The Alphaville Herald

“Challenge Everything?”: Third-Party Harm and Online Gaming

by Alphaville Herald on 08/11/03 at 6:29 pm

Lately, I’ve been losing more sleep than usual. I started playing TSO in Alphaville. I had wanted to further explore some legal issues in the course of my graduate studies. My first exposure to Alphaville was light-hearted, fun, and it struck me as a seemingly benign little place. Then something freaked me out. Another player, in a particular state of distress, contacted me. This individual reported to me an account of having received an instant message from a TSO player who had made some claim akin to the following: “I’ve been beating up on my sister; put her in the hospital.” The player who had received this message, which was conveyed by instant message format and containing an assertion of abuse that was not in the context of role-play, had contacted Maxis and was essentially told that if something disturbing was coming across on instant messaging, the suggested remedy was to turn on the language filter and put the person sending the “offensive” message on ‘ignore.’

Suddenly, the friendly insular world of Alphaville wasn’t so attractive to me. I now had a sickening feeling that wouldn’t go away. Surely, I thought Maxis didn’t understand: the issue here wasn’t offensive language (where proper remedy may well be filters as Maxis purportedly suggests) but rather potential real life harm to a third party. I checked out Electronic Arts Privacy Policy (Maxis’ parent company). It states in part: “To enforce legal rights and the law, or when we have reason to believe that a disclosure is necessary to address potential or actual injury or interference with our rights, property, operations, users or others who may be harmed or may suffer loss or damage, we may also disclose personal information to law enforcement, or the appropriate civil authorities.” (EA.com Privacy Policy)

I promptly sent off an e-mail to EA telling them of my knowledge of their handling of this disturbing situation, and expressing my outrage that they didn’t seem to get the point and had in fact suggested an inane remedy to a potentially serious situation. I received no response. I have since contacted them inquiring into what their policy is on this issue and I have still received no reply. EA games begin with their trademark “Challenge Everything.” In light of EA’s absent response to what I strongly believe is a very legitimate concern, perhaps they should consider a slight disclaimer to their motto: “Challenge Everything (except our privacy policy).”

This particular case may seem trite, yet the bigger issue is not. It has been pointed out to me that the allegations in the above case are in all probability an ill-advised rambling of a kid who would consider this a crank. This doesn’t put my mind at ease. The issue here, the safety of a third party, is not something that playing a game of chance, trying to calculate whether to take this seriously or not, is worth my engagement in: the fact exists that there is someone out there who may be potentially subject to some form of abuse, and EA might have the information available to help stop it. As far as I can tell, they don’t think it’s worth their entanglement in such an investigation or even providing someone who inquires into their policy a rationale behind their stance. So, let me try to work this out a tiny bit.

The larger issue here is a familiar, though far from thoroughly-studied one, particularly in an on-line gaming context. All on-line entities have a legitimate interest in protecting the privacy of their customers. Society has an interest in that too as potential customers of on-line entities. Yet, society also has an interest in protecting third parties who may be harmed, and as on-line environments become more commonplace, it will be the case that information that could be pertinent to stopping third-party harm in real life will be relayed in these on-line environments. What to do?

The most common context that a similar issue occurs is with on-line child pornography or “child predators” and keeping on-line content away from minors. A number of channels have made attempts to deal with such issues, but there exist some high barriers that have made previous attempts unsuccessful (see Akdeniz for an overview on some of these issues). In response to the interest to keep children from viewing “obscene” materials over the Internet, the U.S. federal government passed the Communications Decency Act in 1996. It attempted to limit minor’s access to “patently offensive depictions of sexual or excretory activities,” and was ultimately struck down as infringing upon the 1st amendment protection of free speech. While this may seem far adrift from the case at hand, the same barriers to passing such an act also make protecting third-party potential harms difficult. Namely, the problem can be located in the global nature of the Internet and the inability to define terms such as “indecency” or “harm” from one jurisdiction to another.

First it is important to an understanding of this issue to realize that in the U.S., states are responsible for investigating suspected child abuse. In a U.S. Department of Health and Human Services statement on how to report suspected abuse it clearly states: “Federal agencies have no authority to intervene in individual child abuse and neglect cases. Each State has jurisdiction over these matters, and has specific laws and procedures for reporting and investigating.” (U.S.D.H.& H.S.) One response to situations such as the one I encountered on TSO is that the individual should report suspected abuse to state officials and let them investigate. In the course of investigation, a state could perhaps compel companies, such as EA, to hand over material pertinent to their investigation. There are a number of problems with this solution. While all 50 states have some sort of legal criteria established mandating certain people to report suspected cases of child abuse (Smith), there exists virtually no criteria that I can discern for handling communications that report abuse that is likely occurring in another jurisdiction and came through on-line channels. Many states lack resources to pursue cases within their own jurisdiction, let alone those that very probably do not fall within their jurisdiction. Having said this, for those that prefer states handle such investigations, it could be noted that a number of states do devote police resources to investigating reports of child pornography or on-line “predatory crimes.” Maybe something akin to that system could devote resources to these reports.

Yet, the impetus for such state investigations often comes directly from their own residents who have come across exploitive websites or who fear children they know personally are in danger. This makes the situation in these cases different from the Alphaville case above because here the allegation is coming from an individual whose basis for suspecting abuse to a third party is the individual’s participation in an on-line game. The parent company (e.g., EA) is the only one who is holding and has access to the possibly relevant information, and they don’t seem inclined to divulge that information to civil authorities unless compelled to do so. How else may they be forced to do so?

What may be called for here is a higher authority to go to: a second-level entity that requires on-line companies to channel reports of suspected abuse to them for examination. While this would be an immense task, it does not seem impossible and it has been suggested for policing interactions between the Internet and the real world. Walker suggests “In the current stage of modern, or post-modern society, one can expect a trend towards ‘governance’ rather than the ‘government’, in which the role of the nation state is not exclusive but may need further sustenance by the activation of more varied levels of power at second hand” (see Reidenberg for further illumination of ‘governance’ vs. ‘government’). I propose that something like this, an entity that would require on-line games to funnel reports they receive of suspected abuse towards them, may be appropriate for helping to stop child abuse and third-party harms that are disclosed on their sites.

I want to believe that everyone in society takes this issue seriously. Third party harms that may involve children are especially distressing, not only because children are so vulnerable and unable to fend for their own interests but also because such abuse may have lasting profound individual and societal effects. (Hopper) Although, I’m disturbed by my sleepless nights over issues such as these, I think we should all be far more disturbed when those sleepless nights go away; that is, when indifference replaces a sickening gut reaction to stories like the one with which I found myself confronted in Alphaville.

Maybe that is the point of my article here. What disturbs me more than EA’s policy per se (no different perhaps from many other privacy policies) is their failure to respond in any way to my inquiry into their rationale and their actions involving reports of possible third-party harms from game players. Perhaps the responsibility to report potential abuse of third parties in real life does not and should not lie with these companies. Yet, these companies are the only ones that possess the information that could lead to stopping potential third-party abuse, as in the case above. If they aren’t willing to even engage in a dialogue on this issue then I don’t know what to make of their silence. I can only view their silence as indifference until they notify me otherwise and suggest to me that they do share in society’s real interest in protecting potential third-party real life harm from occurring when they may be in a position to do so. I challenge them to show some interest in the issue presented here. “Challenge Everything”? Indeed.

References:
Akdeniz, Yaman. “Governance of Pornography and Child Pornography on the Global Internet: A Multi-Layered Approach.” in Edwards, L. and Waelde, C, eds, Law and the Internet: Regulating Cyberspace, Hart Publishing, 1997, 223-241.

EA.com Privacy Policy, http://www.ea.com/global/legal/privacy.jsp

Hopper, Jim, PhD., “Child Abuse: Statistics, Research, and Resources,” http://www.jimhopper.com/abstats/

Reidenberg, J.R., “Governing Networks and Cyberspace Rule-Making” (1996) Emory Law Journal 45

Smith, Susan K., Attorney at Law, Hartfort & Avon, CT, “Mandatory Reporting of Child Abuse and Neglect” http://www.smithlawfirm.com/mandatory_reporting.htm

U.S. Department of Health and Human Services, “How to Report Suspected Child Abuse and Neglect,” http://www.acf.dhhs.gov/programs/cb/publications/rpt_abu.htm

Walker, Clive, “Cyber-Contempt: Fair Trials and the Internet” (1997) Yearbook of Media and Entertainment Law