Jul 9, 2011

Google + and the Future of Avatar Identity

#SecondLife #GooglePlus | Your avatar is considered your legal identity?



Here's a bit of food for thought when it comes to the United States (and other countries) residents who choose to be known by their Avatar Name/Pseudonym, and something you may consider retweeting to get the word out:

http://en.wikipedia.org/wiki/Name_change


In the United States:
Several specific federal court rulings have set precedents regarding both court decreed name changes and common law name changes (changing your name "at will") for the United States.

One may be employed, do business, and enter into other contracts, and sue and be sued under any name they choose at will (Lindon v. First National Bank 10 F. 894, Coppage v. Kansas 236 U.S. 1, In re McUlta 189 F. 250).


Such a change carries exactly the same legal weight as a court-decreed name change as long as it is not done with fraudulent intent (In re McUlta 189 F. 250, Christianson v. King County 196 F. 791, United States v. McKay 2 F.2d 257).

Since persons who choose to use Google services, including Google+, under their Avatar Identities, which constitutes a Pseudonym and is thus protected and federally sanctioned within the United States as having the same legal weight as a court-decreed name change, any T.O.S. enacted by Google is an agreement with a legally standing Pseudonym and carries the same weight to legally be both acceptable and binding as the "true" name of the person involved.

In removing Virtual Environment identities from the Google+ service under "breach of TOS", Google as a company is likely breaking federal law in the United States. This also goes for Facebook, since any "legally binding" T.O.S. entered into agreement by an Avatar Identity holds the same weight legally as a Pseudonym and therefore that of using a real name as long as the intent to defraud does not exist.

Since Avatar Identity is not entered into consideration as "fraudulent" intent by default, and Google falls under the jurisdiction of the United States (as does Facebook), it is perfectly legal (at least to US Citizens) to use an Avatar Identity and it is expected that such can be treated with equality such as a real name would be. As for other countries in the world, I suggest you take a look at your local common law name changes statutes to see if these rules also apply to you, though from cursory reading it appears that similar, if not identical, laws are in place.

This is why Multiplicity of Identity must be embraced. This goes for Avatar Identity, Pseudonym or Real Name, as long as they are not used with an intent to defraud. There is no question about whether or not an Avatar Identity constitutes the same legal standing as a true name under any pretext other than with intent to defraud, or under well defined circumstances by which a true name may be required. However, a business such as Google or Facebook does not constitute such precedence to ignore pseudonyms and is not immune to the law nor has any precedence to violate it.

Since OpenSource Obscure (and other Avatar Identities) are/were used without the intent to defraud, but only make use as a legal pseudonym, violation of of the T.O.S. is non-existent and cannot be legally enforced or mandated - even by a private business such as Google or Facebook.

However, each Avatar Identity has a solid legal case against Google and even Facebook, and can be considered wrongful and illegal termination of services under false pretense. The only reason things stay the same is because nobody bothers to challenge the "corporate inspired" norms... when really, they should.

Actually, I think @Botgirlq said it best: “Wonder if the EFF might be interested?”

I bet you they probably would *love* to help out.

Sincerely,
Will Burns | Aeonix Aeon
aka: The guy that may have just started a class action lawsuit

PS: Now would be a good time to rethink your strategy, Google & Facebook

Find me On Google+

Find Me On Facebook

27 comments:

  1. I am furious at Google for introducing Google+ as the alternative to Facebook that respects an individual's privacy, then abandoning the privacy of online identity and forcing everyone to reveal their names. Or perhaps not furious, but hugely let down by their hype followed by this new "also ran" status that makes it useless to me. They are excluding whole categories of online individuals, sorted nicely into functional groups that make targeted advertizing actually easier.

    That said, and I am no lawyer, but I don't believe use of their services constitutes any form of contract. For their to be a contract, both parties must be given something, one receives something and the other receives some compensation for that good or service. If Google+ was a paid subscription service, it would be clear contract material. Since it does not, I don't believe contract law can be applied here. Even if it did, they write the ToS and they could claim that their acceptance of the contract was conditional on our acceptance of the ToS, and in not providing real names, we are the ones who have breached any contract if it were to apply here. Their remedy to the breach is to disable or delete the account. In fact, NOT terminating the account access might open them to further legal issues with respect to their decision to allow a user that was in breach of the terms to continue to have access; it may set a precedent that others could point to. But as I said, without any direct compensation from the users for the service, I don't believe contract law applies here.

    Bottom line here is that I believe the best chance at getting them to change this is to wake them up to how much better it is -- how *more* appropriated is -- for users to have separate accounts for each virtual identity or role they fill. That fits the Google model better anyway, and how there are millions of us who would use Google+ for our online identities long before we would ever use it under our real names. That will not happen for me, while I do fully intend to try to join as Jim Tarber, online identity. A second parallel approach would be to try to get the attention of the EFF who probably do know the answer to this (if it is well-defined in law) or have the lawyers to investigate and find a legal recourse.

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  2. @Jim

    Thanks for the comment!

    "For their to be a contract, both parties must be given something, one receives something and the other receives some compensation for that good or service"

    The user entering into the contract receives the services while Google receives compensation through targeted marketing revenue from the user's data and interactions, which constitute Google's majority revenue income.

    "Even if it did, they write the ToS and they could claim that their acceptance of the contract was conditional on our acceptance of the ToS, and in not providing real names, we are the ones who have breached any contract if it were to apply here."

    Take a look again - a pseudonym is legally considered a real name and: One may be employed, do business, and enter into other contracts, and sue and be sued under any name they choose at will

    In short, You can't tell Samuel Clemens that he can't have a social media profile under Mark Twain without opening the door to massive amounts of litigation and privacy violations against the user, of which no person is obligated to adhere to against their will.

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  3. I would love to find a way to convince, or to legally force, Google to change this privacy-hostile policy. The points you raised in the comment above are good debating points; I'm just not sure they are legal points that would result in a positive ruling. I would sure love to see it challenged though. The problem is that I believe the word "direct" is important in my comment "without any direct compensation from the users for the service, I don't believe contract law applies here." It's been a very long time since I studied contract law, and it was Canadian contract law, so all bets are off, but I guess I'm just not seeing such a definitive interpretation of the clause you quoted as you are.

    In terms of a pseudonym being a legal name, yes, I accept that a contract signed by a pseudonym is legal; but that is not at issue here. I am just not so clear that the converse is true: that the other participant is forced to *accept* a new contract signed by a pseudonym. Especially if they make it a term of the contract that they won't accept a pseudonym. And until accepted, there is no contract. These points are very fine legal points though, and I would love to see them raised and promoted by lawyers and applied where ever they could be. I'd love to see a basis for a challenge; I'm just doubtful that this is it.

    Even more, I'd love to see Google just wake up and realize it in a win-win to accept alternate account names. In fact, I wouldn't mind a checkbox on my profile "This is my legal birth name" that I would leave unchecked. My problem with Google's current policy is that if you don't check that (imaginary) box, they will disable your account.

    To comment on your last point, I think it would be legally acceptable for a book publishing company to refuse to sign an author who did not divulge his legal birth name, even Samuel Clemens. Until they sign, there is no contract for the clause above to apply to. That clause merely says that if they *do* sign with Sam Clemens, that is also a legal contract.

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  4. As far as I am aware, there was no such pretext between pseudonym or real name, only that the participant use the name that they are most known by. In either case, it doesn't matter, because in the light of law, a pseudonym is as valid and legal as the real name in this context and indistinguishable.

    The intentions of the post were not to bring lawsuits against the companies, though there is plenty of legal precedence to back it, but merely to once and for all draw a line in the sand and show that an avatar name is as legally binding and legitimate as a real name and should be treated as such.

    As for being forced to agree to a changed terms of contract after agreement, then this is exactly what is happening when they reject a pseudonym without prior pretext, or legality, and then threaten to suspend access to services (break the contract) unless they divulge information that they are neither legally required to do, nor should have to.

    Now, should somebody mount a hell of a case against Google and Facebook for these practices, which may be increasingly likely as this article continues to propagate outward, then so be it.

    The article was merely to set the stage and let people know that: yes, indeed, your avatar name is just as legally acceptable and binding as your real name, and that as such, constitutes an important part of your total identity.

    This could go one of three ways:

    1. Somebody mounts a legal battle the world has never seen against Google and Facebook.

    2. Both Google and Facebook realize that allowing Avatar identity, Pseudonyms, and Real Identity altogether or in part would quadruple zeitgeist data and possible revenues as if the world population had just quadrupled (multiple identities being tracked as separate people). This is a better solution because it essentially, and legally, multiplies the population of earth for their gain.

    3. Nothing happens, and companies continue to insist that you divulge increasingly more personal information without recourse, for their own personal gain.

    I'd like to see #2 happen, personally. However, as social media outlets continue to bite the millions of hands that literally feed it, #1 is more likely over time, and #3 is just the interim between.

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  5. I think #2 is the only way forward on this issue. Unfortunately Google thinks they've already solved the same problem with "Circles" -- or enough of the problem that they don't need to care about distinguishing between separate identities as long as they can track separate clusters of association. For some of us, this obviously misses the point, but to a first order approximation... well, it's smarter than Facebook, which they may estimate to be smart enough.

    There seems, however, to be some internal contradiction in Google's recent feature plays. We see this latest backsliding from the Profile police, but it wasn't that long ago that the "Switch Account" pulldown menu was introduced to most Google apps, including gmail and even Profiles itself. So which shall it be?

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  6. I had suggested to William that everyone with a Google+ profile should list their Second Life or other virtual identity names clearly on their "real" profile as "______ _______ in Second Life" and set profile details to "public." Google+ users could also list the same under their profile description.

    At the very least, these tactics will help create a greater awareness of the number of people who actually have "pseudonyms" of this sort. At most, it could link "Second Life" and other virtual world subscribers directly to Google+. Which is exactly what I believe they were hoping to avoid. Use the tools available through Google+ to make a public statement.

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  7. The problem with the ToS argument is: it doesn't make things legal. What a ToS does is cover their ass a bit more in court if a case does come up, but it doesn't mean they will necessarily win.

    A ToS can say anything. It can, for example, say that you will be their slave for the rest of your life, or that they don't have to serve you if you're a certain color or creed, etc....but that doesn't make it legal even if you do accept it, because some things are not legal for a corporation or anyone to do under the law, even if the other party accepts it.

    Now, most corporations write their ToS with certain language and within the laws of the land so as to avoid anything like this, and of course they wouldn't just enact slavery or whatever (those are extreme examples of course), but even small things they can try to make you accept aren't necessarily legal, or could easily be challenged in court. Most people don't know this, or even read a ToS, so they usually make them as draconian as they can so as to protect themselves.

    However, sometimes...just sometimes...people will call them on it and then they have to decide if it's worth the fight or not.

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  8. Dr. Leon James, University of Hawaii (skip to 0:55 - 1:08, in video)

    "In modern times, since we got computers, we use the term avatar to refer to our digital identity. So, an email address can be considered a simple form of avatar"

    http://www.youtube.com/watch?v=wDH-9gt5WJc

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  9. I hope that is all correct, I'd love to see them taken to task over this. There is another significant point that I overlooked too, which I believe you are bringing up above, and that is the convergence Google is forcing, and I wrote about here: http://jimrantsnraves.blogspot.com/2011/06/kitely-facebook-virtual-identies-and.html

    This convergence means it is very likely that Google software will encourage me to use the same account for Google+.

    The account I am submitting this comment with is a Google account that I have used for years. It is my "Jim" account, and Google has combined my YouTube, Blogger and other accounts into this virtual identity. It is a Google account. It *is* my identity on online services, and especially on Google. That identity and account predate Google+, therefore are outside the scope of any agreement. If they add a clause saying I cannot use that identity on Google+, then they lose the convergence of identities that they seem to seek to want to force with this policy. And it might be deemed as changing the agreement terms after both parties have accepted them and used them for years (prior to Google+).

    I don't think we will see your #2 scenario unless there are some deep thinkers in management positions there, or unless they see that the disparity of internal policies creates a chasm for existing Google users between their own services, and fixes that disparity between policies. I agree with you that we are most likely to see #3 with blind ignorance of the issues winning the day.

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  10. And see, identity is such a user-defined concept, that I got Twain and Clemens backwards. :) My comment above was written as if Clemens was his pen name. I meant that the clause merely says that if they *do* sign with Mark Twain, that is also a legal contract.

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  11. @Jim

    What the law essentially is saying is: When somebody asks for your real name, or insists on you using it, it is legal and appropriate that you may insist that the pseudonym *is* your real name and must be recognized as such in all but the most well defined circumstances.

    In agreements between yourself and private businesses, such does not fall within the scope of those well defined circumstances where you are legally required to use your birth name.

    Besides the point, Google also makes it clear elsewhere on its services that they support Anonymous, Pseudonymous and Authentic identities - which is the exact opposite of their current stance within Google+, which in turn contradicts both T.O.S. since all services are working together.

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  12. Re: "What the law essentially is saying is: When somebody asks for your real name, or insists on you using it, it is legal and appropriate that you may insist that the pseudonym *is* your real name and must be recognized as such in all but the most well defined circumstances."

    Most Excellent!

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  13. Google is a company that owns their software, servers, and everything in between. How could anyone be wishing that they could force someone (google) into allowing things on their property that they don't wish to be there. If you think this is ok, perhaps I will get together with some congress-critters and force them to let me live in your house.

    I say this because it is a property rights issue, nothing more. I do NOT support google for this decision, I hope they change it. If they dont, then don't use their services, get friends to follow, raise a stink and get google to voluntarily change their position.

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  14. @Nick

    It doesn't matter how big you are as a company. It doesn't matter what you own. It never gives you the right to break the law because of it, and deny people their basic lawful rights.

    This isn't a property rights issue, it's a legal identity issue and what constitutes a legal identity is clearly spelled out in law - and no amount of wording in a private company T.O.S. is going to change that law. Not even if Google or Facebook wrote the T.O.S.

    Plain and simple.

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  15. Simply because athe government recognizes aliases does not mean that everyone needs to. Go try and get a bank account in your second life name, or rent a car with an email address. These laws are not in place to provide you with freedom but rather to ensure that if you enter a contract with a false name that you must uphold your end.

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  16. That's neither for me nor you to decide. That's why there is a court of law, lawyers. In a world where people can sue McDonalds for not telling them the hot coffee they ordered was hot, or sue Windex for implicitly not telling them not to spray it in their eyes, I believe a more serious issue such as personal privacy and the right to it holds much more weight.

    That being said, whether you are for or against it doesn't matter, as this is not the intention. It is simply to raise a number of points concerning the future of identity, and at what point does a private company demanding you give that privacy up for their own monetary benefit cross the line.

    As for opening a bank account with a pseudonym, you haven't been to Florida, have you? Perfectly legal.

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  17. Perfectly legal to open a bank account as a pseudonym. its called a DBA

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  18. @Aeonix, thank you so much for posting this — it's refreshing to know that the world has not yet gone insane (even though some companies are!)

    @Summer, that is how contract law is interpreted in my country as well, and I always wondered how it was in the US. I'm really happy to know that it's not really different.

    So if I understand correctly, the only reason why companies in the US can get away with such blatant violations of the law is merely because they can afford a legal battle, while users, in general, cannot? (in the sense of having to support huge and long-lasting judicial costs and lawyer fees) To "win" we'd have to find some gentle lawyer (good suggestion about contacting the EFF! Maybe Mitch Kapor could put a nice word on our behalf with them?) willing to go pro bono in such a case and earn the glory and fame of establishing precedent?

    Note that such a lawyer would have to fight either Facebook or Google — and then have the precedent apply to the other one.

    It should be interesting to see what happens.

    EFF on Anonymity (they definitely won a few cases)

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  19. This is just one possible outcome that could happen as a result of continued ignorance of Multiplicity of Identity, being a legal challenge on a grand scale. However, I like to favor the more direct approach by simply sidestepping those companies altogether and taking away their power through competition.

    Please see my latest post:

    diaspora* | Why SecondLife may find their social media answer blowing in the wind

    http://cityofnidus.blogspot.com/2011/07/diaspora.html

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  20. @Aeonix, obviously you're right; we don't need Google or Facebook. I'm also not too happy about the idea of "pushing" Google to do what they don't want to; as you remark very correctly, it's not as if there aren't tons of other social environments around (and Linden Lab is creating their own, too — http://my-demo.secondlife.com).

    My issue is more about the quasi-monopoly that Google can effectively enforce. While at this stage they're "only" removing Google Profiles, and not deleting accounts, they might very well start removing the whole account in the future. When that happened to me with my Facebook account, it was not only the loss of my access to Facebook — I lost access to hundreds of sites that I subscribed using a Facebook account. So effectively Facebook can override the way I access other, third-party sites who are not affiliated with Facebook; many of those have not the same restrictions as Facebook's policies, and don't really care about the account in itself, but just wish to facilitate access to their sites.

    With Google accounts, at least for me personally, things are far more serious. Not only I'm subscribed to way more services (just thinking about all the blogs etc. I'm subscribed to — even this comment is being posted with my Google account!), but some of them are related to my meagre income from ads. What this means is that Google can effectively shut me out of all their services, cut down my revenue, and, worse than that, I might not have valid alternatives for those services (some are unique to Google).

    Now I'm obviously not an excellent example, since my actual income through Google is not really much — a few dozens of US$ per year. But it's the question of principle: we have effectively given Google the privilege of deciding who can use their services and who cannot, based on arbitrary demands. This is, in a word, discrimination.

    As I suggested elsewhere, what prevents Google from starting to discriminate on other characteristics as well? For instance, their ad customers might only be interested in people who actually shop online. Since Google also provides a shopping interface — Google Checkout — they could say that you were "forced" to regularly shop for a certain amount every month, or face profile deletion. And then their ad customers could "demand" that only specific types of users are allowed at all — e.g. wealthy online shoppers who are white Caucasians above a certain age and education level, and tell Google to shut everybody else out because they're "worthless" in terms of click rate and so forth.

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  21. You might claim that it's not reasonable to assume that this will happen, and I agree. But the principle at stake is that these companies are getting bolder and bolder in overriding basic civil rights. Once you start discriminating and ignoring one civil right, others can follow, one step at the time, making those companies bolder and bolder, and "justifying" their decisions as good business practice as "demanded by their customers" — and simply tell the ostracised group to "go elsewhere because there are alternatives".

    Diaspora is certainly interesting, but, say, they don't have a digital ID that is accepted as a valid login on over 80% of all sites (like Facebook and Google do). They don't run an affiliate network, or an ad network. They don't have shared documents, shared calendars, shared maps... and so forth. It's not as if it's impossible to do all things over time, and using different products, but what Google provides is a single sign-on solution that gives access to a plethora of services. Besides Facebook, you obviously also have Yahoo, and Microsoft (who provide almost the same services as Google does), but you can see how little MS Live Accounts are actually provided by most services world-wide: Facebook and Google accounts dominate that area, and the sites that use them for providing with account IDs don't even have a clue — or might even disagree — about Facebook's and Google's discriminative policies.

    So it's not about alternatives — there are alternatives. It's about a cartelisation, an oligopoly which is slowly emerging with a set of "rules" (ToS and similar documents) that allow these companies to say who has access to the Internet and who doesn't. I'm wildly exaggerating, of course, since a lot of services haven't got Facebook/Google accounts as "mandatory". Not yet. But as those services become more and more popular, and tend to grow to cover almost all users, this battle for defining who is entitled to a digital ID that works world-wide and who gets excluded is starting to show the shape of the future.

    Remember OpenID? It was also something de-centralised and planned to allow people to avoid being tied to discriminative policies when using a digital ID to sign up with lots of services. OpenID is being... sort of phased out, because so few use it, while the number of FB and Google accounts which provide pretty much the same service are growing all the time. Which is worrying — because they will decide who has access to all Internet in the near future. Not governments, not individuals.

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  22. Just remember - a monopoly is only enforceable when there are no other choices. Hence, I suggested diaspora

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  23. Diaspora is certainly interesting, but, say, they don't have a digital ID that is accepted as a valid login on over 80% of all sites (like Facebook and Google do). They don't run an affiliate network, or an ad network. They don't have shared documents, shared calendars, shared maps... and so forth. It's not as if it's impossible to do all things over time, and using different products, but what Google provides is a single sign-on solution that gives access to a plethora of services. Besides Facebook, you obviously also have Yahoo, and Microsoft (who provide almost the same services as Google does), but you can see how little MS Live Accounts are actually provided by most services world-wide: Facebook and Google accounts dominate that area, and the sites that use them for providing with account IDs don't even have a clue — or might even disagree — about Facebook's and Google's discriminative policies.

    So it's not about alternatives — there are alternatives. It's about a cartelisation, an oligopoly which is slowly emerging with a set of "rules" (ToS and similar documents) that allow these companies to say who has access to the Internet and who doesn't. I'm wildly exaggerating, of course, since a lot of services haven't got Facebook/Google accounts as "mandatory". Not yet. But as those services become more and more popular, and tend to grow to cover almost all users, this battle for defining who is entitled to a digital ID that works world-wide and who gets excluded is starting to show the shape of the future.

    Remember OpenID? It was also something de-centralised and planned to allow people to avoid being tied to discriminative policies when using a digital ID to sign up with lots of services. OpenID is being... sort of phased out, because so few use it, while the number of FB and Google accounts which provide pretty much the same service are growing all the time. Which is worrying — because they will decide who has access to all Internet in the near future. Not governments, not individuals.

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  24. First, thx for your blog - just really got onto it but it's fascinating and interesting!

    Great post. I am very glad to see this issue penetrating the awareness horizon of the "new generation." I myself am an Oldbie: I first logged onto the net in 1983.

    I am sad that so many who use the net extensively now do not know how the net ran before these corporations decided to embrace, extend and gradually extinguish the unique opportunities in communication the net was building.

    It is time for people to understand the difference between a communications platform and a one-way broadcast medium shoveling "sanctified" content.

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  25. @Aeonix; Hi! LinkedIn has made noises about sole "real" user names but does not seem to have blundered like Facebook and Google+ by dropping accounts and antagonizing their ad-reading user base. With the reactions to the revelations of NSF metadata mining, including negative publicity and formation of anonymity based social networks, there is even more hesitation on my part of allowing my real world information to be connected and registered and linked through all Google and Facebook and LinkedIn "services" who, after all, are paid by advertisers, who are in turn paid by we consumers.

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