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 worlds 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 grassroots 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 seem 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 forms 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 geographic 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 regime should apply to the Internet as a whole. Should we look at the most restrictive standards available 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 the 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 servers. 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 regime, 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 lawsuits is large.

A coming crisis

As Danah Boyd pointed out in a recent paper (paper seems offline, a 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?

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