The Third Circuit Court of Appeals, sitting in Philadelphia, is taking on the question of whether it was appropriate to prosecute teenagers under child pornography laws for sending naked or otherwise sexually provocative photographs of themselves over the internet, sending the photos to friends via cellphone. or posting them on their Facebook pages. The practice is called sexting, a sort of cyber-flashing, and it is, as my grandmother used to say, “all the rage.” Except that she was talking about the jitterbug.

Come to think of it, they said the jitterbug was immoral too.

The old saw, “Hard cases make bad law” needs to be updated to read, “Technology makes bad law.” When the child porn laws were written, sending digital photos made using high-tech cellphones was barely on the horizon. Legislators designed the laws to stop adults from exploiting and harming children in the sex trade. Nobody, especially the typical middle-aged lawmaker who had trouble programming his VCR,  anticipated hormone-addled teens sending self-made nude pictures to their horny boyfriends.

The practice is stupid, yes. (Although, I have to admit, getting such a transmission from my high school crush would have been a high point in my staid and thrill-free life.) Undoubtedly risky, too. But child porn? The act may technically meet the provisions of the law, but using the law against kids who are simply engaging in 21st Century flirting is an example of a generation gap gone horribly haywire.

In the oral arguments over the prosecution, the advocate for sexting prosecutions argued that the practice was potentially dangerous—who knows where the photos could wind up?—and since the anti-child porn laws were meant to protect kids, using them to discourage dangerous conduct by the teens themselves was reasonable.

“”Naked pictures of children, disbursed on the Internet, draws predators the same way as a swamp draws mosquitoes,” the Court was told.

“If that’s your goal — to protect them — then why threaten, by prosecuting them, putting a permanent blot on their escutcheon, for life?” a judge responded.

Destroy a child’s reputation in order to save it!  This is typical bureaucratic thinking, which is to say, dim. The judge’s question was excellent in two ways: it went to the heart of what was unethical about using the child pornography laws against sexting teens, and it revived the wonderful phrase, “blot on the escutcheon.” The only time I’ve heard the word “escutcheon” in the last forty years was in Act II of The Pirates of Penzance.

ACLU legal director Witold Walczak told the judges that “what we have here is a district attorney’s office that has a fundamental misunderstanding of child pornography laws.” You are correct, sir.

Another issue in the case was the district attorney’s effort to use the threat of prosecution to force the arrested young girls to attend a class on “what it means to be a woman in today’s society.” That clinches it: it answers the key threshold question in ethical analysis, “What’s going on here?”

What is going on is that we have horrified adults trying to use inadequate tools to teach children not to act irresponsibly. In that case, they need to get to work developing new tools, not using laws to prosecute the victims the laws were designed to protect.