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Buffalo Law Review

Yutang Hsiao

Document Type

Article

Abstract

Sharenting, a combination of the words “sharing” and “parenting,” is a double-edged sword. It can cut both ways because even though it benefits parents by being a source of support and fostering community, it harms children in various significant and nuanced ways. While the world blames parents for sharing too much of their children’s data on social media, other actors also play a role and should share the blame. In this Article, I argue that the most fundamental question sharenting raises is in what ways children’s privacy is violated, and who commits the violation. Social media, as one of the most powerful institutions in today’s world, allows not only parents, but also social media companies themselves and sponsoring companies, to profit from children’s data. Social media has created a marketplace in which processing data and making speech can generate millions of dollars which, in some cases, should deserve less or no First Amendment protection. Because data processing for instrumental purposes is not an act of communication or expression, social media giants have no First Amendment defense. Additionally, social media companies should owe a fiduciary or trust duty to safeguard children’s interests when processing data. On the other hand, when children’s data is used for making commercial speech or outside of family contexts, stronger privacy protections for children should be prioritized over the unrestricted free speech for parents. The current privacy laws are immature for the immature. We need to rethink and recognize the distinct types of privacy to protect the most vulnerable from the most powerful.

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