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PhD thesis: digital constitutionalism and the role of the rule of law in the governance of virtual communities

nic — Tue, 06 Jul 2010 04:43:57 +0000

My PhD thesis is available here: Digital constitutionalism and the role of the rule of law in virtual communities.

Abstract:

This thesis considers one main question: how should we regulate the exercise of private governance power in virtual communities? This question centres on the legitimacy of governance in the way that community norms are created and enforced. This is the project of digital constitutionalism, which seeks to articulate a set of limits on private power that will best encourage innovation and autonomy and simultaneously protect the legitimate interests of participants in these increasingly important spaces. In answering this question, I provide a normative framework based upon the broad ideals of the rule of law through which to conceptualise the tensions about governance that arise in virtual communities.

The rule of law framework provides a constitutional discourse through which to examine the structure and practice of power relations in virtual communities. The standard model for conceptualising disputes between participants and providers of virtual communities has so far generally been based upon a classical model of contractual relations, and this has been supported by normative claims for a hands-off regulatory approach. This contractual governance model slowly replaces the law of the state with the private rules of the providers of virtual communities which mostly do not carry the same expectations of legitimacy. As this process continues over an increasingly wide range of human activity, there is a very real threat that the constitutional principles that we value begin to fade in relevance, leaving participants vulnerable to abuses of power in online spaces.

The contours of private law — and particularly contract law — provide the limits of permissible and legitimate private governance in these communities. The legal framework provides constant support and shapes the boundaries of internal governance. The rule of law legitimises governance in two senses here — it provides justification for the exercise of private power, but it also restrains the exercise of that power to make it more transparent, impartial, and fair. It is for these reasons that the bounds of the legal framework are critically important for the practise of governance; internal governance proceeds entirely in the shadow of the law, and the shape of the law changes the shape of the legitimate, permissible, and conceivable exercise of private power.

This thesis examines the flexibility in private law and argues that modern contractual doctrine should be informed by the values of the rule of law in order to provide a suitable regulatory framework that protects participants from abuses of power whilst remaining sensitive to the need to encourage innovation and investment in the development of virtual communities. This thesis provides a normative argument for the development of contractual doctrine and the exercise of judicial discretion in the resolution of disputes between participants and providers in a way that more accurately addresses the tensions of ongoing community governance. These disputes arise predominantly when either a participant or the provider seeks to enforce the rules of the community against the other; I focus, accordingly, on the way in which territorial states ought to support and limit the enforcement of community norms. I argue that the flexibility in the contractual framework should be exercised in a manner informed by the values of the rule of law. As a primary principle, this suggests that we should introduce appropriate limits on the contractual discretion of a provider to impose penalties and suspend or terminate a participant’s access to the community in line with the norms of the community. Additionally, I argue that providers should, in certain cases, be prevented from relying on contractual clauses that prevent participants from enforcing the rules.

In order to allow a contractual framework to be used to regulate governance in virtual communities, it must develop to more adequately conceptualise the role of punishment in the enforcement of community norms. Rule of law values suggest that these internal wrongs lack the requisite legitimacy to be directly enforceable and punishable by territorial law. This thesis accordingly argues that acts that are not recognisable as wrongs by the state but are only wrongs when viewed through the interpretative framework of community norms ought not to be punishable in territorial courts. It follows that criminal penalties are inappropriate for breach of internal norms, and also that civil remedies that have the practical effect of imposing penalties, like those available under copyright law and computer trespass torts and statutes, should not be available to fulfil a punitive function for breach of internal rules.

Rule of law values, however, also suggest that many virtual communities need the ability to impose punishments to maintain order within the community. I argue, accordingly, that the contractual framework must support the imposition of internal penalties where participants are able to avoid internal punishment, in addition to providing compensatory remedies to recover losses sustained through breaches of the rules. If the contractual framework is to be effective in fulfilling this role, I argue that we must further develop equitable remedies under contract law — specific performance and injunctive relief — to empower communities to enforce their own rules where they would otherwise be unable to. In providing the support that community governance requires, however, we must be extremely careful to differentiate between legitimate rules and enforcement mechanisms and illegitimate ones; both equitable and contractual remedies should accordingly only be available where the rules are clear, well promulgated, accepted and understood by the community, and applied in a fair and just manner.

This thesis concludes by examining the limits of the contractual governance framework, particularly the lack of privity between participants and other participants, and between participants or providers and external actors. The ability of courts to properly address disputes that arise outside of the contractual relationship between a participant and the provider depends predominantly on the evolution of other private law doctrines and the intersection of those doctrines with contract. For wrongs that are recognisable by territorial states, the contract provides an indicia of community norms, which delineate the scope of consent. Participants are accordingly able to enforce their rights in tort or other civil law actions against other participants with reference to the community norms, without necessarily relying on contractual remedies. Rule of law values also suggest that a provider may be liable, in some circumstances, for failing to enforce the rules of the community and, in addition, third party beneficiary doctrine will allow contractual enforcement in a limited but important set of circumstances. Nevertheless, some gaps exist, and participants within virtual communities may need assistance in order to enforce community norms within these gaps.

This thesis concludes that classical contractual doctrines provide an alienating and ill-fitting regulatory framework for virtual community governance, but that it can be significantly ameliorated through a conceptual framework provided by the values of the rule of law. The core problem is largely that community governance involves a set of constitutional tensions that are not able to be recognised in the standard contractual framework. If a contractual framework is to be used to regulate virtual communities, then, it follows that constitutional principles, and particularly rule of law values, ought to be used to inform the application and development of doctrine. If governance tensions can be assessed and addressed through a rule of law framework, then these private law forms may be able to provide a satisfactory approach to the regulation of private governance.

PhD final seminar: Digital Constitutionalism and the Role of the Rule of Law in the Governance of Virtual Communities

nic — Thu, 11 Feb 2010 01:15:33 +0000

[edit: now with more slides! PDF (3MB) ODP (5MB)]
My final seminar for my PhD is this Tuesday. All are welcome; let me know if you’re interested in coming along!

Date: Tuesday 16 February 2010
Time: 11:00am -12:00pm
Venue: Z Block Room 1124, QUT Gardens Point campus

Panel Chairperson/Principal Supervisor: Prof Brian Fitzgerald, Faculty of Law
Other Panel Member: Dr John Banks, ARC Centre of Excellence for Creative Industries
External Panel Member: Professor Louise Longdin, Auckland University of Technology

This thesis considers how the law should regulate the exercise of private governance power in virtual communities? This question centres on the legitimacy of governance in the way that community norms are created and enforced. This is the project of digital constitutionalism, which seeks to articulate a set of limits on private power that will best encourage innovation and autonomy and simultaneously protect the legitimate interests of participants in these increasingly important spaces. In answering this question, I provide a normative framework based upon the broad ideals of the rule of law through which to conceptualise the tensions about governance that arise in virtual communities.

This thesis argues that the flexibility inherent in the private contractual law model that is currently used to govern virtual communities should be informed by constitutional principles – particularly those of the rule of law – in order for the law to properly address the tensions that arise out of private governance.

Rule of law values highlight three main themes that should serve to limit the abuse of private power in virtual community governance: a suggestion that participants ought not be subject to arbitrary punishment; that rules be general, equal, and certain; and, most importantly, that legitimacy in the rules is derived primarily from the consent of participants. This thesis argues that these values should be taken into account in interpreting contractual terms of service and the application of contractual doctrine in order to create a regulatory framework that supports autonomy and innovation in virtual communities whilst simultaneously limiting the abuse of power from illegitimate governance.

Digital constitutionalism: the governance of virtual communities, part 1

Thu, 09 Oct 2008 21:36:29 +0000

digital constitutionalism,
participant rights,
virtual communities,
virtual worlds,
governance,
thesis

I am finally beginning to write up my thesis. What follows is the first half of the argument I plan to present. This will hopefully provide the structure for identifying the problem and the context of the argument.

Comments welcome – what have I missed so far?

The internet provides the medium for a wealth of virtual communities, each with its distinct set of norms and values. Individuals all around the world participate in these networks to play, to socialise, to learn and teach, to express themselves, to do business, to communicate with friends and loved ones, to engage in political discourse and political process, and for innumerable other activities. These communities provide not only a 'space' for people to interact but also the promise that each individual will be able to find a community whose norms and values align with her own. Since the internet became popular in the 1990s, this libertarian idealism has proved extremely powerful. It argues that freed from physical scarcity and spatial barriers, individuals will finally be able to choose to associate with other, like-minded, individuals, and these communities will be able to determine the rules which best fit their society, rather than the clumsy approximations that often result from national democracies.

The main problem with the governance of virtual communities is that our legal system operates in such a way as to vest overwhelming power in the hands of those who create and maintain the platforms. These people, whom we call 'proprietors', for they own the code that defines the platform and servers upon which the code runs, exercise almost complete discretion as to who may access and who may continue to access 'their' community. The law, by giving primacy to these property rights, marginalises the interests of participants in these communities. Further, by casting any disputes or tensions which arise as belonging wholly in the 'private' sphere, we deligitimise any change to the current allocation of entitlements.

The result so far has been that the technologically deterministic claims of the cyber-libertarians have not held up, at least not in the largest virtual communities. The suggestion that individuals will vote with their feet (or their wallets) and choose to leave communities that do not reflect their own values breaks down as individual communities become more important. Network effects act to restrict both entry of competitors and exit of participants. As the value of many communities is proportional to the number of participants, new communities have trouble reaching a critical, sustaining, mass. Participants are less likely to leave an established community for a fledgling community, even if that smaller community has more appropriate norms or values. This means that proprietors do not have to be very responsive to the demands of participants in order to retain their custom.

There are, no doubt, limits on the behaviour of proprietors. A proprietor who is not responsive enough to the demands of the community will, eventually, begin to lose participants. In the various commercial models, this usually means a drop in subscriber revenue or in revenue derived from advertising. The relationship between participants and proprietors is accordingly seen to be market-based, and proprietors have an incentive to be just responsive enough not to lose too many participants. This model, in practice, is far removed from the idealism of the cyber-libertarians. Governance is essentially reduced to business decisions about the most profitable way to manage the virtual community.

There is a significant problem when the interests of participants are reduced to a market rhetoric. The activities of participants in virtual communities cannot be understood as the activities of mere consumers of entertainment product, and treating them as such leads to substantial injustices. For participants, there is much more at stake than access to a service – that access underpins their ability to communicate with friends and family, to express themselves, to carry out trade and commerce, and to participate in political discourse. Thus, for example, when a participant is threatened with expulsion from the strongly heteronormative World of Warcraft for advertising for a guild that is friendly to those with alternate gender or sexual identities, she risks losing not only access to a recreational pastime, but access to her rich social networks, her personal identification with her avatar, her virtual possessions, and the rest of the benefits that attach to participation in the community.¹⁾

Similarly, when an individual is banned from a social networking site, she loses a significant ability to connect with her friends, family, and distant associates. The more effective the social networking platform is at changing the way that groups organise events and remain in contact, the more acutely she will feel this disconnection. The same disconnect occurs when an individual is denied access to cloud computing platforms and is no longer able to access her email contacts or stored documents.

In the corporeal world, these concerns are often seen as public concerns, and constitutional and administrative law principles have developed to restrain states from arbitrarily or capriciously taking away the ability of individuals to be secure in their property, their ability to communicate, and their freedom of association. In the privatised environment of the internet, however, there are very few guarantees. The limits of a proprietor's power are established by the bounds beyond which certain actions will become unprofitable. At its worst, this model approaches the worst failures of majoritarian or populist rule, where individuals and minority groups are often subject to harsh treatment and discrimination.

It follows that as the internet becomes more vital to the ways in which we communicate, do business, express ourselves, live, love, and learn, then the risk posed to individuals and groups dramatically increases. The law does not currently have the adequate vocabulary to deal with these risks. Constitutional action, particularly in Australia, provides limits on governmental action, but provides no individually assertable rights against private actors. This negative model assumes that, in the absence of governmental action, citizens will be free. To the extent that this model was ever accurate, it is certainly flawed in a context where access to crucial social networks and forums for self-expression requires access to another's 'property'.

In this context, the distinction between positive and negative restrictions becomes confusing. In the absence of particular government interference, we are left with the base rules of property and contract, which are nonetheless public constructs. A proprietor's right to exclude may come from the fact that they are in control of the software code which runs the platform, but that power is reinforced through the rules we choose to apply to protect that code and the servers upon which it runs and the interpretation we give to the contracts which condition access to the platform. At each of these stages we are embedding certain values in the legal system, and it is wrong to suggest that they form part of a natural state of affairs in which the government ought not interfere. There are clearly choices to be made.

Fundamentally, our legal system should develop to arrive at just results. This means that we must be careful to consider the interests of participants and refrain from marginalising those against the interests of the proprietors. This is a balancing exercise, however, because we must be careful not to destroy the vibrant and diverse nature of these spaces through over-regulation, and equally careful not to undermine the commercial viability of platforms which are provided through private sector investment.

This balancing process is the essence of digital constitutionalism. The rest of this thesis will consider how public values can be applied to the laws which govern virtual communities.

¹⁾
Sara Andrews; see http://news.bbc.co.uk/2/hi/technology/4700754.stm; http://kotaku.com/gaming/world-of-warcraft/blizzard-does-not-hate-gay-people-151656.php; http://kotaku.com/gaming/mmorpg/washington-article-on-sara-andrews-transsexual-elven-mage-160942.php