I haven't had a chance to think this topic through properly, but then, that's never stopped me from blogging eh? : )
I've always been profoundly troubled by the essential legal nihilism at the root of the Second Life experience. It works on a variety of levels, with a variety of premises, that work more or less like the following:
o Linden Lab is a private software company, not an elected government and not an international or intergovernmental institution, so it has no need to have its world-product answer to any higher notions of the rule of law as understood by international treaties like the Universal Declaration of Human Rights or U.S. law like the First Amendment.
o Linden Lab as a real-life corporation in the State of California has to abide by local law and regulations, of course, and it does that, but its world-product is a fictional metaverse, even if not "a game," and therefore is not subject to the laws of the State of California or for that matter, even the law of gravity.
o Second Life is a world governed by code-as-law. Everything in it is governed mechanically by servers and software. To the extent that it can have concepts like "democratic vote" or "privacy," it can only be something programmed by a programmer as an emulation of these valued things, but necessarily will have its limitations.
o Concepts from civil societies under the rule of law like "the right to face one's accuser" or "the right to a fair trial" or "the right to counsel and an adversarial defense" or "the right to discovery" have no meaning in the world of Second Life because they are not pertinent to a private software company, or its responsibilies to a private club joined by subscription, even if that subscription is open, free, and on the Internet. These concepts would be hard to administer anyway, and cost too much to staff and organize properly.
These premises could be debated, they could be modified, and I have no doubt that other software companies with other worlds will figure out how to modify them and debate them under the pressure of social demand. Why, just today I got in my inbox something called Shared Space for $495 from Caligari that apparently enables people to have meetings and manipulate objects in a 3-D users' space where they can also put in objects with animations. Looks expensive and hard to learn and use, like Croquet. And that's why we don't see competition to Second Life emerging any time soon -- but eventually we will.
All of these premises would be fine to live with as a kind of temporary solution, as a kind of makeshift camp-out kind of experience as we walk West in the great pioneering experience of the 3-D web.
HOWEVER, that's not where Lindens, their sympathizers, their pet groups like the FIC and SIC ever leave it. They are ideologically much, much more troublesome with these concepts, and leave me really worried about how this Metaverse is going to turn out.
Their concepts, based on the preceding idea that "real-life application of law and jurisdiction is limited," then begin to be transcended like this:
o Code-as-law works very well. In fact, we find it works absolutely stellar. Why have "no" votes on a voting mechanism? That just causes negativity and the inability to make positive proposals that administrators can actually work with to change things. It's much better to enable people to do the work of making positive proposals, even 100 different ones all amounting to the same thing, and tell them they have to get 500 votes or we won't pay attention to them.
o All truth resides on our servers. We capture every chat, animation, movement, transaction, behaviour. ALL of it has copies that reside with us. We might or might not dump some or all of this; we're not telling, however. You sign away your rights to privacy with us; and we're deliberately vague about what third-party sites attached to us do with the aggregated and meta-tagged information that they scrape off your avatar and his movements and transactions. Given that all truth resides on our servers, and we don't recognize any chatlogs you gather because a) we forbid the publication on our forums of chat logs and b) you could always be editing and faking them on your side, including outside the SL application, we have no need for adversarial defense, segregation of witnesses, even concepts like facing your accusers. We already know what happened in every single griefing incident, you can't provide any alternative version of this reality because we see everything, so give it up.
o Our abuse reporting system may be overwhelmed, backed up, or dependent on an informers' network of residents willing to report on their fellow residents, rather than our own discretionary surveillance (though that is used, too) but we have the best, most impartial, most wise people administering it. They are fair and just. They shouldn't be second-guessed because a) they have truth on their side as all truth is server-side and b) they are just good, hard-working dedicated and wise and just people in general. You are a troll and even a fucktard for suggesting otherwise. In fact, you must have problems with authority, and be suffering from "control" issues if you can't accept that we are the bestest, wisest, most fair people -- even though of course, we can't tell you a) what percentage of appeals to our decisions are honoured and thereby we admit error or b) just what it is we are really doing with all these cases, only some of which are published on the police blotter and only some of which are resolved by action when "resolved".
o We do so have juries in our system, and your claims that juries and other notions of a fair trial are absent from Second Life are false. Why, when someone is facing a permaban, we have a system where the bare skeletal facts of the case are sent out at random to jurors who then recommend whether a person should be permabanned. Why, sometimes we even heed them. If the names of the people, the precise details of the offenses, and any circumstantial or extenuating or adversarial information is available, why, that's not relevant because a) all truth resides on our servers and b) we have very good and wise pepole and c) we can't interfere with people's privacy and reveal the details of disciplinary actions against them -- although of course, for us, privacy is a very arbitrary thing, because we don't mind if third-party sites scrape data about interactions and proximity and publicize it using our software and LSL calls.
o Code-as-law in fact is a great thing. The meat-world, with its democracies and its representational governments and such, is highly flawed. Why, people who get elected are often only the people with the most connections, the best family or corporate ties, the most money, the most ability to get on TV. They aren't really democratic. And institutions like the Congress or the Parliament are corrupt, and are responsible even for allowing unjust wars to be waged on other countries and for graft and pork-barrelling to abound. Therefore, our system that enables masses of people to pull levers, even in a more limited situation where they can't vote "no," is better, because there isn't the ability to corrupt it in the same way. Of course, our system is programmed by an elite task force of programmers, aided by only those residents we like and respect because they have the knowledge/experience levels we can respect, but that's not elitism, that's just excellence, and those of mediocre skills or lesser intelligence aren't able to appreciate that.
o Yes, our platform crashes, our system is buggy, but hey, we work hard
and we have dedicated people. What have YOU done lately besides bitch?
And furthermore, we recognize internally that our systems are coded
simulations or emulations, and we understand far better than you do
their limitations, so you really need to cut us some slack and give us
more credit for understanding the limits of our Godheadedness here; we
know better than you. So shut up.
Probably few people noticed this article in an industry publication called Computer Power User, Q&A With Philip Rosedale. It meanders along with the usual wow, gee-whiz talk about virtual worlds. Philip, who has a B.S. in Physics, talks about the difference between trying to manipulate the physical world with its atoms and its barriers and its obstacles like mill-work and such, then he moves on to talk about why Second Life is so compelling because of the ease of manipulation and simulation.
Except, underlying this whole conversation is a realization that I'm having about his center of gravity, which I feel is so different than my own and many other people's: unlike the real world, of accident, of God, of Nature, of other people, of randomness and a certain diversity of agents, if you will, which you might or might not be able to appeal to (your landlord, your Congressman, God), the world of Second Life is all controlled by only one thing: the code. That is, it all takes place on servers run by software and programmed by...those most excellent people. So, unlike real life, with its divergency of actors and agents and higher instances of appeal, in Second Life, there's only the one group of agents and the one code -- and then, of course, that special grouplet of friends allowed to violate the rule set for everyone else about reverse-engineering, called "libsecondlife".
Philip at first seems to give a nod to a rule-of-law concept that would be borrowed in its beauty from meat-world -- that the rule of law means that states and people must subject themselves to a higher law, that the state is not above the law, that people cannot be above the law. He does that by implying that the code, once written and executed, is above him or anybody, it has a life of its own.
But...unlike God or Congress or my landlord in RL, all RL powers that have either their own autonomy, or the collectively-granted autonomy of either a political process or a lease, and the ability, in one way or another, to be appealed against, at least in theory, the programmers in a thing like Second Life are not to be appealed against -- and they're only one set of them. They know best. Their code is law, after all. As we know from our first set of principles, and our second reviewed here, they are the bestest, brightest, and most sensitive and wise and talented people.
On top of this hubris and excess comes another common premise seen not only in SL but other game settings -- that game gods, game devs, programmers, are Experts in Everything. They're Experts in Everything because all those other fields in which those other people in the humanities, and not the sciences, were acknowledged experts in, like literature or anthropology or sociology or economics or psychology or philosophy, are all things that, willy nilly, have to be put into code and simulated for a place like Second Life. Everything has to be reduced to a program. So economics, justice, philosophy -- these are all 01010101 routines, a yes/no, a switch, a program, a code. And that's why it's better to let those fields be run by the engineers/scientists/computer nerds who have to reduce those other fields to code -- because they know best. They're the coders. They know how it has to be done. And you are stupid.
If you point out that their LindEx economic system, or their land auction, or their abuse-reporting system and banning system is poor, a bad simulation, a broken simulation, not working to serve the public, they bristle, and get shirty. Why? Because not only are they wise and good and doing the best they can, your assumptions -- that meat world is better -- are belied by the fact that now you spend all your leisure hours with them. They're coding, doing the best they can, to make a virtual world. This is how it has to work, and there are objective reasons for that, and you as a non-coder can't understand that. Meat world was flawed anyway, with its corrupt and its arrogant politicians. If you point out that they emulate much of the same behaviour they claim to have departed from, well, you're a politician, too.
It's understood that the platform might not be the best; perhaps the engines, or the open source software used in it; or this model or that model might not be the best, but *it's the worst except all the others,* like meat-world democracy, and P.S. see above premises: the programmers are the wisest, bestest, kindest and most well-meaning people ever found in the history of the world to undertake a revolutionary transformation like this so, shut up, you are a feeb and a chode.
If you want to understand this better, read, and re-read this fascinating article. Philip will explain that he's not a gamer. He's a physicist who wanted something that would help him realize the visions for his inventions faster, and more manipulable.
From there, he made this leap:
I always wanted to be able to make things and as a creative person kind
of externalize my thoughts in a way that was more facile. I imagined
myself sort of standing in the darkness and bringing things into
existence around me as a way of building. And I couldn’t do that in the
real world. I can think of cool gadgets way faster than I can build
them with my hands. We’ve all had that feeling. So I wanted a place
where you could just do that, where you could just take your brain and
literally manipulate the world around you. And moreover, I always felt
deeply that if you allowed a lot of people to do that together, you
would get something that was kind of where we all want the world to go.
Oh? We do? We all want the world to go *that way*? Surely not. And that's the problem at the heart of this world that starts as one man's vision to make a playspace for inventions to thrive and live, and a playspace to collaborate with other people also skilled at inventing and making inventions thrive and life -- they have their beliefs, their ideologies, about which inventions are cool, about which people are the best to collaborate -- they have their subjective thoughts about lots of things, really. And they don't necessarily dovetail with any of ours. Yet we have a right to be their, too, in that space and even object: no, the world can't go this way, we don't like it - it's not working!
So where is the legal nihilism, you ask? I'm finding in talking to people in SL even quite educated and experienced that the concept of "rule of law" are poorly understood. Philip recognizes that the law of physics, and the code-as-law created in conformity to them, are higher than himself. And yet...in doing so, he conceives of himself as a marbled statue of a Greek God. He imbues himself with certain imaginary powers. He and his fellow coders are, after all, in god-like fashion, arbitrarily, and sometimes whimsically, controlling this code, making decisions about it, making decisions about people's lives (privacy or no privacy, push or no push) and making them subjectively, outside the coding process itself per se, but in a kind of hive-mind collective tribal process that he has only hinted about with things like his Tao of Linden, or which you can read about (in my case, with mounting horror), in things like this little-noticed discussion of the Love Machine and the software used to govern it.
"PR: What are the physical laws of the Internet? They are not
human laws. We have observed that laws like ‘gambling is illegal’ are
not meaningful on the Internet. Law is not broadly meaningful on the
Internet. So what is the law, then, of the Internet? It’s HTTP. What
you can do with that protocol, say SSL extensions, that’s the law, the
physical law. Can you securely communicate over the Internet? Yes. So
the law is that you can do that. It’s a capability, just like physics.
Physics says that you can use electromagnetic radiation to send signals
at a distance. Well, the fact that there’s a broadly accepted standard
called SSL means that you can basically send cryptographically secure
information over a long distance across a network. The code is the law,
and the code is God. So people always say, ‘Are you guys gods?’ What I
always say to that is, ‘no, but the code is.’ The most broadly accepted
versions of the protocol are the physical laws and then by extension,
depending on how religious you want to be, they are what we think of as
God. So if you were to draw it to mythology, I think the Second World
authors are most like the Greek and Roman gods. We’re imperfect. We
sometimes disagree. Maybe very rarely we actually fight. And we have
certain specializations. There’s a guy here named Andrew who was the
first employee, and he’s like the god of weather because he’s a
physicist and everybody knows that he worked on the fluid-dynamic
systems that are behind the weather. So if anybody is going to twiddle
around with the code, like if you want the code to change, if you want
the character of physical law to change around how the wind blows, you
should talk to Andrew because in a decentralized development
environment Andrew might take care of you if you want something to
change.
CPU: If I pray to him and sacrifice.
PR:
Yeah, you pray to Andrew, and Andrew changes the weather. So anyway, if
I was to do another avatar, I’d be like marble, like one of the
Michelangelo slaves or something. I would appropriately fit the concept
of an imperfect but inherently human and well-meaning—hopefully, on a good day—Greek god."
You would never know it from talking to Lindens, of course, who are only drinking one colour of Kool-Aid on this concept, but the idea promulgated by Lawrence Lessig that "on the Internet, code is law" is a controversial idea, and one with many debates all around it from the right and left. On the left, more radical powers inject "critical Marxist thought" blah blah and find ways of justifying "worms against nukes" and such. On the right, net-nanny aspirations and prudishness and religious zealotry, or the desire for heavy political control, introduce various filters, things like the Russian SORM, and all the rest. These are the sorts of things that the Electronic Frontier Foundation addresses.
The Lindens have been powerfully influenced by Lawrence Lessig. He's the one credited with convincing them to give their residents IP so that they could copyright, sell, and make a fortune on their wares.
But...their revolutionary zeal around this concept won't go so far as *really* protecting copyright, as anybody struggling to get answers about DMCA takedown notices or allegations of copyright theft knows. Furthermore, while wishing to adopt Lessig's radical, Marxist-type notions of "all property is theft," etc (take away old dead guy's property and give it to live brown boys, etc.) they don't then insist that the first generation of people who benefit from this concept of the liberated property of a corporation and the liberal understanding of mash-ups swiped from the Internet itself anyway in the form of textures and animations then extend it to the next generation with a robust first-sale concept (hence the screaming about girls who sell big content creator's beds at yardsales without clearance from them).
You'd never know it, of course, from the milieu created around Second Life by its makers, with the hyping through the Hamlet nee Linden Au PR machine of Creative Commons ideology, etc. that there is even a debate around any of these "received wisdoms" (i.e. that code is law; that software governs everything and every property relation; that we are all beholden to game gods).
But there is, in articles easily found like this one, "Cyberspace Self-Governance: A Skeptical View from Liberal Democratic Theory by Neil Weinstock Netanel on the Harvard Law School servers:
Netanel takes on John Perry Barlow's manifesto (Barlow is among the founders of Electronic Frontier Foundation):
Governments derive their just powers from the consent of the governed. You
have neither solicited nor received ours. We did not invite you. You do not
know us, nor do you know our world. Cyberspace does not lie within your borders.
Do not think that you can build it, as though it were a public construction
project. You cannot. It is an act of nature and it grows itself through our
collective actions.
- John Perry Barlow, A Declaration of the Independence of Cyberspace
Reading such heartfelt comments from the drum-circle tribalists these days is, well, underwhelming as I fly around combatting griefers and listening to tentants rage at me because I'm not doing "enough" to combat the griefers.
I recently invited John Pery Barlow to come and speak or at least hang out in Second Life, because I feel if you're going to have ideologies promulgated like that on the Internet about the glories of cyberspace, you need to come and eat the dogfood and see the results of your handiwork. No fair hiding on the conference circuit -- come and see what it's like, living on the Mainland.
Netanel takes on this cyber-libertarian claim, which might have been drunk with their mother's milk by every single person at Linden Lab:
"The first component, which I will
call the claim of liberal perfection, views cyberspace norm creation as the
paradigm of liberal rule. It contends that cyberspace self-governance more
fully embodies the liberal democratic goals of individual liberty, popular
sovereignty, and the consent of the governed than does the "top-down" administration
of even the most democratic nation-states. n20 Cyberians view territorial
representative government as a fundamentally flawed attempt to implement
liberal democratic ideals. Representative democracy might be the best we
can achieve in "real space," where collective action, information, negotiation,
and mobility costs make unmediated forms of governance highly impractical.
But, cyberians posit, the global networks of digital communication and data
storage that underlie cyberspace create unprecedented possibilities to drastically
reduce those costs. They offer a wealth of information, instantaneous and
inexpensive mass communication, and a seemingly infinite choice of virtual
communities, discussion groups, and rule regimes. As a result, cyberians
claim, cyberspace not only constitutes a jurisdiction apart from territorial
nation-states; it is also a fundamentally more liberal and democratic one.
They run their company with this ardent and even zealous belief; they run the world with this same set of beliefs, often flying in the face of the reality of the brokenness of the ideology. It's good to see a Harvard law professor then take them on (I'd highly recommend cutting and pasting this Internet HTML page with no white margins into an ordinary Word document to make it more readable):
"Cyberpopulism fails to provide a workable mechanism
for protecting the liberties of minorities and dissenters. And in attempting
to remedy this failing, cyberpopulism moves towards an equally unworkable
neoliberal regime of unanimous consent and dissenter exit."
Bingo! Sound familiar, eh? This essay is rich with thoughtful and well-reasoned argumentation against every silly thing you've ever felt uncomfortable about foisted on you in Second Life -- the concept of "the community wants it" or "we are the best and fairest resmods" or "if you don't like it, leave".
There plenty of thoughtful people who consistently argue against the "code as law" extremism implicit in Philip Rosedale's thinking and explicit in the world he has created. They aren't horrible Bushies or neo-cons or anything of the sort, either; they just aren't revolutionary zealots. Volokh has comments on his blog and James Grimmelman is referenced, who gave an interesting talk at SOP III last year -- yet in these very noisy and confusing big conferences with game executives, big business, corporate lawyers, and all manner of things in between, it's hard to hear whether this debate is really being had (although in part, last year, the "Gr8 Deb8" was all about that, i.e. can meat-world law of governments and countries govern this fabulous cool thing called cyberspace and the Metaverse.
"
If so, we need to take a cold, hard look at some of the incongruities and
limitations of private ordering. An untrammeled cyberspace would ultimately
be inimical to liberal democratic principles. It would free majorities to
trample upon minorities and would serve as a breeding ground for invidious
status discrimination, narrowcasting and mainstreaming content selection,
systematic invasions of privacy, and gross inequalities in the distribution
of basic requisites for netizenship and citizenship in the information age," concludes Weinstock.
Ultimately -- and I'm going to work on all the interstices needed here! -- I feel that code-as-law is about legal nihilism. It is like the old adage that martial law is to law as martial music is to music. Code-as-law has lurking behind it the discretionary and arbitrary will or whim of groups of elite programmers unaccountable to any higher law or institution, with absolutely, unshakeable belief not only in themselves as having all the perspective they need to do anything, but that they are Experts in Everything. They hide behind the concept of the Metaverse as needing to be a vast open playspace for people from all different countries to quietly execute the code they think needs to be executed by the lights of their internal, sectarian, and often revolutionary and zealous beliefs. They are unwilling to subject themselves to any higher law or higher power; that contains the seeds of their nihilism.
I could add as a footnote that the term "legal nihilism" is very well understood in Soviet studies precisely because people have to deal with the after-effects of societies destroyed by revolutionary justice that demolished legal systems, lawyers, judges, courtes, etc. and substituted them with terror and the misuse of the law and prisons to punish political dissent and maintain executive power. So that's why thinkers tend to use this term to try to capture the problem of remaking these societies so damaged by the undermining of the rule of law and people's belief in law. "The law is a bridle; it can be turned any which way," is a Russian saying; "Give me the man, and I'll find the case against him," was the adage of Stalin's prosecutor, Vyshinsky." In discounting and repudiating the old meat-world's law and legal systems and institutions like parliaments, the code-as-law crowd put in its place a law that is merely at the behest of unaccountable and arbitrary coders, to which there is no recourse.
