Tuesday, November 02, 2010

Brains in Vats, Violent Video Games, and Mind/Body Dualism

By Mike Dorf

Update: I was talking about regulation of the virtual reality of the future on NPR's Marketplace yesterday.

At least since Plato's Republic offered the allegory of the cave, philosophers (and others) have pondered the questions of whether and if so, how, we can know that the world we perceive through our sense data corresponds with the world as it exists.  (Rorty's Philosophy and the Mirror of Nature argues that the very question is misguided, but there is an obvious common sense to the question, so I shall simply put aside his argument.)  In one version of the puzzle, the question is framed thus: How do you know that you are not simply a brain in a vat, with neurochemical events inside your brain creating a simulation of an external world very different from your actual, vat-like, surroundings?  In a typical version of this scenario, an evil genius has put you in this position, but the supposition that the genius is evil seems to me to beg some important questions about what our preferences should be for authentic experiences and what counts as an authentic experience.

I won't quite say that the brain-in-a-vat issue is exactly raised in the Supreme Court case of Schwarzenegger v. EMA, to be argued today.  But it is at least implicated.

My latest FindLaw column previews the argument, which presents two questions: 1) Whether there is a categorical exception to free speech protection for violent video games sold to children? and 2) If not, who bears the burden of proof on the question of harm to minors?  I then go on to develop an inquiry that I first put forth in this blog post when cert was granted in the case: Are "actions" that occur in virtual reality--such as shooting a virtual gun--expressive at all, or should they be regulable to the same extent as actions in the real world?  The core example I use in both the original blog post and in the column compares a hypothetical law banning the sale of toy guns to minors to a law banning minors from participating in virtual murders in a very realistic virtual reality.

As I acknowledge in the earlier post and in the column, technology does not yet present this question.  I also note in the column, however, that it may not be that far away, and that just as the internet has posed challenges for such areas of the law as jurisdiction, torts, and taxation, so technological advances in virtual reality will pose challenges for the First Amendment and other areas of the law.  Here I'll add that the challenges posed by virtual reality seem to me to be potentially much more novel than those posed by the interconnectivity of the internet.

Thus far, most of the challenges to existing law posed by the internet are matters of degree rather than kind.  The core problem is that regulation typically emanates from geographically-based jurisdictions; yet the internet permits people who are located in different places to interact with one another.  Whose law governs their contracts and torts?  What jurisdiction gets to tax their transactions?  Are sales of "clothing" in SecondLife taxable where the designer or the purchaser resides?  These are all interesting questions but they do not much differ from the sorts of questions that were raised by earlier technologies--such as railroads, cars, the telegraph, and the telephone--that permitted people to interact at a distance.

But virtual reality is at least potentially different in kind because it unsettles some very basic legal concepts.  For example, suppose that A's avatar commits a battery against B's avatar.  In a virtual world in which human players don't feel avatar's pain, that's not a tort or crime.  But in an extraordinarily  realistic simulation of reality, "players" could feel what their avatars feel.  And even if they don't physically experience all of the sensations their avatars are supposedly experiencing, the whole point of the virtual reality will be for players to feel the emotions of their avatars.  Emotions, however, are also physical events; they occur inside the brains of players.  And once we realize that fact, it's hard to distinguish them from physical sensations--which are also experienced (mostly) in the brain (and other parts of the nervous system).

Thus, the contemplation of the legal regulation of virtual reality should help us to think about the law as it is today.  To my mind, our law still has a substantial way to go to escape from the grip of a mind/body dualism  that makes it easier to prove and recover for physical damages than to prove and recover for psychic damages, and otherwise tends to treat psychological harm as less "real" than physical harm.

One notable effort to escape such dualism is a 2007 article by Sam Bagenstoss and Margo Schlanger, in which they argue that because people with disabilities usually end up experiencing no less well-being than people without such disabilities (assuming reasonable accessibility), we should rethink the law on hedonic damages: Thus, someone who loses her legs in an accident should not be able to recover the value that non-disabled people place on having their legs because, it turns out, the loss is not nearly so great.  Bagenstoss has long championed disability rights, so the argument cannot simply be dismissed as callous, but I still find myself unpersuaded by their bottom line.

Nonetheless, I applaud the effort to reorient legal thinking away from a preference for the physical and towards treating mental states as the primary concern (recognizing that even that way of referring to the matter presupposes dualist premises).  As virtual reality becomes more real, the need for such efforts will become more pressing.


Paul Scott said...

1. " with neurochemical events inside your brain creating a simulation of an external world very different from your actual, vat-like, surroundings?"

That would make an awesome movie trilogy, unless of course the ending was executed poorly. Still, you should pitch it.

2. Has anyone considered the pointlessness of these regulations? What can California really do if I own a corporation in [Island Nation X] with servers for such a game. So they can ban the direct sales of the game on physical media in game stores located in California.

That is just not how most things are done these days. there is some minor convenience offered by the initial xGB installation, but for most games you will be patching immediately - even if you bought it on the day of release. All of these game are purchasable in a download only format and activated by a key that is emailed to you.

A lot, if not most, of the advertisement for games is also online, in the margins and posts of the various online message boards that cater to online gaming.

The only thing success in this legal action will cause is for some companies, most of which are based in California, who are selling these sorts of game - mostly to minors - to leave California and possibly leave the US.

Paul Scott said...

BTW, as an aside, the only reason that players do not experience the pain of their avatars is choice, not technology. The area of physical feedback for in-game experiences has been available and used technology for at least a decade. Flight and Car Racing simulators are the main users, where force reactive game controllers are commonplace. Creating a USB device that delivered pain when an avatar was injured would be child's-play. Likewise, it would be equally easy, of course, to fashion a device that killed the player when the avatar was killed as well.

The main issue, from a technological standpoint, separating the virtual world from the real world, is visual simulation, not tactile.

Michael C. Dorf said...


Let me see whether I can tie the Matrix (which I discussed in the column and the earlier post) in to your point about choice and to my point about disability in this post.

We can imagine that unhappiness with one's lot in reality would be one reason for entering into an extremely realistic virtual reality, in which one experiences the physical pain (and perhaps even death) as well as emotional connection to, one's avatar. In the version I am imagining, one does not even realize one is interacting through an avatar--and experiencing pain would be necessary to the illusion.

In fictional portrayals of such scenarios, physical disability is often a motive for wanting to escape to the virtual reality: Think of Captain Pike in the Star Trek pilot or of the protagonist of Avatar. These storylines trade on the largely false view that persons with disabilities have much lower levels of wellbeing than persons who lack disabilities, and in that sense perpetuate destructive attitudes about disability. But physical disability need not be the driving force for entering the realistic virtual reality. Environmental and social conditions could be. Thus, were it not for the fact that the machines use the Matrix as a power source (preposterous plot flaw!), entering the Matrix would seem a quite rational way of escaping from the post-apocalyptic world to a better world.

Kilo said...

It seems that some distinctions from the world of gaming might inform this conversation. Some violent video games (arguably the most immersive ones) are purely single-player. The issue of damage to others is irrelevant in such games, and so any regulation seems to be about restricting the experiences we are permitted to have (presumably because of the negative effects on us those experiences are expected to cause).

A law specifically intended to prevent abuse of others via violent video games would do well to include some understanding of the phenomenon of cheating and "griefing". The difference between these activities and the normal violence which occurs in such games is that players may be presumed to have consented to risk of violent experiences other than those resulting from such cheating/griefing. The most salient comparison seems to be to an athlete who reasonably expects to suffer some harm during the game, and may even be assumed to consent to the risk of certain fouls, but who presumably does not give up the right to press charges for certain extremely unusual forms of assault even during the game.

Michael C. Dorf said...

Kilo: That's a useful clarification. I've been interested in these issues for a while. Tomorrow I'll post a civil procedure exam I gave a few years ago that involves "griefing" occurring in a multi-player context.

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