Facebook, with over 1.3 billion active monthly users and its recent acquisition of the virtual reality headset company Oculus Rift, may become an enormous virtual world without precedent. I discussed this concept in an article eleven years ago concerning freedom of speech in online role-playing games such as World of Warcraft, when Facebook was still in its infancy. Although the controversy concerning freedom of speech in online games has died down over the past decade, Facebook’s censorship practices, together with its potential transformation into a mammoth virtual world, have reignited such concerns. The emergence of augmented reality (AR) glasses will aggravate the problem. Non-constitutional forms of law, such as the common law, will not adapt to this technology quickly enough. As a result, society will soon have to make a conceptual leap in constitutional values to avoid the permanent curtailment of its freedom of speech.
My 2004 article argues that virtual worlds, such as World of Warcraft and EverQuest, are equivalent to company towns for several reasons. Most importantly, the small minority of players who spend sixty to seventy hours per week there should be considered residents of those worlds. Therefore, the corporate owners of those worlds have effectively stepped into the shoes of the state. As a result, the owners should be required to recognize the constitutional rights, such as freedom of speech, of the world’s residents and visitors. The notion that a person can be said to “live” in a virtual world may seem counterintuitive at first, yet, it is certainly not any more so than the long-established legal fiction that a bodiless corporation is “domiciled” in the real world.
Consequently, the 2004 article urges the courts to recognize the right to freedom of speech in virtual worlds. Their decisions now will create the legal precedents for the next iteration of those worlds: a corporately owned virtual Earth in which most of us will spend the majority of our waking hours socializing, shopping, working, and doing business.
In the eleven years since the article was published, there has been only one U.S. court decision on freedom of speech in virtual worlds. The case, which was a First Amendment claim heard by a federal court in California, involved a plaintiff who had been banned from Sony’s PlayStation Network due to the objectionable content of his messages. With very sparse reasoning, the court simply declared that “there is no indication that Sony has assumed functions traditionally reserved to the government, or that the government had any part in encouraging Sony to create the Network.” This decision creates a problematic precedent since it takes a very narrow view of the company town principle in the context of First Amendment rights in virtual worlds. This lower court decision, however, is not definitive. Federal courts have occasionally considered arguments based on state constitutions, yet the plaintiff did not rely on the California State Constitution which has been interpreted by the courts to allow freedom of speech in certain public areas of shopping malls. This leaves open the possibility for a plaintiff in California, where many virtual world developers have their head office, to successfully argue in a future case that virtual worlds that contain vendors of virtual goods are equivalent to shopping malls for freedom of speech purposes.
The 2004 article made a number of predictions about future technological developments. In particular, the article predicted that MMORPG’s are the leading edge of a coming virtual world that will eventually supersede the current structure of the Internet, providing a world-wide three-dimensional immersive platform in which we will shop, play, socialize, travel and work.
Some components of this prediction have begun to play out while others still admittedly lag. Both Google Earth and Microsoft’s Bing Maps have established the corporately owned three-dimensional virtual Earth, yet these have so far fallen short of the article’s vision of an all-encompassing Matrix-esque virtual environment. Facebook, while it is regularly used by almost 20 percent of the world’s entire population, is neither completely three dimensional nor do we use it continuously during our waking hours.
An omnipresent, always-on three-dimensional virtual world is nonetheless coming. Exponential advances of technology in the last ten years are currently on the cusp of making AR glasses widely available to the ordinary consumer. Google Glass, introduced in limited release in 2013, was the first foray into this field, and, as of early 2015, Microsoft currently has in beta a product that it calls “HoloLens.” This product will overlay an extensive selection of three-dimensional, virtual hologram-like images onto the field of vision of the user so that those images will appear to be physical objects fully integrated with the user’s perception of the real world. This technology will, in turn, be connected both to the “Internet of things” (pervasive computing) and to converged infrastructure (cloud computing). Given our ubiquitous and pernicious addiction to the smart phone, it is likely that these new AR environments will fulfill the 2004 article’s prediction, since we will be viewing reality through these devices during most, if not all, of the hours when we are awake.
The question thus arises as to whether it is now too late to avoid a dystopian legal result where freedom of speech rights are concerned. To examine this concern, I turn to Joshua Fairfield’s excellent 2012 article, “Mixed Reality: How the Laws of Virtual Worlds Govern Everyday Life.” Fairfield provides an insightful and comprehensive analysis of the dangers of applying intellectual property regimes to AR, which he refers to as “mixed reality,” insofar as contract law (end-user licensing agreements), tort law (cyberdefamation), property law (cybersquatting), and privacy law are concerned. He does not deal, however, with freedom of speech, other than acknowledging that it is a significant issue that needs further exploration. Insights from my 2004 article can, in light of currently emerging technologies, fill this gap in Fairfield’s otherwise comprehensive analysis.
Fairfield argues that the use of intellectual property laws to govern virtual disputes such as cybersquatting (buying domain names that use the names of existing businesses and potentially selling them later for a profit) has tended to favor corporate control at the expense of protecting individuals. The subordination of the interests of “real” rights holders, real people and owners of physical property to those of “virtual” rights owners, the owners of intellectual property, will exacerbate this problem. To illustrate the issue, he provides an example of a disgruntled person who digitally spray paints an obscene word onto his neighbor’s house, which appears in the AR devices of users who walk by it. The best remedy in such a case, Fairfield argues, would be to apply the traditional laws of property and trespass rather than to argue that the disgruntled neighbor has violated the end-user licensing agreement (EULA) of the creator of the AR application. This argument seems to be the preferable option at least for expression that would clearly not be constitutionally protected as speech if it occurred purely in the real world, given the one-sided quality of most EULAs, combined with the service provider immunity under §230 of the Communications Decency Act.
Consider a different example, however, where the speech act, such as wearing a T-shirt with a controversial political slogan, occurs in the real world and is constitutionally protected but the AR developer decides to ban, blur, or filter it out. The AR developer’s action certainly cannot be characterized as damage to a real item of personal property and there is currently considerable disagreement over whether there is any such thing in law as an item of virtual property. Furthermore, where the speech occurs on public property, such as a sidewalk, the common law analogy to trespass would not be available. Although one could conceivably take off or turn off one’s glasses when faced with a blurred out image, this solution may not be practicable in a busy location when the encounter with the message is brief, e.g. the slogan on a T-shirt or an advertisement on the side of a vehicle, or if the blurring out is done with sufficient sophistication to make the user of the device unaware that there had been any message there at all. These issues demonstrate the inability of current legal traditions to fully cope with the new technology.
Fairfield, along with other virtual world scholars such as Gregory Lastowka, is of the view that the common law is sufficiently versatile to adapt to technological changes. However, the common law has evolved slowly and by small increments and thus lags significantly behind comparatively rapid technological developments. By the time a new technology is well established, the old legal precedents have already been used to set the standards for it, by which time it is extremely difficult to overcome the hurdle of stare decisis. By contrast, the re-contextualization of constitutional values resembles, borrowing Lawrence Lessig’s comparison, the game Frogger in which the player has to leap across a series of logs rapidly flowing down a river. If the leap in constitutional values is properly timed, then the change can be an effective and relatively prompt response to technological progress. If the leap is not properly timed, then the constitutional moment will be forever lost and another reference from the frenetic popular culture of the early 1980s may come to mind: a tear in the rain in Roy Batty’s soliloquy in Bladerunner.
The title of this brief piece refers to the “holo-ing out of the individual,” a reflection of the “hollowing out of the state” metaphor used by transnational legal scholars such as Fred Aman. Aman considered the two-pronged attack on state sovereignty from above, by supranational laws, and from below, by extensive privatization and the loss of the state’s ability to govern its citizens. The development and widespread proliferation of always-on, wearable AR will result in a parallel evisceration of the autonomy of the individual. The overarching attack emanating universally from Cloud computing and the undermining aspect coming locally from the chips embedded in the “Internet of things” combine to threaten freedom of speech.
Consider a scenario in which you are walking on the sidewalk and see a billboard for a fashion designer with a photo of a scantily clad, overly thin model wearing a fur hat. You have purchased an app for your AR glasses, which uses GPS location finders to overlay satiric paintings by the guerilla artist Banksy onto objectionable advertisements, of which this billboard is an example. You can also use the app to create your own unique personal mash-ups of Banksy paintings, which you can share with other AR users so that they can overlay your mash-ups onto the billboard. However, the owner of the billboard has installed radio frequency identification (RFID) chips into it and onto the nearby buildings which not only have the effect of disabling the app but also, as a deterrent, when they detect the app, they vividly project numerous holograms from the Cloud into the user’s AR glasses depicting the same model marching down a runway at a fashion show. The billboard owner pays an “outdoor advertising protection fee” to the developers of the AR glasses to ensure that this system works seamlessly. Most people would agree the Banksy AR app is essentially different from Fairfield’s example of the disgruntled person who digitally spray paints obscene graffiti onto his neighbor’s house in that the Banksy art provides a poignant form of social commentary, whereas the neighbor’s graffiti is merely virtual defacement that is not a form of protected speech. If so, then why should you be forced to accept the technological countermeasures that the billboard owner has put in place, which involve a two-pronged attack by the Internet of things and cloud computing?
In this example, the billboard owner together with the AR developer, in addition to relying on the EULA, would likely seek to apply the virtual analogs of the common law concepts of damage to property and trespass to justify making the Banksy app useless. In this way, the common law is still susceptible to regressive use when faced with technological innovation. Poignant social commentary could be degraded to the level of common graffiti.
Society can, however, avoid this dystopian result by seizing the constitutional moment. The courts should recognize that the developers of always-on AR will be creating and governing an immersive three-dimensional amalgam of the real and virtual worlds. Users of AR could then be considered residents of that composite world for purposes of determining their right to freedom of speech. Seizing this constitutional moment will ensure that we can continue to be entertained by images of cats while at the same time having our consciousness raised by provocative Banksy creations.