The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I'm blogging excerpts this week and next week from Mark Lemley's and my new article, "Law, Virtual Reality, and Augmented Reality" (click on the link to see the whole article, including footnotes). This post is from the criminal law part.
One general assumption we make throughout: VR and AR technology (think something like Google Glass) will get better, cheaper and more effective at rendering lifelike human avatars that track the user's facial expressions. I think that's a safe assumption, given the general trends in computer technology and one that doesn't require any major technological breakthroughs; but we are indeed prognosticating about technology that's likely at least a couple of years out.
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Technological self-protection options, if properly designed, can do more than just make it unnecessary for police to intervene—such options can make possible a broader diversity of VR and AR environments from which users can choose. Indeed, they can make it possible to have a broader diversity of experience within the same environment.
Consider the indecent exposure hypothetical. Some people may like being in an environment where some of the avatars they see are naked, or where they themselves come across as naked. They might be consciously seeking titillation. But they may also want realism, for instance if they are engaged in VR tourism to a place (or time) where women go topless.
Or they may want fantasy, if they want to visit a fictional world where nudity taboos are absent (or are different), or where mythical but part-human creatures (think satyrs or centaurs) are normally nude. Or they may be nudists, who feel more comfortable coming across as naked, and being around other people who do the same.
Leaving the policing of nudity taboos to each VR environment—or perhaps to each user in a VR environment—can increase people's options. Some people will go to the nudist environments; others will go to nonnudist ones.
But beyond that, if the technologically enabled self-protection measures are available, different users will be able to have different experiences in the same VR environment. Those who like casual nudity can see nudists' avatars as nude. Those who dislike it can see the same avatars as clothed. So even if you need to be in a particular VR environment (for instance, because your job so requires), you can experience that environment without the nudity.
To be sure, some people may have moral objections even to voluntary nudity; consider the public nudity laws that ban nudity even in strip clubs. But we think these objections should not be particularly strong. Even if bans on consensual public nudity are constitutionally permissible, we doubt that they are good policy; it's better, we think, to live and let live on such matters, leaving people free to choose from a diverse range of environments. That is even more true when the environment itself is one you can choose whether or not to participate in.
The de facto toleration of nearly all online pornography throughout the U.S., even of pornography that is likely theoretically punishable as obscenity, supports our view. At least on the Internet, the Sexual Revolution is over, and sex won: Where the sex is entirely online, without bricks-and-mortar stores that are seen as potentially attracting bad elements, it is generally tolerated. And if the toleration stems from difficulty of enforcement as much as from thoroughgoing acceptance, that would apply at least as much in VR as well.
The strobe example likewise shows the value of technologically enabled self-help. Some people like strobe lighting, for aesthetic reasons. It's also a good way of getting people's attention for things like alarms, especially for the hard of hearing. And epilepsy can be triggered by other near-strobe effects that are likewise valuable for aesthetics or for verisimilitude. Giving people an option to decide whether to block strobe effects will maximize the number of possible virtual environment designs, while maximizing the virtual environments' accessibility to the small minority that suffers from epilepsy as well as the majority that doesn't.
Finally, though more controversially, diversity of options may be relevant even for virtual groping. Most people, we believe, wouldn't like being virtually groped by people they just met online. But people's preferences when it comes to sexual (and sexualish) matters are notoriously diverse, and often unexpected to those who don't share the preferences. And that is especially so when the sexual behavior is relatively low-risk: not sex in the absence of clearly communicated consent; not even physical groping in the absence of clearly communicated consent; but the visual perception of gestures that appear similar to what physical groping would look like in the real world.
Some people, for instance, might find such attempts to be more akin to flirting than to assault, and find the possibility of such attempts to be welcome, even if they rebuff individual instances of the attempts. Indeed, there might be VR spaces where people go in order to meet prospective sexual partners (whether for in-person sex or for the VR equivalent of phone sex) in which such behavior is part of the courtship ritual.
Likewise, there might be VR games in which this behavior is allowed. This could be for verisimilitude: If you're playing a game set at the Bristol docks in 1750, you might want rude behavior, and the reactions to the behavior, to be part of the gameplay. Or it could be for titillation: We can imagine that some people might fantasize about rough or nonconsensual sex and enjoy the fantasy even though they wouldn't enjoy the physical experience; a VR version may provide those people with the right combination of realism and fantasy.
Of course, most people, like Belamire, won't want to be groped. But that's the point: There is a diversity of sexual preferences. VR offers the possibility that people can control their environment and consent to only what they want.