Generation C: childhood, code, and creativity.

• Author: Matwyshyn, Andrea M.
• Position: Conceptualization of digital childhood - Introduction to II. Development and Generation C, p. 1979-2003 - Symposium: Educational Innovation and the Law

Children today have a special relationship to technology, one that the law is unprepared to address. Four conflicting legal paradigms of childhood are visible among the four bodies of law that control digital spaces--those of contract, copyright, free speech, and data privacy/information security--and the tension among these paradigms is becoming increasingly unsustainable. As online business models become progressively more data intensive, the "breathing room" that childhood has been afforded traditionally is eroding. Using the work of Erring Goffman and creativity theorists, this Article argues that particularly in digital commercial contexts, a legal paradigm of childhood is needed that simultaneously focuses on childhood privacy and creating a space for creative tinkering leading to entrepreneurship in adulthood. In this vein, this Article advocates a two-pronged approach to digital childhood: first, that a strong version of the minority capacity doctrine be adopted for contracts in digital spaces, and, second, that a childhood exception be crafted in copyright law.

INTRODUCTION

A video meme of a befuddled toddler trying to interact with a magazine as if it were an iPad recently spread across the Internet. (1) While amusing, this video embodied more than just another cute toddler "user error"; this video was a harbinger of a dramatic cultural shift. We are raising a generation of children for whom technology and gadgets are the primary point of media reference--the next generation of technology entrepreneurs.

Today's children are different from those of past generations: they view technology as a true extension of the self in ways that previous generations did not, and they interact with technology more fluidly than many of the adults around them. Just as the developmental paths of these children will be fundamentally different from those of previous generations, so too will some of the harms these children will cause. (2) They are Generation C (3)--a generation of "digital natives" (4) that was born into a world already penetrated by the Internet (5)--and the law is not ready for them.

This Article introduces the four conflicting legal paradigms of childhood that dominate virtual spaces: the legal approaches visible in contract, copyright, free speech, and data privacy/information security. The evolution of digital spaces and their blending with physical spaces, particularly school environments, signals a need to reconcile the tensions among these different paradigms of childhood: it is time to assess the law's broader conceptualization of childhood and discuss the implications of this conceptualization for digital childhood.

Relying on the work of Erving Goffman and creativity theorists, this Article argues that a sound approach to digital childhood, first and foremost, recognizes two developmental needs--the need for a private space for identity building without stigma in adulthood and the need for a space for digital "tinkering" and creativity. The first step in building this safe digital space for child development involves a strong extension of the minority capacity doctrine to digital spaces. This extension paves the way for children's data protection and impression management, including what might be termed a children's "right to forget," (6) as well as a default of information accountability for children's data. The second step entails the creation of a childhood exception in copyright. While children may indeed cause copyright harms, in today's highly tracked technology environment, applying the same digital copyright approach to children and adults will detrimentally impact the next generation of technology entrepreneurship in the United States. A more developmentally-sensitive approach in copyright is needed to maintain a space for children's tinkering, creativity, and future entrepreneurship.

1. THE FOUR LEGAL PARADIGMS OF DIGITAL CHILDHOOD

   The Four Horsemen of the Infocalypse is a colorful slang term that has long permeated Internet culture. It is generally understood to refer to four types of cybercriminals--terrorists, drug dealers, organized crime/money launderers and Internet child pornographers--and debates over various legal and policy initiatives often reference the looming specter of these malefactors. In particular, technology debates often center on how to best protect children from these cybercriminals, as well as the necessity of various privacy-invasive countermeasures toward this goal.

   However, these discussions around online child protection fail to acknowledge a meaningful underlying obstacle. Law and policy around children's behavior in digital spaces are conflicted over a very basic question: does the law need to protect children from adults' behavior in digital spaces or does the law need to protect others from children's behavior as if it were adult behavior in digital spaces? The two are not always compatible.

   Let us begin by stating the obvious: children are not adults. Developmental differences between children and adults abound: children process information differently, (7) and they have fewer cumulative learning episodes and life experiences than do adults. (8) Because of these developmental differences, many bodies of law that interact regularly with children contain child-protective elements--a different set of rules for accountability depending on whether the actor is a child or an adult. (9) Determinations of children's accountability for conduct have always been socially and culturally constructed. For example, although Roman law presumed capacity at age of fourteen to enter into agreements, (10) during the Middle Ages, boys' age of majority was raised to twenty-one. (11) In the United States, the law around children's accountability has remained relatively constant during the last thirty years. The default age of majority in the absence of express statement to the contrary is eighteen, (12) and children under age eighteen are restricted from many activities: for example, they are not allowed to participate in the democratic process through voting, (13) cannot drive in some states, (14) cannot purchase alcohol in all states, (15) cannot get married in some states, (16) cannot consent to medical treatment, (17) and cannot join the military. (18) However, with the arrival of the Internet as a fixture in the lives of children, these seemingly well-settled rules around the construction of childhood are being tested.

   The Internet presents a single space where four different legal paradigms of childhood converge--contract law, copyright law, free speech caselaw, and data privacy/information security law. Each approaches childhood differently, and their conflict is impacting children's development. Because these approaches now clash in a single space, a harmonized approach to digital childhood is needed.

   1. Childhood and Contracts

      "If a cyber-consumer is a child, then [contractual] acceptance ... might not be valid. This is a difficult issue ..." (19)

      The dominant body of law on the Internet is--and has always been--contract law. Yet, as I have argued elsewhere, courts have been slow to clarify doctrinal tensions that arise due to the novelty of digital spaces. (20) One such doctrinal deficiency exists with respect to the contract doctrine of "infancy" or "minority."

      1. Minority in Physical Space Contracts

         Contract law has traditionally been a legal space that offers a "childhood exception" which crafts different rules for children as contracting parties. Through the doctrine of minority, contract law allows children greater leniency in disavowing their contractual obligations. In general, the minority doctrine allows "children," meaning individuals who have not reached the legal age of capacity, to avoid liability under their executed contracts. (21) Though not without controversy, (22) this minority or infancy doctrine has long been employed in the common law. (23) In other words, a policy decision has been made in contract law to exempt childhood: courts and legislatures decided that children are in need of an additional level of protection in their contracting, even if this protection comes at the expense of the other party to the contract. However, contract...