DOPA eventually failed, but a decade later its legacy still shapes policies and practices in many schools. Despite little to no evidence to suggest that social network sites pose an increased threat to the well-being of students, many schools (including Freeway High, as will be discussed in chapters 3–5) continue to block students’ access to social network sites. The Internet certainly presents risks for young people (and adults); however, as has already been noted, there is little evidence to suggest that young people are at greater risk online than they are elsewhere (e.g., at home, at school, or on a playground). The Crimes Against Children Research Center reports that since the rapid adoption of the Internet “sex crimes overall and against adolescents have dropped dramatically in the US” (Finkelhor 2011, p. 5) and that overall crimes against and by youth have been declining since the adoption of the Internet.13 Nonetheless, harm-driven expectations have led to a perception that the Internet poses a greater threat to young people than it actually does (Holloway and Valentine 2003; Olfman 2008; Livingstone 2009; Finkelhor 2011)—a perception that was fueled by cyberporn and cyberpredator panics and validated by the introduction of policies such as those specified by DOPA.
The Protecting Children in the 21st Century Act
After dying in Congress, DOPA was reintroduced in 2007 as the Protecting Children in the 21st Century Act (part of the broader Broadband Data Improvement Act). Rather than completely banning social network sites, the 2007 version required E-rate funded schools to “protect against access to a commercial social networking website or chat room unless used for an educational purpose with adult supervision” (Protecting Children in the 21st Century Act, section 203, ii).14 Requiring direct adult supervision of all social media practices puts an undue and unreasonable burden on teachers. In practice, most schools probably would have chosen to deny access altogether, rather than actively monitor and be held liable for students’ social media practices.
However, in 2011, as the bill was being debated in court, Congress began to acknowledge the educational value and potential of social media. In a positive move, the Protecting Children Act amended CIPA and issued a statement that by the 2012 fiscal year schools’ Internet safety policies must include provisions for educating students about appropriate online behaviors and interactions on social network sites. Instead of banning social media altogether, the FCC publicly noted that “social networking websites have the potential to support student learning” (Donlin 2011). The Protecting Children Act was not necessarily reflective of a decreased concern about risk, but rather can be viewed as an appropriate response to an increased concern about cyberbullying (ibid.) (or more accurately, relational aggression among peers, which is the focus of the next section). Additionally, the FCC concluded that, although individual pages on Facebook or MySpace might pose a risk to minors, those sites are not in and of themselves “harmful to minors.” As a result, they did not fall into a category of websites that must be blocked.
This is a positive step for schools, teens, and educators who have long acknowledged the educational potential of social network sites, as will be more fully explored in the second half of the book. Stephanie Winfrey, senior compliance specialist at Funds For Learning, a leading E-rate compliance services firm, applauded the adoption of the additional guidelines, adding that the changes should help to “foster a generation of responsible Internet users” (FCC releases Order … 2011). This is perhaps the first time we see evidence to suggest that students’ positive online experiences can influence policies aimed at reducing risk. CDA, COPA, CIPA, and DOPA were all shaped by harm-driven expectations that consistently constructed the Internet as a harmful space and youth as passive subjects. However, the Protecting Children Act implemented opportunity-driven expectations by taking into consideration the positive values of social media. The act appropriately enabled schools to play an active role in helping youth navigate social media and positioned educators and students as experts of their own experiences. Empowering educators is a notable shift in risk discourse because it breaks away from sensational and exceptional narratives of harm, and instead takes a more nuanced approach that aims to balance risk with opportunity, instead of just trying to eliminate risk altogether. Conversely, E-rate funded schools now face the challenge of remaining compliant with CIPA while also deciding whether and how to incorporate social media into their classrooms. Many schools still choose to block social media, but at least it is at the discretion of the school rather than a federal mandate. This enables schools to exercise discretion, curriculum, scaffolding, and policies that fit the localized needs, values, and practices of their communities.
Peer Fear: Cyberbullying and Sexting
Back in 2008, I wrote about the suicide of 13-year-old Megan Meier, who had hanged herself after being bullied via her MySpace account (Vickery 2008). Little did I know, at that time, that the case would become a locus for all sorts of cyberbullying concerns, attention, and legislation. In the decade since her death there have been far too many other similar stories in which teens, many of whom face mental health challenges, have taken their own lives after experiencing bullying, rejection, and aggression from peers. I want to revisit Megan’s story not only for the media attention it garnered and the legal questions it posed, but also because her story complicates constructions of the child/adult binary and serves as an appropriate introduction to what I call peer fear. Peer fear refers to the fear and anxiety about the ways young people communicate and interact with one another via digital and mobile media; it shifts the focus away from strangers and instead onto the interpersonal relationships between young people. As an example, I specifically consider the panics and legislation that have circulated around two headline-grabbing concerns: cyberbullying and sexting.
Cyberbullying Becomes a National Concern
To begin, let’s take a deeper look at the coverage of Megan Meier’s story. The words “cyberbully” and “bully” were notably absent from either the local coverage of the story (which received frequent coverage for years on STLtoday.com, the website of the St. Louis Post-Dispatch), as well as from national coverage. Megan’s suicide became the locus of media and legal attention for what we now refer to as cyberbullying,15 Yet at the time the media were not yet identifying or naming the problem as cyberbullying. The act of labeling something, of categorizing it—be it an object, a population, or a phenomenon—gives it credibility and power.16 Language both creates and alters perceptions of the world and is constituted by, and constitutive of, power, values, and ideologies. “By naming something,” Armstrong and Fontaine write (1989, pp. 7–8), “one actively carves out a space for it to occupy, a space defined by what one values in the phenomenon and by how it appears to be like or unlike other parts of one’s world view.” Cyberbullying intentionally draws attention to the presumably unique aspect of the online environment, the “cyber element” of bullying. Identifying cyberbullying as a phenomenon works to incite fear and panic. Labeling cyberbullying as a unique and unprecedented problem produces harm-driven expectations by identifying it as something distinctive, harmful, and worthy of attention. Nonetheless, at the time of Megan’s death the term was not being invoked in a story such as hers, a story that today would undoubtedly garner a cyberbullying headline.
The year 2007 appears to have been the “tipping point” (Gladwell 2000) at which cyberbullying garnered national concern. The term was taken up in various spaces within popular culture, media, and research. A public-service campaign to end cyberbullying was launched by the Advertising Council (in partnership with the National Crime Prevention Council, US Department of Justice, and Crime Prevention Coalition of America). The Ad Council released an anti-bullying video as part of an ongoing educational campaign. In June, the Pew Internet and American Life Project released its first report that included data about cyberbullying and online harassment of youth (Lenhart 2007). Harris Interactive, a market-research firm that tracks popular trends and releases the results of polls, published an entire newsle
tter about youth and cyberbullying: Trends and Tudes, written by Chris Moessner, the Research Director for Youth and Education (Moessner 2007). That same year, the Centers for Disease Control and Prevention described cyberbullying as an “emerging public health problem” (David-Ferdon and Hertz 2007; Hertz and David-Ferdon 2008).
There has been much research and funding directed toward “solving” cyberbullying as a social and legal problem, but it has proved particularly challenging to legally regulate for many reasons. First, regulation of interpersonal communication often infringes upon freedom of speech. Second, peer relationships transcend the liminal boundary of when schools can regulate off-campus behaviors. Third, it can be difficult to demonstrate when cyberbullying constitutes harm or presents a credible threat rather than playful teasing. Fourth, online speech is often anonymous, pseudonymous, and/or collaborative, and thus it is difficult to identify wrongdoers. Despite the practical and legal challenges to regulation, there is a general consensus that someone ought to do something about cyberbullying. The cry intensifies every time there is another teen suicide that is allegedly the result of peer aggression, harassment, and bullying. “Cyberbullying,” the legal scholar Alison King writes (2010, p. 848), “is already too grave a problem to be ignored, and it is quickly escalating with the proliferation of Internet use and the popularity of social-networking sites.” Such a statement reveals the taken-for-granted-ness that the problem must be addressed and regulated. King goes on to declare that “the time has come for legislative action” (p. 849). However, as she and other legal scholars and school administrators are well aware, the logistics of regulation are challenging. Further, it is unclear whose responsibility it is to regulate cyberbullying. Should it be the responsibility of schools, the federal government, parents, or the social media industry and its platforms?
State Laws Address Cyberbullying
To date, there are no federal anti-bullying laws. However, in April 2015, Montana became the fiftieth and final state to sign an anti-bullying bill into state law (Baumann 2015)17; the anti-bullying laws of all but eight of the states address cyberbullying directly. The majority of state laws address bullying at the (public) school level by describing at a minimum what (public) school district policies must address regarding bullying. The laws vary greatly, but have some similar components. Most provide a definition of bullying, but the definitions vary greatly. According to a report prepared by the US Department of Education (Stuart-Cassel, Bell, and Spring 2011, p. 25), “some state laws focus on specific actions (e.g., physical, verbal, or written), some focus on the intent or motivation of the aggressor, others focus on the degree and nature of harms that are inflicted on the victim, and many address multiple factors.” Notably, such definitions are not consistent with research-based definitions of bullying, which focus on a “repeated pattern of aggressive behavior that involves an imbalance of power and that purposefully inflicts harm on the bullying victim” (ibid., p. 1). Many of the laws conflate “bullying” and “harassment,” which, although similar, have different legal definitions: “Harassment is distinguishable from more general forms of bullying in that it must be motivated by characteristics of the targeted victim. It is generally viewed as a subset of more broadly defined bullying behavior. Harassment also violates federal civil rights laws as a form of unlawful discrimination” (ibid., p. 17).
Not surprisingly, there is much disagreement about whether schools can regulate student speech, particularly when it occurs off campus. Regulating student speech both on and off campus has some legal precedents,18 but still poses challenges to students’ First Amendment rights (King 2010).
Only two states (Massachusetts and Rhode Island) specify that disciplinary action must be balanced with education about appropriate behavior (Sacco et al. 2012). The state laws are overwhelmingly trending toward a legal approach that aims to punish and criminalize bullying (cyber or otherwise) rather than to address the larger social context and implications of bullying. This is consistent with the increased criminalization of youth practices and behaviors (Giroux 2009). The Department of Education reports:
Recent state legislation and policy addressing school bullying has emphasized an expanded role for law enforcement and the criminal justice system in managing bullying on school campuses. Though historically, authority over youth bullying has fallen almost exclusively under the purview of school systems, legislation governing the consequences for bullying behavior reflects a recent trend toward treating the most serious forms of bullying as criminal conduct that should be handled through the criminal justice system. … An increasing number of states also have introduced bullying provisions into their criminal and juvenile justice codes. (Stuart-Cassel, Bell, and Spring 2011, pp. 19–20)
Similarly, the Megan Meier Cyberbullying Prevention Act (2009) took a punitive and criminalizing approach to addressing cyberbullying. In 2009, Representative Linda Sanchez (D-California) brought the legislation before the US House of Representatives, but it was not enacted. Both Democratic and Republican representatives feared the bill was too broad and would have chilling effects on free speech. The bill proposed that violations be prosecuted as a felony rather than a misdemeanor.19 Representative Louie Gohmert (R-Texas) said the legislation “appeared to be another chapter of over-criminalization [of minors]” (Kravets 2009).
The majority of state provisions, as well as the Megan Meier bill, rely heavily on punishing bullying only after it has occurred and are unlikely to deter a would-be bully from harassing someone. We have seen that when young people are framed as social problems, they become subjects of control, surveillance, and criminalization. The focus of many of these policies is on the perpetrator, rather than the target or even the social conditions leading to bullying. Many state and school policies ignore the reality that numerous perpetrators are also victims, and thus our understanding of victim/offender is complicatedly disrupted. Within the legal framework, blame is bounced around from youth to technology to parents and to schools. This is evident when schools deny students access to sites such as MySpace, Facebook, Instagram, and YouTube, and also when parents sue school districts for failing to appropriately prevent cyberbullying incidents.20
Other legal scholars have proposed amending the Communications Decency Act in order to hold ISPs and website administrators (collectively referred to as Online Service Providers or OSPs) responsible for facilitating bullying via their services and platforms. King (2010) suggests creating a notification system in which OSPs would be required to remove defamatory content. The process King proposes would function similarly to the “safe harbor” provision of the Digital Millennium Copyright Act (DMCA), which holds service providers liable for material that infringes upon copyright law only if they are made aware of the material. King argues that OSPs need “a legal incentive to combat cyberbullying that occurs by means of their services.” Since the publication of King’s article, we have seen many social media platforms implement anti-harassment policies (as part of their Community Standards and Terms of Service agreements) and enable users to report violations of the harassment policies (Rubin, Sawyer, and Taye 2015). It is up to the discretion of platforms as to whether or not they will remove the content or ban the user, but there are nonetheless mechanisms in place for reporting inappropriate content and users in cases of harassment and bullies. Such forms of regulation are not the results of legal liability so much as they are industry self-regulation driven by economic incentives. If users regularly have negative encounters on a particular platform, or if enough parents and adults hear about negative encounters, users are likely to leave that particular site altogether, which in turn has a negative economic impact on the site. As van Dijck (2013) argues, social media platforms have an economic incentive to enhance (safe) sociality. Social media platforms’ anti-harassment policies are an example of how social norms and the market often work together to incentivize industry self-regulation as opposed to heavy-handed legal action from the state.
This brings
me to my final point about the legal regulation of cyberbullying, which is that the criminalization of youth behavior addresses the symptoms, but not the causes, of bullying. Rarely do the policies address mental health and the social conditions of the school climate that perpetuate power imbalances, social hierarchies, intolerance, and bullying in the first place. One policy that stands out as an exception is the 2009 Student Internet Safety Bill.21 The bill, proposed by Representative Adam Putnam (R-Florida), would have allowed school districts to use federal funds to “educate their students about appropriate online behavior, including interacting with individuals on social networking Web sites and in chat rooms. They could also use the funds to protect students against online predators, cyberbullying, or unwanted exposure to inappropriate materials, or promote involvement by parents in the use of the Internet by their children” (source: Representative Cathy McMorris Rodgers’ testimony before the House of Representatives, retrieved from Congressional Record for June 15, 2009). The proposed bill took an educational approach and offered funding for education. One criticism of many state bullying laws is that they require schools to create policies and curriculum, but do little in the way of funding research, policies, and curriculum (Sacco et al. 2012). The burden rests on already strained school districts to fund such policies. Unfortunately, the Student Internet Safety Bill died in the Senate (after it was passed unanimously by the House).
Problematically absent from most discussions of cyberbullying are larger discourses of social hierarchies, mental health, race, gender, class, and sexuality. Discourses organize the social world in such a way as to make certain aspects of problems seem relevant: our focus is frequently on what is happening, who it is happening to, and how we can punish it, but rarely are we overtly addressing why it is happening in the first place. or why some targets of bullying are less equipped to cope or seek help. Over the past eight years, conversations about cyberbullying have productively moved away from overly blaming technology (although technology remains heavily regulated and banned in many schools). Technology exacerbates the problem and presents new challenges, but we have come to a better understanding of the ways cyberbullying is merely an old problem with a new and more persistent, instantaneous, and intensified face. What is seldom discussed within conversations about regulation is the overt prevalence of homophobic, sexist, and ableist nature of bullying that is so common among reported cyberbullying incidences. We know that young LGBTQ people are significantly more likely to be bullied and harassed than their heterosexual and cisgender peers and are four times as likely to commit suicide (Bullying and LGBT Youth 2009), yet these variations are not often accounted for in news reports addressing bullying. In fact, Hasinoff (2015, p. 8) points out that media repeatedly overlook stories involving people of color and queer youth when they are victims of crime, instead such mainstream discourses focus on “the benevolent but misplaced desire to protect the supposedly inherent sexual innocence of white middle-class girls.”
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