Who Owns the Digital You?
By Michael Nygard, Tue Jun 19 00:00:00 GMT 2001

Spammer! So I was judged. The punishment? Execution by deletion.

Of course, I didn't find out about my termination right away. My first clue that some game was afoot came when I could not log in to my Hotmail account.

I'd been using Hotmail as a "permanent" email address for about three years (since before it was acquired by Microsoft.) Hotmail kept me in touch with friends and coworkers across jobs and cities. It was the only digital identity I had that stayed with me. Suddenly one evening, my old friend rebuffed my attempts to log in.

At first, I just assumed that Microsoft was trying to move Hotmail from Solaris to NT servers again. After three weeks and six rounds of email with the customer service team, I found out that I had been terminated for violating the Terms of Service.

According to Microsoft, I am a spammer. For an Internet old-timer like me who predates the Web, them's fightin' words .

I still remember when spam just meant commercial postings to Usenet. Back then, even the lowest bottom-feeder wouldn't send it through email. Nevertheless, Microsoft heard my accuser, judged the evidence, and rendered the verdict. Whatever evidence they had, I never saw it. In fact, I never saw the accusation to begin with. My entire trial, judgment, and sentencing had occurred before I even knew about it.

And that was it. It was a digital execution. My identity was gone. No appeal. Not even a last meal.

When a real person dies, their property is handled according to a very complicated set of laws. These estate laws evolved over many centuries. Now, I'm not about to argue that we should translate the existing laws directly. (Who would be the next of kin for my Hotmail account? My Yahoo account?) Instead, we need to consider how to dispose of that stored property. Common sense would indicate that it should be returned to its owner.

But who is the owner, anyway?

My address book is a database of names and addresses. In the U.S., databases have been established as property. They can be copyrighted, even when their contents cannot. The act of collating the database causes the database as a whole to be a copyrightable work. That means that I would own the database.

The Hotmail terms of service, on the other hand, stipulate that I automatically assign Hotmail an irrevocable, non-exclusive, worldwide license to my copyrights. By the way, a similar clause was recently removed from Passport's terms of service.

So what happened to that database when I was terminated? Was it deleted? Were the addresses referred to Microsoft's sales department? Were they flagged as acquaintances of a known spammer? The entire estate of the deceased persona was impounded by the State for disposition as they saw fit.

Of course, an email address book is not really all that valuable. It can be recreated relatively easily. The lost email itself was difficult to replace, especially since I don't know exactly what was lost. Bear with me; this is not just a tempest in a teacup, nor am I indulging in petty bitterness.

A storm brewing

The upcoming Hailstorm initiative has gathered a lot of press recently. As the cornerstone of Microsoft's future Web services initiative, it deserves careful scrutiny. A recent article described Hailstorm as "authentication-centric." That is to say, Hailstorm will be a centralized point of authentication for an open network of services.

Hailstorm will be the authority, the oracle of identity, the arbiter of self. If Hailstorm says you exist, you can get to your email. Your local sports scores. Your weather forecast. Your bank account. Your retirement savings. It's like someone decided that awful Sandra Bullock movie "The Net" seemed like a pretty good idea.

So what happens when Hailstorm decides you don't exist anymore? Under every terms of service agreement written today, the service provider can do whatever they want with your property. They are not obliged to return it or reimburse you.

The only binding agreement between you and the service provider is the terms of service. Contract law within some jurisdiction governs the terms of service (Passport selects the State of Washington, U.S.A., but it could use any jurisdiction in which the company does business. Name a jurisdiction in which Microsoft does no business!). This produces the unusual situation wherein a commercial entity can take actions that strip a person of property. Most countries deny their own governments the power to confiscate property without due process, yet here is a civilian entity endowed with such power.

It should be clear that this is not a tenable situation. No doubt, the company's authority to confiscate property will be challenged in court. Now, I don't know about you, but I'd rather bet on horse racing than the outcome of a court decision. The odds are better at the track.

I contend that having this end up in the courts would be bad for Microsoft and for users anyway. Any court that decides a case about confiscated property of digital identities can only act within its own jurisdiction. Even if that court is the Supreme Court of the United States, that still represents a limited jurisdiction. Hailstorm could be exposed to a stew of regulations and court decisions from dozens of jurisdictions. Just like with taxes, obscenity laws, and so on, this is another case where a geographic system (courts) intersects with a non-geographic system.

What is the alternative? Microsoft needs to create a judicial system to hear and try cases. It needs an appellate court, rules of evidence, and a legal code. It needs judges that do not have "technical support" in their titles.

Hey, why not set up a court system? After all, Hailstorm will be exercising capital punishment, which is a right traditionally reserved to Kings and Sovereign States. It will be building infrastructure (roads) and keeping the highways safe for travelers. It will issue passports, control its borders, license businesses, and levy taxes.

Hailstorm could well end up being the first completely digital kingdom.

Michael recently joined in founding Halley's Fifth, L.L.C., a Twin Cities consulting and services firm after serving in business and technology leadership roles for more than ten years. In that time, Michael has declared himself an ally of truth, order, and clarity. He believes strongly that quality demands elegance, that doing things right can be faster, and that "later" always comes sooner than you think.