Sexting . . . You Did What?!

“Sexting” is a new word that means sending explicit pictures by cell phone. Most old guys immediately revert to their high school mentality by wishing they had sexting in high school. But, of course, cell phones were not around then. In fact, neither cell phones nor sexting existed when our Constitution was written and many of our laws were passed.

I am a personal injury lawyer, I represent injured persons. Nevertheless, I am going to give you a quiz. I simply am not going to provide the answers.   If a minor, a teenage girl, sends a sexually explicit picture of herself to her boyfriend, is that a crime? Since child pornography laws were written to protect minors, does it make any sense to charge this sexting teenager with pornography?

If an 18 year old high school senior gets angry after breaking up with his 16 or 17 year old girlfriend and then emails naked pictures of her to dozens of people, is that a crime? The ex-girlfriend says those pictures were intended only for him but once on his phone, does she have any control over them? Should he be charged under the child pornography laws?

Recently, the American Civil Liberties Union brought suit against a school district on behalf of a student claiming that the constitutional rights of the student were violated. The school principal had confiscated the student’s cell phone. Apparently, the student understood that and makes no complaint that the school overstepped its bounds by confiscating the cell phone. However, apparently, the school officials searched the cell phone and found sexually explicit photographs of the student. That finding was reported to the local district attorney and to the student’s parents. That student is now over 18 and claims that the pictures were private, meant only for her and that looking at her cell phone pictures was the same thing as looking through her photo albums or her diary and thus an invasion of her privacy. Should the school administrator simply confiscate the phone if a student has it during class, in violation of school rules, or does that administrator have the right to look at the contents of the phone?

Thirty years ago, perhaps we would be discussing an instant Polaroid type photograph but then, the jilted boyfriend would have one picture to show rather than a digital image that can be sent with the click of a button to literally hundreds of viewers. Should that make a difference with regard to child pornography laws or our constitutional privacy rights?

I concentrate my practice on personal injury law so I really do not know how the Courts will answer these questions. However, the track record compels you to have great faith in our system and I would expect our appellate courts to find some reasonable approach that will not only protect our children but protect our privacy rights. I am thankful for that and I am especially thankful that my daughters are well beyond their teenage years.

John A. Orlando, Esquire can be reached in his office at 115 Fayette Street, by phone at (610) 897-2576 or by email at Please visit our website at