Voice of Consent

The introduction of Voice provided by Vivox in Second Life has somewhat changed the landscape for the blogosphere and for the rough frontier justice of the virtual world -- but not entirely. Chatlogs are a staple of SL. They are the heart and soul of its democracy -- such as it is. They enable public accountability; they also provide practical things like help for newbies who can't follow IMs or a group or a meeting and need to read it back later.

Here's the rule to follow about chatlogs from SL: you can publish them outside of SL, unless you have a takedown order from a court of law.

Many people don't seem to grasp that; they play Internet lawyer; they play Virtual Prosecutor; but I've never seen a successful prosecution -- and judicial decision rendered -- regarding the impermissibility of an SL chatlog *outside the SL domain*. The Linden TOS makes it an offense to publish chatlogs inworld, on the SL forums, on the SL blog -- in other words, on their servers. They cannot stretch their even lengthening arms out to your third-party blog. Other games and worlds have done that, making it an inworld TOS offense, say, to reference or link to another game, or to criticize groups or individuals in any fashion. But not this one. Sorry, fail. And the worst that can happen to you is loss of your account on that game with that kind of rule; certainly not RL judicial action.

What about voice? Here, people concoct all kinds of fantasies as well. Voice is even more elusive, which is why increasingly, Lindens, important people, divas, etc. use Voice, so there is no chat log. They figure it's just too hard and cumbersome to tape individual Vivox convos in SL -- and it is. That is, you can rig up various things but who has the time unless you're like a Metanomics groupie?

But because Voice in SL is like the telephone in feel and flavour, people assume -- wrongly -- that it is some kind of federal offense to tape a voice convo. It's not. In these United States, boys and girls, get the facts:

"Thirty-eight states and the District of Columbia permit individuals to record conversations to which they are a party without informing the other parties that they are doing so. These laws are referred to as “one-party consent” statutes, and as long as you are a party to the conversation, it is legal for you to record it."

California has a 'two party consent" law -- that's where *some* of the servers are located. Texas has a "one party consent law". So, pick your servers, and tape away -- or see your bitchy diva in court. Let her figure out which server; which domain; which jurisdiction; which state; what occurred. It isn't a privileged two telephone conversation when you stand on a sim with 15 people plugged in; it's a public meeting. Running a giant group in SL of 3,000 people -- a group where voice is enabled? Welcome to your life as a public figure, which simply enjoys less protection from libel/slander laws (in a liberal democracy) and welcome to the ambiguity you will face in trying to prosecute somebody who held you to account by taping your ass when you had a meltdown.'

When you see that 38 states conceive of taping as a non-issue,  you begin to see where the strength of the law is on the side of journalism and bloggers. Such tapes may not be admissible as evidence in a court of law -- but that's another story. What matters here is whether somebody with their knickers in a wad in SL over being called to account for their comments has a case. And they don't. Show me a federal court decision interpreting wiretap law regarding MMORPGs, online communities, social media, virtual worlds, and we'll talk.

Sure, this is an evolving area of law -- of sorts -- although there is nothing magical that occurs just because your voice is online. You're in a public chat space to which you gained open and free entry (you don't *have* to subscribe to use Voice in SL) -- deal with it.

So, when you have a valid legal opinion (and not from somebody like Duranske, who is very conservative and pro-game-company on this; he thought the publication by *the court* of the public records obtained at discovery of Bragg's chat logs was some kind of "breach") -- call me. Better yet, get a judicial decision in a real court of law in the United States (China, Russia -- I'm not interested in).

Comments

[Ann Otoole]

Shouldn't you have taken your own advice on awaiting the legal counsel opinion before writing a legal opinion article?

BTW the internet is the wrong place for legal research. Unless using the internet to access your lexis/nexis account. The rest of the non government published "legal text" on the internet is unreliable.

From your cited source:
"Twelve states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Be aware that you will sometimes hear these referred to inaccurately as “two-party consent” laws. If there are more than two people involved in the conversation, all must consent to the taping."

The conversation fell under the jurisdiction of California law. And in this case it involved transmission from France. French Law would be interesting to hear and then it gets real ugly for a US citizen to be recording a voice transmission from a French citizen over the internet without permission. In addition it was "warrantless surveillance" because it was not a phone call between 2 parties one of which being the recording party. There were multiple parties "on the call" and the person that recorded the conversation did not have any permission from anyone in advance as required by all the laws involved.

You are not reading the situation the way law enforcement and governmental agencies would read it. I think it would be interesting for something like this to be handed to the French Police and see exactly how ugly it could get between the US and France because of a "video game".

Anyway I am not going to take your side/opinion on this one because you are clearly incorrect all the way around.

[Prokofy]

What advice? I don't give Internet legal advice. It's your friend Vryl that was invoking lawyers.

Go back to the source and read it.

o It changes state by state
o The overwhelming majority of states are for one-party consent
o Second Life's servers aren't only in California; they are in Texas, Brighton, UK, and elsewhere.
o No one has made any judicial ruling about multiparty communications on multiserver services.

The conversation didn't fall under the jurisdiction of California law. You access the server from your own state. Those serves with their voice or chat log content may be physically located in Texas. You aren't a lawyer *or* a judge. There are questions here, and no precedent, and no ruling.

France? What has France have to do with it? Possibly, for that one party dialing up from France. But that's only one party. And who has ruled on this? Where? And who has claimed that these conversations in public on public services in a giant public chat room are "like" a telephone conversation *anyway*. They aren't!!! Any more than a chat on a crowded street or a town hall or a movie theater is "like" a phone call. It's not!!!

Multiple parties on the call makes it even LESS likely to be ANYTHING like a telephone call! that should be obvious. And, if that person was sitting on a Linden server in Texas, he didn't have to get permission from anyone but himself.

Sure, I'm reading it the way government and law enforcement has read it: because there's never, ever been a case *chuckles*.

If they read it in the zealous prosecutorial fantastic way you do, Ann, there'd be a case.

Um, show me a case.

Get ugly, all you want. There's no case. See you in court, Vryl.

[Vryl Valkyrie]

Haha Prok .. you are fun! You may be a Prok but you are certainly not a lawyer and are in no legal position to make an interpretation of laws concerning voice recording online.

Once again, a group in an online gaming program does not legally constitute public figure status. Maybe it does in your limited world but it does not in the real world outside the holographic walls of Second Life.

As for seeing you in court, if it were to go that far, you would have nothing to do with it as it does not concern you unless you want to confess that infact you are Pixeleen from the Herald or Marvin or Peter Ludlow? No, I did not think so.

I live in France and I can tell you that I was not aware that my voice was being recorded. I did not authorize my voice to be recorded nor did I authorize the recording to pass hands and to be streamed.

Concerning jurisdiction, considering how the DMCA works, my guess is that since I live outside the USA, that jurisdiction would be in California. Of course I could not possibly know since I am not a lawyer nor a judge. However, I did speak to a lawyer about this in California.

Would be a great case and I am sure the court would love helping to pave the way for yet more internet and virtual laws, an evolving work in progress. Thanks for sharing, Prok :-)

[Prokofy]

Wikipedia:

"a limited purpose public figure, meaning those who have "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved."

this is America.

Welcome to it!

: )

[Vryl Valkyrie]

lol Prok, a group in Second Life is not really considered to be "public" Prok sweetie? I do not live in America but even if I did, a group leader in Second Life still would not be considered a public figure. Thanks for the fun and laughs anyway though.. :-)

[AlterEgoTrip Svenska]

"a limited purpose public figure" is that how you see yourself, Prok? Certainly I was correct about a few things, when it comes down to it, for YOU it is only the American Law that counts, I guess this is something I didn't know from anywhere but gut feeling.

It reminds me of a group leader who got a dreadful brow beating from someone because she only discussed the idea of her group hiring a Japanese girl to help the newbie residence, (now Prok, this next part I associate with the style you do things in) The girl who sugested it was told in utterly false terms that "SL is based in America so the language should not be anything BUT English" Being that the girl was from Hong Kong and had perfect English skills- and was willing to forgo her own preduces for Japanese speakers, I had to lend an ear and an eye to this idea that English speakers and Americans are the "only ones" in SL.. when we all know this is not true.

Supposedly turning a blind eye to French law will hopefully be a much needed stop sign for you Prok, and maybe, just maybe, if you are sincere you may modestly learn something...

and I know, anyone who doesn't like a country for what ever reason, well, reading Proks words, please don't believe that all Americans are like THAT, there are actually some rather good ones who believe in law and truth and not "how to get away with what you can" as an ethic.