Where Virtual and Physical meet

There has been a fair amount of talk recently about Sec­ond Life and mySpace, which has left me won­der­ing: what hap­pens when phys­i­cal and vir­tual space meet? What are the legal chal­lenges that those world will meet. In this entry, I try to ana­lyze what I sus­pect will become a big­ger issue down the road. Many of the ideas that I am writ­ing about in this entry are the results of offline and online dis­cus­sions I’ve had with a num­ber of peo­ple over the last cou­ple of months.

It all really started when, in a dis­cus­sion about video, Mary Hod­der men­tioned the words “com­mu­nity stan­dards”. For some rea­son, those two words launched a whole new set of thoughts in my mind. In the early 90s, when I was in jour­nal­ism school, I took a class on cen­sor­ship. One of the inter­est­ing things our teacher high­lighted was the idea that there was a grass­root move­ment appear­ing around the coun­try to cen­sor cer­tain types of books. He high­lighted some basic efforts at the time to remove books about evo­lu­tion from high school book­shelves in the south­ern United States and how those efforts seemed sep­a­rate ini­tially but seems to pop up like mush­rooms in dif­fer­ent places to rep­re­sent a cohe­sive whole. What they were push­ing for was a change in each of the com­mu­ni­ties to the com­mu­nity stan­dards in terms of assess­ing such mate­r­ial. While pre­dict­ing the larger polit­i­cal fight over evo­lu­tion of a decade later, our teacher high­lighted to us how com­mu­nity stan­dards were formed.

In the United States, the con­cept of com­mu­nity stan­dards was estab­lished as law in 1973 when the US Supreme Court, in a case called Miller vs. Cal­i­for­nia estab­lished that speech or other form of expres­sion could be deemed obscene if a sub­stan­tial por­tion of the local com­mu­nity, con­sid­ered the aver­age mem­ber of that com­mu­nity, con­sid­ered it though. This opened the doors for many chal­lenges to some form of speech.

Enters the Internet

Apply­ing this type of stan­dard was easy when the com­mu­nity could eas­ily be located within a set of geo­graphic bound­aries. How­ever, with the rise of the Inter­net, the gegraphic bound­aries have dropped. The­o­ret­i­cally, a piece of con­tent, once put on the inter­net, is avail­able to all com­mu­ni­ties around the world. I say the­o­ret­i­cally because many coun­tries have found ways to block cer­tain types of con­tent they con­sider objec­tion­able by forc­ing users in their coun­try to go through proxy servers. Fur­ther­more, some coun­tries, like China, have had enough polit­i­cal mus­cle to force com­pa­nies like Google to self-censor.

How­ever, the more tech­no­log­i­cally advanced users can find a way to get around these types of restric­tions and have access to the con­tent, whether their gov­ern­ment wants them to or not. Where it gets inter­est­ing is when one starts deal­ing with a vir­tual world. Of late, Sec­ondLife by Lin­den­Labs, has been get­ting a lot of atten­tion. Look­ing at their site, it seems they have set up their own com­mu­nity stan­dards for what can and can­not hap­pen in the world of Sec­ondLife. The ques­tion, how­ever, is whether any of those terms could with­stand a court chal­lenge. As I look at cases like the China and Google case, or the rise of vir­tual world, I am start­ing to won­der how laws will be estab­lished to gov­ern the inter­net. The ques­tion is what legal régime should apply to the Inter­net as a whole. Should we look at the most restric­tive stan­dards avalaible and com­ply to those, thus greatly reduc­ing the value of net con­tent as a whole? I doubt such approach would work as it would require a global agree­ment on such restric­tion and would prob­a­bly give rise to data havens, located in coun­tries that would refuse to sign on to such stan­dards. A lot of Inter­net traf­fic would move to those coun­tries, depriv­ing coun­tries adopt­ing a highly restric­tive model from real­iz­ing rev­enue in terms of host­ing and traf­fic. Alter­nately, the net could adopt the most open type of stan­dard, leav­ing some coun­tries to ban the net out­right, for fear that their users/citizens would have access to con­tent they find objec­tion­able. Ulti­mately, I sus­pect that rules will fall some­where in the mid­dle. As far as to how close to either end, it will depend largely on what law­mak­ers are will­ing to do.

Online World = Pri­vate Spaces

In essence, the issue becomes one of fric­tions between gov­ern­ments and pri­vate inter­est. When a com­pany like Lin­den­Labs estab­lishes com­mu­nity stan­dards for their space, it is akin to a pri­vate cor­po­ra­tion estab­lish­ing what amounts to law for what sits on their servers. The next ques­tion is what phys­i­cal laws can apply to those server. If, for exam­ple, you were to take a user who lives in Europe spend­ing some time in the Sec­ondLife uni­verse, what laws would apply to that user? Euro­pean ones? Amer­i­can ones (based on where the server is located) ? Or some­thing else? Under the cur­rent régime, it appears that these types of things could gen­er­ate some fric­tions. What if, to take a more extreme exam­ple, a user in a coun­try were to play in a vir­tual world located in a coun­try his own gov­ern­ment con­sid­ers an enemy (for exam­ple, US and North Korea). What if that user were a pro­duc­tive mem­ber of the com­mu­nity, gen­er­at­ing money in the vir­tual world on the servers of a coun­try his gov­ern­ment bans trade with? Would the host­ing gov­ern­ment or the user gov­ern­ment be allowed to cease those assets? Sim­i­larly, what about speech? Could a user’s speech in a vir­tual envi­ron­ment be threat­ened because it does not meet the require­ments of that com­pany (in a fash­ion sim­i­lar to sup­pres­sion of speech in US shop­ping cen­ters because they are pri­vate prop­er­ties, could we see users of myspace being banned for say­ing things that do not align with what News­Corp con­sid­ers proper speech?)

Because vir­tual worlds are largely pri­vate com­mu­ni­ties, run by cor­po­ra­tions, it seems that those sce­nar­ios are likely. When one injects sources of rev­enue in those com­mu­ni­ties, the poten­tial for law­suit is large.

A com­ing crisis

As Danah Boyd pointed out in a recent paper (paper seems offline, por­tion of the con­tent I’m ref­er­enc­ing is here):

Teens have increas­ingly less access to pub­lic space. Clas­sic 1950s hang out loca­tions like the roller rink and burger joint are dis­ap­pear­ing while malls and 7/11s are ban­ning teens unac­com­pa­nied by par­ents. Hang­ing out around the neigh­bor­hood or in the woods has been deemed unsafe for fear of preda­tors, drug deal­ers and abduc­tors. Teens who go home after school while their par­ents are still work­ing are expected to stay home and teens are mostly allowed to only gather at friends’ homes when their par­ents are present.Additionally, struc­tured activ­i­ties in con­trolled spaces are on the rise. After school activ­i­ties, sports, and jobs are typ­i­cal across all socio-economic classes and many teens are in con­trolled spaces from dawn till dusk. They are run­ning ragged with­out any time to sim­ply chill amongst friends. By going vir­tual, dig­i­tal tech­nolo­gies allow youth to (re)create pri­vate and pub­lic youth space while phys­i­cally in con­trolled spaces. IM serves as a pri­vate space while MySpace pro­vide a pub­lic com­po­nent. Online, youth can build the envi­ron­ments that sup­port youth socialization.

In the early 90s, I was tuned to the addic­tive nature of such space, when I spent a fair amount of time on Lamb­daMoo, the text-only grand­fa­ther of places like Sec­ondLife. What it did was not only get me addicted to a game but changed my purview on vir­tual ver­sus phys­i­cal space, mak­ing the vir­tual as com­fort­able as the phys­i­cal. As I moved from loca­tion to loca­tion for work, my vir­tual com­mu­nity was always in the same place. As such envi­ron­ments become more immer­sive, a whole gen­er­a­tion will grow up see­ing lit­tle bound­aries between the phys­i­cal and vir­tual spaces. Already, word has spread of peo­ple spend­ing large amounts of time in those vir­tual worlds. If the proper legal sys­tem is not in place when those peo­ple grow up, fric­tions between the phys­i­cal and vir­tual worlds will become the sub­ject of front-page articles.

Estab­lish­ing a baseline

I believe that some type of global agree­ment or direc­tive will have to be set in the near future to estab­lish how laws will work in the online world. Some­thing sim­i­lar to a Gen­eral Agree­ment on Polic­ing Online Com­mu­ni­ties (GAPOC), which would ini­tially fol­low the same type of process that was estab­lished to estab­lish such global rules as the Berne con­ven­tions on copy­right or the GATT, would prob­a­bly be a good place to start. Estab­lish­ing a set of agreed upon prin­ci­ples as to what can and can’t be done in terms of polic­ing online com­mu­ni­ties would help dif­fer­ent coun­tries then mod­ify their own legal process to deal with this emerg­ing phe­nom­e­non. I don’t really have any par­tic­u­lar answers as to how such things would be done and will leave it to the legal schol­ars to fig­ure out but am I the only one feel­ing that this is an upcom­ing issue?