January 12, 1994

Access Rights -- All Power to the Sysop?

By: David R. Johnson


        If we are to have law in cyberspace, surely the sysops 
(the System Operators -- those who control the on/off switch or 
exercise wizardly powers to grant or revoke passwords) will be 
the ones who enforce it.  Whatever rules exist in any particular 
online venue, the easiest means of enforcement will be banishment 
of the offending user, seizure of the unlawful file, zapping of 
the offending message.  Sysops are the Sheriffs of the modern 
electronic communications domain.

        Sensing the power of sysops, and uneasy about it, some 
mere users have raised the question whether, under some 
circumstances at least, they might have something in the nature 
of a right to access their favorite online area. Not a privilege, 
granted by the almighty sysop. A right. Not even a contract right,
defeatable by the small print reservation of power. A right to be 
treated reasonably. And they have some good examples to put 
forward in defense of such a right. Surely, they note, a sysop 
should not be entitled to disconnect someone who has come to 
depend heavily on a particular e-mail address, or who has 
established a commercially or personally valuable presence in a 
particular online discussion group, on the basis of nothing more 
than a whim or merely in response to some trivial offense. Even 
if the user agreement reserves to the sysop the right to delete 
messages and people deemed "not appropriate", there must be an 
implied duty not to act arbitrarily, these rebellious users 
assert.

        The trouble is, of course, that one person's 
arbitrariness is another's exquisite aesthetic judgment. If we 
are to build a varied cyberspace, rich with diverse places 
reflecting the tastes of myriad sysops, then we must tolerate 
arbitrary decisions. Any centrally imposed limits will surely 
create a bland, featureless landscape and squeeze out our very 
freedoms.  Would you rather trust your sysop or Senator Helms to 
tell you what you can and cannot post on the net?

        Maybe an answer, of sorts, is found in the approach taken 
by the law to the similar (and partially implicated) dilemma's 
posed by the subject Senator Helms cares so much about: 
pornography.  When lines may seem arbitrary, the law looks to 
"community standards" -- and it could do the same in creating a 
limit on arbitrary actions by sysops. Of course the "community" 
in question would have to be defined to be the online community. 
But because it is so used to interacting, that community could 
make its standards (of fairness) know with great accuracy.

        The protection afforded by a possible uprising of 
community sentiment in response to arbitrary action by sysops is, 
of course, not quite of the same stature as a "right".  It 
doesn't guarantee you an online home if you make enemies.  Then
again, no one really can or should have an absolute right to be a 
part of a community -- not, at least, when there are a large 
number of alternative communities to choose from.  We can hope 
that competition and diversity, fostered by the lack of any 
stronger external regulation of the exercise of arbitrary sysop 
judgments, will in fact create lots of different places and, 
therefore, that almost all of us will find somewhere to belong 
online.

        When the King of England sensed in the twelfth century 
that his citizens might not trust his sheriffs to behave fairly, 
he offered treble damages to anyone who could come to the King's 
court and demonstrate that the Sheriff had acted without 
authority.  Until there is a sovereign of cyberspace, the people 
will have to take matters in their own hands.  There is now no 
law that requires sysops to be fair or reasonable -- if they 
effectively disclaim (or avoid undertaking) any such obligation 
in their contracts. Some enlightened sysops will create 
mechanisms by means of which users can participate in making rules
and overseeing their enforcement. Will those sysops prosper in 
preference to others who act less accountably?  Will the 
existence of checks on arbitrary exercises of raw power help to 
keep other, external, regulators at bay?  Only time (online) will 
tell.