The Eye: that horrible growing sense of a hostile will that strove with great power to pierce all shadows of cloud, and earth, and flesh, and to see you: to pin you under its deadly gaze, naked, immovable.

Introduction

Suppose that you move to a new town. To buy your home, you must allow the developer to install cameras in each room and record all interactions between you and your husband. To use the telephone, you must permit the telephone company to record and retain your conversations. To receive mail, you must allow the mail carrier to copy and index the contents. To access funds, you must permit the bank to record all purchases. Suppose, too, that much of this information can become available to government actors with a simple subpoena rather than the more stringent search warrant. It may sound incredible, but this is the reality for millions of people who live, work, and play in virtual worlds.

The essential irony of virtual worlds is that populations seeking to build new lives away from the public eye are moving into an environment that is subject to constant surveillance. Virtual worlds currently operate like Jeremy Bentham’s Panopticon prison. The Panopticon permitted a single guard in the center of the prison to monitor all of the prisoners. The same degree of surveillance exists in virtual worlds. The denizens of virtual worlds are constantly under surveillance by “game gods,” the private companies that design, maintain, and administer virtual worlds. The game gods then must comply with government requests for call details, wiretaps, stored chatlogs, and other business records. The result: game gods’ cameras are on all the time and the footage reaches law enforcement and the intelligence community.

I argue in this brief essay that as government enters virtual worlds it should respect basic privacy rights. For intelligence and law enforcement purposes, this most importantly includes the question of when government actors can and should access a U.S. person’s private communications. Further, I argue that private collection of personal information in virtual worlds is as much of a threat to privacy as government surveillance.

Reasonable Expectations of Privacy in Virtual Worlds

The basic legal regime for privacy prevents the intelligence community and law enforcement from accessing a U.S. person’s private communications without a warrant supported by probable cause. The constitutional standard is one of a reasonable expectation of privacy,butcourts have had some trouble hammering out what constitutes a reasonable expectation of privacy online. The main point of contention is whether reasonable expectations of privacy are determined by what the government can collect or by what it ought to collect.The government can collect anything. So if the government refuses to respect privacy, then any expectation of privacy is unreasonable. The alternative is for courtsto make a normative determination: when citizens reasonably act as though their communications are private, courts must select rules that honor those expectations, even if government possesses the technology to access the information. Under this normative approach, the fact that government can wiretap telephones or see through bedroom walls with thermographic cameras does not reduce the expectations of privacy of U.S. persons in bed or on the phone.

In some ways, determining rational expectations of privacy in virtual worlds is easier than determining expectations of privacy over telephone lines, because computer technology allows virtual re-creation of real space. Virtual worlds recreate streets and bedrooms. In the real world, most street-corner conversations are public, and most bedroom conversations are private. Virtual world technology isintentionally designed to make humans act as though the virtual world is, at least in some respects, real. Thus, as a normative matter, when corporations choose to use technology intended to entice humans into acting as though they were safe in their own homes, or privately communicating with friends, the law ought to respect those expectations as it does in real life. I therefore argue that U.S. persons in virtual worlds possess a reasonable expectation of privacy, such that a search of their virtual homes and property should be subject to the warrant requirement of the Fourth Amendment.

Protecting U.S. Persons’ Personal Information in Virtual Worlds

Government surveillance is only half of the problem. The other half is the untrammeled private collection of data. Companies collect information about consumers to maximize profit or to gain business advantage.Unfortunately, companies often lose control of the enormous amounts of information they have gathered, which threatens U.S. persons’ privacy. Congress has already begun to act in response to the threat of massive collection of U.S. persons’ data by companies that do not carefully protect that data.

But the more people live out their lives in virtual worlds, the more information can be data mined. Not only economic information like credit card numbers can be recorded in virtual worlds. The false anonymity of novel online environments has caused people to move their intimate lives online, where every act can be monitored. Eventually, every movement, every gesture in virtual worlds will be tracked and processed by private companies. The government should take the lead in protecting consumer privacy from private invasion by extending enforcement of law on data leaks to virtual worlds, by enforcing existing law requiring informed consent prior to the collection of personal information, and by enacting new law creating property rights in personal information so that consumers will have adequate control if they decide to sell their information.

Conclusion

As people move their lives online, courts should recognize that rights move with them by articulating a reasonable expectation of online privacy. Rights to privacy do not stop at the gateway to virtual worlds. And the fact that surveillance in virtual worlds can be ubiquitous does not indicate that it should be. There is a serious danger that courts will determine that every aspect of a person’s virtual life can be collected by private companies and passed along to government actors subject to less stringent requirements than probable cause. This would be an unfortunate result: either a vibrant and important technology would fail, or people would give up all privacy just to use the technology.

Even if government actors take privacy in virtual worlds seriously, however, there remains the problem of private data collection. Virtual worlds are enormous cameras. As people live more of their lives online, they will provide more data that will then be collected and processed. Further, the rules that courts and legislators craft for virtual worlds will soon be applied to the real world because the two will begin to overlap. The next generation of computers will be small enough to wear, and powerful enough to record and parse everything around them. We will all record each other’s every action. The Panopticon is a virtual world problem, but it will not remain so for very long.

Joshua Fairfield is an Associate Professor of Law at Washington & Lee University School of Law. He writes and speaks on the governance and economics of virtual worlds.

Preferred Citation: Joshua Fairfield, Escape into the Panopticon: Virtual Worlds and the Surveillance Society, 118 Yale L.J. Pocket Part 131 (2009), http://yalelawjournal.org/forum/escape-into-the-panopticon-virtual-worlds-and-the-surveillance-society.