Caveat:
It is important for everyone to know that I am a huge supporter of personal privacy. I speak to youth internationally on this topic, given my belief that we are slowly giving up our actual rights to personal privacy, both to the government and private industry, in exchange for the convenience of technology, the internet and social media. I also speak to these same students on how to minimize their digital dossier and maximize their online privacy. I do not, however, support those who misrepresent privacy laws, acts, or agreement in an attempt to dissuade parents from taking reasonable steps to parent their children in the online world.
Recently I wrote a blog post titled, “ Parents Don’t Get Caught in the Should’ve, Could’ve, Would’ve to a Post Online Negative Event” which can be located here,
http://thedigitalsheepdog.ca/parents-dont-get-caught-post-online-negative-event/
In this blog post I wrote, “Our kids have no right to privacy from parents when online, however they can earn that right by showing us parents good digital citizenship over time” Well, this statement drew some criticism from those in the privacy world, who stated that I was factually wrong, and to solidify their position they quoted Article 16 of The United Nations Convention of the Rights of the Child (UNCRC) which states, “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honor and reputation.” When I first read Article 16, it was easy to understand how some can extrapolate its intent to include parents when it comes to a child’s privacy rights, especially when it comes to monitoring what they are doing online. I must admit, I too also became concerned given how Article 16 read.
Being a cop, I decide to do some academic investigation into the UNCRC, (http://www.unicef-irc.org/portfolios/crc.html) and more specifically, Article 16. In my research, I became aware of a book titled, “The United Nations Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification” by Todres, Wojcik, and Revaz (2006).
This book is often cited in the literature as one of the “go-to” academic works specific to understanding the meaning of all the Articles located in the UNCRC. I think one of the reasons why this book is so commonly referenced is because of the three authors responsible for its content.
Jonathan Todres is an Acting Assistant Professor at New York University School of Law. He is also an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law, Yeshiva University, where he teaches courses on children’s rights and health law. Professor Todres serves as Co-Chair of the Subcommittee on the Rights of the Child of the American Bar Association’s Section of International Law, Chair of the Section’s International Health Law Committee, and Vice-Chair of the Section’s International Human Rights Committee.
Mark E. Wojcik is a Professor of Law and Director of the Global Legal Studies program at The John Marshall Law School in Chicago, where his courses include Public International Law and International Human Rights Law. He previously served as Co-Chair of the International Human Rights Committee of the American Bar Association Section of International Law.
Cris R. Revaz is Of Counsel with King and Spalding, LLP in Washington, D.C. He is co-chair of the Subcommittee on the Rights of the Child of the American Bar Association’s Section of International Law, and previously served as Co-Chair of the Section’s International Human Rights Committee. Mr. Revaz is a board member or advisor to several non-profits focusing on child rights, protection, and adoption.
As one can appreciate, the three authors are North American legal juggernauts specific to issues surrounding the rights of children, and other human rights that can be associated with the UNCRC.
As I started to read their work, I learned that Article 16 originated in a proposal submitted by the US delegation to the UN working group in 1986 that dealt with political rights and freedoms, including the right to freedom of expression, the right to freedom to peaceful assemble, and the right of the child to privacy. Canada became a signatory in 1990 to the UNCRC, and we ratified our commitment in 1991. In fact, the Spirit of the UNCRC played an important role in the development of our Youth Criminal Justice Act here in Canada.
I learned that one of the concerns voiced when Article 16 was originally being developed and discussed: “Delegations expressed concern that the child’s right to privacy might impair the parent/child relationship, and therefore cause repercussions on the family” (Todres, Wojcik, and Revaz; The United Nations Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification pg193 2006)
To overcome these concerns the Delegation created Article 5 of the UNCRC which states, “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.”
What became clear to me after reading a whole chapter dedicated to Article 16 in Todres, Wojcik, and Revaz’s book is that the spirit of Article 16 was to protect children’s privacy specifically from State and corporate interests and not from their parents. In fact, Todres, Wokcik, and Revaz stated in their book, “The Convention was drafted, and is intended, to place obligations on states parties and not to be enforced by the state against the parent” (Todres, Wojcik and Revaz; The United Nations Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification pg 199, 2006)
“Articles 15 and 16 emerged from a USA proposal that was intended to protect children from abusive governmental actions and does not affect the rights of parents and legal guardians to provide direction and guidance to children. In addition, they point out that the Convention itself repeatedly emphasized the primacy, importance, role, and authority of the family in the child’s life Also noted is that the civil and political rights and freedoms proposed by the US Delegation, during the drafting of the Convention protected children from Government action and would not affect the legitimate rights of parents to provide guidance and direction. Finally, these commentators state that the Convention recognizes that the exercise of individual rights are to be exercised with due regard to the “evolving capacities of the child” (Todres, Wojcik and Revaz; The United Nations Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification pg 200, 2006)
If anything, the UNCRC, and more specifically, Article 5, entrench the rights of parents to parent which, in my opinion, could sometimes include reasonable monitoring where reasonable and appropriate to do so. As I stated in my original blog post, monitoring in isolation does not work; it is only a tool that should be used in combination with parental communication and participation. As I also stated in my original blog post, once a child demonstrates good digital citizenship to parents over an extended period of time, then parents should remove the monitoring software given that the child has now earned that right to privacy. I believe this fits well within the spirit of what Todres, Wojcik, and Revaz called the “evolving capacities of the child.” (Todres, Wojcik, and Revaz; The United Nations Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification pg 200, 2006)
In conclusion, those who suggest that Article 16 of the UNCRC is the legal authority to move parents away from using online monitoring software have, in my opinion, taken the spirit of Article 16 out of context. There may be other issues surrounding not using monitoring software, but Article 16 is not one of those issues.
Digital Food For Thought
Darren
AKA “The White Hatter”
