Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Wednesday, January 26, 2011

Shmueli & Blecher: "Privacy for Children"

Benjamin Shmueli (Bar-Ilan University Faculty of Law) & Ayelet Blecher (Sha'arey Mishpat Law College) have posted "Privacy for Children" (42 Columbia Human Rights L. Rev. (2011)) on SSRN.  Here is the abstract:

There is growing concern over childrens privacy in today's technological world. However, most of the research on children's privacy focuses on third party threats, such as commercial websites. Little work has been done on children's privacy in their relationship with their parents, and specifically, privacy from their parents. This article attempts to instigate a discussion on this timely issue.

For most adults, the place where our privacy is most protected is the home. For children, however, having privacy in their home is far from a certainty, and it is becoming ever less so. While it is true that parents have always been able to invade their children’s privacy by going through their schoolbags, reading their personal diaries and the like, nowadays children and youth are seen as at risk from online predators, pedophiles, cyberbullies and other online dangers. Whereas "good parents" may have traditionally been encouraged to trust their children, today they are encouraged to safeguard their children, including by invading their privacy. Monitoring has become associated with good parenting, and the surveillance of children has been framed in a language of safety, protection, and care. Today's children are the most watched over generation in memory. Children express concern about their parents' snooping and see it as an invasion of their intimate and social lives. Nonetheless, children's privacy is overlooked and given scant consideration, if any.

In this article we identify and address the difficulties in recognizing children’s privacy within the family unit. The first difficulty is that the privacy discourse has so far been developed almost exclusively in reference to adults and is applied only awkwardly to the rights of children. Where children are concerned, privacy is considered to be dangerous and inherently associated with risk. We demonstrate that theories of privacy can be adapted to include children and point to the value and significance of privacy for children. The other difficulty in recognizing a "privacy problem" for children in their homes and family relationships concerns the nature of the parent-child relationship, as well as the general tension between the privacy of the family as a relational entity and the privacy of its individual members.

Looking critically at the prevailing legal situation in both American jurisprudence and in international documents in which privacy is dominant for adults but less so for children, and even less so for children vis-à-vis their parents, this Article suggests a balanced individual children's right for privacy from their parents, which offers solutions to parent-child privacy conflicts both in the traditional "offline" world and the digital online world. We call for a clear recognition of children's individual right to privacy that is separate from, and may even operate against their parents. At the same time, however, we acknowledge that this right should be qualified to some extent according to the child's age and evolving capacities.


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