David Chalmers would argue that there is no virtual reality and real reality, but rather a virtual reality and a physical reality. This way of thinking falls in line with the “virtual realism” concept that Chalmers discusses in his essay “The Virtual and the Real.” He explains that “virtual realism” holds virtual objects, events, and experiences to be real and non-illusory. The opposing viewpoint, which is completely disagrees with “virtual realism,” is “virtual fictionalism.” This distinction is important to understand, but to what extent does it affect the actual impact VR has on individuals and how it’s regulated? To what extent does law enforcement actually take into consideration whether or not an offense happened in VR?
For instance, a player using an immersive VR shooting game wouldn’t be charged with shooting and killing someone on an opposing team. Even though according to Chalmers this event is still real and did take place, he did not physically harm the person and therefore legal action would not be taken. However, “A death threat via AR or VR is legally the same as a death threat via an oral conversation, a letter, an e-mail or a fax” (Volokh). In both situations there are acts of aggression that exist in the virtual domain, yet they are treated differently. Of course a death threat and virtually shooting another player have differing degrees of severity and actual physical influence, but from law enforcement’s perspective, what exactly is the key difference between these two events? Does the difference between “virtual realism” and “virtual fictionalism” even factor into the decision?
The Black Mirror episode “Playtest” provides another example that asks this same question. In this episode a young traveler needs extra money and signs up to test a new immersive simulation at a Japanese gaming company. Once he starts the simulation, there is a series of jump scares and other traumatic encounters that the traveler experiences. By the end of the simulation the traveler actually dies from the test, but I am more interested in how the episode would have played out had he survived. Given how intense the simulation was, the traveler would most likely have difficulty returning to the physical world and might even develop Post-Traumatic Stress Disorder. If he did develop PTSD, how would this be handled legally? In this case, regardless of whether or not the events that happened in the simulation are to be considered as real or not, the hard reality would be the fact that he ultimately developed PTSD. If the case went to court, hopefully the company would be found guilty of causing the PTSD, but would the other events that took place in the simulation be brought up as hard evidence or additional legal issues? In other words, does the difference between “virtual realism” and “virtual fictionalism” even matter to lawmakers or law enforcement, and if it does, to what extent?
There are many other examples of potential transgressions such as using unfair software to win or stealing something within a game. Mark Lemley and Eugene Volokh suggest a potential solution would be “in-game laws” or “in-game justice” (122). They also think, “one way of conceptualizing this is that playing a computer game (VR or otherwise) might by default amount to consent to everything that could physically happen within the game, whether or not it is legally allowed within the game” (Lemley & Volokh 120-121). This theory is called the “magic circle” which argues, “actions that occur within virtual worlds are not real, and thus cannot be sanctioned using real-world law” (Lemley & Volokh 121). These theories provide an opposing viewpoint from Chalmers who does not separate virtual and physical reality in this way.
Chalmers provides insightful analysis regarding VR in the conversation about reality in general, but I am more curious as to how it will legally be viewed and controlled. It seems as though there is not yet enough consistency in terms of basic understanding of VR or even what counts as breaking the law and what does not. Moreover, there is not one perfect solution to in-game crime. This could be because VR is new and every step forward is uncharted territory, or it could be because, just like real life, VR is not black and white
David Chalmers, “The Virtual and the Real”.
Lemley, Mark A. and Volokh, Eugene, Law, Virtual Reality, and Augmented Reality (February 27,
2018). University of Pennsylvania Law Review, Vol. 166, 2018, Forthcoming; Stanford Public Law Working Paper No. 2933867; UCLA School of Law, Public Law Research Paper No. 17-13. Available at SSRN: https://ssrn.com/abstract=2933867
Volokh, Eugene. “Opinion | Law, Virtual Reality, and Augmented Reality.” The Washington Post, WP Company, 17 Mar. 2017, www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/17/law-virtual-reality-and-augmented-reality/?noredirect=on&utm_term=.0564469f62d7.