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.