[Shelved] An Act to Clarify the Delegates Authority on Suppression

[Dreadton]

8. The regional power of ejection, suppression, and/or banning may not be granted or exercised, nor forum bans imposed, unless expressly authorized pursuant to the Constitution or the Legal Code. Any ejected or banned nation is entitled to prompt judicial review of the matter.

11. Residents reasonably believed to have violated NationStates rules, or residents banned offsite by forum administration, may be subject to summary ejection, suppression, or banning.

No portion of this bill will take effect unless/until all portions take effect.

To address some concerns raise during the R4R on the Delegates authority to suppress post on the RMB and to clarify the standard to evaluate the Delegates authority to act on violations of Nationstate rules, I propose the following amendments to the Bill of Rights and Legal Code.

This bill adds suppression to the list of regional powers that must be authorized via the legal code. Since Section 7.2.7 already express that the communications authority can be granted as part of the government function, there is no substantive change. I added it to the Bill of Rights to give an equal weight consideration when evaluating a suppression for Nationstate rule violations and Freedom of Speech rights for future court cases.

The Legal Code changes establishes two things. First, it establishes the Reasonable standard for the use of regional powers. The court in Karina discussed the lack of standard for review in the use of Regional Powers. With this change the regional officers, citizens, court, and residents have a clear line in evaluating the use of suppression, ejections, and banning. Does a reasonable person believe that the person in which this power was used against in reasonable violation of Nationstate rules. The Second part adds suppression to the list of actions the Delegate takes. This allows suppression to be subjected to judicial review per section 7.3.19

I welcome questions on this bill.

I will add a markup once I have a moment to put it together.

8. The regional power of ejection, suppression, and/or banning may not be granted or exercised, nor forum bans imposed, unless expressly authorized pursuant to the Constitution or the Legal Code. Any ejected or banned nation is entitled to prompt judicial review of the matter.

11. Residents reasonably believed to have violated Violators of NationStates rules, or residents banned offsite by forum administration, may be subject to summary ejection, suppression, or banning.

No portion of this bill will take effect unless/until all portions take effect.

 

[St George]

You need an operative clause.

 

[Dreadton]

You need an operative clause.

Thanks i will correct that

 

[TlomzKrano]

Is this to only apply to the delegate? Or all those with moderation power over the RMB and/or Border Control powers.

 

[Pigeonstan]

The Second part adds suppression to the list of actions the Delegate takes. This allows suppression to be subjected to judicial review per section 7.3.19

When you say judicial review, do you mean, it can be objected to, and undone by judicial review, or that the jury can and will review it, without a request from the person being suspended, and be used for legal evidence, in edge cases. because I find it a bit odd to have a function where a victim of impression on the RMB will object, and request a judicial review. because by the time it is reviewed, there will be no change, and it potentially could be used as a weapon of spam to bog down the courts, I see it as far more likely that the judicial review will instead of seeking to undo the suppression will be used more so as a method of removing the legitimacy of the suppressor, via the courts declaring his/her actions illegitimate.

TLDR: how will judicial review happen, and more importantly, what will happen if a judicial review overturns a supression

 

[Dreadton]

Is this to only apply to the delegate? Or all those with moderation power over the RMB and/or Border Control powers.

With the wording on the bill of rights and the legal code, it applies to whomever has the regional power to suppress, ban, or eject.

When you say judicial review, do you mean, it can be objected to, and undone by judicial review, or that the jury can and will review it, without a request from the person being suspended, and be used for legal evidence, in edge cases. because I find it a bit odd to have a function where a victim of impression on the RMB will object, and request a judicial review. because by the time it is reviewed, there will be no change, and it potentially could be used as a weapon of spam to bog down the courts, I see it as far more likely that the judicial review will instead of seeking to undo the suppression will be used more so as a method of removing the legitimacy of the suppressor, via the courts declaring his/her actions illegitimate.

TLDR: how will judicial review happen, and more importantly, what will happen if a judicial review overturns a supression

The court is a reactive body. Just like with banjections, there must be a filing with the court before they will act. So the person being suppressed will need to file for the review. As to getting bogged down, the court is largely on standby and fully able to reject unsound complaints. As for what happens if the suppression is overturned, at min the post is unsuppressed, but depending on the circumstances, criminal charges can be filed. Not to mention the RAs authority to recall government officials

 

[Pigeonstan]

The court is a reactive body. Just like with banjections, there must be a filing with the court before they will act. So the person being suppressed will need to file for the review. As to getting bogged down, the court is largely on standby and fully able to reject unsound complaints. As for what happens if the suppression is overturned, at min the post is unsuppressed, but depending on the circumstances, criminal charges can be filed. Not to mention the RAs authority to recall government officials

Thank you

 

[Dreadton]

Are there further questions or feedback for this bill?

 

[Gorundu]

While the court did note the lack of a standard in reviewing whether someone has violated NationStates rules, I feel that whatever standard the court would come up with under the current wording of Clause 7.3.11 of the Legal Code would be higher or at least equal to the standard that this amendment would establish, and I would prefer the standard to be high. As for adding suppression to this clause, I consider it unnecessary since the power of suppression is already regulated in another clause.

I suppose the Bill of Rights amendment is fine, and while we're on that, I think the "nor forum bans imposed" part should be removed since it muddies the waters between IC and OOC.

 

[Zyvetskistaahn]

I have some questions about the principle of this bill. I know some of these we have discussed ourselves, but I would like to put them in the open for the Assembly.

Clause 17 of the Legal Code, as it is, allows for the Delegate to regulate the RMB and, as is plain from the Court’s recent ruling, this includes use of the suppression power. The Court was also quite clear in its view that that includes for violation of NationStates’ rules. So, is there really a need for a particular circumstance for the use of suppression to be defined, given that?

The second question is about the standard. This is something that the Court (including myself) ducked in reviewing Kirina’s ban (“whether it is a matter that the Court should come to its own judgment on or whether some area of discretion should be afforded to the Delegate. In this case, it is not necessary for the Court to decide those issues”) and I do support the Assembly trying to take some initiative to resolve this before the Court does. To some extent, the Court has added something to this but has avoided being categorical about it in this recent case (though it has come closer, in saying “If none of these rules are clearly violated […] and the Delegate and regional officers may be subject to judicial review”). That seems to suggest a relatively high standard (clear violation). I think there may also be something to merit a higher standard. One example might be around double posting, a certain amount of double posting could be considered RMB spam but what “certain amount” would justify suppression could change depending on if the standard was “The Delegate may suppress posts they suspect to violate NS rules” as against the higher “The Delegate may suppress posts they reasonably believe violate NS rules” or the even higher “The Delegate may suppress posts that clearly violate NS rules”. Perhaps under the first a single double post could warrant suppression, while under the second it might require a few over some hours, while the third might require several in close succession. Why the proposed standard over some other?

The third question is whether the second sentence of article 8 of the BoR should be amended also?

In relation to the issue of forum bans raised but Gorundu in the above post. I would be wholeheartedly opposed to any removal of that reference. Forum bans can and ought to be able to be imposed by way of judicial punishment and must be restricted to circumstances where expressly authorised by law. Moreover, while I appreciate popular sentiment has to some extent left me behind, I hold firm to the view that forum administration is ultimately a concern for the regional community and, therefore, this Assembly. We sanction forum bans by the Administration through our constitutional support for this choice of forum and support for the Administration’s judgements as to the terms of service and moderation policy (and I believe we are right to do so), but at the end of the day it is within the power of the community through this Assembly to choose otherwise and I do not accept that we should abdicate that.

I also have a couple of stylistic points. I don’t really like the use of “and/or” here, I appreciate it is present in the Legal Code but the BoR is currently mercifully free of it, does it really add anything to just using “or” here? In terms of ordering of the powers, I think it makes sense to keep ejection and banning next to each other, they are so linked in the game, rather than having suppression between them.

 

[Gorundu]

Forum bans can and ought to be able to be imposed by way of judicial punishment and must be restricted to circumstances where expressly authorised by law.

This is no longer reflected in reality. The forum administration carries out their power to ban through Article 7.2 of the Constitution, which allows them to enforce community policies that are separate from our laws. It is not imposed as a judicial punishment.

We sanction forum bans by the Administration through our constitutional support for this choice of forum and support for the Administration’s judgements as to the terms of service and moderation policy (and I believe we are right to do so), but at the end of the day it is within the power of the community through this Assembly to choose otherwise and I do not accept that we should abdicate that.

If we as a community were to choose otherwise, the law in question would not be Article 8 of the BoR, but as I've already pointed out, Article 7 of the Constitution.

I would also point out that including forum bans within the clause entitles nations to judicial review, something which is not possible given they concern administration policy rather than Assembly-made law.

 

[Zyvetskistaahn]

This is no longer reflected in reality. The forum administration carries out their power to ban through Article 7.2 of the Constitution, which allows them to enforce community policies that are separate from our laws. It is not imposed as a judicial punishment.

This is still the reality, as you will note if you consider the Penal Code. This Assembly has the right to impose forum bans by way of a judicial punishment and there are crimes that would warrant it. If it is the will of the Assembly to permit a nation to be sentenced to a forum ban for treason, as an example, that is not something that the Administration can or should be brought into determining, it is for this Assembly and the Court.

The board rules advert to the fact that bans can follow as judicial punishment ("Penalties issued due to a Gameplay IC court decision cannot be appealed to moderation. Any appeal must be submitted according to regional law and procedures, where possible."; "Confidential information that identifies individuals banned from the TNP forum for non-game-related reasons (i.e., those subject to an administrative ban, not a judicial ban for violating TNP law)") and, quite clearly and rightly, disclaim responsibility for such matters.

If we as a community were to choose otherwise, the law in question would not be Article 8 of the BoR, but as I've already pointed out, Article 7 of the Constitution.

I would also point out that including forum bans within the clause entitles nations to judicial review, something which is not possible given they concern administration policy rather than Assembly-made law.

The Bill of Rights article and the Constitution article operate in tandem: the Constitution's provision is an authorisation of forum bans.

The Bill of Rights article does not, however, entitle a nation to judicial review of administrative decisions, as the Court has long recognised, because such decisions are not laws, government policy or actions and administrative decisions have been constitutionally reserved to the Administration. What it entitles a nation to is review bans where they arise because of governmental decision. It is right that that is the case.

Were the Court, for example, to sentence a nation to a forum ban (as the law permits) and the Administration were to carry it out (as they ought to), the banned nation should be entitled to review of that sentence. There is no good reason to shield it from review merely because it is ultimately carried out by the Administration. Similarly, were the Delegate to claim as of right an entitlement to order the forum banning of nations that present a threat to regional security and the Administration were to carry out such (as they ought not), there would be no reason to shield it such a policy.

Yet, an unthinking policy of assuming that any and all action by the Administration, even where arising due to governmental decision, is deemed right and beyond the competence of the Court or this Assembly would shield those actions. We are fortunate to have an Administration in this region that is committed to our region's laws and democracy. However, not all regions have always been so fortunate and we should not be so lacking in caution as to assume that our region will ever remain so. The mere fact that the Court could not make the Administration lift a ban that was unlawfully imposed on governmental direction does not mean that the Court should be prevented from judging such an issue. The mere fact that we could not wrest control back of this forum were the Administration to decide to turn it over to a couping Delegate would not mean that the Assembly should pretend that it is merely "enforcement of moderation policy" and that there is nothing to be done.

I appreciate that most of these concerns are likely to only arise in extreme circumstances but I do not accept that means we should ignore them, nor do I see that there is any reason to think that any danger posed by the retention of the Bill of Rights provision is a real one. The provision has been present in the Bill of Rights since inception; I cannot speak to all that time but, thinking of the time I have been here, I cannot think of an occasion where the Court has stepped in to interfere with the Administration's judgement on some matter of the terms of service or board rules.

 

[Dreadton]

While the court did note the lack of a standard in reviewing whether someone has violated NationStates rules, I feel that whatever standard the court would come up with under the current wording of Clause 7.3.11 of the Legal Code would be higher or at least equal to the standard that this amendment would establish, and I would prefer the standard to be high. As for adding suppression to this clause, I consider it unnecessary since the power of suppression is already regulated in another clause.

I suppose the Bill of Rights amendment is fine, and while we're on that, I think the "nor forum bans imposed" part should be removed since it muddies the waters between IC and OOC.

The issue would be that whatever standard is currently imposed by the court is subjected to the whims of the next court when this pops up. The next court can determine that the standard was too low or too high. Establishing a standard agreed upon by the region provides a reliable foundation for the executive to act and know that they are in compliance with the law. The Reasonable standard gives the best latitude to operate. I would be willing to consider establishing a higher standard for banjecting, such a clear and convincing, but using the reasonable standard is the best for the power of suppression.

 

[Gorundu]

The issue would be that whatever standard is currently imposed by the court is subjected to the whims of the next court when this pops up. The next court can determine that the standard was too low or too high. Establishing a standard agreed upon by the region provides a reliable foundation for the executive to act and know that they are in compliance with the law. The Reasonable standard gives the best latitude to operate. I would be willing to consider establishing a higher standard for banjecting, such a clear and convincing, but using the reasonable standard is the best for the power of suppression.

The addition of suppression to this clause is redundant as I stated in my last post, and I believe Zyvet has also stated similar sentiments here. Clause 7.3.17 already grants broad powers of suppression (subject to limitations by the free speech clause of the Bill of Rights), so all this change does is copy a subset of these broad powers (the suppression of rule-breaking posts) into a different clause.

As for the standard to establish, I have had some more thought on the issue and what I realised is, whatever standard we establish, in the end it is still up to the Court to decide whether a specific situation meets that standard. Without any precedent to refer to, how is the Delegate supposed to know what counts as a "reasonable belief" that someone has violated NationStates rules? Going lawyering with words, I feel, is not going to make things any clearer for anyone. I'm open to being convinced otherwise, but at this point my concern is not so much with what standard, but rather how an abstract standard is going to help in practice. Ultimately, I think whoever performs the action is just going to rely on instinct, rather than asking themselves whether something meets the standard of a reasonable belief.

 

[Zyvetskistaahn]

As for the standard to establish, I have had some more thought on the issue and what I realised is, whatever standard we establish, in the end it is still up to the Court to decide whether a specific situation meets that standard. Without any precedent to refer to, how is the Delegate supposed to know what counts as a "reasonable belief" that someone has violated NationStates rules? Going lawyering with words, I feel, is not going to make things any clearer for anyone. I'm open to being convinced otherwise, but at this point my concern is not so much with what standard, but rather how an abstract standard is going to help in practice. Ultimately, I think whoever performs the action is just going to rely on instinct, rather than asking themselves whether something meets the standard of a reasonable belief.

In relation to the standard, the issue (to my mind) is more around the Court's approach than it is the approach of the Delegate. Presumably, the Delegate will form a view on whether or not something actually is contrary to the rules. If a request for review is then brought, there is a question about how the Court approaches that review. The Court could ask itself "did the X act contrary to the rules?" or it could ask itself "was it reasonable for the Delegate to think that x acted contrary to the rules?" (to take two approaches, though there could be others). There will be posts which reasonable people can disagree on whether they are contrary to the rules and, in that circumstance, the former approach requires the Court to decide which reasonable people are right whereas the latter does not.