The University of Chicago Law School Faculty Blog

Debate: LIV (Legal Intervention in Virtual Worlds)

Having predicted that law will follow activity (and complaints) into the virtual worlds, let me now respond to Orin Kerr and look for obvious places where even some libertarians might favor intervention, criminal and otherwise. Most of us think that fraud ought to generate government intervention, so what about fraud in the virtual world? I understand that when one cheats when playing poker or in calling fouls on the basketball court, the normal remedy is social disapproval and, eventually, removal from the game. Occasionally, the fraud is so severe that law comes into play because the fraud has so affected one's out-of-game wealth or physical safety.

Isn't all this likely to be true when one "plays" or lives part-time in virtual worlds? If A deletes much of B's existence in the virtual world, or A manipulates B in that world to such a degree that B's real world health and safety are at issue, why should criminal law be thought out of bounds? I think Orin's argument (we will find out shortly) might be that there will be too much of a chill on participation, but that is something we can take into account with our remedies; it is rarely if ever something that causes us to promise that there will be no criminal law intervention. I can be held accountable for things I do and say in a church (despite the chill problem), such as fraudulently inducing marriage or charitable contributions. I can be accountable for things I do and say in a classroom. And the same is true for the basketball court and for many other settings that might have been set aside as safe havens.

It is part of the growing pains of a field, I think, for early settlers to wish that it be kept pure and clear of outsiders. But it is inevitable that the logic and interest groups, good and bad, that brought about legal intervention in the old worlds will bring about similar intervention in the new.

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.

Loyalty Oaths and Un-Americanism

Last week, the State of California avoided a possible constitutional confrontation over its requirement that all public employees sign an oath affirming that they will “support and defend” the United States and California Constitutions “against all enemies, foreign and domestic.”

A mathematics teacher named Marianne Kearney-Brown, who is a Quaker and a pacifist, declined to sign the loyalty oath because it might later be construed as committing her to take up arms to defend the nation, which would violate her religious beliefs. The State finessed the situation by agreeing that the oath would not be interpreted in that manner.

But the real question is why California requires public employees to sign an anachronistic and relatively meaningless loyalty oath at all. Certainly, a truly disloyal employee poses risks to the government. She might (if she were doing something other than teaching remedial math) disclose secret information to an enemy; destroy important government files; make decisions intended to harm the public interest; and recruit other employees to engage in subversive activities. But just how does a loyalty oath guard against such dangers? After all, anyone who is truly disloyal will simply take the oath falsely. No dangerous subversive will be deterred by the requirement of an oath.

Legal Intervention in Virtual Worlds (Blog Debate: Levmore on Kerr)

My reaction to Orin's interesting piece on keeping criminal law out of the virtual world(s) is largely pragmatic and positivist. Any area of activity that generates outcries (as will Second Life and other planets in the virtual world when they become more populated and when some inhabitants resort to hate speech, and other offenses to majoritarian sentiments) will generate regulation over libertarian objections. We can think of the virtual world as following on the heels of the securities markets, religions, and universities. In each of these domains a good case could have been (and often was) made that government-as-we-know-it ought to stay out and allow the internal rules of the domain to regulate its voluntary inhabitants. But in each of these areas, as more citizens opted in to these worlds, there was less of a sense that they had agreed to prevailing rules, more of a sense that those in control could misbehave and fail to regulate themselves appropriately and, eventually, occasional or (in the case of securities markets) frequent intervention and regulation by law, including criminal law, followed.

Next Week: Debate on the Legal Regulation of Virtual Worlds

How should the law respond to the growing importance of virtual worlds?  In this essay, forthcoming in the University of Chicago Legal Forum, Professor Orin Kerr of Volokh Conspiracy considers how criminal law does and should apply to conduct in virtual worlds. The first part argues that existing laws regulate virtual worlds with little or no regard to the virtual reality they foster. Criminal law tends to follow the physical rather than the virtual: it looks to what a person does rather than what the victim virtually perceives. This dynamic greatly narrows the role of criminal law in virtual worlds. The second part concludes that legislatures should not enact new criminal laws to account for the new social harms that may occur in virtual worlds.  Virtual harms are better regulated by game administrators than federal or state criminal laws.  Internal virtual harms should trigger internal virtual remedies. It is only when harms go outside the game that the criminal law should try to punish and deter wrongs not redressable elsewhere.

Dean Saul Levmore and Orin will debate Orin’s paper next week on the Faculty Blog. We hope you'll join in the conversation!