(c) 2010 Brian D. Wassom. This article was originally published in the Winter 2011 issue of SideBAR, the newsletter of the Federal Bar Association's Litigation Section.
Over the past decade, there has been no shortage of articles, CLEs, and speeches in legal circles about the implications of “virtual reality.” Many an academic hand has been wrung over the rules that govern control of the bits of data that translate into “objects” and “real estate” in online environments. To date, however, the vast majority of attorneys have safely managed to go about their business without needing to give a second thought to the question of who owns what in Second Life.
That is about to change. No longer content to remain on two-dimensional computer screens, virtual objects and other digital data have begun a mass migration into the “real” world. The buzzword for this phenomenon is “augmented reality”—digital data superimposed on the physical world—and it is poised to take our everyday lives, and the laws that govern them, by storm.
The AR Revolution
First-generation augmented reality, or “AR,” has been around for some time. Think of the yellow first down line that has become a staple in NFL broadcasts. The players don’t see the line, of course, but those equipped with special viewing devices—in this case, televisions—see it as if it were right there on the field.
Over the past year, more creative uses of the technology have emerged. Scores of print advertisements and greeting cards feature special, barcode-like codes that, when held up to a computer webcam, reveal a virtual object on the user’s monitor. In some stores, customers can hold a box of Legos up to a webcam and see a virtual representation of the fully-assembled toy.
Mobile applications are where the real growth in AR is happening today. Hold a video-equipped smartphone up to the nighttime horizon, for example, and Google Sky will connect the dots of constellations and tell you their names. Stand in front of a restaurant, and Yelp will display consumer reviews as if they were floating in space in front of the door. Other programs like Tagwhat and TwittARound will show you user-generated content floating in the place from which they were posted. Work is underway on facial recognition programs that will display a person’s Facebook profile in a bubble over their head. And in some cities, you can already get directions to the nearest subway station not on a 2-D map, but in a 3-D yellow line that appears on your videophone’s screen as if it were painted on the sidewalk you’re standing on.
Such features are useful up to a point—specifically, the point where users’ arms get tired of holding their video phones out in front of them. Mobile AR will truly take off when individuals can see virtual data not on a screen, but through video-enabled glasses that superimpose data on the lenses. Think this is mere science fiction? It’s not—at least, not for long. Prototypes of such devices already exist. In all likelihood, these will become mainstream devices in much less time than it took for the cell phone to go from a hefty automotive accessory to an indispensable, pocket-sized gateway to a global computer network.
Meanwhile, the number of objects fitted with location-aware sensors, RFID tags and the like grows every day. Combine this explosion of interactive capability with an always-on means of viewing virtual data, and you have the ingredients for a fully customizable, completely immersive augmented reality.
How might laws, and the ways we apply them, need to adapt to a world where AR is omnipresent? It may be too soon to know the answers, but framing the right questions is the first step. Let’s consider just a few aspects of life—and litigation—that may be affected.
- Advertising and Unfair Competition.
In a fully immersive AR world, advertisements will float in midair, untethered to billboards, or appear as if digitally painted on physical objects. What boundaries must such content observe? Courts today are still wrestling with what to do when search engines display a competitor’s ads next to search results for a brand name. But what if a Burger King ad appeared in your field of vision every time you physically looked at the Golden Arches?
The pressure for time, place, and manner regulation of advertising would surely increase in a world where ads could literally appear anytime, anywhere. But where would the lines be drawn? And how much restriction would the First Amendment allow?
Owners of copyrights control the right to publicly display, publicly perform, reproduce, distribute, and make derivatives of their works. Yet uses by others that “transform” the work in a new, noncompetitive (and, usually, noncommercial) way are generally considered “fair.” Where does that line get drawn when inanimate content gets adapted into something physically interactive—such as an interactive avatar of a famous fictional character? What if that creation is only viewable to an individual user, in a personal “layer” of data that only he can perceive? In a sense, it’s the Napster, Grokster, and RIAA cases all over again, except this time the users can walk amongst their downloads rather than storing them on hard drives.
- Intentional Torts.
When virtual data can be instantly associated with facial recognition software, all sorts of new avenues for defamation, disclosure of embarrassing facts, and even infliction of emotional distress open up. And if a person encounters a threatening person or thing that she doesn’t realize is virtual, can she have a reasonable apprehension of harm, and therefore be assaulted? If so, who is liable? What about AR graffiti—could it be considered a nuisance, property damage, or trespass to chattels?
The term “attractive nuisance” could take on an entirely new meaning in an immersive AR world. And it seems only a matter of time before a plaintiff alleges that his injury was caused by AR content impairing his view of the physical world, or by an AR ad that startled the plaintiff and caused him to swerve.
New technology will also bring new products liability allegations. How might devices that constantly beam data into our eyes affect our vision over the long-term?
- Privacy concerns will grow exponentially. There is already alarm over the amount of data that governments and corporations collect on us. But what if all of that information was aggregated and visible, not in a file folder somewhere, but superimposed on our houses, or even our very persons, for all the world to see merely by looking at it?
Less comprehensive invasions of privacy still raise serious concerns. An author writing in The Atlantic, for example, linked AR with the political polarization over California’s Proposition 8, the gay marriage ban. What if we could program our AR glasses to flag every person who voted for a law we don’t like—or who is a registered member of the opposite political party? In its recent Doe v. Reed decision, the Supreme Court held that States must disclose the names of those who sign political petitions. An app linking that data to particular individuals would be straightforward in an AR-immersed world.
Of course, glasses that superimpose data onto our vision would likely be equally capable of recording everything we see and hear, raising the obvious potential for eavesdropping and intrusion upon seclusion. Indeed, wearable video cameras are already on the market today. The Summer 2010 arrest (and exoneration) of Maryland resident Anthony Graber for “eavesdropping” on a policeman with his helmet-cam became emblematic of this hot-button issue. But as such devices become commonplace, how far will the breadth of our “reasonable expectations of privacy” diminish?
- The Courtroom Experience.
Why should tortfeasors have all the fun? As with previous iterations of digital technology, AR may transform not only the substance of litigation, but also the procedures that govern it.
Accident recreation, for example, becomes an entirely different tool when, instead of viewing a cartoonish, 2-D animation, jurors don AR glasses in the courtroom and are made to feel as if they are inside the doomed vehicle. Successive visual effects could be layered onto a witness as they sat in the courtroom, simulating injuries they received. Lawyers could physically manipulate for the jury all manner of virtual objects during their closing arguments.
But AR could also add to litigators’ burdens. It has not been long since the federal courts began to wrap their arms around the thorny issues inherent in preserving, producing, and reviewing electronic data. How much more complicated will this process become when the data is not only electronic, but virtual? In “v-discovery,” it will not be enough to produce digital imagery; the party will also need to demonstrate how that image was projected onto the physical world and perceived by one or more individuals, each from their own unique vantage point. That process could have attorneys longing for the “old days” when their biggest challenge was preserving the metadata in an email.
How AR will manifest itself and shape society is yet to be seen. But any technology that enables individuals to alter their very perception of reality cannot help but effect an equally radical impact on human behavior and social norms. We whose job it is to help our clients and the courts navigate these shifting paradigms would do well to pay attention as these events unfold.