The Legality of the Virtual World’s Oldest Profession
August 9th, 2007 by Benjamin Duranske
The Second Life Herald has an article up that beat me to some analysis I’ve been meaning to get to on the application of obscenity laws to virtual worlds. It’s been a topic of discussion 
recently because the recent gambling ban in Second Life raised questions about Linden Lab’s approach to the seedier side of the world. I analyze the issue a little differently than the SLH writer, ‘Jessica Holyoke,’ but we come to the same conclusion: virtual escorting appears to be 100% legal.
‘Holyoke,’ puts forth a few arguments as to why virtual sex work would probably be found to be legal, which is a reasonable approach, but one that I think takes the debate the wrong direction. It’s simpler than that. Like all criminal law questions, the act is legal if nobody has made it illegal. I’m sure there’s nothing on the books specific to this, so the question is: what current laws could prohibit virtual escort services?
Phone sex laws could cover virtual escort work, especially if voice is involved, but the only law I’ve been able to find is narrowly focused on telephone communication. What about laws against real life prostitution? Well, they typically cover only actual acts of intercourse involving real human bodies, and they’re pretty specific in their definitions. How about state obscenity laws? California (where the servers are) has a fairly typical obscenity law. You can find it here. Though it would depend on exactly what was happening between the avatars involved, I’d suspect that most acts would be just fine. The California law prohibits material that “depicts or describes sexual conduct in a patently offensive way.” So I’d argue that as long as the avatars on screen are engaged in nothing that is more “patently offensive” that what appears in videos that are sold legally in California, the avatar’s “act” isn’t prohibited in California.
This isn’t the end of the question — I suspect that Mississippi’s laws are rather more restrictive than California’s, for example, and users in other countries will want to check their local laws too, but my initial, summary take? The burden in this argument falls on those that want to say virtual sex work is illegal, and I just don’t see how the laws I’ve encountered so far could reasonably be found to prohibit it. I could well be overlooking specific state laws, and am entirely unfamiliar with obscenity laws outside of the U.S., so I invite readers who are familiar with them to comment. But so far? Nothing has convinced me there is anything illegal happening here.
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16 Responses to “The Legality of the Virtual World’s Oldest Profession”
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Actually, that one law you found may have some bearing. Some escort services use VoIP – something more likely to happen with the advent of Second Life Voice. Now when you mix VoIP with that law and escort services… is it that simple? Are VoIP and telephone laws disconnected?
I know, for example, many telecommunications laws in the Caribbean and Latin America do not distinguish between VoIP and telephone communication. Europe may have similar laws, as much of Caribbean Law in the English speaking Caribbean is derived from UK Colonial Law and the communications laws as well as property (copyright, trademark, patent) laws are hybrids of Europe and US laws.
At the end of the day, though, if there is no one complaining…
Sidenote… Just laughing my butt off before I go for a walk….
‘Prostitution across International Borders’
in re: SL escorting legal…
Thank God!
I mean…. um… yeah…
After thinking long and hard about what could qualify under the Miller test, I couldn’t think of anything more patently offensive than Miller v California’s 5-4 majority opinion itself.
Thanks for the great quote!
“The first two parts of [the Miller test] are incoherent: to put it crudely, they require the audience to be turned on and grossed out at the same time.” Kathleen Sullivan [now dean of Stanford Law School]
Anyway to get on topic, the interesting thing is that with a movie/webcam or picture, the content that is “distributed” or “exhibited” must first be captured in a visually depictable/representable “obscene” form before it can be distributed. It had to exist “tangibly” first at the distributor’s end so there is no doubt what was distributed. For SL avatar behavior, neither picture nor video of a previously represented thing/”act” is captured and distributed; only data that makes mathematical/abstract sense in a simulator is sent and the client constructs the “obscene” image. It’s impossible to conduct any “obscene” calculation beforehand. No image is constructed beforehand – ie nothing is captured first then turned into data, then distributed, as would be for pictures/video.
At the fundamental level, it seems to me to be analogous to a server telling a client “you have letters A-Z available [which are abstract], tell me how to put them together and I will send them to you as constructed, and you represent them graphically yourself” Yet since an “obscene” literary work can be put together from letters A-Z, the server must be mindful of local obscenity laws. As ridiculous as I find “obscenity” conceptually, I imagine this to be an accurate and arguable representation of what’s happening.
So if this is indeed accurate, the first thing I would do is argue, more technically, to look to what is found permissible in California erotica literature. The second thing I would do is wonder why a Linden Lab server fundamentally should have any more liability or concern for itself than an email server that will do the same thing.
pbody – Love it – Sullivan said that? That’s a fantastic quote. One of my buddies had a class with her and thought she was great.
On your main point, that is one really interesting piece of analysis. Thanks for putting it up. Makes good sense to me: if it’s on the fly, no way to call it obscene. No preemptive censorship is the idea, but I know I’m getting the term wrong. I haven’t looked at 1st amendment and obscenity law in a while.
So how about this then: can a set of poseballs be obscene, assuming that the animation they generate is patently offensive, etc.?
That seems much more reasonable than saying any one avatar is guilty of producing obscenity by using the poseball, given the way you broke it down above.
I agree with your big picture point too. There’s a lot of noise right now because the gambling ban makes it look like they’re trying to turn Second Life into Club Penguin, but I don’t buy it at all. I think they were just following the law there, and I think they’ll do the same thing here. Which means Second Life can go on it’s semi-sleazy way, just like the internet does generally, and that’s how it should be in my opinion. Smut is the easiest thing to make a buck on early with any new technology, so it drives it in the early days. This was true for everything from magazine printing, to VHS tapes, to the web, to virtual worlds.
This was always a non-question. The gambling ban was motivated by very specific problems, and, as well, LL’s own self interest. Gambling didn’t generate that much revenue for them, and it took a great deal of demand out of the economy.
In the end, neither LL, nor the law, wanted virtual casinos with uncheckable games in operation.
The same can’t be said of pornography online, which is, in reality, what sl sex is.
Lillie – I think you’re very much right on that point, though I’m intrigued by what pbody said above: that you can’t even run a standard obscenity analysis on it because it’s not created until it *is* created, and then it’s gone.
For people not familiar with Lillie’s site, it’s consistently interesting and articulate. Worth the visit.
The bigger issue is a question of jurisdiction: who gets to define what is obscenity or prostitution or child pornography or gambling and can they apply it to a specific online service?
Jurisdictional issues have been muddied by the US’s moves into online gambling enforcement with UIGEA as well as anti-terrorism activities that undermine the general notion that the location of a business defines its legality (other countries have dabbled in the same area recently – it is making running an online business fraught with unpredictable risk).
This issue has come up for some web sites where US locations with different “community standards” have been used to prosecute adult businesses that have no physical presence or do any marketing in.
Other key issues are if an online service is centralized or peer-to-peer?
If advertising or marketing sufficient to establish jurisdiction? This is a big question for online gambling in Europe now as the UK has moved to ban advertising of online gambling services that do not meet the UK’s “standards”. How this will stand up in the EU or the WTO is interesting.
I saw a quote someplace about this issue- I wish I could remember where so I could attribute it properly.
It basically said that the distinction between gambling and escorting in second life was the difference between engaging in illegal behavior in second life on the one hand, and *pretending* to engage in illegal behavior in second life on the other.
That’s a real good question. There’s a big shakeup in federal obscenity law right now because of a case in which the defendants argue that the right to sexual privacy articulated in Lawrence, when coupled with the right to possess obscenity articulated in Stanley, neuters obscenity law. It’s a due process attack on obscenity that acts as a corollary to the obvious problem of Miller–that is, community standards over a group as large and diverse as the Internet.
Virtual worlds have an interesting effect on both arguments, since nothing in Second Life is truly private to other gamers even if is not truly public in the sense of being out on the streets. But in real life, it is difficult to avoid, say, a big PORNO SOLD HERE sign on Main Street in Peoria. Not so in Second Life.
Furthermore, SL has a more discrete community than the web as a whole, and since the communities are formed by acquaintence rather than geographical necessity it could be argued that anything which takes place automatically passes the community standards test since users would be banned or ostracized easily if they posted offensive material.
I’m still skeptical of the conception of virtual worlds as a fount of unique law, but it sures makes for some interesting thought experiments.
I’m guessing everyone thinks that prostitution in SL doesn’t involve voice… my comments hang in the air like a brick because of it. How does US law treat VoIP in this regard?
I suspect voice plays a big role, Nobody. Or if it doesn’t, that it will soon. In fact, with a voice client integrated now, I think there’s a pretty good chance that Second Life will become a low-overhead haven for phone sex operators in the next year or so, since they’ll be able to provide visuals without any increase in overhead (and, unlike cameras, the real-life appearance of the operator would be irrelevant in a virtual world).
That said, in the U.S. at least, the laws that I found are incredibly specific to “telephone” communications. It has something to do with the fact that the wires, like airwaves, are considered a limited public asset, and the legislative history usually supports this, making it somewhat tough to apply them to VoIP.
The other odd thing I found is that there are just very few laws on the books covering commercial phone sex over any device anyway. If there’s an telecom law expert out there who knows of some, please post — I’ve looked, and am rapidly concluding that they just don’t exist in most states. I haven’t found much of anything, aside from that link above, which basically says, as I read it, that operators can only offer the service to people 18+ years old, which (at least for argument purposes) they’re doing by offering the services exclusively on the adult grid.
@10 – Petey, I think you’re right to be skeptical about the need for “virtual law” in most cases. Mostly, there will just be the somewhat complex application of existing law to virtual worlds.
In a few specific situations new law would be needed (though I really hope nobody wastes my tax dollars passing this one) because there just wasn’t such a thing before. Here, there just wasn’t such a thing as pretending to be a prostitute for real money before — you either we’re or weren’t. So if somebody wants to prohibit it, I think they’ll have to pass a new (asinine) law.
Not many situations fall on that side of the line though. I think of it a lot like the internet around 1996-1997. There wasn’t any special law about it, and everyone was wondering if there would have to be whole new codes written. As it turned out, 95% or more of “internet law” is just the application of old laws to the internet, but 5% of it did have to be written fresh. For example, it just costs too much to spam people in real life, so there weren’t any laws about it. The cost of postage kept the signal to noise ratio in your real life mailbox around 70/30, at worst. But on the internet? My email is 99% or more spam, because it’s basically free to advertise that way, and my address is very public. So you get new (albeit totally ineffective, so far) laws that cover that narrow situation. I’m guessing 5%, tops, of “virtual law” will be completely new. But even about the old stuff, the questions — like whether an avatar’s identity should be subject to subpoena — definitely do make for good discussion.
[...] Second, where there’s a gray area in the law (e.g. the validity of recent patent applications on virtual world technology, “ownership” of virtual land, and the value of real world currency) I generally try to point that out or approach the issue in a way that makes it clear it is up in the air. Those notes, of course, take a somewhat more neutral tone, and if I do miss a counterargument, readers usually catch it in the comments. Finally, there are some issues that VB confronts — like the illegality of ponzi schemes, the legality of virtual escort work, and the necessity of Linden Lab complying with the UIGEA — where the issues appear, from a legal perspective, to be rather black and white. On those, I’ll continue writing in my usual voice. [...]
This is a new territory for the law. I guess new laws have to be written for the virtual experiences that would encompass cyberlaw, internet law, and possibly white collar crime depedning on the circumstances and the like. The virtual world is developing rapidly and the laws have to catch up with all of this new technology. I’m wondering why the technical/digital world moves at light speed while the law side of things moves seemingly at a somewhat faster than a snails pace. This a new territory in the digital age except fot those millions familiar with the technology particularly the growing popularity of the sex side or virtual sex side of the internet industry. I think that if maybe laws need to be created concerning children who may be victims of this cyber virtual sex or hackers who put people on a virtual sex experience then lawmakers maybe should have a few cyber sex experiences and then maybe it’ll clarify what laws should be passed or if any at all should be passed. Lawmakers really need this virtual experience or virtual sex experience before they can make, in my opinion, applicable, meaningful, or profound laws concerning this type of virtual digital type activity. Then lawmakers, having this dignified sexual cyber experience, can create more effective laws concerning this activity.
It would seem, on the issue of legality, it would be that some phone sex operators do so “off the radar” – not as a legitimate business, therefore, they are illegal in the sense of not paying taxes on their income. There are laws against money laundering. I’ve heard of such businesses operating in my neighborhood. How do you nail them?