A Little Legalese
When is a private platform a government platform?
Written by Malashaan
On Friday, United Vietussia requested an advisory opinion on whether communications platforms of organizations are subject to the Administration Act and, in particular, whether the Chief Administrator must have administrator access to such platforms. This request was motivated by Attorney General Prim asserting that HEM, as Chief Administrator, must have administrator access to YES's discord server.
United Vietussia argued in his request that platforms established by organizations are not governmental platforms, relying primarily on the definition of organizations as "non-governmental" in the Organizations Act. He also noted that the Administration Act only requires that HEM has administrative access to platforms "created, curated, or used by the government of Europeia. Attorney General Prim, intervening in the proceedings, countered that the Administration Act defines a Europeian Communications Platform as "any online platform, other than the forum, intended for communication between Europeian citizens or residents." Thus, because party members are Europeian citizens, a party discord is subject to the requirements of the Administration Act, and HEM must have administrative access. Izzy, making a submission as an interested party in his role as executive head of the Europeian Cosmopolitan Party, made various observations including that organizations may include non-citizens and distancing the ECP's discord server from the Europeian government.
One issue for the Court is whether the statement that organizations are non-governmental entities is sufficient to overcome the plain text of the Administration Act. The probable answer is that it is not. The statement that an organization is non-governmental is not in the Administration Act. The Court is likely to require a more explicit intent for the Organizations Act to impact the Administration Act for the plain text interpretation of that act to be overcome. Furthermore, the statements in the two acts are not fundamentally inconsistent. An organization can be non-governmental while its discord server may be provided by the government. Interpreting the two acts in this way remains true to the plain text of each, and is thus the most likely conclusion for the Court.
United Vietussia's second argument, that an organization's private discord server is not "created, curated, or used by the government of Europeia," appears to be stronger. Taken alone, it is clear how that clause can be taken exclude discord servers set up by organizations from the requirements of the Administration Act. However, that interpretation becomes problematic when considering the Act as a whole. The next two clauses specify that any platform intended for communication between Europeians is a Europeian Communications Platform, of which there are only two types: governmental and communal. The YES server clearly meets the definition of a Europeian Communications Platform. It is hard to conceive of a purpose for the server other than "communication between Europeian citizens or residents." Therefore, it must be either a communal or governmental platform. Either choice is problematic. If the server is communal, it must have include a public area accessible to all Europeians and HEM has absolute discretion over the distribution of administrator and moderator privileges according to section AB3(3) of the Administration Act. If it is governmental, the First Minister and Chief of State gain the power to appoint administrators under section AB3(2), which has clear political ramifications. In either case, the Administration Bureau has the power to prescribe platform rules under section MO3.
However, none of this directly addresses whether HEM must have access to the YES server. For governmental servers, the ability of the Chief of State and First Minister to appoint administrators would appear to meet the requirements of section AB1 that such a platform is curated by the government of Europeia. Thus, HEM would be required by law to have access. The situation is less clear but for communal servers. However, based on the requirements of the law, it is hard to conclude that HEM should not have access. It would be essentially impossible for him to perform his legally mandated role without such access. For example, how could HEM appoint other administrators and moderators with having administrative access himself? Theoretically, he could direct another person to assign the necessary permissions, but the overall more reasonable reading would seem to be that the act assumes HEM has administrator access to all communal platforms.
There are also reasons why the Court may look beyond the two acts cited. The Charter of Rights gives all citizens the right to freedom of assembly and association. These rights are subject only to reasonable limitations prescribed by law that can be demonstrably justified in a free and democratic society. Thus, there is a question as to whether requiring HEM to have administrator access is an unreasonable limitation on these rights. The likely answer is no. It is relatively trivial to provide HEM the required level of access, and absent any reason to believe giving him access would significantly harm the organization, it is hard to see how this could be deemed unreasonable. As noted by the Attorney General in his submissions, administrator access is provided for in law as a safety measure, so it would take a significant counterbalance to render providing that access unreasonable. However, the other requirements of the Administration Act for communal and governmental platforms are more problematic, and may be a violation of the Charter of Rights as applied to the YES server.
Another difficult question for the Court, at least with regard to the general principle, is how far do the requirements of the Administration Act extend? Plausibly, a server with thousands of members, only two of whom are Europeians, has a purpose (among many others) of being "for communication between Europeian citizens or residents" and is arguably covered. Clearly, such an interpretation is impractical. Izzy's submissions touch on this in arguing that organization's platforms can also include non-citizens. One solution is to read the requirement as meaning a platform is only covered if it is intended to provide communication between Europeians as Europeians. In contrast, if two or more citizens happen to be in a server, but the server is not intended to provide communication between them as Europeians, it's not covered. Such a reading is consistent with the text and intent of the Administration Act and provides a reasonable standard that can be practically applied. There remains a gray area between those extremes (e.g., where a server contains numerous Europeians discussing the region but also a few non-Europeians discussing other matters), but those cases can be resolved on a case-by-case basis on the specific facts presented.
In sum, it is difficult to precisely draw the line between what is covered by the Administration Act and what is not, and the current Act appears to present problems for private platforms established for organizations, regardless of how it is construed. This is an issue the newly elected Senate should pick up independently of the Court's conclusions in its advisory opinion.
The underlying issue is whether platforms such as the YES server should be subject to the regulations laid out in the Administration act at all. When the Administration Act was written, one of its goals was to prevent fragmentation of Europeian discourse and encourage the addition of new areas to existing platforms, rather than the creation of new platforms. Similarly, the latest version of the Organizations Act was implemented to enable all organizations to have private discussion areas on existing platforms, in theory removing the need for each to create its own platforms. However, the current law is crafted round an assumption that organizations will operate within the established platforms and processes for creating new ones. What this case illustrates is that is not the current reality, and the law needs to be updated to account for that cearly and appropriately.
It is important in considering this issue to draw a distinction between the Government and the Administration Team. The former is an in-character, inherently political entity, that people should rightly be concerned if it had unfettered access to private communications channels. As the Attorney General rightly notes, the latter its an out-of-character entity primarily tasked with protecting player safety. We have learned from past experience that it is vital for effectively performing that role that there are not large group interactions occurring outside of its ability to monitor. That's not to say that there is anything suspicious about YES, there is not, but the law is designed to treat all groups equally in this regard to ensure that the Administration Team is as well-positioned as possible to draft problems when they arise. Any updates to law should follow this same principle.