Now for the Seedier Side of Second Life

This is actually Part 2 of 2. Read the earlier post first.

Murky Waters - The Law of Prohibited Fantasies

Closely related to the idea of whether an avatar has legal standing is whether an avatar can commit a crime. Corporations can commit crimes, although they're artificial entities, but you can't put a corporation in jail. You can, however, put a human in jail for things done in the virtual world by an avatar of his or her own creation. It's getting dicier now that European countries – Germany, in particular – are considering the prosecution of virtual ageplay on SL, even without the involvement of actual children. Such conduct would appear unlawful in Australia, too, but apparently not the US.

As everyone now knows, SL is being used to make connections for the real life trafficking of real life child pornography. Few are surprised. Linden is reportedly cooperating with authorities in Germany and at one poijnt said its new policy was to ban not only underage users but any depiction by adults of sexual acts involving avatars who look underage. Meanwhile Linden is on record stating that it knows it has no effective way to ban underage players without age verification. They're looking to sim owners to police their own. Let's see how that's working out.

In the wake of recent revelations, the Group Charter for the 900 member group "Hunter High Roleplay," which until recently anyone could join and led to the formation of a number of other underage role-playing subgroup, was revised to reads as follows: "Due to Roblin Lindens (sic) comments stating that any type of under 18 [role play] being punishable, and people like sljoe coming in and filming players at Hunter without consent for media purposes, I've closed Hunter for now. I cannot risk losing my account which is how I support my family. I'd consider reopening as a college in the future, but will avoid venues of a sexual nature while the moral police decide weather (sic) it is acceptable for consenting adults to act out common fantasys (sic). I'm sorry it has come to this."

Weeks after the controversy arose, all of the ageplay related groups remained searchable. During this period, we visited what appeared to be a sim that solicits age play. It was an accident. We meant to visit the SL Bar Association, founded by Benjamin Noble, an articulate avie who is a lawyer in real life and has his own SL law blog, VirtuallyBlind. He says he's usually at the in-world offices of the SLBA. We went there twice, but no one was home. No visitors even. We left a message, which went unanswered a bit too long. Bored, we started flying around.

Next door another sim was bursting with activity. We were curious. We wandered over. We found them in the groups list: "The City of Lost Angel's (sic)," billed as "A Dark Rolepaly\Combat\Sex Community." We read the info to see who's invited: "Vampires, werewolves, predators, crazies, homeless poeple, druggies, whores and gagsters, schoolgirls, street people...all are welcome."

Schoolgirls? As in Hunter High? Does this mean the group, which has many interrelated sims and this one alone listed over 1300 members, solicits ageplay? We were not members, but we found it easy to use our camera controls to slip into the bleak brick fortress and sit ourselves down somewhere inside a fortress which only appears impenetrable and hangs imposibly high in the sky. For a little while, until it seemed we were going to be eaten alive and quickly teleported home, we wandered through rivers of blood, walls of fire, and encountered just a few of the dozens of players inside the sim's darkly ritualistic setting. We were there only a few minutes, not long enough to navigate our way to anything probative, one way or the other.

Later, we pinged Founder Suzanna Soyinka and asked her some questions. You be the judge.

Me: In light of the new policies and legal issues concerning the depiction of minors in SL, do you think you will have a problem soliciting "schoolgirls" to join your City of Lost Angel's group? I mean, "girl" is a term reserved for underage characters, or those who act underaged, is it not?

Suzanna: I don't allow under age players. Pedophilia is my line in the sand. Anyone even appears to cross it I ban them.

Me: Of course. But what about players who "act" underage.

Suzanna: They don't. The rules are clear. We've had two child players in the entire history of [the City of Lost Angel's (sic)]... One moved on because we're not friendly to that kind of play. The other aged their avatar to something legal. People are well aware of my prejudice in the area.

Me: So... who do you intend to attract by using the term "schoolgirls"?

Suzanna: Dunno thats been there for 9 months, I'll happily take it out... I wrote that description nearly a year ago and hadn't even realized I'd put schoolgirls in there til you mentioned it.

Me: How many members do you have, adding up all your affiliated groups?

Suzanna: 8,213. That was last week's count (as of May 17).

Me: You have any more thoughts about recent scandals? Has it affected your groups at all? Police queries? Queries about the thresholds of legality of depicting things, even if everyone involved is of age. Also, problems with people sharing real world child porn pics thru contacts made on SL in age play areas. Leading to the recent outright ban.

Suzanna: Have there been recent scandals? ... Like I said, not an issue I care about really. If they're banning child porn traffickers I say more power to them... The Lindens know me very well. If something gets past me, they'll let me know. And I have 48 player staffers.

Me: Thanks for your time and for chatting.

My conclusion is, Linden is still not prohibiting groups from using language which would appear to solicit avies for age-related sex play. Are Soyinka's players engaging in it or not? Dunno. What's a "schoolgirl"? Is it possible that Soyinka, as successful as she is, is as naive as she seems?

Update from SLJoe, the avie fronting the real world journalist vilified by Hunter High, whose investigations led to the discovery of real world child pornography trafficking inside SL: "There's more to come. We're still investigating." Towards the end of May, he said we should look for more video disclosures on http://www.sljoe.com/, which was slated to go live on June 1. We've been checking back, but no relevant videos have appeared. Meanwhile, his site contains a disappointingly high number of spelling and punctuation errors. (What's up with all this bad spelling?) There's other stuff posted there, but not the promised goods.

Tales from Second Life

As some of you know, I have an avatar in Second Life. She has a writing job there, a store, and her own blog, called TheLemonPrincess. She also freelances for The Avastar. Sometimes she needs an outlet for her writing that isn't connected with her book store or her fiction and is too long or involved for The AvaStar, so she asks me to post it here, under my own name. Since it's about law, which I know a few things about, I've obliged. So here it is.

Do Avatars Have Standing?

In his 1974 book, environmentalist Christopher Stone asked, "Do Trees Have Standing?" He said reality is created mostly by the language we use to describe it. So if trees had legal standing, like people do, forests could sue to protect themselves from destruction. But trees -- like avatars -- are not reified. They can't sue. Yet at the same time, corporations hold the elevated legal status of "personhood," because our legal system grants such rights to them. It's good for commerce, and commerce is more sacred than religion.

(Really. Article I, Section 8, Clause 3, of the U.S. Constitution, known as the Commerce Clause, is in the first meaty bit of our national scripture and the part that deals with freedom of religion is tucked away in the amendments they passed four years later, when they decided to protect individuals from the inevitable nasty side of the government they created originally. Also, they started to think, how well will commerce profit the owners if the peons of the world aren't guaranteed odds decent enough to make them want to play the house's game? So they amended the constitution by sticking on The Bill of Rights in 1791, which contains the part that stops the goverment from messing with you if you want to practice your religion. It came afterwards.)

Human owners of entities like SL are shielded from responsibility from all sorts of things that the rest of us mere mortals have to answer to, because we live in a great country which favors commerce and you can't have it all gunked up by people who would be adverse to novelties they might later have to be personally responsible for, to the point that it creates economic paralysis. Enter the corporate veil. So where does that leave the lowly avatar? What does Drivel Pivets do when things don't quite turn out the way Second Life's autocratic owners represent? Virtually, nothing. He ceases to exist, and the bumbling man behind the curtain soldiers on.

But it aint all bad. Despite the fact that not long ago, the Second Life City of Neufreistadt deleted from its constitution a provision which would have established a judiciary, we were reminded that there are judiciaries in the real world and we already are subject to some pretty good law. Says avatar Navets Potato (pictured at right in his SL office): "I have been talking to a bunch of people about arbitration and court systems here in SL. I am not all that enthused by the in-SL court system, but like the arbitration idea lot. Or mediation." Navets Potato navigates both worlds, and his SL profile references his real world law firm. Meanwhile Potato confirms he's getting RL clients from contacts made in SL, to the tune of $7,000 US in two weeks, as one article reported.

Enter Pennsylvania lawyer and former SL resident Mark Bragg. Last year he sued Linden Research, Inc. and Philip Rosedale for confiscating his avatar's property when it closed his account for his clever if naughty method of auctioning of SL land. Until recently it was unresolved whether Bragg could sue Rosedale (aka Philip Linden), and whether fraud would trump the site's Terms of Service (TOS) agreement. His only bankable remedy depended on beating the arbitration clause. Pricey arbitration, not the customer-friendly kind (>$5,000 just to file!) and you had to go all the way to San Francisco to do it. "Economically pointless," said Bragg's lawyer, Jason Archinaco, as it would be for most consumers. His case awaited ruling on several issues before it could go forward.

In a March 27 filing, Bragg quoted Rosedale's recent reaffirmation of the notion that SL residents acquire genuine property rights, i.e., that they aren't just playing a game: "You know, people need to own their own things, and they need to be able to do with them what they like, and that's part of the basic appeal."

(BTW, difficulties deciphering what owners' rights actually are explains, in part, why the original sale of virtual Amsterdam in SL fell through. Reportedly buyers weren't familiar with key concepts -- such as having the vendors on the sim retain their rights.)

So is Linden Pied Pipering its users into a dangerous legal riptide? Yes. In an interview published on May 17, Rosedale said something new, and contradictory: "What we are really selling you is computation. We are selling you CPU core. If you buy a 16-acre piece of land, which is about four city blocks, what you are renting is one processor." A processor which can be taken down, or collapse, at any time. Apparently, this intellectual property thing is just an illusion. Not a reality.

Archinaco says this: "What they don't want you to know is they're moving to liquidity. With arbitration, they have confidentiality. They can keep quiet about moving away from land value." In other words, the eventuality of letting outsiders create their own land is like letting anyone print their own money. "People's so-called property rights evaporate but they can't just do that," opines Archinaco, who has no active SL avatar. "While the [Bragg] case stays open they're being nice to everyone."

Heroclitis presaged Linden Labs and Philip Rosedale when he said, "No man ever steps in the same river twice, for it's not the same river and he's not the same man." Greek philosophy doesn't go over that well with the courts. On May 30 the federal court in Pennsylvania ruled on two early motions by Linden in the Bragg case: first, that Philip Rosedale's (alleged) misleading statements mean he can be personally sued in Pennsylvania, i.e., the federal court has personal jurisdiction over him; and second, that Linden's TOS arbitration provision can't be enforced, based on all sorts of unfair, one-sided, adhesionary conditions. The case will now go forward. Here's the decision: http://lawy-ers.com/robreno_order.pdf.

So there. Thank you Mr. Bragg.