Article: On the (partially-)inalienable rights of participants in virtual communities

My most recent article has now been published. Unfortunately, MIA's policy is set to change to allow online access as of the next issue. For now, here's the post-print:

Nicolas Suzor, "On the (partially-)inalienable rights of participants in virtual communities" (2009) 130 Media International Australia.


As virtual communities become more central to the everyday activities of connected individuals, we face increasingly pressing questions about the proper allocation of power, rights, and responsibilities. This paper argues that our current legal discourse is ill-equipped to provide answers that will safeguard the legitimate interests of participants and simultaneously refrain from limiting the future innovative development of these spaces. From social networking sites like Facebook to virtual worlds like World of Warcraft and Second Life, participants who are banned from these communities stand to lose their virtual property, their connections to their friends and family, and their personal expression.

Because our legal system views the proprietor's interests as absolute private property rights, however, participants who are arbitrarily, capriciously, or maliciously ejected have little recourse under law. This paper argues that rather than assuming that a private property and freedom of contract model will provide the most desirable outcomes, a more critical approach is warranted. By rejecting the false dichotomy between 'public' and 'private' spaces and recognising some of the absolutist and necessitarian trends in the current property debate, we may be able to craft legal rules that respect the social bonds between participants whilst simultaneously protecting the interests of developers.

Many thanks to Sal Humphreys for putting together this special edition of MIA. I highly recommend the other articles in this issue.

Mandatory filtering update simulations and symposiums

EFA Site Blocker simulation screenshot

Despite the best efforts of ourselves and others, reports are still coming in that the mandatory filtering plan has now been 'scuttled', and twitter (and I'm sure many other social media outlets) is still on fire with the celebratory news. Here's an update of some of the things that people have been doing to continue the opposition to Labor's mandatory filtering proposal:

  • EFA has launched, which shows a facetious look at what the mandatory filter may look like. See a demonstration here, or go to the siteblocker site to create your own customised blocked site.
  • I'll be speaking at a forum on filtering in Brisbane on 26 March. Details have not been released yet, but the organiser plans to run similar forums in March in Brisbane, Sydney, Melbourne, and Adelaide. Stay tuned for details.
  • The Digital Liberty Coalition is organising a March in March, a public protest against mandatory filtering in Canberra at 1pm on 21 March. If you can get there, I recommend you make the effort to turn up and make yourself heard.
  • EFA is producing a set of fact sheets for politicians about the mandatory filtering proposal. This is something that we could use some help with. Being a volunteer organisation, we often struggle to find the time to do what needs to be done. So I've created a wiki to reach out for help from the public in our campaigns. If you think you can help with writing (or even fact and copy checking) some high quality fact sheets, please help us out.

Government to tighten sedition laws

The Commonwealth Attorney-General, Robert McClelland, has announced that the Commonwealth will tighten the federal sedition laws:

The Government will honour its election commitment to implement the recommendations of the Australian Law Reform Commission in July 2006 on federal sedition laws. These include changing the title of the offence from “sedition” to “urging violence”, clarifying and modernising the elements of the offence, and repealing obsolete and never-used provisions enacted in the 1920s for the proscription of “unlawful associations”. It will also ensure there is an offence of urging violence against a group or individual on the basis of race, religion, nationality, national origin or political opinion.

These changes are the result of the ALRC report, Fighting Words, released in 2006. The report recommends, among other things, that “that, for a person to be guilty of any of the offences under s 80.2, the person must intend that the urged force or violence will occur.”

The ALRC reports that the Commonwealth is complying with 25 of its 27 recommendations 'in full', and the two remaining 'in principle'.

This is good news. The sedition laws as enacted by the Howard government were dangerously oppressive to free speech in Australia. In it's report, the ALRC noted that

7.5 Strong concern has been voiced since November 2005 about the impact of the sedition provisions on freedom of expression. This criticism falls within a number of broad categories:

* The sedition provisions are, in whole or in part, inconsistent with the Australian Constitution.

* There is insufficient statutory protection of human rights at the federal level and, as a result, there are inadequate safeguards to prevent an overly broad interpretation of the offence provisions.

* There is a risk that the sedition offences will be applied unfairly or in a discriminatory manner against certain groups in the Australian community.

* The sedition laws have the potential to restrict the expression of views that ought to be permitted in a liberal democracy such as Australia. This criticism may be linked to the more specific concern that the drafting of some or all of the offences is open to differing constructions. The offences may be interpreted broadly, with the consequence that they may impinge unduly on freedom of expression.

* The sedition provisions give inadequate protection to established media organisations in carrying out their functions of news reporting and the dissemination of bona fide comment on matters of public interest.

* The sedition provisions are likely to ‘chill’ free artistic expression by forcing artists and authors to engage in self-censorship or risk facing prosecution. A related fear is that the scope of the sedition provisions is uncertain and, if interpreted broadly, may cover satire and ridicule, which ought not to be proscribed. Similarly, there is concern that visual artists, whose work is inevitably open to multiple interpretations, could risk prosecution.

These changes ensure that there is a tight link between violence and publication, requiring that the publisher intentionally incite violence before he or she will be guilty of sedition. This will hopefully remove some of the uncertainty of the previously wide ranging law, where any vocal criticism of the government that urges force or violence, regardless of its intent or likely effect, could land the publisher in gaol for up to seven years.

Importantly, the ALRC also recommended that the artistic merits of any statement be taken into account when determining whether the publisher 'intended' that the urged force or violence will occur.

On inalienable rights and virtual worlds

picture of the Jefferson Memorial and extract from the US Declaration of Independence

Image: Jefferson Memorial by kjd (CC BY-NC-ND).

While the discussion of liability rules and property rules (below) may be adequate for fungible interests, it may not be appropriate in cases of interests which more closely touch the personality of the participant. For these latter interests, inalienability, or partial inalienability may be the best method for protecting the personhood of the participant.

In a 1987 article (Radin, Market Inalienability (1987) 100 Harv. L. Rev. 1849), Margaret Jane Radin suggested that there are three main arguments to justify market-inalienability based on personality interests. Lets take the example of the term in the contract which states that a participant can be removed at any time for any or no reason, and consider the arguments for inalienability of the corresponding entitlement not to be removed from a virtual environment without due process. The analogous real-world right, as against the government, is (increasingly, somewhat) inalienable. Against private actors, it is a property entitlement held by the owner of the land. Absent strong arguments to the contrary, the presumption in a virtual environment will be that participants remain in the environment by the consent of the owners of the environment which, while subject to agreement, is revocable.

The first ground canvassed by Radin is a prophylactic argument – where the risk of harm to personhood of giving up the interest is so great that we are willing to constrain the choices available to those who would willingly give it up. In this case, we would be saying that we are willing to presume that all instances where a person gives up the right to due process to be coerced (see Radin at 1909 using slavery as an example). I am reminded here of Bartle's warning that there are any number of reasons that a person may wish to play a game with entirely arbitrary rules. The assumption that all such agreements are coerced simply cannot stand, and the question of consent must accordingly be reduced to a question of fact. However, if we remove the Bartle-world case, we begin to get an idea of the risk faced by participants – this is not simply an issue of losing access to a gaming platform, but of being cut off from one's social network, of having one's property forcibly removed, and of losing touch with the avatar – in the most extreme cases, of being forcibly alienated from a part of oneself. The danger posed can be evaluated quite strongly, and, particularly as the purported agreement is made before access is granted and before any attachment has formed, it may be fair to say that in all but the borderline Bartle-world cases, we are prepared to presume that the decision was coerced or otherwise not freely made.

A second justification given by Radin is that of prohibiting the commodified version of the 'good'. In this case, we may be able to say that there is a moral requirement that participation in the environment should not be commodified. The argument here is that allowing market forces to dictate whether we can associate with our friends and family or our avatars “creates and encourages an inferior conception of human flourishing”.1) In a world which encourages rich and diverse social relationships, to have those relationships subject to arbitrary severance by the platform owner may be damaging in itself. The counter argument is that we often allow rich and diverse human relationships to be governed by markets – although, in an idealised form, we may prefer that they were not. Radin's pragmatism deals with the non-ideal scenarios, and accepts that there can be a continuum of degrees of commodification, and that partial market-inalienability may “sometimes substitute for a complete noncommodification that might accord with our ideals but cause too much harm in our nonideal world”.2)

The third justification Radin gives is a domino theory; where commodification changes the nature of the 'good', such that non-commodified and commodified versions cannot co-exist, and there is a moral requirement that the non-commodified version is available, then a prohibition on the commodified version can be desirable. Radin explains that this “can be conceived of as the opposite of a prohibition: there is assumed to exist some moral requirement that a certain “good” be socially available”.3) In this instance, an argument may be that if we allow platform owners the ability to commodify and sever social relationships and avatar connections at will, we are unlikely to see the emergence of non-commodified systems. This suggestion is borne out, to a degree, by Andrew Jankowich's study showing that three quarters of virtual world agreements surveyed “allowed the proprietor to delete a player account at the proprietor's discretion.”4) If we believe that non-commodifiable versions of social relationships in virtual worlds *should* exist, and we also believe that while we allow commodifiable versions they will not emerge satisfactorily, then we may prefer a prohibition on the commodified version.

While there are many flaws in my under-developed reasoning, a model of partial market-inalienability may sometimes be suitable. While it would be folly to suggest that participants have an inalienable right not to be ejected from a private space, it may make sense to suggest that participants have an inalienable right not to be removed from a private space which very closely mimics public space without due process. This qualified market-inalienability may also be sufficient to allay the concerns raised by Bartle, in that participants and proprietors of virtual worlds which do not closely resemble public spaces will not be unduly burdened in their liberty to choose arbitrary rules. Similar to the way in which labour is partially commodified, where we allow the overall sale of one's productive force but impose limits in the form of minimum wages and unfair dismissal rules, we can envisage that participant rights in virtual worlds can be productively made partially market-inalienable. The difficulty, as always, will lie in establishing the boundaries.

Overall, I think that Radin's theory provides a fascinating way of approaching the topic of 'avatar rights' which could be very useful in determining which interests can be modified by Terms of Service, by code, and by internal norms in virtual worlds.

Comments, thoughts, or suggestions?

Jankowich, EULAw: The Complex Web of Corporate Rule-Making in Virtual Worlds (2006) 8 Tulane Journal of Technology and Intellectual Property 1, 44.

UnCivil speakout

Andrew Bartlett speaking at the UnCivil Speakout

More photos are available (CC BY-SA.

Yesterday I attended a rally organised by the QUT Queer Collective. Two members of the QUT Queer Collective had their relationship recognised under British law to protest the ongoing refusal of queer rights in Australia.

I'm disappointed that we still have to have these events. The recent HREOC report clearly shows that we have unacceptable economic discrimination based on sexual preference. Following the report, Labor have committed to removing legal discrimination on entitlements.

The problem is, this goes nowhere near far enough.

At the rally yesterday, Andrew Bartlett pointed out that both the Coalition and Labor still refuse to support gay marriage. Both the Coalition and Labor continue to support discrimination based on sexual preference that is pervasive and dangerous to our society, and particularly to those against whom it is targeted.

Bartlett echoed the statements he made during debate three years ago when a law banning gay marriage was passed with bi-partisan support.

We need to do three things (The Coalition has refused to do any; Labor suggests that it will do only one):

  • Immediately remove legislated economic discrimination, as highlighted by the HREOC report;
  • Remove all other legislated discrimination – including the ban on same sex marriage; and
  • Keep working to reduce and overcome discrimination in society generally. Removing legislated discrimination is only half of the solution to removing the extremely dangerous discrimination that exists in Australia today.

Are tasers used for convenience rather than to stop immiment harm?

taser photo

Photo by jasonesbain CC-BY 2.0.

There's been some interesting comments on the last taser post I made.

I understand that police have a difficult time arresting resisting subjects, but it's seems really difficult not to conclude that tasers are being used more for convenience than to actually prevent harm to police officers.

In this example, a man is given a speeding infringement notice. He asks the police officer to tell him how fast he was going, and refuses to sign without being told that information. He also says he wants to go look at the speed limit sign, which he believes he did not exceed. When he refuses to sign, the officer doesn't answer him, but purports to arrest him (it doesn't appear that he was told either that he was being arrested or why). When he refuses to turn around with his hands behind his back, he is shot in the back with a taser. This causes great distress to him (obviously), but also his pregnant wife.

I can't comment on whether this was a legitimate arrest – my feeling is that generally people have a right to know what they've been accused of, but mainly it seems as if he was arrested for not complying with police orders (did he have a right not to?) – it doesn't appear that he was legitimately arrested here, but I could be wrong. My concern is that this video shows how easy it is just to taser someone rather than take positive steps to calm a situation down. The man wasn't aggressive, he was disobedient. A good police officer should try talking rather than resorting almost immediately to extremely painful force.

The question here isn't whether tasers are justified in some circumstances. The question is whether tasers are being used too readily; whether there are adequate guidelines and training in place for their use; and whether we are going to sanction their use as a means of quelling dissent rather than avoiding harm to officers or the public. Faced with a question as to whether you have the right to arrest someone, and whether you've followed the correct procedures, should you answer them or simply taser them and arrest them for disobedience?

Edit: the incident is under 'expedited' review. Utah Patrol spokesperson Trooper Roden says that “Troopers can use a Taser if someone is a threat to themselves, or others, and other means of control are unreasonable” (emphasis added).

Edit (thanks to Dale for examples):

Taser video – Royal Canadian Mounted Police kill Polish immigrant

Robert Dziekanski killed by RCMP

A Polish man, Robert Dziekanski, unable to find his mother for several hours, and unable to communicate with anyone in Vancouver International Airport, becomes distressed.

The Royal Canadian Mounted Police arrive to investigate the disturbance, and approach the man. Everyone is calm, the man throws his arms up in a gesture for surrender, and takes some steps backwards, apparently disgruntled. Whereupon the RCMP taser him. The man falls to the ground, screaming, and four officers jump on him and kill him (video).

Enough. This has to stop. Tasers are being used far too often, as a tool to restrain or subdue people. It is currently far too easy for police to use tasers when there is no clear need to do so.

It is preferable for a policer officer to use a taser than a gun in a situation where there is no other choice. It is NOT acceptable for a police officer to use a taser for convenience, and particularly not against an unprotesting man.

The linked video appears to show nothing other than a cold blooded murder. There was no question of provocation here, no question of reasonable force.


Detention centres and TPVs are bad for your health

Detention centre

Image: stephentrepreneur (CC BY-SA)

In Australia we grant Temporary Protection Visas (TPVs) to refugees – upon proving a well founded fear of persecution, they are granted three-year temporary visas, and are then faced with the difficulty of applying for further proetction.

New research from UNSW ”confirms that TPVs cause immense psychological distress to an already vulnerable and traumatised community”. Not surprisingly, the stress of being granted only temporary visas (remember, on real, legitimate refugees) exacts a high mental health toll. Zachary Steel, co-author of the recent research, notes:

Refugees on TPVs get trapped in a situation were they live in permanent fear about the future. Of the TPV holders interviewed, 80 per cent experienced intense and disabling feelings of fear and terror about the future compared to only eight per cent of those with permanent protection visas.

The same research shows that our mandatory detention policies are sorely lacking:

The 154 refugees who had spent time in detention had twice the risk of depression and three times the risk of traumatic stress compared to refugees who had not been in detention. The risk for depression was found to increase by 17 per cent for each additional month spent in detention.

We have certain obligations to provide protection to legitimate asylum seekers. It is abundantly clear that we are not, in fact, doing so.

When the Immigration Minister complains that refugees are having trouble integrating with society (see below), it seems extremely clear that a very large part of the problem is the quite horrific process we put them through.