Why we need 'meta jurisdiction' for the metaverse
As Meta, the multinational corporation formerly known as Facebook, and other technology companies prepare for their versions of the coming "metaverse," it would be wise to figure out ahead of time the rules to be applied inside these virtual worlds. Too often, technology companies innovate first and then figure out the ethical conundrums, regulatory challenges and governance fixes, when it can be too late. Terms of service from Big Tech do not often protect basic human rights.
The metaverse is envisioned as a version of the internet with three-dimensional virtual environments. Augmented by virtual reality headsets, the metaverse may support entertainment, shopping, education, communication and work environments in one seamless space. Because there would be no national boundaries in the metaverse, however, whose rules would apply? What laws concerning privacy, consumer product safety, labor standards and contracting would reign? How would gambling, for example, be proscribed? Where would commercial disputes and criminal prosecutions for illegal behavior be adjudicated?
Much of the discussion for such transnational initiatives in the modern era of globalization has centered around the contours of jurisdiction. While jurisdiction to enforce has been strictly territorial, jurisdiction to prescribe requires a "genuine connection." Classic international law has provided for six traditional bases of prescriptive jurisdiction: territorial, nationality (also known as active personality), passive personality, effects, protective and universal.
The most common form is territorial jurisdiction, which recognizes state jurisdiction for acts committed within the territorial borders of a state. As a result, states have exclusive authority to deal with criminal issues arising within the borders of their respective territories. Another common form of jurisdiction is based on the nationality principle, which recognizes state jurisdiction for any acts committed by the nationals of that state, even if they are done abroad. The passive personality principle recognizes state jurisdiction for any acts committed against a state's own nationals. In essence, this doctrine recognizes that a state can adopt laws that apply to the conduct of foreign nationals who commit crimes against that state's nationals while that state's nationals are outside of the state's territory.
The effects doctrine has been developed historically by U.S. courts, most commonly in antitrust cases, and provides for jurisdiction over acts of foreign nationals committed abroad but having effects in the United States. Similarly, the protective principle allows a state to assert jurisdiction over a person whose conduct outside its territorial boundaries threatens the national security of the state or interferes with the operation of that state's governmental or regulatory functions.
But the form of jurisdiction most relevant to the metaverse may be universal jurisdiction, which recognizes state jurisdiction over certain crimes even when there is no relationship with the perpetrator or the victim. A state can implement criminal laws that apply to conduct undertaken by any person anywhere in the world when that conduct is recognized by states as being destructive of the international order. Recognized for such crimes as genocide, piracy, slavery, torture and war crimes, universal jurisdiction is not limited to prosecution for crimes. States also recognize that international law may apply to non-criminal legal matters such as providing tort remedies for victims of human rights violations. In these cases, human rights violators are deemed hosti humani generis - enemies of all humankind.
This principle of universal jurisdiction could be a starting point for a discussion of the laws that should apply to the metaverse. There should be a list of peremptory norms from which no derogation - by any state, international organization, corporation or participant in the metaverse - should be permitted. By rolling these norms into the user agreement to be part of the metaverse, the architects and operators of these new virtual worlds could help ensure that bad deeds would be punished. But by whom? The police and other public security officials, coupled with traditional judicial adjudicators of each state, inevitably would be brought in to enforce the rules, a legal infrastructure that ends up reinforcing state sovereignty rather than empowering a more global, transnational approach to solving problems and punishing wrongdoers.
If the metaverse is to unleash the full potential of the internet, it should not be stymied by nefarious actors, Big Tech, or self-interested states exercising digital realpolitik. Nor should the metaverse be bound by traditional notions of jurisdiction. Instead, we need "meta jurisdiction" for global rules that could be enforced by many stakeholders, not just states. Technologists, nongovernmental organizations and lawyers need to work shoulder to shoulder, all donning their headsets.
By insisting that the founding tenets of the metaverse be centered around basic human rights, sustainable environmental protection and equitable labor standards, we can build a decentralized virtual world that brings out the best of humanity.
James Cooper is professor of law and director of international legal studies at California Western School of Law in San Diego and a fellow at Singapore University of Social Sciences.. He advises blockchain companies and has led legal reform projects in Latin America.
