Governing Online Spaces:  Virtual Representation

David R. Johnson & David G. Post

  ”The introduction of this new principle of representative democracy has rendered useless almost everything written before on the structure of government . . .”

Thomas Jefferson, August 1816

Facebook recently terminated its commitment to hold a vote on all policy changes that received comments from thirty percent or more of users. In defense of the move, it explained that the system encouraged quantity rather than quality of comments; some defenders of the move also have pointed out that reaching the requisite minimum number, on a platform with almost a billion users, was impossible to achieve in any event.

We believe that this presents an opportunity to rethink the ways that meaningful participation by users in the development of policies that will govern large (and arguably essential) online social spaces can be achieved.  In the online world, website policies, incorporated into their Terms of Service (TOS), “regulate” the activities of large numbers of people during increasingly substantial portions of their lives.  In effect, TOS represent a new kind of law – an amalgam of principles borrowed from property law (and a service provider’s right to impose conditions on access to its servers), contract law (although TOS terms are not the result of negotiations or meaningful acceptance by users, and, indeed, most service providers reserve the right to change the terms that users supposedly accept at any time), tort law (although TOS-law doesn’t generally provide for compensation for any injuries), and criminal law (although TOS-law doesn’t provide for due process or impose external sanctions). Terms of Service govern not merely the relationship between individual users and the online service provider, but the relationships among users.  They matter, and they will matter more and more as more and more of our time is spent in online spaces.  The question is: who will make this new kind of law?

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Continua qui: http://www.volokh.com/2013/01/03/facebook-governance-and-virtual-representation/