Child Welfare Archives – Southern California Law Review

Sharenting—the practice of parents sharing information about their children online—has become mainstream in American society. While most forms of sharenting may be considered benign or even beneficial, some parents harm or exploit their children when sharing online. For example, “mom-influencers” often violate their children’s privacy in their attempts to attract followers to their social media accounts. While traditional forms of parental sharing raise privacy concerns, we are only beginning to understand the dangers and impacts of widespread exposure of children on social media.

This Article is the first to propose a welfare model of child protection to address exploitative and harmful parental online conduct. The state, through its parens patriae power, already regulates parents who harm children in the brick-and-mortar world. The state must exercise that same power to protect children in the virtual world. This Article offers comprehensive solutions grounded in constitutional law principles that balance the parental right to control the upbringing of their children and to free expression with the state’s interest in protecting vulnerable children from harmful and exploitative online conduct. When parents go “beyond sharenting,” the state must be prepared to step in and protect vulnerable children.

Introduction

Mia is a seven-year-old girl growing up in Orlando, Florida.¹ Her mother, Savannah, is a stay-at-home mother, and her father, John, is a successful businessman.² Savannah is very active on social media. She has a public Instagram account and considers herself an influencer. Many lingerie brands pay her to model their clothing, and she often poses in pajamas alongside her daughter.³ Recently, a lingerie company from overseas offered Savannah money to have Mia also pose in their clothing. Savannah said yes. Over the next few weeks, she begins receiving the nighties—matching lingerie Savannah regularly models but in less revealing cuts. Savannah has Mia try some on, and while it covers her private areas, it highly sexualizes the little girl, with the matching prints suggesting her eventual graduation to those more mature silhouettes. Savannah tells Mia that she will get extra dessert for each outfit she agrees to model. The pair often model the outfits in pictures and videos together, sometimes wearing the outfits while reading together in bed, having pillow fights, or being playful around the house—always in clearly intimate but arguably appropriate settings.

Savannah’s social media page explodes with new followers. Based on their profiles, many of these followers appear to be grown men.⁴ Images of Mia receive hundreds of likes and multiple comments, some of which seem inappropriate.⁵ Savannah deletes the most inappropriate comments, but she leaves others, hoping to increase the engagement on her page.⁶ As Savannah’s social media following grows, so too does the amount of money the lingerie company pays her per outfit modeled.

Mia tells her teacher, Ms. Drake, about the social media page. Ms. Drake speaks with the school administrators and shows them the mother’s Instagram page. The school reaches out to Mia’s mother, Savannah, and to Mia’s father, John, to implore them to reconsider sharing the photos, to no avail. Savannah keeps sharing.

Ms. Drake sees this as a potential form of abuse and neglect⁷ and, according to her obligation as a mandatory reporter, she wants to call in an abuse report on the mother as she worries for Mia’s safety and privacy.⁸ She makes the hotline call to the state’s central abuse registry.⁹ She provides information and even emails the registry pictures, but the intake counselor declines to accept the hotline call.¹⁰ The counselor explains that posting the pictures is not grounds for an abuse, abandonment, or neglect investigation.¹¹ The parent is simply sharenting, the counselor explains, and that is within a parent’s right to do so as they see fit.¹² There is nothing the intake counselor believes she can do.¹³

Parents in the United States do, in fact, have almost unfettered discretion when it comes to sharing about their children.¹⁴ And our legal system is ill-equipped to protect children like Mia.¹⁵ Unless Savannah agrees on her own to stop sharing these inappropriate pictures of her daughter, they will continue to be shared. Images already online can be saved and reshared by strangers, and Mia’s digital footprint may always be marred with traces of her mother’s online conduct.¹⁶ And, while parents have been sharing images of their children with the public long before the creation of the Internet, the life of online images is likely to long outlast Mia’s childhood.¹⁷

As I have described previously, sharenting, or the practice of parents sharing information about their children online, has become mainstream in American society.¹⁸ Parents post information about their children on various platforms, often with the goal of connecting and sharing about their lives with family and friends.¹⁹ While most parents share with the intention that their pictures and stories reach a limited audience,²⁰ others share publicly.²¹ Furthermore, some parents gain financial or social capital through sharing, and children may lose their current and future sense of privacy and autonomy as a result. The children may be pressured into allowing themselves to be recorded in uncomfortable ways or photographed in embarrassing situations. This sharing is at times exploitative, and it is likely more harmful than more personal forms of sharing—that of noninvasive photos and memories among family and friends.²²

The public, as well as many academics working in this space, refer to parents who share detailed information about their family in public ways as “mom-influencers,”²³ and the children are referred to as “kid-influencers.”²⁴ These parents may be well-meaning, but their actions can present significant danger.²⁵ Legal remedies do not exist to protect children whose parents overshare online, and as such, these children are left at risk for abuse and exploitation.²⁶

In the United States, parents are primarily responsible for the well-being of their children, and the government will only intercede in the most necessary of circumstances.²⁷ For example, parents can generally discipline their children as they see fit.²⁸ However, they may not physically abuse their children without facing legal consequences. But this was not always the case. In 1800, spanking a child lightly and beating a child both fell under the penumbra of parental rights.²⁹ But today, two penumbras exist.³⁰ Parents may use corporal punishment only to the extent permitted by law.³¹ Recognizing that parental rights must be balanced against the state’s parens patriae powers, states have laws that allow parents to use reasonable corporal punishment on their children but prohibit child abuse, which is often understood as excessive (and unreasonable) corporal punishment.³² When parental conduct goes beyond mere corporal punishment, parents are under the second penumbra, child abuse, and may face criminal and civil prosecution.³³

“While parents must bear the primary responsibility for meeting the needs of their children,” Monrad Paulsen posits in his 1966 article The Legal Framework for Child Protection, “society has an obligation to help parents who for one reason or another are unable or incapable of satisfactorily fulfilling their role.”³⁴ Paulsen’s framework was written with corporal punishment in mind, but the same core tenets can be applied in the context of sharenting. The general responsibility to control a child’s social media footprint must lie primarily with the parents.³⁵ But society must also bear an obligation to step in when parents are “unable or incapable of satisfactorily fulfilling their role.”³⁶ Companies have also been called upon to protect children by policing content posted on their platforms, whether it be self-imposed or by legislative mandate.³⁷

Much like how child abuse falls beyond the bounds of acceptable parental discipline, exploitative sharing about children publicly and for profit often falls beyond the bounds of acceptable sharenting, thus necessitating legal protections and remedies for children who are harmed or at risk of harm by their parents’ conduct. When parents go “beyond sharenting,” they have engaged in a course of conduct that calls for state action to minimize harm to their children.

Scholars, parents, and politicians are grappling with this new reality, but scholarly literature has yet to propose comprehensive frameworks or realistic solutions. In 2017, I published the first scholarly article on sharenting, drawing from my professional and practical experience as a law professor and clinician.³⁸ This Article builds on that work, further developing a scholarly account for when sharenting crosses the line into problematic harm or exploitation and advancing several solutions.

This Article will proceed in three parts. Part I of this Article provides an overview of child abuse law. It considers the rights parents have under the substantive due process clause of the Fourteenth Amendment.³⁹ As later Sections of the Article explain, the law must evolve to recognize the legal boundaries of sharenting, utilizing the state’s parens patriae powers to protect children when their parents fail to do so.⁴⁰

Part II of this Article discusses how our legal system fails to protect children’s privacy online. Furthermore, this Part offers readers an overview of sharenting. This parental practice of sharing about children online also receives protection under both the substantive due process clause of the Fourteenth Amendment and the free speech protections outlined in the First Amendment.⁴¹ In most circumstances, parents are best suited to control the upbringing of their children both on- and offline.⁴² To that end, Section II.B explores federal laws that aim to keep young people safe online,⁴³ both from harm caused by the child’s own conduct online and harm to children by others collecting, storing, selling, or otherwise disseminating a child’s information or imagery in a way that poses a risk of harm to children, specifically focused on the practice of sharenting.⁴⁴ This Section will explore laws spanning from the 1998 Children’s Online Privacy Protection Act,⁴⁵ which places parents in control over the information third parties collect about children online, to today’s attempts to regulate children’s own conduct when they use social media themselves.⁴⁶ Next, this Section will explore how states have attempted to fill the gaps left open by the lack of comprehensive federal legislation that protects children online.⁴⁷ It will outline how states have managed to empower parents to take control of their children’s online experiences and information to better protect their families and also how some states have begun to limit how parents share online.⁴⁸ Lastly, Section II.C will discuss how other countries have attempted to protect children online, highlighting how foreign governments appear far more willing to exercise parens patriae powers to protect children than the U.S. government or the states.⁴⁹ This Section will discuss the role of the United Nations Convention on the Rights of the Child (“UNCRC”) in protecting children, and perhaps more importantly, the role of the UNCRC in recognizing children’s rights to privacy and protection in digital environments.⁵⁰ This children’s rights-based framework is recognized by over 192 nations and is quite different from our parents’ rights-based framework in the United States.⁵¹

Part III of the Article will propose a new model for children’s online privacy protection. Just as child welfare laws have evolved to separate legal corporal punishment from child abuse, Section III.A will argue that the United States must separate legal parental sharenting from online abuse and exploitation perpetrated by parents. Utilizing the doctrine of parens patriae,⁵² this model recognizes that there are limits to parental autonomy.⁵³ While determining those limits is challenging, systems exist that allow for child welfare professionals to use evidence-based research to inform new policy in this arena.⁵⁴ This policy can include comprehensive measures that allow for a public health campaign educating parents on the difference between acceptable sharenting and online child abuse or exploitation.⁵⁵ The public health campaign would be accompanied by new methods of reporting instances of exploitative or abusive sharenting and provide funding for such reports to be investigated by well-trained professionals who, like traditional child welfare professionals, proceed first by working to educate and strengthen families so that parents can be supported to make better online sharing decisions for their families.⁵⁶ However, these professionals must also be empowered with legal methods to protect children if parents fail to do so. Through a judicial process, the state should be permitted to take action to protect children in the virtual world much as it does in our brick-and-mortar one.

Parents rarely neglect or abuse their children because they are intentionally malicious.⁵⁷ Most do so because they either do not have the resources they need to make better parenting decisions, or they are unaware of how they can better meet their own needs to meet those of their children simultaneously.⁵⁸ Our legal systems have evolved to offer parents assistance to create healthier living environments for their children⁵⁹ and to give the state tools to take action that protects children from harm (and risks of future harm) within the home.⁶⁰ Similarly, parents rarely exploit their children online because they are intentionally malicious.⁶¹ Most do so because they are unaware of the risks such oversharing presents or need the financial or social assistance such oversharing provides.⁶² The state must have tools to empower parents to make smarter sharing decisions for their families.⁶³ And the state must also have tools to step in and protect children when parents fail to do so or when harm is significantly likely to occur.⁶⁴

I. Child Protection In The United States

In the United States, strong deference is given to parents to raise their children as they see fit.⁶⁵ Courts are reluctant to interfere with parental decision-making, except in the most limited of circumstances.⁶⁶ However, laws exist to protect children from parental abuse and neglect.⁶⁷ Parents have also been held accountable for exploiting their children in a myriad of ways.⁶⁸ Indeed, children do not belong to their parents.⁶⁹ But the relationship between children and their parents remains a space where the state generally refuses to enter.⁷⁰

A. Evolution of Federal Child Protection Laws

Child welfare laws gained traction during the middle of the eighteenth century. A case often cited as creating the first child abuse laws in the country tells of a young girl who was physically abused. While Mary Ellen’s injuries and the neglect she suffered were gruesome, concerned community members were hard-pressed to find an existing legal mechanism to protect the child.⁷¹ A lawyer, the president of the New York Society for the Prevention of Cruelty to Animals, was able to argue successfully for her protection by citing animal welfare laws.⁷² This remained the norm for many years.⁷³

In the later parts of the nineteenth century, Progressive activists urged the government to do more to protect the nation’s children.⁷⁴ The “child saving movement” focused on numerous harms facing children, including poor health, abusive labor, delinquency, poverty, failed families, and institutionalization.⁷⁵ One realm of reformation focused on the need to “Americanize” children of immigrants so that they could become more a part of American communities and more accepting of American culture.⁷⁶ This same time period saw an influx in calls to create child welfare standards, focusing on setting minimum standards for child and maternal health, labor, and needy children.⁷⁷ As child welfare became more standardized, states were incentivized to create laws that both protected children and held adults accountable for the well-being of children under their care.⁷⁸

As the twentieth century got underway, conferences and calls for standardization grew.⁷⁹ Social welfare programs expanded under the New Deal and throughout World War II, providing funding to help create programs that allowed for these new reforms and standards to make their way into children’s home lives.⁸⁰ The Social Security Act of 1935, for example, included provisions (known as Title VI) geared at helping children in need.⁸¹ During this time period and the decades that followed, federal policies focused on providing education to young people, providing child care for needy families, restricting child labor, instituting nutrition programs, and promoting childhood vaccination.⁸²

During the Kennedy administration, these efforts continued. Congress developed the National Institute of Child Health and Human Development (“NICHD”), which focused on “conduct[ing] and coordinat[ing] national biomedical and social science research on child and maternal health and on physical, intellectual, and emotional development. NICHD has supported research on birth defects . . . stimulated the expansion of pediatrics as a medical specialty, and provided an official imprimatur to the idea that that adult health and behavior is shaped during childhood.”⁸³ This period also saw the inception and development of scientific research regarding “battered children,” and by 1966, “every state had passed legislation requiring better reporting and intervention in cases of child abuse.”⁸⁴ With these developments, parenting became a budding subject of interest in the public health sphere.

Federal legislation aimed at creating a uniform system of child protection can be traced to the Child Abuse Prevention and Treatment Act of 1974 (“CAPTA”).⁸⁵ This Act has been most recently reauthorized in 2019 through the Victims of Child Abuse Reauthorization Act of 2018.⁸⁶ Through federal grants, states are provided with funding to “improve child protective services, including mandatory reporting of child maltreatment, intake, screening, investigations, risk and safety assessments, case management and training.”⁸⁷ While funds provided through this Act represent some of the

earliest allocations of federal money to states to protect children, they currently make up a small part of the funding models states use to protect children.⁸⁸

The Adoption Assistance and Child Welfare Act of 1980 also marked a turning point in child welfare legislation in the United States.⁸⁹ This federal law focused on keeping families together, as many state agencies were separating families at alarming rates in efforts to resolve child welfare problems.⁹⁰ Now, many laws protecting children were focused not only on physical health, but on morality and culture as well. For example, the Children’s Television Act of 1990 regulated what TV stations could broadcast.⁹¹ During the Clinton years, efforts centered on ensuring parents of young children had access to high-quality childcare and family support.⁹² In his policy draft, Andrew Yarrow writes, “In her book It Takes a Village [] First Lady Hillary Clinton strongly reaffirmed the principle that society—and, by implication, government—bears a strong responsibility for child welfare and successful child development.”⁹³

In the late 1990s, as technology became ever more present, the government began creating laws giving parents more control over their children’s digital lives.⁹⁴ Yarrow writes:

The 1996 Telecommunications Act called for the broadcast, cable, and motion picture industries to develop voluntary ratings for TV programs based on their degree of violent or sexual content. In tandem, TV manufacturers were required by 2000 to install “V-chips” to enable parents to block programming. The 1998 Child Online Protection Act was one of several legislative efforts to restrict children’s access to web-based pornography, although courts have ruled the law unconstitutional. The Children’s Online Privacy Protection Acct [sic] (COPPA), which took effect in 2000, restricted commercial web sites from collecting personal information from children under 13.⁹⁵

These efforts to both standardize and unify the nation’s efforts toward enhancing child development continue today.⁹⁶

A common theme seen throughout these policy initiatives is the focus on empowering parents, first and foremost, to shape the welfare of their children, and to dictate the environment in which a child comes of age.⁹⁷ However, equally important in these schemes is the recognition that government, through its parens patriae model of child protection, also has a role to play.⁹⁸

This broad overview of child welfare policy includes policies focused on protecting children from abuse and neglect. Research overwhelmingly shows that our child welfare system, also referred to as a “family regulation system,”⁹⁹ disproportionately removes children from Black and Brown families.¹⁰⁰ Scholars have called for abolition of this family regulation system,¹⁰¹ arguing that it is irreparably broken and biased against families of color.¹⁰² While this Article will not discuss this important topic in detail, it supports a dismantling of current broken systems and suggests that a new system can be created that addresses the systemic bias of our current practices and incorporates the evolving needs of children online.¹⁰³

B. Early Court Decisions Regulating Parental Conduct

The courts have also interposed their own views on parental conduct. “Blackstone deemed ‘the most universal relation in nature . . . (to be) that between parent and child.’ ”¹⁰⁴ The parental rights arising from this relationship rest not only in law and precedent, but also “in nature and human instinct.”¹⁰⁵ Throughout our Nation’s history, the Supreme Court has held the rights of parents to be fundamental.¹⁰⁶ In the seminal case of Meyer v. Nebraska, decided in 1923, the Court “described the parental right as ‘the right to control,’ corresponding with the duty of a parent to educate their children.”¹⁰⁷ This understanding of parental rights was further expounded on two years later in Pierce v. Soc’y of the Sisters of the Holy Names of Jesus and Mary, holding that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”¹⁰⁸ Yet, the Court has also recognized that there are times when the state must curb parental authority to protect children.¹⁰⁹

In Prince v. Massachusetts, the Court noted that “the family itself is not beyond regulation in the public interest, as against a claim of religious liberty.”¹¹⁰ In Prince, a child sold religious magazines on the street, and her caregiver argued that this was permissible not only because it was at the direction of a person acting in loco parentis, but also that it was permissible as an exercise of both the child’s and the caregiver’s religious liberties. However, the Court noted the dangers streets pose to children, stating that “[p]arents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”¹¹¹

II. Children’s Privacy In The Age of Social Media

Just as the state gives parents wide latitude in determining how to raise their children in the physical world, parents also regulate a child’s virtual world.¹¹² The cases cited above, which lay out the rights of parents but also highlight the role of the state in protecting children from parental overreach, have not yet been applied to parental oversharing on social media, nor have they been contemplated in discussions surrounding parental oversight (or lack of oversight) regarding their children’s social media use. Parents can allow their children practically unlimited access to the internet, can choose not to monitor their website viewing, and can allow their children to post on social media without seeing any legal repercussions.¹¹³

A. Sharenting and Beyond

Parents have almost unfettered discretion to share about their children in the virtual world much like they do in the brick-and-mortar world.¹¹⁴ Just as the state generally does not step in when a parent talks about their child with friends, schools, community members, or the public, the state does not step in when a parent posts about a child online.¹¹⁵ In almost all circumstances, this makes sense and is consistent with our democratic ideals of free speech and with our nation’s strong deference to parental autonomy.¹¹⁶ However, unlike a conversation, information shared by a parent online has the potential to last long into the future,¹¹⁷ possibly following a child into adulthood in ways not generally contemplated by parents or the public.¹¹⁸

Well-informed parents are generally best suited to decide how much to share online about their children.¹¹⁹ Parents who are aware of the risks of oversharing online will take steps to censor themselves, keeping private matters private and embarrassing stories about their children to themselves.¹²⁰ However, many parents are not aware of the risks that come alongside online sharing about children.¹²¹ Adults today are the first generation of parents to raise kids alongside social media—understanding the implications of growing up shared can be a complicated task for even the most well-educated parents—and many parents remain un- or underinformed about the risks that come when parents overshare online.¹²² A few informed parents choose to share about their children despite being fully aware of the risks.¹²³

While oversharenting is generally more of a public health concern that demands a public health response, oversharenting can also become a legal concern.¹²⁴ However, unlike typical forms of child endangerment, our legal system is currently ill-equipped to mount an appropriate legal response.

States rarely step in to regulate parental online sharing not only because parents generally have the substantive due process right to make most decisions for their children, but also because of a parent’s First Amendment right to free speech.¹²⁵ Just as courts rarely step in to restrain individuals from posting about matters online generally, courts would be reluctant to step in to restrain a parent from similar conduct.¹²⁶ The right to free speech is very broad, and its role in online sharing is consistent with the right as it is practiced in other contexts. Moreover, not only do individuals have strong free speech rights protecting words already spoken, but courts are also especially reluctant to put a prior restraint on parental speech not yet said.¹²⁷

This analysis is best begun by a brief overview of how courts hesitate to limit speech that has not yet been spoken. This area of law is often governed by what is known as the doctrine of prior restraint.¹²⁸ Under the doctrine, the state cannot prohibit “the publication of speech prior to its distribution, including orders to remove an expression that has already been published.”¹²⁹ There are exceptions to the prior restraint doctrine. As Ariel Bendor and Michal Tamir write, courts have approved prior restraints where

the speech is deemed obscene, where a prior restraint is needed to fulfill the right to a fair trial, where the expression is part of an unprotected commercial speech, where the speech was part of a continuing course of conduct, and where the expression could endanger national security in time of emergency. Courts have also approved prior restraint in order to protect privacy, in order to prevent employment discrimination, in order to protect property, in order to regulate public forums, and in order to prevent misleading commercial expressions.¹³⁰

In the context of sharenting, prior restraint would generally bar the state from prohibiting a parent from speaking in the virtual world about their child, much as it would do in the brick-and-mortar world.¹³¹ It would also stop the state from being able to require speech made by parents to be removed from social media, absent significant exigent circumstances.¹³²

Thus, one can understand why parents have such wide latitude to share online about their children. At least two constitutional principles are at play for parents—both their Fourteenth Amendment right to raise their children as they see fit and their First Amendment right to free speech.

Of course, there are times when even the Constitution will not protect parents who share online.¹³³ Generally, this is limited to criminal behavior. A parent sharing child sexual abuse material, for example, would receive no protection under the First or Fourteenth Amendments and could be prosecuted to the fullest extent of the law.¹³⁴ While the First Amendment allows individuals to create, view, and share pornographic material, it offers no protection to those who create or share child sexual exploitation material, nor does it protect those who view or share such illicit material.¹³⁵ And while the Fourteenth Amendment allows parents much discretion to raise their child as they see fit, they do not have the right to sexually abuse their child or to allow others to do so.¹³⁶

Every time a parent chooses to share online about their child, they make a decision that has the potential to have lasting consequences for their child.¹³⁷ When parents choose to share embarrassing information, for example, it could come to the child’s attention in unexpected ways.¹³⁸ A well-meaning friend of the parent could misinterpret the information and see it as a joke, later sharing it with the child in a public setting.¹³⁹ Children of the well-meaning friend could use their parent’s phone and see the content, later using it to tease or bully the child who was the subject of the embarrassing post.¹⁴⁰ If the information is shared publicly, the parent has no control over how the information is used in the future.¹⁴¹ If a parent shares the information “privately” with a limited audience, the parent may think they can control the spread of the information.¹⁴² But even when parents feel a sense of security by sharing on a “friends only” account or with a limited audience, such a comforting feeling may not be warranted as information can be saved and shared in many ways—coming back to hurt the child years into the future.¹⁴³

Online parental sharing geared toward building community may best be termed as sharenting to obtain social capital. Some parents “sharent” not only to build social capital within their network, but also in pursuit of financial capital, which requires them to entice and entertain a wider audience. In both instances, parents play the role of gatekeeper and gate-opener for their children’s personal information.¹⁴⁴ Parents act as gatekeepers when they protect a child’s personal information and as gate-openers when they share a child’s personal information.¹⁴⁵ When parents are building financial capital through sharing children’s content, parents are often moving beyond typical

sharenting¹⁴⁶ and the children become a commodity, one measured either via social capital or through financial gain.¹⁴⁷

B. How the U.S. Tries (and Fails) to Protect Children’s Privacy Online

There are many threats to children’s online privacy and governments have attempted to protect them in many ways. Individual states have enacted laws that protect children’s privacy in a handful of narrow situations, few of which pertain to sharenting.¹⁴⁸ The federal government has tried to enact legislation to protect children online, but most of these efforts have repeatedly failed to become law.¹⁴⁹ Internationally, the United Nations Committee on the Rights of the Child issued General Comment No. 25, Children’s Rights in Relation to the Digital Environment, to better recognize children’s rights and needed protections online.¹⁵⁰ And many countries have acted to protect children’s privacy through legislation that prohibits the sharing of children’s content in certain circumstances, even punishing offenders with jail time.¹⁵¹

In the United States, COPPA is the key piece of legislation aimed at protecting children online.¹⁵² However, this Act, signed into law in 1998 and updated in 2012, is woefully inadequate to protect children’s information online in the current atmosphere.¹⁵³ The internet is a very different place than it was in 1998 or 2012, and the Act does little to keep kids safe on the many websites they engage with today (such as Google and YouTube).¹⁵⁴ It does absolutely nothing to protect children when their parents are the ones acting to invade their privacy.¹⁵⁵ In fact, COPPA, like many state laws focused on children’s online privacy, places parents in the driver’s seat, tasking them with deciding who can collect, save, and disseminate a child’s information online.¹⁵⁶

COPPA sets forth requirements for online service providers to follow when their website is geared toward children under the age of thirteen.¹⁵⁷ If an online service provider seeks to engage this age group on its platform, the provider must take steps to protect the user’s personal information.¹⁵⁸ To that end, the law requires that any online provider directing its website to children or collecting and maintaining personal information about a child must:

(a) Provide notice on the website or online service of what information it collects from children, how it uses such information, and its disclosure practices for such information;¹⁵⁹

(b) Obtain verifiable parental consent prior to any collection, use, and/or disclosure of personal information from children;¹⁶⁰

(c) Provide a reasonable means for a parent to review the personal information collected from a child and to refuse to permit its further use or maintenance;¹⁶¹

(d) Not condition a child’s participation in a game, the offering of a prize, or another activity on the child disclosing more personal information than is reasonably necessary to participate in such activity;¹⁶² and

(e) Establish and maintain reasonable procedures to protect the confidentiality, security, and integrity of personal information collected from children.¹⁶³

While COPPA provides some meaningful protections for young people, it remains significantly flawed.¹⁶⁴ COPPA does not provide young people with a private cause of action against website operators who violate their privacy.¹⁶⁵ It does not provide young people with a meaningful way to request deletion of the information they have shared with third parties or the public.¹⁶⁶ COPPA provides young people with no protection from parents who overshare or allow others to overshare without the young person’s consent.¹⁶⁷ And it completely ignores the largest demographic of young

people online, teenagers, as it defines “child” as a person under the age of thirteen.¹⁶⁸

Ultimately, the federal government has failed to respect a young person’s online privacy and has failed to pass legislation holding online companies accountable when children are harmed due to or through online conduct. To fill the void left by lax federal laws in this space, many states have entered this space, attempting to create new laws that both recognize a child’s interest in online privacy and the state’s role in holding third parties accountable for online harm.¹⁶⁹ While these laws are an important step in protecting children online, they also have significant flaws of their own. One issue these laws present is the question of federal preemption. However,

[t]he Ninth Circuit recently held that the Children’s Online Privacy Protection Act, which gives the Federal Trade Commission authority to regulate the online collection of personal information from children under the age of 13, does not preempt consistent state law, potentially increasing the risk of class action litigation based on alleged COPPA violations.¹⁷⁰

The state law claims in Jones v. Google LLC provided families with a potential private cause of action for conduct that also violated COPPA.¹⁷¹

Another issue is that state laws aimed at protecting children online vary. Florida passed a law in 2024 that prohibits social media sites from allowing individuals under the age of fourteen to create accounts.¹⁷² It gives parents the authority to decide whether their fourteen- and fifteen-year-olds can use the social media platform.¹⁷³ Florida’s new law also “requires pornographic or sexually explicit websites to use age verification to prevent minors from accessing sites that are inappropriate for children.”¹⁷⁴ Like COPPA, most state laws place parents in control of their children’s personal information when it is shared online, whether by the young person or by others. Husch Blackwell LLP, a law firm that provides services to multiple types of businesses, offers a state privacy law tracker, which is regularly updated to provide overviews of new state laws that are being introduced to provide protections for young people online.¹⁷⁵ California, Connecticut, and Florida are three states with new laws specifically focused on children’s privacy.¹⁷⁶ Colorado, Hawaii, Illinois, Maryland, Minnesota, New Mexico, New York, Pennsylvania, South Carolina, Vermont, Virginia, and West Virginia all have or have had pending legislation in this arena.¹⁷⁷

Whether state or federal, most existing and proposed laws in this space recognize the central role of parents in controlling the upbringing of their children.¹⁷⁸ The laws give parents the ability to control the flow of information others share online about their kids,¹⁷⁹ require “verifiable parental consent,”¹⁸⁰ and provide parents with mechanisms to receive notice of how their children’s information is being used online.¹⁸¹ But these laws do not limit what parents share about their children online, nor do they limit how parents might harm their children through their own online conduct. They do not curtail parents’ rights at all and generally do not contemplate situations where parents may be the perpetrators violating the rights of their own children.¹⁸²

That said, the Illinois state legislature was the first state to recognize that there are times when a parent’s use of social media may present a risk of harm to children.¹⁸³ That law

provides that a vlogger who features a minor child in a specified amount of the vlogger’s content shared on an online platform must set aside a specified amount of gross earnings on the video content in a trust account to be preserved for the benefit of the minor upon reaching the age of majority.¹⁸⁴

The law applies to all influencers whose content features children in this way, not just to parents, but importantly does not provide a parental consent bypass mechanism, as some other legislation in the children’s privacy arena does. This law, like California’s Coogan Law, protects the earnings of child performers.¹⁸⁵ Other states are following suit,¹⁸⁶ and the Uniform Law Commission is studying the viability of a model law that other states can adopt to protect the earnings of child influencers.¹⁸⁷

One issue that has been underexplored in legal scholarship or court opinions is that of parental rights in the context of employment contracts governed by Coogan Law-type protections for minors. While parents generally can control the upbringing of their children and direct their involvement and relationships with others, a parent’s signature on an entertainment contract is not binding on the minor child.¹⁸⁸ Parents can be charged with a misdemeanor if they violate child labor laws governing a child’s working hours.¹⁸⁹ However, when the parent is the one setting the hours for a child to be engaged in video-taking activity for monetized sharenting, federal labor laws do not apply.¹⁹⁰

A literature review suggests there are few cases discussing the intersection of child abuse and neglect proceedings and the role of parents in managing a child’s entertainment career.¹⁹¹ However, the Court of Appeal for the Fourth District of California did have an opportunity to explore this space in Suleman v. Superior Court.¹⁹² Suleman is the mother to octuplets, born in 2009.¹⁹³ The family was the subject of much media attention—Suleman being colloquially known as “Octomom”¹⁹⁴—and has had multiple business opportunities stemming from their unique family. A stranger to the family, Paul Petersen, filed a petition seeking appointment of a guardian of the octuplets’ estates to protect the children’s financial interests.¹⁹⁵ The court found the allegations in the petition “insufficient to infringe on a parent’s

civil rights or to rebut the presumption under California law that a parent is competent to manage the finances of his or her children.”¹⁹⁶

The court considered the role of the guardianship court in providing for the safety and well-being of the children, recognizing that dependency proceedings also exist to look out for the “safety and well-being of children.”¹⁹⁷ But unlike a dependency proceeding, which is initiated by the state, a guardianship proceeding is initiated by a private party. Once a private party initiates such a proceeding, a court must determine if the parent can care for his or her own children without intervention.¹⁹⁸ If a parent lacks the capacity to do so, a court may appoint a guardian.¹⁹⁹ The court explained that “[t]he right to raise one’s own children as one sees fit is a matter of federal due process.”²⁰⁰ Citing Prince v. Massachusetts, it reiterated that

[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.²⁰¹

Suleman is notable for three reasons. First, it recognizes the intersection of child welfare law and guardianship matters relevant to children who engage with the entertainment industry. While the Suleman octuplets rose to fame before kid and mom-influencing took center stage on social media, third parties voiced concern about their well-being and sought out a mechanism to provide for their safety. Next, the case noted the importance of a parent’s right to control the upbringing of their children at the outset, not even providing the third party or the court leeway to enter the private space of family life as referenced in Prince. Lastly, the case highlights that, while a scheme did exist to investigate and remedy abuse or neglect, a third party such as Petersen lacked standing to initiate this particular investigation.²⁰²

This scheme is vastly different from the scheme most states use to initiate child abuse and neglect investigations. Inherent in child abuse and neglect reporting requirements is the general principle that anyone who “has reasonable cause to suspect” child abuse or neglect must report it, and some even designate certain third parties as mandatory reporters.²⁰³ While Petersen lacked standing under California’s guardianship laws to initiate an investigation as to Suleman’s failure to protect her children, all individuals have standing to call a state child abuse hotline. Moreover, while Petersen’s petition failed for lack of factual allegations, reasonable suspicion is all that is needed to make a hotline call—in fact, individuals are encouraged to report suspected abuse even when they personally do not have evidence of whether the abuse occurred or not.²⁰⁴ It is for the state to conduct the investigation and bring forth facts if they indeed exist.²⁰⁵

When someone in the United States believes that a parent is placing their child at risk of harm due to their sharenting practices, they may call the state’s child abuse and neglect hotline.²⁰⁶ However, the state hotline is unlikely to accept such a call, as the risks of oversharenting are unlikely to fall under state definitions of child abuse or neglect.²⁰⁷ Even if the hotline call is accepted, state investigators lack the training necessary to assess the risk of harm caused by the parent’s sharenting practices. Child welfare professionals lack the tools to provide family preservation services²⁰⁸ when parents lack information about the harms of oversharenting. And state attorneys, child welfare attorneys, and judges lack legal mechanisms to hold parents accountable when their over-sharing causes significant harm to their children.²⁰⁹

C. International Approaches to Protecting Children’s Online Privacy

With the exception of the United States, all United Nations member countries are parties to the United Nations Convention on the Rights of the Child.²¹⁰ As parties to this Convention, our international peer countries are also guided by General Comment No. 25 of the Committee on the Rights of the Child, on Children’s Rights in Relation to the Digital Environment.²¹¹ This document outlines the rights young people hold when engaging online and when others engage in online behavior that could impact them, such as parental online sharing.²¹² While sharenting is not mentioned by name, the document acknowledges the concept, discussing how a child’s right to privacy could be violated not only by individuals outside of the home, but also by those closest to them within the home, specifically including their own parents. Recognizing that children may at times need privacy from their parents, General Comment No. 25 states, “[t]hreats may also arise from children’s own activities and from the activities of family members, peers or others, for example, by parents sharing photographs online or a stranger sharing information about a child.”²¹³

Moreover, the international community recognizes that much of the information parents share online about their children may implicate data protection laws.²¹⁴ When the European Union first drafted the General Data Protection Regulation,²¹⁵ it considered the issue of parents (and others) sharing personal data on social media, and ultimately decided that such information, shared for personal or household purposes, would be excluded from regulation.²¹⁶ However, sharing for commercial purposes, such as what this Article considers “beyond sharenting,” would be regulated, as such behavior is considered using personal information for commercial purposes.²¹⁷ While in the United States such online disclosures are viewed as speech, the European Union views the content as a form of data.²¹⁸ As such, the European Union can regulate and protect such data in many ways the United States cannot. Additionally, the right to privacy in many countries is recognized as an important right that often must be balanced against another’s right to free speech.²¹⁹ This offers individuals outside of the United States greater privacy protections than they experience stateside.²²⁰

France has been a leader in recognizing a child’s right to privacy, even in contexts where that right conflicts with rights of parents.²²¹ In 2024, the French National Assembly voted unanimously to pass a law protecting the images of minors and providing some guidelines about how parents could share about their children online.²²² The law recognizes that children have a right to privacy and that parents generally are the ones tasked with protecting that right.²²³ It also provides that the parents shall, according to the child’s age and maturity, inform and include the child in these kinds of decisions to model and pass down healthy habits.²²⁴ However, it also allows for a judge to step in when parents, jointly or individually, do not adequately protect their child’s privacy right.²²⁵ When the “dissemination of the child’s image by his parents seriously harms the child’s dignity or moral integrity,” the judge is entitled to reassign the right to the child’s image to a concerned third party or the non-offending parent.²²⁶

III. A New Framework for Regulating Parental Online Conduct

The United States currently has sparse and scattered laws aimed at regulating parents’ online conduct. While some states appear to be stepping in to protect the earnings of children whose images generate financial profit online,²²⁷ they have yet to create comprehensive laws that address or remedy the harm parents can cause through online sharing for increased social capital, financial capital, or otherwise. Furthermore, few standards exist to delineate low-risk sharenting from higher-risk sharenting that exploits or risks exploiting children.²²⁸

Family preservation principles can and should be applied in cases of exploitative sharenting to both empower parents to make better decisions for their families and to protect of children from the harm of oversharing. This aligns with current systems aimed at curbing abuse and neglect, and it brings this practice into the protection child welfare systems can provide to families online. This requires an educated child welfare workforce, well-versed in the risks of exploitative sharenting but also able to guide families toward smarter online sharing practices without alienating ill-informed parents who may benefit from efforts to strengthen families.

A. Evolving Standards of Online Conduct to Regulate Abusive Sharenting

States have not precluded parents from online sharing except in the most limited of circumstances.²²⁹ Courts have occasionally been asked to limit parents from oversharing online in child custody and dependency cases, but judges are tasked with evaluating these cases without any uniform standards or expert agreement as to the limits of appropriate parental online conduct and conduct that is potentially harmful to children.²³⁰ Without such guidance, similarly situated cases may be adjudicated drastically differently from courtroom to courtroom, and many cases of children needing protection likely go unheard due to a lack of clear mechanisms for concerned community members or state actors to bring forth an investigation or suit against potentially offending parents.²³¹

Some would likely suggest that sharenting is a realm of family life where the state should not enter. However, there are many realms of family life that the state refused to enter in the past that it now, thankfully, wades into thoroughly. Like sharenting, parental discipline was once a realm of family life where the state refused to enter.²³² Legal corporal punishment and child abuse all fell into the same “bucket” of parental privilege two hundred years ago.²³³ It was only later that the state recognized that, at times, children needed protection from caregivers who used their parental privilege in an abusive manner.²³⁴ To protect children from child abuse, states needed to create a new system for community members to report abuse, for law enforcement to investigate the abuse, and for judges to adjudicate abuse in a manner that both recognized the rights of parents to discipline their children²³⁵ and the state’s right under parens patriae to protect children from online harm caused by their parents.

Though the courts and the legislature have not taken up the issue of exploitative sharenting in earnest yet, grassroots movements made up of concerned viewers have become a staple in forcing many of these influencers to wholly re-evaluate their content and the return on investment. As detailed in An Update on Our Family on HBO, online sleuths have investigated Myka and James Stauffer. For many years, the Stauffers featured their young children, including their adopted son Huxley, on their YouTube vlog, a channel with approximately 700,000 subscribers. Myka and James Stauffer shared information about their struggles caring for the young boy, who apparently had multiple medical and behavioral issues that the parents struggled to address adequately. Huxley began appearing on the channel less and less frequently until eventually, he disappeared entirely from the vlog. The vlog’s vocal audience expressed outrage. An online firestorm ensued, wherein viewers made both online and offline accusations that the parents had mistreated the young boy. Eventually, the parents announced their decision to “rehome” Huxley, causing even more public fury.

Just as the Mary Ellen story highlighted the need to better investigate and regulate parental discipline, the Stauffer story and HBO documentary might highlight the need to better investigate and regulate sharenting. Amateur internet sleuthing, for all the good it has done so far, is a limited resource and not the proper mechanism for creating long-lasting, equitable, systemic change. The greater public has limited resources for investigation, internal differences of opinion, and other shortcomings that render the apparatus unfit for this kind of regulation and for addressing the wide gray areas that exist within the practice of sharenting. Instead, legislators should be able to use the momentum of the movement and documentary to expand our existing legal framework to include a broader definition of abuse as was done with corporal punishment.

Statutes are in place to protect young people from online harm caused by third parties. For example, many states have cyberbullying laws criminalizing individuals who bully others through digital platforms.²³⁶ However, unlike the traditional children’s free speech jurisprudence, these laws do not contemplate situations where “the call is coming from inside the house”: situations where the bully is in control of the victim and their ability to assert their rights.²³⁷ Additionally, the federal government has comprehensive laws protecting individuals’ medical and educational records from unwanted third-party disclosure that rely on parental enforcement.²³⁸ And similarly, these laws do not contemplate situations where the parent is the one exposing these records.²³⁹

The evolution of our legal system’s approach to corporal punishment and child abuse did not develop in a vacuum or overnight. It evolved over time with an infusion of child safety experts, psychologists, and legal experts as policymakers to develop a uniform way to balance a parent’s right to control the upbringing of their children with the child’s need for safety.²⁴⁰ What started as a state-by-state approach has developed into a relatively uniform, federally mandated system of laws that ensure children are protected from abuse in every state.²⁴¹

B. A Path Forward

This section sets forth key principles for federal and state lawmakers to consider when attempting to protect minors from abusive forms of oversharenting.²⁴² It is critical to note at the outset that any attempt to limit parents’ rights to share on social media must be done with the strictness of scrutiny, as a parent’s right to determine how to raise their child is a fundamental right under the Due Process Clause of the Fourteenth Amendment.²⁴³ Most parents share responsibly, and most parents want to learn how to share in ways that keep their children safe from harm.²⁴⁴

Family Preservation

A key principle in child welfare policy is that the role of the state is to help strengthen families primarily, aiming to eliminate the need for removal in most cases that come to the attention of child abuse and neglect investigators.²⁴⁵ Today, child welfare investigators routinely make referrals to provide parents with housing and food assistance, referrals for drug and anger management treatment, and encourage parents to engage in counseling services to be better able to meet their children’s needs.²⁴⁶ The Family First Prevention Services Act of 2018 set forth the government’s strong goal of strengthening families through services provided directly to families, without the need for child welfare courts to intervene.²⁴⁷

Identifying Uniform Standards for What Constitutes Sharenting and What Constitutes Abusive Forms of Oversharenting

Currently, there are no federal- or state-sponsored organizations in the United States that have a primary aim of empowering parents to share more responsibly online,²⁴⁸ yet there are a multitude of organizations that seek to educate young people on how they can more safely use social media.²⁴⁹ Is it not ironic that, while parents often have little control over their teenager’s social media practices and complete control over their own, the primary focus of online safety organizations is helping parents to encourage their young people to share smarter instead of helping the parents make better choices about their own disclosures to keep their children safe online?²⁵⁰

Such organizations are needed. These organizations or working groups should be composed of child welfare professionals, attorneys, cybersecurity experts, law enforcement, mental health providers, public health experts, and young people who have come of age after having grown up shared. Working together, instead of in silos, these groups could begin to formulate sound public policies outlining what conduct constitutes appropriate sharenting, what is questionable sharenting or exists in a gray area, and what is exploitative and harmful sharenting. By bringing these separate groups together, each can offer its own unique expertise to ensure that policies are well-informed, grounded in child safety and social science principles, and able to withstand First Amendment and Due Process constitutional challenges.

Train and Equip Child Welfare Officials

Currently, state law enforcement and child welfare investigators are ill-equipped to understand and investigate exploitative sharenting. State agencies must train personnel to recognize harmful oversharenting and to educate parents about the risks of oversharenting. Most parents engage in online sharenting, so all who interact with families and have opportunities to provide parent education should have the knowledge and tools necessary to delineate whether a parent is simply engaging with their community via their sharenting or whether a parent is placing their child at risk through their disclosures. Parents could also be advised of the important role of privacy in childhood development.²⁵¹

Update Child Welfare Laws

Legislators, especially at the state level, must provide attorneys with tools to bring forth cases of exploitative and harmful oversharenting. Most parents who share on social media do so in ways that, as of 2026, appear minimally harmful to children²⁵² and may even provide important and meaningful connections for all individuals within the family unit.²⁵³ Even parents who share personal information, such as medical updates, likely do so to build family and community connections and wish to share in a way where the benefits to their child greatly outweigh any harm such sharing could cause.

However, the law must be prepared to regulate at the margins and to take action to protect children when parents engage in harmful online sharing practices. Like child removals for abuse or neglect, the state must show that reasonable efforts were made to prevent the need for removal, such as the initiation of the family preservation services discussed above. Any legal action taken against a parent for exploitative over-sharing must only come once parents have had the opportunity to learn about the harms that over-sharing can cause and a meaningful opportunity to adjust their sharing practices. Federal legislatures may wish to also address these issues in future child safety legislation, as children’s online safety has been identified by the U.S. Surgeon General Dr. Vivek Murthy, as a public health concern.²⁵⁴

Conclusion

The United States has failed to protect children from the harms caused by their parents’ online conduct. While parents have free speech protections and the right to raise their children as they see fit, they should not have legal protections that enable them to violate their children’s privacy in ways that could cause long-term harm to them as they come of age under the watchful eyes of social media.

Mia’s disclosure to Ms. Drake could have changed her life for the better and led her mother to get the financial and online safety help she needs, if only the child welfare laws were suitably tailored to protect her from the horrors that her mom, unwittingly or not, has subjected her to. These laws, written decades ago, are too focused on harms children face in their offline world and must be expanded to include harms that can be caused by online sharing.

Just as our views regarding child abuse evolved, our views regarding sharenting must evolve. The law can both protect parental autonomy and honor children’s privacy through a comprehensive and multidisciplinary new approach toward protecting children online that allows for thoughtful investigation, education, remediation, and prosecution of parents who use social media in ways that are significantly harmful to their children. This conduct, which falls beyond sharenting, is ripe for legal interventions that reset the balance between a parent’s right to share and a child’s right to online privacy and safety.

99 S. Cal. L. Rev. 559

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Stacey Barell Steinberg*

* Master Legal Skills Professor at the University of Florida Levin College of Law, Director of the Center on Children and Families, and Director of the Gator TeamChild Juvenile Law Clinic. Thank you to my research assistant, Megan Sirvent, for her valuable assistance on this Article, to Laura Rosenbury and Nancy Dowd for helping me conceptualize my ideas as I set out to explore this topic, to Interim Dean Merritt McAlister for her generous funding supporting this work, and to Rachel Mason for early discussions that helped me propel my ideas forward. Thank you to Claire Bessant, LeAnn Campbell, Naomi Cahn, Christopher Hampson, Lindsay Hanson, Thomas Haley, Lea Johnston, Lyrissa Lidsky, and Peter Molk for their invaluable feedback on early drafts. Thank you also to the Vermont Law Review, the 5Rights Foundation, and the George Washington University Center for Innovation for the opportunity to discuss the ideas contained within this Article to each respective audience. Thank you to the editors at the Southern California Law Review, particularly Jonathan Scher, Kelcey Sholl, and Yixin Wang.

Tag: Child Welfare