Do the Terms of Service inhibit the development of a legal system?

Sharing chat logs without consent is forbidden by the Community Standards we agree to as part of Linden Labs' Terms of Service. The exact wording is:

The issue of the use of chat logs in the legal system proposed for the Confederation of Democratic Simulators/Neufreistadt has provoked some discussion on our forums, in particular here.

In presenting proposals for a legal system for the CDS/Neufreistadt, Ashcroft Burham has noted:

In the debate that has followed I have argued against this proposal, partly because the fact that chat logs can be so easily forged makes them less useful than Ashcroft makes out and partly because I see this as an invasion of privacy. But I can see why Ashcroft is making this case. If we do not consent to the use of chat logs in a future legal system (whether this be confined to a particular locality or SL-wide) does this mean we can't ever enjoy the benefits of a legal system?

Setting aside momentarily the issue of chat logs and the TOS (which I suspect can be solved by mutual consent or use of an alternative comm channel), the problem of forgery of transcripts is an old one. Traditionally, it has been solved by the used of certified, licensed reporters.

So, let us say a club or legislative body is meeting. Someone is designated the "secretary" or "reporter," who records the proceedings and debates, and make a transcript available. The transcript is certified accurate. A "true copy" could be posted somewhere accessible to the public, against which others' copies could be compared. A similar system is used in civil and criminal law to record depositions, witness testimony and other trial proceedings.

The provision of "reporter" services could become a paying profession, as in FL. Of course, it requires responsibility, trust and work, as well as skill in the technical aspects. So some reward/compensation system is likely to be needed. In FL, "certified court reporters" are well paid but hard working skilled professionals in which a high degree of trust and responsibility is lodged.

As part of the "oath administration" at the start of a recorded session, the reporter could elicit the verbal (text) consent of all parties recorded to be recorded, and make that consent part of the record. A party's oath is similar recorded in FL court reporter transcripts.

There has also been for some time a "cybernotary" function in SL which (if memory serves) will enable documents (including transacripts, contracts and deeds) to be virtually "sealed" against alteration or disaffirmation.

~ Frank ~

That is all very well, but disputes will inevitably arise that courts will need to solve based on what was allegedly said in in-world conversations; for formal documents, technological notorisation is by far the best solution, but justice is not served when courts only have jurisdiction to resolve disputes the outcome of which is a foregone conclusion.

The fragility of "in-world conversations" in FL is also a long-standing issue. The difficulty of proving who said what when and why is persistent. Fortunately, pure oral speech is rarely relevant to most legal problems. It is not a matter of jurisdiction, but the reality of proof.

In contractual situaitons, the most inexperienced consumer and business person is familiar with the simple rule of transactions and promises: "GET IT IN WRITING." In criminal situations, most crimes require some "overt act" to become choate. There are exceptions in areas like of defamation, hate speech or inciting to riot, but the vast majority of matters in which the courts concern themselves involve documents or observable choate acts other than conversation.

By far, the biggest area in which verbal speech takes a role in legal affairs is in the area of testimony, either within or outside of litigation. Significant decisions are reached by fact-finders based upon either face-to-face interviews (police officers 'canvassing' a neighborhood after an event, or civil lawyers interviewing clients or possible witnesses in a civil case), or sworn testimony in person either before a stenographer or other recording device. In many cases, those verbal interviews will be reduced to a written statement executed under penalty of perjury, or attested to by a witness, which writing is the element on which courts will rely.

So, my point is that in SL, as in FL, the reality is that frail things like chat logs are inherently unreliable. To the extent that your complaint or case is dependent on what was said in a face-to-face chat, you probably have an extremely weak case that is not "ripe for adjudication" in a formal adjudicatory forum.

In other words, deal with things said on the street and move on. The courts won't be interested.

There are exceptions, but they are rare enough to prove the rule.

~ Frank ~

Being a practising barrister who appears in court nearly every day, I have to disagree. Although it is true that there is an element of fragility in conversations, many cases turn on the exat words used, whether they be people hurling abuse in cases of public order offences, crimes constituted by threats (such as blackmail, assault without battery, making threats to kill), incriminating statements made to police officers at the scene of a crime or during a formal interview, warnings given to accident victims in personal injury cases, representations about goods made by vendors at the time of a sale, or out-of-court statements made by any witness that is significantly inconsistent with that witness's testimony.

While it is true that a party who has to rely on a memory of a conversation, when disputed, is in a weaker position than one who can rely on an indisputable document, it is most certainly not the case (as many outside the profession mistakenly believe) that a case whose disputed factual propositions are founded on recollections of conversation are inevitably doomed to failure, bar an exceptional few. Indeed, in many cases, all that can be said against the party who relies on a memory of a conversation is that there is another witness (often also a party) who remembers the conversation differently. Since the circumstances in such cases are usually indisputably such that some conversation must have taken place about the topic in question, and that it must have taken place largely, at least, as one or other party is claiming, it cannot be said that either party has a less than significant chance of winning the point.

The point, of course, about real life recallections about conversations is that they can be inaccruate in two very different ways: either the person giving the evidence can be deliberately lying, or he or she can be honest but mistaken. In the case of SecondLife conversation logs, the former remains just as much of a possibility, but the possibility of the latter is all but erased. Thus, there is a sense in which the evidence of conversations in SecondLife is more reliable (although, of course, far from infallible) than real-world testimony about conversations. Given that real-world testimony about conversations is, far from being marginal, often important and sometimes crucial to real-life cases, it cannot be said that that can be any less so for logged conversations in SecondLife.

My experience is in corporation, commercial, regulatory, IP and contract law, out of court, in the US. Obvioiusly, it is quite different from your own. So, I don't think we disagree. We are just describing the elephant based on examination of different parts.

I suspect that a much larger part of litigation turns on what is/has been said. I submit that the larger portion of legal services (measured by revenue to the provider) pertain to commercial and contract law, in which acts and writings, plus statutes, regulations and precedental decisions are the prime source of applied law.

I may also be completed wrong about the ratio, but have no statistics.

~ Frank ~

You may well be right, but I think that we both agree, in that case, that, however desirable that it is that parties to contracts reduce those contracts to writing, courts, in order to function effectively, when dealing with law of any kind (whether contractual or otherwise) must be able to receive evidence of what was said in conversations.

At least in civil cases, one measure may be the large volume of litigation that is resolved on motion practice before trial ratter than the 1% or so of cases resolved by trial. Questions about credibility of witnesses (who said what) may be important at trial, but on summary judgment or motions to dismiss, the court bases its decision on what is submitted by the parties.