sure, the primary role and responsibility of parents is to protect their children"
The question of childhood privacy is not new; but online dangers - many real, many perhaps over-hyped - most definitely are.

Their paper discusses a shift in attitudes towards child privacy brought on by the perceived threat from dangers online:
"parents have always been able to invade their children’s privacy by going through their schoolbags, reading their personal diaries and the like"
Noting that being able to "trust" a child in your care, where trust is warranted, was traditionally a sign of good parenting.  I, and I assume most people, were raised with the notion that it was definitely not right to read someone else's diary, even your child's.
"Whereas “good parents” may have traditionally been encouraged to trust their children, today they are encouraged to safeguard their children, where this incontrovertibly involves invading their privacy in one way or another. Monitoring has become associated with good parenting, and the surveillance of children has been framed in a language of safety, protection, and care.
There are many examples of technology used to monitor children to e.g. check social media use, track their location, trawl their internet history, etc.

I suspect a large group of parents believe this shift is fair and necessary, whilst another significant group remains worried by what I will describe as a significant invasion of virtual personal space at a time when children need private spaces to learn and develop their thinking and behaviour.

Schmueli and Blecher don't dismiss the safeguarding element out of hand, recognising a child's need for guidance from their parents who "act in their children’s best interests" through “natural bonds of affection”.

But they talk about a need for balance; and, notably, a need to recognise that a child's safety is not always at stake:
"Thus, when children’s physical or emotional safety is at stake, whatever interest in privacy they may have is outweighed by society’s interest in their protection. However, not all situations involve a child’s safety, and even when the goal is to prevent harm to the child, the harm of infringing upon the child’s privacy should also  be taken into account."

This balance will evolve as a child matures.  I scrawled the diagram below as a rough attempt to highlight how a parent's duty of care in the early days when a baby is entirely dependent on its parents evolves into a duty to respect a growing child's autonomous rights as they approach adulthood:

From my own experience as a parent it's notable how early a child displays independence and free will, making demands to be left to perform tasks such as feeding or dressing themselves.

Yet, as noted in the paper:
"There is a widespread consensus that children show less concern than adults about privacy. However, very few empirical studies have demonstrated this."
Is there conflict between physical demonstrations of free will from an early age and a child's natural demands for privacy from its parents; or, is the above conclusion drawn from insufficient or flawed data; or, maybe we simply don't understand enough about privacy itself to draw conclusions about a child's needs.
"It seems more accurate to argue that privacy is important to children, though their conceptions of privacy and the private differ from those of adults."
One question I'm left with hinges on whether some forms of parental monitoring cause distress or other psychological harm to the child.

E.g. a child could understandably become distressed if they discover a parent has read their private diary, hurt by the breach of trust.

Whereas a child has legal protection from most forms of physical harm, bar "reasonable chastisement", even from a parent, they have little if any legal protection from the emotional harm caused by unwarranted and persistent invasions of privacy, since both EU and US legal thinking groups privacy rights into "family units" of a sort.

In the way that the abused can become abusers themselves, will such persistent breaches of trust create a generation normalised to pervasive surveillance? A generation who won't think twice about imposing a similar regime on others, including their own children, and so on?

And what effect will this have; will our children be afraid to experiment, through fear of being watched, as they would in "normal" environments?

Would such inhibited behaviour limit itself to online contexts, or will it shape all aspects of child development, e.g. creative experimentation?

I for one absolutely did not want my parents to read any of my creative writing essays set by my school.  In later life I understand this as wanting to be free to explore ideas and behaviour that my parents didn't particularly subscribe to.  That surely is a healthy part of a child's development.

There is a possibility that none of the above will happen.  That children will adapt to find a level of privacy they are comfortable with that their parents simply cannot invade, e.g. through the use of technology such as strong encryption and other secure storage.

In fact a child only needs to be one step ahead of their parent's technological capability to evade surveillance, which raises another, different question: how is a parent expected to fulfil their duty of care when a child knows far more about technology than its parents?


1 comment:

  1. "how is a parent expected to fulfil their duty of care when a child knows far more about technology than its parents?"

    The question is, were the children who knew how to work a video player int he early 80's and got away with watching huge amounts of age-inappropriate material actually harmed?