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Posts Tagged ‘law’

A friend recently asked me to have a look into what legal protections are available to someone who is being stalked online. Their query was complicated by the victim being in a different country than the stalker. I approached the issue by researching the relevant law in both countries, and then shifted my focus to any international law that might apply. Researching law covering the Internet is always both interesting and complicated since the relevant technology is always evolving, and the law is always necessarily a few steps behind as it tries to grapple with new ways that people come up with to abuse that technology. After a while the same themes became apparent through-out the literature, I’m going to talk about them in this post.

In the past I have written on the prevalence and personalities of Second Life stalkers, and on the relationship between law and technology. Feel free to have a hunt through the rest of my blog if you want further background on my views on such matters. This post though will primarily focus on what appear to be the current legal attitudes towards cyberstalking.

One of the biggest problems for law that should be able to cover cyberstalking, is that it’s working from the fundamentals of real life stalkers. So the focus is on people who have physical access to you and therefore pose a “real” threat – these people are of course in your own country and thereby covered by the same laws as you live under. This real world focus also means your stalker is easily identified – you know their name or the way they look. As soon as you move into the virtual world you lose two of those key elements required under stalker laws – even laws that have been modified or created to reflect the use of new technology: Those two elements being the idea that the stalker is in the same jurisdiction as you, and that they are not anonymous.

There appears to be a trend away from requiring the potential for physical harm from your cyberstalker; recognition that harassment short of fear for your safety (or your job loss in employment legislation), is an event the law should still be interested in. There are also steps you can take to help identify your stalker – through the assistance of the ISP of the offender, and the help of the organisation responsible for the service through which you are being harassed (such as Second Life).

The two main methods for getting help to stop the cyberstalker – whether in your own country or abroad – appear to be as follows:

1 Reporting them to the Police

Because the law has this nasty habit of frequently changing, and varies so much country to country, your best bet is to talk directly to your local police about the situation and ask what you can do about it. There may not be law to directly cover your situation, but you might as well find out, and at the very least they will be able to point you in the right direction for alternative options. If the police show no interest in your complaint or are excessively unhelpful, I have read some suggestions that you just go above their heads to the next policing level (whatever that may be in your specific country), and keep working your way up the policing system until you get some attention to your personal plight and the issue more generally. It will be very important that you have kept records of the stalker’s communications with you. It will also be important that you have on record that you clearly asked them to stop all future communications (only do this once though – I’ll talk about that further below).

2. Reporting them to the Service Providers

You should advise any organisation who’s service is being used to stalk you, that this is happening. Companies don’t want to be seen to allowing stalking or being party to such activities, and will generally be happy to help you out. In regards to Second Life, please use this link to view their requirements for reporting stalkers, and suggestions for dealing with them in-world. Their own suggestions mirror the self-help advice I’ll now go through.

I find it useful to separate the advice for how to cope with cyberstalking through self-help, into two categories: The before and the after.

1. The Before

There are certain steps you can take to protect yourself from attracting or assisting cyberstalkers. These include not making available personal information through any public forums or profiles, using names that don’t provide any personal information (gender neutral names are often suggested), and protecting and frequently changing passwords.

2.The After

Once you’ve got yourself a cyberstalker, it’s important that you tell them to stop communicating with you, and only tell them once. After you’ve done this, stop all future communication with them – mute them for example. Also tell your friends not to communicate with them and to mute them. Do not begin communicating with them again, no matter what they say to you and your friends – if they try to threaten you into action you have even more grounds to go to the police and get them to take legal action – keep it all on file including your own responses (which should be non-existent after you tell them to leave you alone).

Many sites I went to suggested you do everything in your power to make sure they cannot contact you, including leaving your old accounts, changing your name, your email address, etc. This will especially be the suggestion where the service is set up in such a way that the offender can simply create new accounts to stalk you from, after their old ones get shut down. You’re going to be asking yourself why you should be the one to leave your old accounts and change everything when you’ve done nothing wrong – it’s just further punishment for yourself. Whether you take those extra steps to get away from the stalker will depend on how badly the stalking is upsetting you and how persistent it is – if you’ve got to do that to make it stop, then do that you must. It’s a shame if it gets to that point of course, but considering just how bad stalking can get, you might want to cut it off by taking those steps before it gets any worse and ruins other aspects of your life.

I’ve also come across the argument line that if you do things that allow, encourage or make it easy for people to stalk you, then you lose grounds to complain about the predictable behaviour that ensues. For example, if you put up sexually suggestive pictures of you on a public site and then get a bunch of sexual advances from strangers, you should have expected that reaction and can’t legitimately complain about it. That sounds a lot like the old rape law reasoning that women sent out sexually available messages by wearing short skirts, so men couldn’t be blamed for following through on them. Obviously there’s an enormous difference between being raped because you wore a short skirt, and being stalked online because you put a picture of you in skimpy lingerie on your profile, but the idea that you bring harassment on yourself and therefore lose a remedy against it, seems a tad off, no?

The issue of cyberstalking is further complicated by issues of what is considered harassment by one party, might be fine behaviour to someone else: Many jurisdictions appear to require an objective aspect, such as whether a reasonable person would feel harassed or fearful of the behaviour. It is exceptionally easy to accuse someone of cyberstalking you too. Every area of law has problems of evidence, policy and enforcement, and cyberstalking is utterly fraught with these.

After all my research – both through opinion pieces and legal materials – I come to this overall summary: If the stalker is in your jurisdiction and you have their identity, you have a good chance that your local laws will provide you some protection. If they are cyberstalking you from another jurisdiction, you can still make inquiries of your local police but are less likely to get a remedy. You still have available to you the options outlined above of taking the matter to the service providers involved, and self-help. It appears that the lack of a consistent international approach to the issue, in what is an ever developing area of the law, will often leave the victim with a confusing and distressing situation, but I hope this post helps some of you a little.

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Replies to my recent post about Virtual Illegalities, and reading this very entertaining item (“Vaginas with teeth and other sexual myths“), got me thinking about what we can learn from Second Life about sexual “perversions” and “deviance”. This post brings together a lot of thoughts I’ve expressed over previous blog entries, specifically as they relate to sexualities and adult freedoms in a virtual world. I find the more you write and get feedback on such topics, the more it helps you understand both the reality, and your own view of that reality, so as usual I’d love to get your feedback on what follows.

In Second Life adults find a safe outlet for experimenting with sexual acts and preferences they may have never followed through with in real life. In turn, it also provides a way to live out sexual preferences that you may have always had in real life but not been able to take part in due to your own or others fears and prejudices. Those may include acts which are still deemed illegal or immoral in the real world – the extremes being bestiality, paedophilia, and rape. What makes those the taboo extremes is the lack of meaningful consent by all parties involved. And that seems like a very reasonable and logical line to draw.

A world like Second Life though provides a way to overcome that moral and legal restriction, because the consent of the other party is either irrelevant (because it isn’t a sentient being playing the role of the dog etc), or because it is a consenting adult after-all who is going along with the act (the rape, for example).

The consideration that always feeds into this debate is whether allowing such things either encourages it in the real world, or stops the act being followed through in the real world. Beyond those interesting questions though, you have to be ready to ask if the answers even matters, since the virtual act itself is just that: virtual. And between consenting adults.

There are plenty of other sexual “perversions” though that people find sick and disturbing for reasons apart from missing consent – usually because they deem the act as degrading or mentally harmful. For example, the sub and dom culture that thrives in Second Life, is seen by many as a distasteful and disturbing pass-time that reveals either cruelty or deficient weakness in the participants. It is not surprising that those sexual cultures defend their activities, but at the end of the day it’s nothing to do with everyone else anyway since they are, after-all, consenting adults.

Another piece of the puzzle when trying to work out how we feel about and respond to such “deviances” is whether the people involved “chose” the preference. For example, the fact that many homosexuals didn’t choose to be attracted to their own sex, is seen by some as the “redeeming” feature that means we must learn to accept it. However this strikes me as completely the wrong focus. I have discussed in a previous post that whether you choose your sexuality is irrelevant – as long as the act is between consenting adults, everything else is people getting their sticky-beaks where they don’t belong. It is not up to us to criminalise or condemn people for doing what they want with their own bodies.

Which brings us to the question of harm. Most liberals ascribe to a theory of paternalism – trying to protect people from themselves. They either claim to know what is best for you and therefore deny you the right to choose it yourself (and that hardly requires me to point out how flawed it is, I hope!). Or they claim that the very fact you choose to do an act with is harmful (physically or mentally) means your consent is vitiated and deemed flawed in some essential way; that you have thereby already provided proof that you are not mentally sound or competent to make such decisions for yourself.

The beauty of Second Life is it degrades at least some of these paternalistic complaints – particularly in regards to physically hurting yourself (say through bondage). People will still try to tell you you are mentally damaging yourself but at least in-world  they can not stop you by physical force or by threatening your real world reputation. Second Life provides a haven from the do-goody paternalism which deems free consenting acts between adults as morally repugnant, which forces people in the real-world to live in denial and have unfulfilled sex-lives.

My hope is that through Second Life we can come to accept the huge variety of sexual acts and preferences, and realise that what matters is the consent between adults. That we can reflect on the really very large numbers of people who do what we have labeled perverse or deviant in the past (be it masturbation, sub-dom, scat-love, etc), and start to realise that it is too wide-spread to be given such labels, that in fact it is just part of our repertoire of sexual experiences that help us explore and enjoy our own and others bodies.

We’ve come a long way from seeing sex as something dirty, and masturbation as something that will make your palms hairy and make you go blind. The anonymity from our real world selves that we find in virtual worlds, helps us explore and discover not just our true selves, but others too. We don’t have to personally like and partake in the huge varieties of sexual acts out there – allowing such acts doesn’t mean anyone’s going to force you or your child to become or do something they don’t want to. Taking part in what we currently may still view and label as deviant acts, doesn’t make you different or evil or stupid, and as we interact and talk openly with such people who have different tastes than us, in the international adult universe of Second Life, that becomes clearer. One hopes.

Issues such as how we feel about Linden Labs cleaning up the adult world in Second Life – sanitising it to accord more with our dominant real world morals and laws – forces us to think about where we stand on these issues. So what about you, where do you stand on such issues, and how has Second Life changed your attitudes towards sexual perversions and deviances..? Has it perhaps cemented your hatred and intolerance of such deviance and perversion? And either way, why has that change in attitude happened..?

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I’ve mentioned before in my blog, the copyright law that was meant to come into force in my home country, and the relevance it had for international copyright protection efforts. Just as a brief reminder – the law was supposedly going to make it harder for people to breach copyright, but in the process it went against some fundamental justice principles (like innocent til proven guilty) and made parties like ISPs effectively responsible for something they shouldn’t have been responsible for. The “black-out” campaign bought international attention to the issue and the consequences it might have for the future of copyright law and internet use.

So I am pleased to be able to provide this link to the latest news that the offending section has been removed. I will watch what replaces it and continue putting up any relevant and interesting updates.

Thank you to everyone who supported the black-out campaign 🙂

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I’ve only recently come across a blog entry about a law that is meant to come into force here very soon – one that makes ISPs cut off Internet access once a customer has infringed copyright more than once, via their Internet service. It’s seen as a highly controversial move, mostly turning on the issue of proof of the infringement. The infringements (as the Bill currently stands) do not have to be proven in a court of law.

This is just one more effort to counter the intellectual property issues plaguing the Internet – the sort of issues that Second Life residents face every day. In my personal opinion this is a misguided approach to the issue that causes more problems than it will solve. A previous blog post of mine talked about the bad laws that often get implemented to try to cover new technology, and I think here we have a prime example of that typically haphazard and unprincipled approach. Part of the extended debate on this particular issue is whether other countries will follow our “bold lead”… one can only hope not.

This is an issue I intend to return to in more depth soon since the law is due to come into force at the end of this month, I will keep an eye on it’s progress and reception. I will also take a more in-depth look at the rest of the Act since it is entirely about “New Technologies” and copyright. If you’d like to have a look at the original Government press release about the Act, you’ll find it here.

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I’m going to come at this discussion from a legal philosophy point-of-view (because that’s how my mind works). One of the lines of debate about whether the suit of defamation (suing someone because they defame you / hurt your reputation) should exist or not, turns on the fact that you are trying to protect something in other people’s minds. Let me try to clarify that a bit: When you try to protect property you are protecting a real entity – it can be held, valued, transferred. But reputation is in other people’s heads – you cannot own what other people think and have no right to control what other people think. So why should you be able to sue when someone damages your reputation? You do not own or control your reputation, it is not “yours” in any meaningful sense of that word. Which brings me directly to what I want to write about here: Popularity, in a more general sense than just a reputation with a potential monetary value attached.

If you hear me calling someone popular, be careful to not assume that I think they are well liked. I readily use the term in two senses: The more common use of “well liked by a large number of people”, as well as the less qualitative sense of “known of by a large number of people”.

In either use of the term my point will be the same: In the same way pointed out at the start of this piece that you are not “owed” your reputation, neither are you owed your popularity. Even if you put a lot of effort into creating it, building it up, grooming all the right people to know (and maybe like) you, it is still an image other people have of you only in their heads and thereby you do not own it. If you want to get technical and say “aha, but what about trade marks and other intellectual property!” I would take this chance to remind you that those things exist in some concrete form – visual, written, software etc – and so are not strictly analogous. If I was going to be a pain in the arse I’d get started on the debate as to whether intellectual property should exist as an extension of this discussion but then I’d end up writing a thesis and nobody wants that.

The tricky thing is that popularity and reputation are very powerful beasts: They allow you to influence and at times even control those around you – whether through kindnesses or threats based in the popularity you wield. And for that reason they can be quite dangerous as well. In turn it is also very fickle – it can be gained over-night through relationships or events, and can be lost just as quickly. Such a powerful thing that can be gained and lost that easily, makes it an interesting and important subject.

The people who crave it the most and try to sleaze their way to the top – through using or hurting people as suits their desire, getting their claws into other popular people (which is under the heading of user more often than not), or creating controversy just for the attention – can go quite far but will usually end up in my second categorization: They are well known but unlikely to be widely liked, will have to consistently work in these ways just to maintain their popularity, and these people will simply never be as powerful as people in the “truly” popular group: The widely loved ones, who people defend even if it risks their own status and uses up their own resources. More often than not the truly popular are aware of the power and position they hold but will be smart enough to not take it for granted or particularly flaunt it. People really don’t like being used, and don’t like being thought of as just a pillar for someone else’s temple, they’ll put up with it often until it is waved in their faces or taken for granted. Because that is the nature of popularity: The power is in the heads of the numbers of people who listen to and like you, and the moment you forget that and act like you’re entitled to it, watch it start to slip away.

Popularity built on skills and kindness are the sorts to last the longest – skills create items that people can value independent of the person creating it, and kindness is remembered and treasured by the effected individuals, long after the act is done. These are what I would call “deserved popularity”. There are also some people who just ooze charisma (I love that word) out every pore, and you find yourself drawn to them in ways you can’t explain. There’s just “something” about them which makes you want to be near and liked by them. Throw that factor in with skills and kindness and you have a pretty damn powerful combo on your hands. It’s rare but you do find these people at points in your life and they make you think that their popularity is somehow carved in stone. But it’s not, no one’s is.

In Second Life, just like in first life, people still clamour to be popular – to have that powerful beast under their control. Whether it’s because they want to be noticed or think it’s easy money or just desperately want to be liked by the masses, whatever the the motivation, becoming popular is a very popular pursuit. And it is an intensely ugly trait in my eyes when people actively go after it – not grown from skills they have or kindnesses they’ve done, and not thrown upon them because they have that “wow” factor, but they nevertheless relentlessly chase it. I suppose we all hunger for slightly different things in our lives, but to chase popularity as an end-point is something I’ve never liked in people, and I will purposefully and consciously avoid doing anything personally to help them achieve it, because that feels an awful lot like being used to me.

There is more I could and should write on this topic: The responsibility that arguably comes with popularity in particular. But the point I wanted to make in this post is just this: You are not owed popularity, it is something that exists within other people’s minds, disrespect those people – use them, treat them like nothing, abuse the power you have over them – and you’ll come to realise that in short measure. Your popularity might last for a while, existing on the insubstantial grounds of controversy and my second sense of popularity, but it will not last long and when it’s gone, don’t expect to have a lot of people there to catch your fall. But nurture the the people who have put you on that pedestal – give them time and love and respect – and there is no limit to where that popularity could take you.

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When I was doing my law degree I unfortunately chose not to do the course on Law & Technology (it had too much internal assessment required and a lot of it had to be done online – I didn’t have regular Internet access so that was a no-goer). I did however inevitably get exposed to bits and pieces of the theory behind it through my other courses – like Evidence and Intellectual Property. One of the technology-and-law related things that I got shown intrigued me and stuck with me, and I think it’s incredibly relevant to Second Life. And I’m going to share it with you, you lucky wee things.

When new technology emerges it is essentially unregulated. Some law will exist that can be stretched or interpreted to cover it – such as trying to apply classic copyright law to digital images. This is often awkward though, and applied in an inconsistent way. A body of law will slowly build up through the court system and there will come a point when the government steps in to regulate “properly” – through new express statutes that either clarify how current law applies to the new technology or (and more likely) creates entirely new law to cover it. The government usually steps in under pressure from lobby groups, and they sometimes even listen to the legal fraternity (shock horror).

The pressure groups should be familiar to you, they say things like “but think of the children!” and “zomg, no, people have freedom!”. And don’t lose sight of the effect of regulation that is of most interest to the government: tax revenue *nahm nahm nahm*.

Now that I’ve told you the theory (and it does seem to hold true in my observations), I’m going to tell you what I think of it and where I think things go wrong in the regulation.

Law should be based on core unchanging principles that can be applied to any new situation. Figuring out how it applies can take a while, but it does not require entire new swags of law to deal with it: Law that comes out of the nothingness like that often ends up contradicting other areas of the law and being counter-intuitive. You often get a flood of new law coming out to fix the new technology, and it tends to whittle down to something more sensible and concise over time, but you still seem to end up with a bunch of silly over-complicated laws trying to cover discrete situations instead of being based on the application of core principles. Intellectual law in the virtual environment seems to be going through this process right now.

You’ll always get a bunch of anarchists saying “leave my new technology alone, man, this is the way of the future, we don’t need no laws” (throw in a few extra “dudes” too). I sympathise with this to a point: I agree that freedom is awesome and society is way over regulated, but there is good law and bad law – don’t throw the baby out with the bath water. For a while this view is very popular, and it was true of the Internet too. It was quite popular for people to state that the Internet was the great unregulated world of the future and that law should never touch it. It was quite popular. These days people who hold that opinion are slowly but surely becoming the minority and people are becoming more aware of the trend I’ve told you about: That with new technology will eventually come regulation and law – it appears to be an inevitable process of progress.

Each side ends up accusing the other side of being stuck in the past: The anarchists think the law-lovers are not realising the “true nature of the Internet”, while the other side think the anarchists need to realise that law doesn’t magically stop existing just because some new technology was discovered – that it is rather the anarchists who are stuck in the past in thinking the and not realising that the Internet (for instance)  is part of the world and people’s real lives too. Both sides thinking they see the “true nature of the Internet” and trying to convince the other of who’s right.

Don’t forget too that new technology will evolve to be able to control the new technology that was at issue. Let me make that clearer: The Internet supposedly gave people anonymity and the ability to get away with all sorts of things that would have been illegal in the real world. But the ability to trace people and their behaviour, to lock down their identities and thereby hold them accountable, has similarly evolved. Does anyone still think they are completely anonymous just because they’re behind a computer screen? It definitely used to be the popular opinion. In turn governments find ways and permissions to trace your money as it moves around the Internet so they can tax you “properly”.

All of this applies directly to Second Life of course. I’ve already mentioned here the issues of intellectual property and tax, but don’t forget what happened to gambling there too. And I have no doubt you can think of more Second Life specific examples. The application of intellectual property to Second Life needs a heck of a lot of work – there is a lot of clarification and cleaning up required here, in fact I believe it is the unpleasant and confusing mix of over-regulated and under-enforced. Gambling should have never gone from Second Life, the plonkers – it was fun and I miss it. Remember how everyone was saying Second Life would die when gambling went..? I’d love to see what actually happened to their user numbers and profit when it went.Gambling is of course tied up with taxes *shudders*and morality. Taxes and morality are huge discussion areas that require whole blogs to themselves, I’ll tackle those separately some other time.

I’ve followed this pattern of behaviour for new technology and the internet at a local level too – particularly in regards to a New Zealand website called http://www.trademe.co.nz, it’s essentially our version of E-Bay. It is apparently the most used New Zealand site. It started off a free haven with very few restrictions but the restricted and immoral items (porn and alchohol for instance) got cracked down on, and soon enough the government started rubbing its hands together with it realised how many household wives were making money off selling their old books and children toys to other household wives *shock horror*. There are lots of people making real money off it too of course but lots of small timers were suddenly having to calculate their earnings and decide if they were selling for profit etc as the tax collectors made their rumblings and settled in for evermore. I’m sure you have some local examples and experiences too, feel free to share them.

So where does that put us now? The great thing is we have the chance to effect and direct this process since it’s ongoing. The regulation and application of law will happen, let’s accept that right now. Instead focus on what we want it to look like; there is good law and there is bad law, the trick is trying to make it the good kind.

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Not that long ago I was complaining about unsolicited spam via Second Life residents… well it seemed very topical and apt that I just came across this story about people receiving a hefty fine for email spamming, under New Zealand law: http://www.scoop.co.nz/stories/PO0812/S00291.htm .

What I’d like to know is how much they actually made from the spamming – and whether the money was made from people paying them to spam, or from people replying to the spam with money (or a mixture of both). I came across a far too cryptic sentence in one of the 4 or so news reports I encountered that said: “Trading under the name “Sancash”, the men are accused of sending more then 2 million unsolicited messages in a three month period last year. In that time, $1.6 million was paid to Lance Atkinson.  He then paid affiliates.” Taken from this version: http://www.3news.co.nz/News/NZ-spammer-hit-with-100000-penalty/tabid/423/articleID/85305/Default.aspx?_cobr=MSN . I’m not sure how to read that, but either way you’re looking at a lot of profit, right?

I will follow the story as it progresses – which it will do considering the other parties who have chosen to take it to court – and will report on it as I hear about it here, because I know I’m not the only one who has had enough of the spam-merchants.

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