California's Digital Erasure Law: Protecting Minors or Discouraging Personal Responsibility?

Does California's new "digital erasure" law protect minors or discourage personal responsibility? Privacy lawyers, advocates and educators alike are grappling with this question in the wake of California passing its digital erasure law for minors.

While there is definitely a line in the sand that has to be followed when it comes to the handling of children's personal information online (the Children's Online Privacy Protection Act), there is a new debate that has emerged that is two-fold: 1) the prospect of children's privacy when every aspect of their life may be shared online by others and 2) when children themselves engage in the posting of content they may later find offensive or to have been an "over share."

The new law, California's form of digital erasure, comes with its share of implementation and efficacy issues, but there is also the matter of personal responsibility to be discussed. For those of us who grew up in the world pre-Facebook as a minor, we did not have the opportunity to post embarrassing content that we would later regret for the whole world to see.

Yet, these minors have the right to control who they share with. If you do something embarrassing at a party, wear a costume you wish you had not or engage in some sort of youthful indiscretion (which is what we are hoping these youth are requesting to have deleted, not evidence of incriminating behavior), you have the capacity to limit sharing the digital remnants with only those who were there with you physically or a select group. Just as your embarrassing moment was only burned in everyone's memory who was physically there to share it in the pre-social network world, you have the right to prohibit that content from making its way on the web by not posting it there in the first place.

When we talk about privacy, in some way we are always talking about someone or some entity taking responsibility. Some want corporations to take responsibility on their own; others want regulatory bodies to enforce responsibility. Others proffer that this responsibility falls solely with the individual.

This law seems to stand for the idea that a certain group is exempt from having to take those moments to contemplate their online actions. If one of the goals that is trying to be accomplished by regulators is to encourage responsible digital citizenship, the ability to commit a transgression and simply have it deleted for you seems to run a bit afoul of this objective.

Our society has selected children to be a protected class and for good reason. But, part of that protection is deciding when to ensure that children are being safe online and respecting others. If a minor can delete their posts, they have the ability to delete all of their irresponsible behavior, including the content they create and the conduct they engage in that may harm others. When we have a national problem with the exacerbation of bullying online, cyberbullying, the offering of a "big red delete button" runs counter to education efforts to teach minors, from a holistic perspective, to be responsible citizens.

Did we just throw our hands up in the air and decide we could not teach kids to navigate the online world like we teach them to navigate the offline one? While many perils may lie out there online for minors, we may be encouraging them to create the biggest danger: themselves.