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Statements posted on this blog represent the views of individual authors and do not necessarily represent the views of the Center for Law Science & Innovation (which does not take positions on policy issues) or of the Sandra Day O'Connor College of Law or Arizona State University.

Governance of Emerging Technologies Conference 2015: Digitized Spaces

DIGITIZED SPACES

By Joshua W. Abbott (Faculty Fellow, ASU)

The job of a legal futurist is, in some ways, almost too easy. Simply scan headlines for news of the next great gadget and speculate on the ethical, legal, and social issues likely to arise from it. The trick is being able to discern which new technologies raise questions that are truly novel. One key to identifying real game-changers is to look for innovations that challenge some of the fundamental assumptions underpinning our present legal frameworks.
For example, imagine discovering one day that a recent house guest has created a precise virtual replica of the interior of your home and made it available online in a game that allows anyone to enter and behave, through an avatar, however they choose—even obscenely or with graphic violence. You may feel, on a visceral level, that your privacy has somehow been violated and that you should be entitled to legal recourse. But even if most people agreed with you, could you force the hosting website to remove your home’s digital double from the game?  Under current law, probably not. After all, no one has physically trespassed on your property, spread false rumors about you, or threatened you or your family. Regardless, this hypothetical scenario may not remain hypothetical for long.
New technologies, set for release this year, will soon create spaces where, as one recent ad put it, “your digital world is blended with your real world.” Small, portable sensors, similar to those in autonomous vehicles, will allow any physical space to be digitized, manipulated, and ported into a virtual environment. Google’s Project Tango, for instance, equips phones and tablets with the ability to scan and measure the exact dimensions of their surroundings and create from them, on the fly, a virtual, 3D digital model—not merely a panoramic image, but a detailed digital replica of the physical space. Meanwhile, augmented reality devices, such as Microsoft’s Hololens, conjure virtual objects as holograms with which we can interact in the physical world. As these technologies develop, they will begin to merge our virtual and physical realities, with applications and consequences that we can scarcely imagine today.
We can be fairly sure, though, that when basic, hard-edge dichotomies—such as virtual vs. physical—soften and blur, novel legal questions will abound. For example, the ability to exclude someone from a physical space is fundamental to property law. Up to now, that has meant that if you did not want someone in your bedroom, you could keep them out. But how far does that principle extend if your bedroom is captured digitally and recreated online? Traditional distinctions between private and public spaces are also vulnerable. With augmented reality, individuals or groups could experience the same public space in very different, even private ways. And if these technologies advance to the point where virtual and physical objects and settings become indistinguishable, how would we ensure fairness in our legal processes when a single, objective reality no longer exists or is indeterminate?
One way we may choose to respond to these new situations is by creating new rights for individuals, as in the case of Garcia v. Google (recently overturned en banc), in which a panel of the Ninth Circuit held last year that an actor, who unwittingly appeared in a controversial, anti-Muslim film, held a (previously nonexistent) copyright interest in her performance and could thus block the film’s availability online. One can imagine a future court, sympathetic to a plaintiff facing the hypothetical scenario above, similarly inventing an intellectual property right in the arrangement of their furniture. Whatever controversies may arise, these new technologies are sure to enlarge and intensify current debates over privacy and free expression.
Another possibility we may someday face if these technologies are widely adopted, is the existence of ubiquitous, nearly omniscient surveillance. That is, for any given random event, such as a car accident, networked sensors will create and preserve gobs of data for later analysis by insurance companies, courts, journalists, or anyone else. Thus, instead of asking a jury to imagine how an accident might have happened based on skid marks, eyewitness accounts, and photos of the damage, a lawyer could show a 3D or holographic replay of the accident in high-definition from any angle, in real-time or slow-motion, just as it actually occurred. One practical consequence would be a shift in focus of court proceedings from the veracity of witness testimony to establishing the reliability of the collection, preservation, and especially the context of the data. For although a picture may be worth a thousand words, a famous photographer once quipped that “every photograph is a lie,” even those that have not been tampered with using Photoshop.
The ultimate aim here is not to try to anticipate all the legal, policy, or ethical issues that could arise from these new technologies. Rather, it is to raise awareness that many sticky questions are likely to result from these technologies being adopted. As controversies arise, an overarching question will be who gets to decide those issues—courts, legislatures, agencies, or international treaty negotiators? Answers will vary, but they should at least be made consciously and deliberatively, not by default or by political exigency. If nothing else, hopefully it is clear that at least some of the creative energy and resources we put into developing new technologies will need to go into thinking about the governance of those technologies. Because unless someone invents a time machine, we may have to live with early, precedent-setting decisions for many years to come.