'Sexting': Should Child Pornography Laws Apply?

April 1, 2010— -- Two years ago, following a fight with his 16-year-old girlfriend, Phillip Alpert, then 18, did something really stupid.

"It was 3:28 in the morning, I think it was, and I got up and I went to my computer, and I sent a couple of pictures that she had sent to me to her contact list," Alpert told ABC News. "And I went back to sleep."

Because of that single action, Alpert, now 20, is a registered sex offender, Florida Department of Corrections No. x61836. For sending the images, Alpert was arrested on charges of child pornography.

"I forgot I did it," Alpert said. "I was barely awake when I did it and I didn't even remember and ... then a few days later, my mother called and says, 'Why are there police officers at the house?' I went -- 'Oh no!' And it came back the same way a dream does."

"When I got home, the police were waiting for me," Alpert continued. "They were going through everything that was electronic in my house. My computer, my discs, my MP3 player, just everything. Looking for any other kind of nude photographs, evidence, whatever.

"I was charged with everything. I was charged with lewd and lascivious battery. They charged me with child pornography, they charged me with distributing child pornography, I mean just an incredible amount of charging."

Alpert faced 72 charges in all.

Note that Alpert didn't take the pictures, but he was in possession of them, he distributed them -- and he had just turned 18. He pleaded guilty... and that began Alpert's nightmare.

"I was forced to register as a sex offender, and that is wherein lies the big problems," Alpert said. "Being a registered sex offender means ... I can't live like near a school or a playground or a park. There's a whole lot of stuff I can't live near -- bus stops, stuff like that ... so basically, I just can't live in a city. It means every six months I have to register as a sex offender."

Sexting: 'Technically It Is Child Pornography'

NYU law professor Amy Adler says "sexting" -- teens sending and receiving pictures of themselves in sexually suggestive poses -- wasn't even on the Supreme Court's radar when justices made their pornography ruling 28 years ago.

"Technically, it is child pornography," said Adler. "But I don't think it's the kind of case where child pornography law is the right legal framework to use to judge it."

"It's a particularly bad kind of sexting, because it really is a malicious embarrassment of another person," Adler continued, referring to Alpert's case. "So while there may be some sort of criminal sanction that's appropriate in this scenario, to me child pornography law is simply inappropriate here. Again, because it's not the case of a pedophile exploiting a child and sexually abusing that child in order to take a picture. It's more of an invasion of privacy."

A recent survey said one in five U.S. teens had participated in sexting. Forty-four percent of teens surveyed said they knew risque messages or pictures get shared, and a whopping 75 percent said they know sexting was a bad idea with "serious negative consequences."

Florida attorney Lawrence Walters took Alpert's case pro bono -- not just for Alpert, he said, but for other teens.

"I think it's an important case and Phillip is a good person," said Walters. "He's also a perfect spokesperson for this issue because terrible things happened to him and he can make a difference in people's lives by showing that the law is serious and bad things will happen if you engage in this behavior, but also, maybe show the lawmakers that the law needs to be changed."

Walters acknowledged that Alpert had distributed images of an underage girl.

"Phillip did something that about 20 or 30 percent of high school students do, and it is a mistake, it is something that shouldn't be done, nobody condones," said Walters. "On the other hand, we have a legal system that treats this behavior as something horrendous, on par with child molestation -- and it simply isn't ... the law simply hasn't recognized this unique phenomenon of children texting, or sexting each other, in high school."

Vanessa Hudgens of "High School Musical" fame and "Hannah Montana"'s Miley Cyrus apologized a couple of years ago for sexy pictures of them that came out. It's the kind of thing that may enhance a star's career -- or at least not impede it -- but can land everyday ordinary teens in trouble with the law.

"One thing is I think we may be sending mixed messages to teens right now, because mainstream culture is showing teens in all sorts of sexual scenarios," said Adler. "Mainstream television with "Gossip Girl," showing teens hooking up, Miley Cyrus engaging in what many people thought was pole dancing at the "Teen Choice Awards." So on the one hand we have mainstream sexual depiction of teens, and on the other hand we're telling teens that if they do that themselves, they can go to jail."

Sexting: 'It's an Odd Situation'

Plenty of teens are finding that out. In Iowa, Jorge Canal had to register as a sex offender, like Alpert, for sending a nude picture of himself to a 15-year-old girl. He was 18 at the time. In separate cases in Pennsylvania and Ohio, kids who've sent or received and distributed sexy photos have agreed to curfew, community service, or no cell phone or Internet usage for a few months.

"Child pornography law was crafted to protect children from pedophiles, that's the idea behind it," said Adler. "But now what we have is the law applying to situations where the child himself or herself is making the pornography. So it's this odd situation where suddenly the pornographer and the victim are one in the same person. And in my view that's not the kind of scenario that child pornography law should cover."

Three states -- Nebraska, Utah and Vermont -- have already changed their laws. Fourteen other states, including Florida, where Alpert lives, are considering changes.

"We have a House bill, 1335, that is -- has been proposed," said Walters. "It would treat sexting as a non-criminal offense. In other words, a child or a teenager who sent these pictures or created the pictures would get a $25 fine and be forced to do community service. That would wake them up to the fact that this is an illegal activity and they shouldn't be doing this, this is wrong. And then if they do this a second or a third time, the punishments go up. That, in my view, is an appropriate way to approach this."

Adler talked about how the cases might be tried.

"Depending on the facts of the case, I would say a lot of these cases shouldn't be heard in court at all," Adler said. "These are cases where teens are engaging in bad judgment, which teens have always done, and suddenly finding themselves caught in the web of the criminal law because, whereas previously they may have engaged in inappropriate sexual banter on the telephone, now there's a photographic record of that sexual banter, and that is what triggers the scrutiny of child pornography law."

For Alpert, it means he's on a sex offender registry until the age of 43.

"This will follow me around for the rest of my life," said Alpert. "My probation is up, that'll be three years. I then have 20 years on the sex registry, and then I can petition to be taken off of it, and then can be approved or denied. When I am a 20-year-old kid and I explain that I am a sex offender, it's bad. When I am a 40-year-old man and I explain that I am a sex offender, it's going to look a lot worse."

Sexting: Charge Girlfriend, Too?

Technically, Alpert's ex-girlfriend also could have been charged for taking the pictures and sending them to Alpert, but she wasn't. And he's glad.

"I always say that I can't say it to my ex-girlfriend specifically, but I want to reiterate that I am sorry," said Alpert. "I really am, and it's not because I'm a sex offender, because I got kicked out of school, because I'm on probation, I can't go to the beach, whatever. It's because what I did and I'm sorry for it. And I mean, I said it. I can't do anything else besides say I'm sorry over and over and over, and I don't think it's enough, but it's all I've got right now."

On the day he met with "Nightline," Alpert was preparing for a college interview. He needed to convince administrators he's not a danger to other students in order to be admitted.

"It was a 16-year-old girl who sent me pictures when I was 17," said Alpert. "What I did was stupid, and it was mean and it was angry and it was deviant. But it was not sexual in my mind. I wasn't thinking clearly. Well, the argument could be made, 'if he wasn't thinking clearly once, he could not be thinking clearly again.' But I have certainly matured enough and I have worked hard trying to understand why I did what I did."

He and his lawyer hope the change in law -- if passed -- will be retroactive for Alpert. But until that time, he will be the face, at 20 years old, of a sex offender.

The Florida prosecutor's office didn't feel the same way. In a statement to "Nightline," the prosecutors defended their position, saying "in the criminal prosecution of defendant Phillip Alpert, we were bound to follow legislative intent of the law. That means Phillip Alpert remains a registered sex offender until he's 43 years old."