Due process on the Internet among private sheriffs

From Cyberlaw: Difficult Issues Winter 2010
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Issue Definition[edit]

Users store valuable content online using services such as GMail and Facebook. What happens if the providers of these services decide to ban or restrict access to "your" content or account? Is there an appeals process? Is there any notion of due process whatsoever?

Question
The term due process implies an analogy to legal proceedings that may or may not be apt for all interactive media sites.
Are there more fitting terms of contractual or ethical obligation, explicit or implied promise, truth in advertising, or just plain good faith that might apply to the particular case?
Related
Is a website a place of "public accomodation" under the Civil Rights Act and the Americans with Disabilities Act?
Also
What rights do users have, or reasonably believe they have, with respect to the content they store, distribute, or publish via services like Gmail or Facebook?

Gmail[edit]

The main concern for users who are banned from Gmail would seem to be recovering the content stored in their account. Google does not appear to guarantee that they will allow a banned user to recover their content; at the same time, they could do so, apparently at their sole discretion. Are there any accounts of Google banning Gmail users, and if there are, what has been Google's disposition of the contents of their mailboxes?

From GMail's Terms of Service

4.3 As part of this continuing innovation, you acknowledge and agree that Google may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Google’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Google when you stop using the Services.

4.4 You acknowledge and agree that if Google disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account. ...

8.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content”. ...

8.3 Google reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service...

Facebook[edit]

Facebook does not seem to have a formal appeals process for banned accounts. [1] In the site's help center, an e-mail address and some simple instructions (for what to include in the e-mail) are provided, but no other details are provided regarding the remedial procedures followed by Facebook (if any) once the appeal e-mail is sent.

A user banned from Facebook likely faces three concerns. The first is control over the continued publication of their material after the account has been banned, which depends on whether or not Facebook continues to publish content created from banned accounts. The second is access to private or semiprivate information either stored in the banned user's account itself, or in other Facebook accounts to which that user had access by virtue of Facebook's social-network-based security. The third is ongoing access to Facebook's social networking features.

Facebook does not seem to discuss, with anyone, not even the banned user, the reason for any bans it imposes, so the risk of being defamed by Facebook by virtue of having been banned by them seems minimal.

Wikipedia[edit]

Questions
Are Encyclopedias like Butter or Orange Juice? That is, does the use of the term "encyclopedia", in conjunction with valorized terms like "knowledge" and "policy", constitute a claim of "suitability for a particular purpose", all fine-print disclaimers to the contrary notwithstanding?
Are users of Wikipedia solely responsible for their expectations that Wikipedia Management will maintain "knowledge" and operate according to their advertised "policies"?
Or does the Wikimedia Foundation incur a legal obligation to conduct its operations in specific ways by dint of its advertising, fund-raising, and promotional activities, all of which it does under a tax-advantaged status?

Wikipedia allows most users to edit their own User_talk pages after being blocked or banned, so that they can use this page to post appeals. Exceptions are made for banned users who use their talk pages "abusively". Given the fact that almost anything can and will be described as "abuse", this is a distinction without a difference. The practical effect is to quell criticism and quash anything that might be considered a right of reply.

Until recently, a Wikipedia "block log" was practically impossible to expunge, and Wikipedia user pages containing templates stating "this user has been banned" were indexable by search engines. In most cases, these pages and logs still remain in existence indefinitely, and arguably can act as a form of public shaming that is not always warranted or justifiable. In recent months, however, the site's administrators have shown a greater willingness to "courtesy-blank" such material (including public discussions leading up to bans), mostly for users whose Wikipedia identities can be linked to their real identities. Given that the so-called "courtesy" is typically extended arbitrarily, without consultation, and even against the request of the user in question, it may be seen as a measure to protect the actions of Wikipedia management from open scrutiny. This appears to be due to a variety of factors, including recent negative media coverage, an influx of more rational administrators (many of whom are quite young), and an effort to reduce ongoing offsite attacks by banned users by eliminating as many sources of friction as possible. The concept that such acts of "public shaming" might be either unethical or illegal does not seem to occur to most Wikipedians; when such statements are removed the removals are generally predicated on practical, rather than ethical or legal, grounds.

Wikipedia's "Arbitrators" have been quite consistent over the years in insisting that Wikipedia's dispute resolution process does not guarantee "due process", and have consistently said that attempting to do so would hinder, rather than assist, their function. However, recently Mike Godwin, the Wikimedia Foundation's General Counsel, took the Arbitration Committee, in its entirety, to task for making and publishing a decision (to remove certain privileges from a user) that "not been made in any way that meets what I as a lawyer would characterize as due-process and evidentiary standards" [2], suggesting that at least Mr. Godwin believes that Wikipedia should offer some semblance of due process within its community governance scheme. However, there is, as of yet, no indication that Wikipedia's community desires for its dispute resolution process to ensure due process to disputants. At least one external commentator[3] mentioned the remote possibility of someone bringing legal action against Wikipedia via a mechanism similar to a New York Article 78 proceeding.

Wikipedia is unlike Facebook or Gmail in the sense that there is essentially no way to store content on Wikipedia in a nonprivate way, most content stored on Wikipedia can be edited by anyone whosoever (much of it even without having an account), and in any case, accounts are extremely easy to obtain. Therefore, the loss of one's account does not significantly impair one's ability to access, alter, or remove any content one may have chosen to store there, and the damage caused by the loss of one's account rights are mostly reputational in nature and depend almost entirely on how readily one's account can be tied to one's identity, which at Wikipedia is entirely optional. This is entirely unlike Gmail, in which a user might have gigabytes of personal, nonreproduceable correspondence stored in the account, or Facebook, which strongly encourages people to provide sufficient information so as to personally identify themselves.

Comment 1
Re: "the loss of one's account does not significantly impair one's ability to access, alter, or remove any content one may have chosen to store there"
This statement is not only false but exhibits a lack of familiarity with the realities of Wikipedian activities. Jon Awbrey 22:06, 12 January 2010 (UTC)

Moot Court[edit]

As a lay observer of these discussions who found himself forced — beginning willy but mostly nilly some five years ago — to take an interest in the realities of Wikipedia politics and subculture, I find that most of the assertions that remote observers make about Wikipedia are pure and simple wishful thinking, dreamily detached from the concrete realities of what actually goes on there.

The most typical excuse for "Due Process" that we find in Wikipedia is not conducted in the powdered wiggery of the Arbitration Committee, the kangaroo court of last resort, but commonly ends with the defendant hanging from one of the lower rungs of the dispute resolution ladder, often in effigy, though the results of the lynching are hardly improved by the presence of the celebrant.

For instance, if you'll forgive me for citing a case that I have the most intimate acquaintance with:

Signed, Jon Awbrey 04:00, 13 January 2010 (UTC)