“[T]he interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
Troxel v. Granville, 530 U.S. 57, 65 (U.S. 2000).
It’s every parent’s worst nightmare: Your child goes missing without a trace. Frantic phone calls. Community searches. A grizzled police detective telling a crying mother that the first 48 hours are the most critical. But what if technology existed to track and protect the more than 400,000 missing children in the United States? What if you could open your cell phone, click on an app, and immediately see what your child is doing, feeling, and where he or she is at? But this app wouldn’t just be useful when your child is lost, you could also review your child’s experiences while you were away with a babysitter, monitor what type of TV the child watched at a friend’s house, or make sure your child is actually doing homework instead of playing on an iPad.
In the second episode of Black Mirror’s latest season, Arkangel, we are confronted with this exact issue. Following a playground scare, single mother and helicopter-parent Marie Sambrell signs up to participate in a limited-release, free trial of Arkangel—a tech-integrated child monitoring system that allows her to monitor her daughter Sara’s location, medical stats, and what she sees. Arkangel also allows Marie to control Sara’s vision when her cortisol levels spike; censoring scary, obscene, or other stressful stimuli with pixelization and audio distortion. As a result of this censorship, Sara grows an isolated and unsocial grade schooler, causing Marie to shut down Arkangel until unwisely reactivating it later when Sara is a teenager.
Under the Fourteenth Amendment’s Due Process Clause, which “provides heightened protection against government interference with certain fundamental rights and liberty interests,” Washington v. Glucksberg, 521 U.S. 702, 720 (1997), parents have the fundamental, substantive right to “bring up children,” Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and “to direct the . . . upbringing of one’s children,” Glucksberg, 521 U.S. at 720. The Supreme Court has repeatedly affirmed this right, stating that “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents[.]” Prince v. Massachusetts, 321 U.S. 158, 166 (1944). And although “these decisions have respected the private realm of family life which the state cannot enter[,] . . . the family itself is not beyond regulation in the public interest[.]” Id.
“[T]o guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control” over their children’s lives in certain ways. Id. “The state’s authority over children’s activities is broader than over like actions of adults,” Prince, 321 U.S. at 168, especially for cases “in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred,” see Wisconsin v. Yoder, 406 U.S. 205, 230 (1972). Accordingly, in the context of parental control and familial association, whether “constitutional rights have been violated must be determined by balancing [a parent’s] liberty interests against the relevant state interests” in the child’s well-being. See Youngberg v. Romeo, 457 U.S. 307, 321 (1982).
Here, the right of the parent to implant and utilize the Arkangel device would likely be weighed against (1) the welfare of the child, Hodgson v. Minnesota, 497 U.S. 417, 444 (1990), and (2) the “state interest in protecting a parent’s interest in shaping a child’s values and lifestyle,” id. at 452. But “[s]imply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.” Parham v. J. R., 442 U.S. 584, 603 (1979). Furthermore, “making the ‘private realm of family life’ conform to some state-designed ideal, is not a legitimate state interest at all.” Hodgson v. Minnesota, 497 U.S. at 452.
Based on the device’s use in Arkangel, I can see three ways the government could challenge parents’ strong presumption of control over their children: (1) the implanting of the device itself; (2) monitoring the child’s vision and location; and (3) controlling that vision through pixelation and audio distortion.
1. Implanting Arkangel
Cases involving the parents’ right to control the bodily integrity of their children are scant. Reproductive rights, however, have been extended to minors (under consultation with medical professionals) without parental consent limitations. In Planned Parenthood of Cent. Missouri v. Danforth, the Supreme Court held that parents do not have the right to object to their minor’s decision to obtain an abortion. 428 U.S. 52, 75 (1976). Relatedly, the Court has held that a minor has the independent right to obtain contraceptives regardless of a parent’s wishes. Carey v. Population Servs., Int’l, 431 U.S. 678, 694 (1977). Both of these cases, however, address limitations on parents’ control over their child’s choice to obtain medical treatment. Not the government’s choice to control a parent’s right to choose a certain procedure for their child. See B. Jessie Hill, Constituting Children’s Bodily Integrity, 64 Duke L.J. 1295, 1315 (2015) (concluding that “the right of children to bodily integrity is only partially constitutionalized”).
Most often, it appears that the federal government properly leaves that task to the states, who in turn defer to the parents. See, e.g., Ind. Code Ann. § 31-34-1-15 (permitting parents to use “reasonable corporal punishment”); S.D. Codified Laws § 22-18-5 (2006) (permitting “force used is reasonable in manner and moderate in degree”). Reflecting a parent’s control over this or her child’s body, minors often need parental consent when aesthetic or elective medical choices are made. See, e.g., Ariz. Rev. Stat. § 13-3721 (unlawful to implant or tattoo a minor absent parental consent); Ariz. Rev. Stat. § 36-673 (“A minor child shall not be immunized without the informed consent of the parent”). It’s likely a court would view the Arkangel device in this same light.
Because the interest in parents’ intimate associational and control rights of their children will weigh in favor of permitting the implementation, the only countervailing interest appears if the procedure would harm the child physically (the procedure appears painless) or is completely unnecessary in that the implementation furthers no appropriate goals. See Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (Friendly, J.). Neither of these seems problematic in our episode, but one could imagine that the process does not always run so smoothly.
2. Monitoring Your Child Through Arkangel
The constitutionality of monitoring a child’s activities and vision through Arkangel presents a much less controversial issue. Parents have long held the right to direct their child’s education, Glucksberg, 521 U.S. at 720, and exposure to the “evils” and “all the diverse influences of the street.” Prince, 321 U.S. at 168. In upholding a statute that denied minors the right to purchase “obscene” magazines (read: porn), the Court recognized that the parents’ and the state have the right to ensure that children are not exposed to explicit adult material. Ginsberg v. State of N. Y., 390 U.S. 629, 639 (1968).
Even in the broader Arkangel context, parents would absolutely have the right to monitor what a child watches, where a child goes, or how they are treated stemming from their right to oversee the child’s welfare. The only caveat to this statement would involve the rights of other children engaged in (ahem) intimate activities with the parent’s child. Otherwise, absent evidence of some abuse of that capability or unfitness to be a parent, there’s little the government would—or could—do. Helicopter parents around the world rejoice.
3. Controlling Your Child Through Arkangel
Marie also has the ability to engage a “filter” function, causing Sara’s vision and audio to distort when her cortisol levels spike in response to negative stimuli. Scary dogs, graphic videos, and even blood drawn on a page are all rendered indistinct and non-threatening. But unlike the passive monitoring capability, the active filtering ability affects Sara’s life in positive and negative ways. She’s not scared but she’s also not able to develop coping mechanisms, or help her grandfather as he has a heart attack.
A couple additional problems arise with filtering. The trigger—cortisol, aka “the stress hormone”—seems too broad. Anything that stresses a child out could potentially be distorted. Even life threatening situations where accurate vision is needed such as a human or animal attack, could leave the child vulnerable to harm. Notwithstanding the Supreme Court’s decision that parents have the ultimate with whom their children interact, see Troxel, 530 U.S. at 70, there are simply too many ways the filtering function could inadvertently harm the child. Maybe that is why Europe banned the tech and the U.S. was soon to follow.
4. If Approved, It Still Wouldn’t Be An Absolute Right
The Supreme Court has repeatedly remarked that the parents’ rights, albeit extremely strong, are not absolute. See id. at 88; Parham, 442 U.S. at 604. Even if Arkangel was approved (although likely without the filtering function), there are a number of existing limitations that would apply. If the parents are unfit, abuse their child, or the system, the government would have the ability to turn the system off. Troxel, 530 U.S. at 68–69. If the child expressed a strong desire to not be implanted (assuming it was not done at birth), there is also an argument that the courts may uphold their right to bodily integrity. See generally Bellotti v. Baird, 443 U.S. 622, 647 (1979). If that did not work, then a state law emancipation action would remove the parental rights and provide relief. See H. L. v. Matheson, 450 U.S. 398, 450 (1981). How the courts would find out about the abuse, however, is a whole other can of privacy worms.
5. Conclusion
While parental rights over children are historically strong, there are some limitations. Painlessly implanting the Arkangel device and monitoring a child’s location or medical status would likely be constitutional in the United States. Advanced features including vision monitoring and filtering, much less likely—especially considering the autonomy and privacy modern teenagers expect today. But given the potential lifesaving benefits inherent in the system, it’s hard to say that America would not jump at the chance to save more children.
Random Thoughts:
- This is one of the few Black Mirror episodes to explicitly take place in the United States. I’m sure it has nothing to do with our penchant for parenting.
- You have to imagine that the irreversible nature of the procedure would be off-putting and adult implantees would petition hard for a way to remove the device.
- The tech in Black Mirror’s Entire History of You, which I talk about here, is also used to review what a child saw and experienced during her time with a babysitter.
- As the old saying goes, “If you’re not paying for the product, you are the product.” The privacy law geek in me cringes at the thought of the Arkangel company’s access to all the data in a child’s feed.
- Under Justice Thomas’s originalist view, Arkangel would likely be wholly permissible because historically, children were subject to their parents’ control with few limitations. See Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 821-39 (2011) (THOMAS, J., dissenting).
- Like always, I’m so glad that this tech is only sci-fi and not a totally real and inevitable addition to parenting.
