Is There Any "There" There? (Blog Debate: Kerr on Levmore)
Saul's first post takes a strong view on an important preliminary question: When we ask how the law should regulate virtual worlds, is there any "there" there? I attended the very cool Legal Futures conference at Stanford this weekend, and a panel on virtual worlds revealed a very sharp split on this. Some people think this topic is extremely silly, because after all, we're just talking about dorks playing computer games. Other people think these issues will be among the most important cyberlaw issues of the 21st Century. I found myself somewhere in the middle, although I tend to think Saul is probably right. On one hand, I agree that these aren't important questions right now. On the other hand, computer technologies always evolve in the direction of becoming more realistic and more lifelike. That's going to draw in more and more people over time, especially lots of children. Where people go, the law tends to follow. If people want to regulate video games and sex toys, you can bet they'll want to regulate virtual worlds.
My paper focuses specifically on the role of criminal law in virtual worlds, and I think this context makes the case against government intervention easiest. Filing a lawsuit is as American as apple pie, but most people realize that trying to lock someone up is different (even if with our incarceration rate, a lot of people would say that's pretty American, too). Still, I think the role of criminal law in virtual worlds is likely to raise a number of difficult questions. For example, it's easy to agree in the abstract that criminal law should not regulate harms that are only virtual but should redress harms that seep out into the real world. But where exactly is the line? Virtual world participants are real people who suffer real unhappiness; the case for regulation will be that these real people are suffering real harms even if the harms seem to outsiders as only virtual.
Similarly, where will we draw the baseline of conduct and rights in virtual worlds -- in formal documents like Terms of Service or in social norms? This is a recurring problem in computer crime law, one that I addressed in depth in the case of unauthorized access statutes and that is a major theme of my casebook: Computer crimes are so new that we just haven't figured out what we're criminalizing. Legislatures tend to respond to pleas for new computer crime laws by passing overly broad laws and letting prosecutors exercise discretion to charge the right kind of cases. Sometimes, this works; the meaning of the laws evolve case by case, and new laws take on more certain meaning over time. But even when it works, it often leads to disturbing overcriminalization. I wrote this essay in part because I fear something similar might happen with virtual worlds: The sentiment that "there oughta be a law" can be a strong one, and it's very easy and politically popular for Congress to pass broad criminal laws that sit on the books underenforced.