Privacy Rights for Computer Users, Blog 2

Entering cyberspace means entering someplace different, inhabited not by real people, but our “virtual selves. At this very moment, millions of people face a computer screen, doing nothing but living in a virtual world as an “avatar.”  In virtual worlds, one can find buildings, schools, parks, museums, shops, and people from all over the world. Residents of virtual worlds, or avatars, maintain jobs, own homes, run businesses, go shopping, attend school, and even go to church, all in the virtual world. As the use of these identities is consistent, avatars can accumulate wealth, power, and a reputation throughout the virtual community. Furthermore, while players invest both time and money in their virtual persona, they grow attached to it and see it as a reflection and even an important part of their physical, offline “selves.”

Can one protect the “right to be let alone” in a communal environment that thrives by bringing people together? That is, can one avatar assert invasion of privacy against a virtual resident in real court? At this point, it does not seem like it would be realistic to think that you could do so. It would be hard to control the actions of specific individuals in the virtual world. In some virtual worlds such as Second Life, users have unlimited freedom to program devices that allow one avatar to eavesdrop or spy on the other. In the real world that would be considered a violation of someone’s privacy rights. There are currently no real laws or norms on the books that govern the virtual world when it comes to privacy rights. Since people aren’t face to face then they don’t have to abide by the same norms that they would in the real world. People change their personalities and appearances when they become a part of the virtual world.

Privacy disputes in the virtual world come in various forms which include concerns that arise from a breach in the crucial connection between the virtual world and the physical world and concerns that do not involve the flow of information between the physical and virtual worlds, but exclusively pertain to the collection, analysis, and use of personal information within the virtual realm. Common law privacy recognizes “a man’s house as his castle.” But in the virtual world, where a man’s home often is a castle, privacy protections are trivial at best. There, neighbors can get just as noisy as in the real world, but without all the physical boundaries. Moreover, virtual world residents have full freedom to write any program they choose, producing a myriad of “data collection tools” that facilitate invasions of privacy. With such virtual spyware, avatars will inevitably assert invasion of privacy claims. Courts will have to determine how virtual worlds implicate each element of the tort. The Problem with that is that it will be difficult to apply the objective “highly offensive” and “reasonable expectation of privacy” to the elements of the virtual worlds. It would be difficult to define the reasonable person standard. How would you decide who the reasonable person is, especially when people are dragons, tigers, or warriors?

Today we describe the reasonable person as “a representative of the normal standard of community behavior, who embodies the general level of moral judgment of the community. The problem with that is that we need to establish the method of determining which community norms would dictate the reasonable avatar standard. But even with a reasonable avatar standard, the prospects for intrusion claims in the virtual world are narrow. The reasonable avatar standard is indeterminate in virtual worlds where the community norms are not established clearly. Virtual worlds proffer a “magic circle” of fantasy life which would be pierced by the application of privacy law. Where community norms uphold protection of the “magic circle” of fantasy, the reasonable avatar may not find intrusions actionable. Moreover, if community norms view the virtual world as more than a fantasy game, then the reasonable avatar might find privacy intrusions legally actionable. Community norms of the virtual world need to be clear for the reasonable avatar standard to be applicable. As people move their lives online, courts should recognize that rights move with them by articulating a reasonable expectation of online privacy. There are many problems that need to be overcome before we can set laws for privacy in the virtual world, but setting laws for the virtual world should be the end result.

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~ by demetreastewart on October 29, 2009.

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