Nicolas P. Suzor

The Role of the Rule of Law in Virtual Communities

There is a severe tendency in cyberlaw theory to delegitimize state intervention in the governance of virtual communities. Much of the existing theory makes one of two fundamental flawed assumptions: that communities will always be best governed without the intervention of the state; or that the territorial state can best encourage the development of communities by creating enforceable property rights and allowing the market to resolve any disputes. These assumptions do not ascribe sufficient weight to the value-laden support that the territorial state always provides to private governance regimes, the inefficiencies that will tend to limit the development utopian communities, and the continued role of the territorial state in limiting autonomy in accordance with communal values.In order to overcome these deterministic assumptions, this article provides a framework based upon the values of the rule of law through which to conceptualise the legitimacy of the private exercise of power in virtual communities. The rule of law provides a constitutional discourse that assists in considering appropriate limits on the exercise of private power. I argue that the private contractual framework that is used to govern relations in virtual communities ought to be informed by the values of the rule of law in order to more appropriately address the governance tensions that permeate these spaces. These values suggest three main limits to the exercise of private power: that governance is limited by community rules and that the scope of autonomy is limited by the substantive values of the territorial state; that private contractual rules should be general, equal, and certain; and that, most importantly, internal norms be predicated upon the consent of participants.

Regulating ride-sharing in the peer economy

The rise of the peer economy poses complex new regulatory challenges for policy-makers. The peer economy, typified by services like Uber and AirBnB, promises substantial productivity gains through the more efficient use of existing resources and a marked reduction in regulatory overheads. These services are rapidly disrupting existing established markets, but the regulatory trade-offs they present are difficult to evaluate. In this paper, we examine the peer economy through the context of ride-sharing and the ongoing struggle over regulatory legitimacy between the taxi industry and new entrants Uber and Lyft. We first sketch the outlines of ride-sharing as a complex regulatory problem, showing how questions of efficiency are necessarily bound up in questions about levels of service, controls over pricing, and different approaches to setting, upholding, and enforcing standards. We outline the need for data-driven policy to understand the way that algorithmic systems work and what effects these might have in the medium to long term on measures of service quality, safety, labour relations, and equality. Finally, we discuss how the competition for legitimacy is not primarily being fought on utilitarian grounds, but is instead carried out within the context of a heated ideological battle between different conceptions of the role of the state and private firms as regulators. We ultimately argue that the key to understanding these regulatory challenges is to develop better conceptual models of the governance of complex systems by private actors and the available methods the state has of influencing their actions. These struggles are not, as is often thought, struggles between regulated and unregulated systems. The key to understanding these regulatory challenges is to better understand the important regulatory work carried out by powerful, centralised private firms – both the incumbents of existing markets and the disruptive network operators in the peer-economy.

Evaluating the legitimacy of platform governance: A review of research and a shared research agenda:

This article provides an overview of the key values that we argue should underpin an index of the legitimacy of the governance of online intermediaries. The aim is ultimately to allow scholars to rank the policies and practices of intermediaries against core human rights values and principles of legitimate governance in a way that enables comparison across different intermediaries and over time. This work builds on the efforts of a broad range of researchers already working to systematically investigate the governance of social media platforms and telecommunications intermediaries. In this article, we present our review and analysis of the work that has been carried out to date, using the digital constitutionalism literature to identify opportunities for further research and collaboration.

The paradigm shift in realising the right to read: how ebook libraries are enabling in the university sector

Millions of people with print disabilities are denied the right to read. While some important efforts have been made to convert standard books to accessible formats and create accessible repositories, these have so far only addressed this crisis in an ad hoc way. This article argues that universally designed ebook libraries have the potential of substantially enabling persons with print disabilities. As a case study of what is possible, we analyse 12 academic ebook libraries to map their levels of accessibility. The positive results from this study indicate that universally designed ebooks are more than possible; they exist. While results are positive, however, we also found that most ebook libraries have some features that frustrate full accessibility, and some ebook libraries present critical barriers for people with disabilities. Based on these findings, we consider that some combination of private pressure and public law is both possible and necessary to advance the right-to-read cause. With access improving and recent advances in international law, now is the time to push for universal design and equality.

Technology facilitated coercive control: domestic violence and the competing roles of digital media platforms

Abstract This article describes domestic violence as a key context of online misogyny, foregrounding the role of digital media in mediating, coordinating, and regulating it; and proposing an agenda for future research. Scholars and anti-violence advocates have documented the ways digital media exacerbate existing patterns of gendered violence and introduce new modes of abuse, a trend highlighted by this special issue. We propose the term “technology facilitated coercive control” (TFCC) to encompass the technological and relational aspects of patterns of abuse against intimate partners. Our definition of TFCC is grounded in the understanding of domestic violence (DV) as coercive, controlling, and profoundly contextualised in relationship dynamics, cultural norms, and structural inequality. We situate TFCC within the multiple affordances and modes of governance of digital media platforms for amplifying and ameliorating abuse. In addition to investigating TFCC, scholars are beginning to document the ways platforms can engender counter-misogynistic discourse, and are powerful actors for positive change via the regulation and governance of online abuse. Accordingly, we propose four key directions for a TFCC research agenda that recognises and asks new questions about the role of digital media platforms as both facilitators of abuse and potential partners in TFCC prevention and intervention.

Digital Constitutionalism: Using the Rule of Law to Evaluate the Legitimacy of Governance by Platforms

Platforms govern users, and the way that platforms govern matters. In this article, I propose that the legitimacy of governance of users by platforms should be evaluated against the values of the rule of law. In particular, I suggest that we should care deeply about the extent to which private governance is consensual, transparent, equally applied and relatively stable, and fairly enforced. These are the core values of good governance, but are alien to the systems of contract law that currently underpin relationships between platforms and their users. Through an analysis of the contractual Terms of Service of 14 major social media platforms, I show how these values can be applied to evaluate governance, and how poorly platforms perform on these criteria. I argue that the values of the rule of law provide a language to name and work through contested concerns about the relationship between platforms and their users. This is an increasingly urgent task. Finding a way to apply these values to articulate a set of desirable restraints on the exercise of power in the digital age is the key challenge and opportunity of the project of digital constitutionalism.

Does engagement predict research use? An analysis of The Conversation Annual Survey 2016

The impact of research on the world beyond academia has increasingly become an area of focus in research performance assessments internationally. Impact assessment is expected to incentivise researchers to increase engagement with industry, government and the public more broadly. Increased engagement is in turn expected to increase translation of research so decision-makers can use research to inform development of policies, programs, practices, processes, products, and other mechanisms, through which impact can be realised. However, research has shown that various factors affect research use, and evidence on ‘what works’ to increase decision-makers’ use of research is limited. The Conversation is an open access research communication platform, published under Creative Commons licence, which translates research into news articles to engage a general audience, aiming to improve understanding of current issues and complex social problems. To identify factors that predict use of academic research and expertise reported in The Conversation, regression analyses were performed using The Conversation Australia 2016 Annual Survey data. A broad range of factors predicted use, with engagement actions being the most common. Interestingly, different types of engagement actions predicted different types of use. This suggests that to achieve impact through increased engagement, a deeper understanding of how and why different engagement actions elicit different types of use is needed. Findings also indicate The Conversation is overcoming some of the most commonly identified barriers to the use of research: access, relevance, actionable outcomes, and timeliness. As such, The Conversation offers an effective model for providing access to and communicating research in a way that enables use, a necessary precursor to achieving research impact.

The Limits of (Digital) Constitutionalism: Exploring the Privacy-Security (Im)Balance in Australia

This article explores the challenges of digital constitutionalism in practice through a case study examining how concepts of privacy and security have been framed and contested in Australian cyber security and telecommunications policy-making over the last decade. The Australian Government has formally committed to ‘internet freedom’ norms, including privacy, through membership of the Freedom Online Coalition (FOC). Importantly, however, this commitment is non-binding and designed primarily to guide the development of policy by legislators and the executive government. Through this analysis, we seek to understand if, and how, principles of digital constitutionalism have been incorporated at the national level. Our analysis suggests a fundamental challenge for the project of digital constitutionalism in developing and implementing principles that have practical or legally binding impact on domestic telecommunications and cyber security policy. Australia is the only major Western liberal democracy without comprehensive constitutional human rights or a legislated bill of rights at the federal level; this means that the task of ‘balancing’ what are conceived as competing rights is left only to the legislature. Our analysis shows that despite high-level commitments to privacy as per the Freedom Online Coalition, individual rights are routinely discounted against collective rights to security. We conclude by arguing that, at least in Australia, the domestic conditions limit the practical application and enforcement of digital constitutionalism’s norms.

Queer women’s experiences of patchwork platform governance on Tinder, Instagram, and Vine:

Leaked documents, press coverage, and user protests have increasingly drawn attention to social media platforms’ seemingly contradictory governance practices. We investigate the governance approaches of Tinder, Instagram, and Vine through detailed analyses of each platform, using the ‘walkthrough method’ (Light, Burgess, and Duguay, 2016 The walkthrough method: An approach to the study of apps. New Media & Society 20(3).), as well as interviews with their queer female users. Across these three platforms, we identify a common approach we call ‘patchwork platform governance’: one that relies on formal policies and content moderation mechanisms but pays little attention to dominant platform technocultures (including both developer cultures and cultures of use) and their sustaining architectures. Our analysis of these platforms and reported user experiences shows that formal governance measures like Terms of Service and flagging mechanisms did not protect users from harassment, discrimination, and censorship. Key components of the platforms’ architectures, including cross-platform connectivity, hashtag filtering, and algorithmic recommendation systems, reinforced these technocultures. This significantly limited queer women’s ability to participate and be visible on these platforms, as they often self-censored to avoid harassment, reduced the scope of their activities, or left the platform altogether. Based on these findings, we argue that there is a need for platforms to take more systematic approaches to governance that comprehensively consider the role of a platform’s architecture in shaping and sustaining dominant technocultures.

On the (Partially) Inalienable Rights of Participants in Virtual Communities

As virtual communities become more central to the everyday activities of connected individuals, we face increasingly pressing questions about the proper allocation of power, rights and responsibilities. This paper argues that our current legal discourse is ill-equipped to provide answers that will safeguard the legitimate interests of participants and simultaneously refrain from limiting the future innovative development of these spaces. From social networking sites like Facebook to virtual worlds like World of Warcraft and Second Life, participants who are banned from these communities stand to lose their virtual property, their connections to their friends and family, and their personal expression. Because our legal system views the proprietors interests as absolute private property rights, however, participants who are arbitrarily, capriciously or maliciously ejected have little recourse under law. This paper argues that, rather than assuming that a private property and freedom of contract model will provide the most desirable outcomes, a more critical approach is warranted. By rejecting the false dichotomy between ‘public’ and ‘private’ spaces, and recognising some of the absolutist and necessitarian trends in the current property debate, we may be able to craft legal rules that respect the social bonds between participants while simultaneously protecting the interests of developers.