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20 Responses to “Air Force Professor Says Supreme Court Okays Spying on Avatars — Help Track Down Mystery Case and Get a Signed Copy of Benjamin Duranske’s “Virtual Law””

1. on 16 Oct 2008 at 2:49 pm1 Ashcroft Burnham
   

   Lots of things are not real people: that does not mean that they exist in some legal vacuum, apart entirely from the world of laws. Shoes, houses, cars, trees and cats are not real people, yet they all exist in a law governed world and interact with laws.

   Avatars might not be people, but the people controlling avatars are people. The claim to which this article makes reference is as absurd as claiming, “shoes are not people, so the laws that regulate surveillance of people don’t apply if we just track their shoes (even when they’re being worn)“.

2. on 16 Oct 2008 at 3:08 pm2 Benjamin Duranske
   

   Thanks to reader Steve Kranz (who is also a member of the Virtual World’s and Multiuser Online Games committee that I co-chair in the ABA’s Science & Technology Law Section) for sending me the link to the article at the Maxwell/Gunter Dispatch.

3. on 16 Oct 2008 at 6:33 pm3 J. Glass
   

   I need to preface this comment with the usual IANAL, but after reading the article in question, I had to reply. However, I have been an active participant in virtual communities since the early 90s.

   After bit of googling, I wonder if he’s trying to reference the court’s ruling on the CPPA, saying that “virtual porn” is not the same as the real thing. This doesn’t really seem applicable to the subject of eavesdropping.

   Lt. Gen. Peck seems to think he’s found a loophole, but I’d hope that any intelligent judge would realize that laws governing computer communication and wiretapping are what really apply here. (He makes a few more ridiculous claims in that article, like the one about the “100,000 Chinese”.) Just because a method of communication has a 3d interface does not mean all existing laws go out the window.

   Huh. Now I’d like to see legal opinions involving someone’s coded “bug” object and public vs. private in virtual space. And what about signing away your expectation to privacy with companies like Linden Labs?

4. on 16 Oct 2008 at 7:16 pm4 Jimmy James
   

   It is not surprising that police and security agencies would expand their surveillance activity to on-line forums (including ones where avatars are used), because their business is to check what people are doing.

   The legality of this action, of course, depends on the terms of the laws that authorize the police action, and the applicable constitutional or other legal protections for on-line users’ rights, such as their right to privacy. These elements vary from jurisdiction to jurisdiction.

   In the UK, according to Marco De Cesaris, http://www.marcodecesaris.com/, police are conducting on-line surveillance of avatars:

   “Police have also begun to experiment with software that monitors virtual worlds to identify avatars who exhibit certain types of behaviour which could indicate real-world criminal tendencies in their players.” – http://www.privacyconference2006.co.uk/…- A Report on the Surveillance Society – For the Information Commissioner, by the Surveillance Studies Network – Public Discussion Document – September 2006″

   In Germany, the Constitutional Court ruled in Feb 2008 that it is improper for police to secretly upload surveillance software onto the computers of criminal suspects by e-mail, except in the most serious cases: see this Deutsche Welle article – http://www.dw-world.de/dw/article/0,2144,3152627,00.html

   This comment by Salon columnist Juan Cole on internet surveillance appears to be overstated: “Any monitoring by law enforcement of innocuous activity and communication in a virtual world, conducted broadly and without oversight, would be unconstitutional and could invade the privacy of millions of persons.” – http://www.salon.com/opinion/feature/2008/02/25/avatars/

   Most of these qualifications would not make police surveillance in the real world illegal, so why should they apply to the monitoring of avatars? In the real world, police always monitor innocuous activity in the course of trying to identify criminal activity. They will listen to dozens of innocent phone calls before they hear the one where the crime is being organized. They will watch dozens of people enter a building before the suspect turns up. And, generally speaking, police don’t conduct their activities without any controls, such as the need to obtain warrants. Whether those controls are sufficient, or capture types of surveillance that should be regulated, such as the on-line monitoring of avatars, is, of course, open to debate.

   If a police officer wishes to monitor interactions between avatars that are controlled by real people, and that action is prompted by a legitimate interest in gathering evidence of a possible crime, then it is difficult to understand – leaving aside the complexities of the on-line environment – why that action should be treated by the law any differently from the monitoring of persons when they are not being represented by avatars.

   Looking at the statement attributed to Professor Stein, I think it would probably be more correct – from the standpoint of the criminal law – to see avatars as extensions of their real life owners. If police are legitimately allowed to monitor an avatar’s owner, in a particular situation, then it seems to make no sense to prevent the police from monitoring the avatar also. But, as always when government officals are permitted to exercise intrusive powers over people, the manner in which those powers is allowed to be exercised should be carefully defined.

5. on 16 Oct 2008 at 7:25 pm5 Forelle Broek
   

   My friend and esteemed colleague Ashcroft gets it in one. I’m not familiar with the relevant law in Britain. But here in the U.S., the fact that avatars are not real people would be completely irrelevant. The principal issue under the 4th amendment would be whether the person controlling the avatar (or other people who are the actual targets of the spying) have a reasonable expectation of privacy. No doubt there are good arguments that there is no such reasonable expectation, or only a limited one, in a VW like SL. But the assertions attributed to Prof. Stein (and I’ll be courteous and give him the benefit of the doubt that he may have been misquoted) are sheer nonsense.

   Has anyone tried contacted Stein directly to ask what he’s talking about?

6. on 16 Oct 2008 at 7:30 pm6 Benjamin Duranske
   

   @5 – I haven’t been able to track down a email address for Stein, and a call to the base got routed to voicemail. I didn’t put anything in the article, since he hasn’t really had a chance to clarify yet, but I’ll keep trying. A comment from Professor Stein himself here would have a pretty good shot at the book, I suppose. My suspicion is that he’s not going to give an interview or drop by for this, but you never know…

7. on 17 Oct 2008 at 9:22 am7 Benjamin Duranske
   

   FYI – thanks to a couple of search-maven readers, I now have an email address for Professor Stein. I’ve emailed him and asked him to weigh in. I’ll post if I hear back directly.

8. on 17 Oct 2008 at 10:17 am8 Tateru Nino
   

   Hmm. Can’t help on the case law side – but avatars _aren’t_ people. However, a voice on a telephone isn’t a person either, and there are all sorts of restrictions about surveilling those.

   An avatar, by its very nature, represents the actions of its user. If I knock your teeth out with a sock puppet, I can’t claim that the law doesn’t apply to the sock-puppet and thus that there is no tort law involved. It was my action, and my choice. The sock puppet isn’t me, nor is my voice, nor my image on a security camera — but all of these things represent me and my actions.

   An avatar is a vehicle. We don’t spy on people (except where provided for by the constitution and law), and we don’t spy on their cars either – because that would mean spying on the driver. Spying on the avatar is simply spying on the user, the same way you would place a bug and tracking device on a car or tapping a phone call, or monitoring someone’s internet connection.

9. on 17 Oct 2008 at 10:28 am9 Peter
   

   I am french-canadian and I dont know anyting about US case law but…

   The question isn’t if the avatar is a real person or not.

   The pricacy policies shall applies to every activity involving a human being, even if the said activity imply playing a game.

   It is not an avatar, it is someone playing with an avatar.

   The sub question would be ; is the VW are a private or a public space… (to bad the target case haven’t provide us with a real answers)

   edit : it seem that Tateru Nimo and I were writing at the same time… “Spying on the avatar is simply spying on the user”… I am 100% behind that statement.

10. on 17 Oct 2008 at 12:45 pm10 Benjamin Duranske
    

    I just got a note back from George Stein pointing me to the case he apparently had in mind. This is the text of the note:

    Ashcroft v. Free Speech Coalition (00-795) 535 U.S. 234 (2002); 198 F3d 1083, affirmed. “The argument that virtual child pornography whets pedophiles’ appetites and encourages them to engage in illegal conduct is unavailing because the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it, Stanley v. Georgia, 394 U.S. 557, 566, absent some showing of a direct connection between the speech and imminent illegal conduct, see, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (per curiam).”

    So the argument, I suppose, is this: the Supreme Court has said that virtual child pornography isn’t child pornography because child-avatars aren’t real children. Therefore, the courts would also say that capturing a conversation between avatars representing citizens does not require court approval because citizen-avatars are not real citizens.

    Though I immediately see some problems with this interpretation, I’m not a constitutional law specialist, so I’m going to hold off and see if anybody out there wants to take a serious shot at debunking this. Plus, hey, I announced a contest, and I’m sticking to it.

    The book is still up for grabs, folks. Best comment takes it, contest closes on the 30th at midnight. Multiple entries are fine, and will be considered as a whole. Ashcroft v. Free Speech Coalition is available here.

11. on 17 Oct 2008 at 1:15 pm11 Forelle Broek
    

    From Stein’s bio at the Air War College, it appears he isn’t a lawyer; so perhaps he just doesn’t understand the constitutional issues enough to see why the virtual porn case in no way supports his expressed position on virtual surveillance.

    Simply put, and as others have amply noted here already, the (undisputed) fact that an avatar is not a real person is entirely irrelevant to the issue of whether government surveillance of avatar activity is subject to constitutional limitations (most notably, but not exclusively, under the 4th Amendment).

    First of all, the fact that an avatar is not a “real” person (in the sense of a flesh-and-blood human) would not mean that constitutional rights don’t apply. A corporation isn’t a “real” person (in that ordinary sense) either; but it is a “person” for (at least some) constitutional purposes.

    Of course, an avatar isn’t a constitutional “person” (I suppose some transhumanists or others might offer interesting arguments for avatar personhood; but I doubt any court would accept those arguments in any case). But that only means that an avatar itself would lack constitutional rights, and would lack standing to sue for violation of those rights. If that’s all Stein meant, his contention would be trivially true.

    But surely Stein means something more serious than that; he appears to mean that surveillance on an avatar would not raise any concerns regarding the constitutional rights of any real people. If so, he is entirely, almost laughably (except that the potential consequences for civil liberties are no laughing matter), wrong.

    The real issue is whether the real people engaged in the VW under surveillance (including, but not limited to, the particular real person controlling the avatar that is the ostensible subject of the surveillance) have a reasonable expectation of privacy in that situation.

    The fact that the real people’s conduct is mediated through avatars is neither here nor there. The question is whether the setting of VW activity diminishes, or negates, the reasonable expectation of privacy. My sense is that it probably does, to a greater or lesser extent depending on the specifics in any given instance. But that isn’t what Stein argued (at least as reported in the article), and the virtual porn case (in which the issue was whether the virtual conduct at issue could be prohibited based on its probable real consequences, not whether that conduct was protected from government surveillance) is entirely irrelevant to that analysis.

12. on 17 Oct 2008 at 1:33 pm12 MixedRealities :: It is okay to spy on avatars - they are not real people (a Professor says)

    [...] am reading an amazing post by Benjamin Duranske on Virtually Blind, based on an article on Maxwell Gunter Dispatch. It is reported that Professor [...]

13. on 17 Oct 2008 at 5:17 pm13 Benjamin Duranske
    

    I sent a link to this post to a political mailing list I subscribe to and got this response by email from list-participant Robert Breedlove before I got the response from Professor Stein.

    As it turned out, Mr. Breedlove hit the nail directly on the head, naming both the case and the very logic (if you can call it that) used to arrive at the “spying on avatars is okay” conclusion. With Mr. Breedlove’s permission, I’m posting the email in its entirety:

    —————————————————-
    To: Benjamin Duranske
    From: Robert Breedlove
    October 17, 2008 / 5:17 AM

    I took a left turn as I confronted the question of what SC case, if any, Stein could have been talking about. Clearly you, a clever fellow, had tried everything obvious and so, probably, had many of your readers.

    Thus I asked what were the likely areas where civil liberties are under challenge, and some interesting SC rulings that do not apply directly to the good General’s idea but that might be stretched to fit, likely to be found? The usual suspects are the usual excuses for erosion of civil liberties crime prevention, drugs, terrorism, RICO, the IRS, and that lovely catch-all “protecting the children”.

    Considering that we’re talking about cops or spooks wandering around in virtual space, interacting with avatars (and themselves disguised) looking for perps, I thought I would try the most promising route first – child protection as overriding reason – and maybe child pornography (trafficking or whatever) as the crime being trolled for. The biggest virtual world I know of is Second Life. Thus, I went to Google and did a search on “Second Life” “child pornography”. It turns out that it is against German law to possess child pornography at all, and this applies (surprisingly) to purely simu-porn.

    In the context of SL, two participants in the world (one a male aged 54, and the other a female of 27) had obtained “child” avatars and were observed having sex (presumably not in a PG rated area of SL’s world). They were promptly narced to Linden Labs who (knowing that they were both consenting adults) banned them from SL for life. Were they wearing skins made from real kids? They claim not – that their avatars were entirely works of original art, done by adult artists, and using no real children as models whether as models or as a likeness. Under German law (and I believe the issue is that the perps were both German nationals and the BRD is claiming jurisdiction over them) /any/ likeness of children used in a pornographic way – even if the images are entirely invented from whole cloth – violate German law.

    It turns out that there is a lot of traffic (about 31,000 hits). I decided to go to the horse’s mouth and see what I could find out in SL’s own blog, and the comments of its users:

    http://blog.secondlife.com/2007/05/09/accusations-regarding-child-pornography-in-second-life/

    Deeply buried in a string of comments hundreds long was the following citation to the Duke Law Journal online:

    http://www.law.duke.edu/journals/dltr/articles/2002dltr0019.html

    It seems that this issue was addressed in US courts (ultimately the SC) when the Child Pornography Protection Act of 1996 came up for a test in /Ashcroft vs. The Free Speech Coalition/. Appellate circuit opinions were divided on the question of whether entirely synthetic depictions of children used for pornographic purposes were justifiably able to be banned in the name of protecting children from being exploited in the production of such pornography, or instead fell under protected speech on the grounds that /no real children were either harmed or depicted/. The Ninth Circuit held that:

    §2256(8)(B) of the CPPA “abridges the freedom to engage in a substantial amount of lawful speech.”10 The Court held that the ban on “virtual child” pornography could not be upheld because it was overbroad and unconstitutional under the First Amendment.

    The USSC granted certiorari, and heard four arguments from the Government:

    First, it claimed that “virtual child” pornography causes indirect harm to actual children,

    Second, the government argued that “virtual child” pornography could have the tendency to persuade the audience to commit crimes.

    Third, the government argued that eliminating the market for actual child pornography was a sufficient reason for the Court to uphold the constitutionality of the law.

    Fourth, the government also argued that “virtual child” pornography could result in more difficult prosecutions of actual child molesters and pornographers since the virtual images look so realistic.

    The Court rejected all of the Government’s arguments on various grounds, rejecting the claim that virtual pornography harmed actual children since no direct causality could be demonstrated in rejecting arguments 1 & 2, holding that the availability of a harmless substitute would more likely tend toward suppression of production of genuine child pornography in 3, and rejecting the Government’s argument in 4 that defendant’s could rely upon the “affirmative defense” clause of the CPPA which defines as a valid defense proof that the material was produced using adults as models, the Court noted that this unfairly shifted the burden to defendants who may well be possessors rather than producers of the simu-porn (not a term used by the Court).

    In summary, the Court noted that, “the Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected speech merely because it resembles the latter.”

    That is to say, synthetic images are not real children, nor are they images of real children and thus they are protected speech whereas images of real children are not protected and do violate the law.

    With some arguing and stretching, an AUSA operating in some quiet, star chamber might interpret the last finding more broadly as a ruling that avatars are not people. However, nothing I have found so far states that principle as a USSC finding in so many words. Personally, I do not think Professor Stein’s is likely to be correct. I would imagine that a rational court would find that avatars of agents or policemen operating in a public space (like SL) are in an analogous position to undercover agents or police operating in any public place, i.e., a lesser expectation of privacy than obtains in a private location would govern, and within certain broad limits (entrapment, enticement to crime and so on) avatars of undercovers should be subject to the same restrictions as limit them in analogous real world places.

    But then, I’m no lawyer.

    RMB

    —————————————————-

14. on 18 Oct 2008 at 4:57 am14 Kanomi
    

    Is the Air Force living in such a grandiose fantasy world, fed and feted by stunningly unsupervised unfunded budgets, that it must now start bombing Second Life?

    Is flying bombing raid over the undefended civilians of Pakistan and Afghanistan not enough?

    Is conquering the empty space of the Solar System, where no enemies exist at all, with a billion dollar “Full Spectrum Domination” program not enough?

    Now you idiot catspaws of the war profiteers are going to spy and war upon virtual worlds?

    Every single thing you do or say is so endlessly corrupt and crooked and so utterly divorced from the reality of humanity and the natural world that your exuberant, science fiction-esque fantasies take on the leering characteristic of a fantastic gargoyle.

    Nowhere in the Constitution or the Common Law and tradition of this country does it say bloated insane branches of the military may go around the world spying and killing whomever they please.

    Asshole.

15. on 18 Oct 2008 at 2:33 pm15 Richard Minsky
    

    I agree with #1-14.

    The Fourth Amendment was lost in 1984. Not the Orwellian one that was so on target.. I mean the Gibson 1984.

    Protecting The First Amendment is important and I’m proud of the Court for doing that. The consolidation of power in the Executive branch (Ashcroft) began in the banking sector with David Rockefeller in 1973, though the 1975 book didn’t catch my eye until 1980, when George Herbert Walker’s grandson was wending his way into the White House.

    There is a lot to say about The Bill of Rights but it’s up to the USSC to protect it, and the process of checks and balances.

    Hello Professor Stein! Is this something you would like to bring as a test case?

    Privacy in SL, where spyware is cheap and plentiful, cannot be presumed, and depends on at least enough sophistication to know what script permissions are in effect …

    R

16. on 18 Oct 2008 at 8:17 pm16 Ann Otoole
    

    The Supreme Court made that rulling eh?

    Well then Hoo Yah!!

    We can say and do anything we want because real world laws do not apply in Secondlife?

    Heck yes! Open the Casinos and brothels! Let every form of broadly objectionable content get going!

    The Supreme Court just removed all law from the Metaverse!!!!

    mmmhmmm. sure. I believe it. Some air farce professor eh? Got his phd from a matchbook cover in a bar in Saigon?

    More like that professor needs to be removed from his employment status for being a fool.

    But if it is true then no law applies to Secondlife at all. Nothing. Nada. Zip. Not even tax law.

17. on 20 Oct 2008 at 10:05 am17 Peter
    

    Hello everyone,

    I have read the comments and there is 2 aspects that nobody have commented so far…

    1. the Term of Agreement of the game allows compagny to monitor your activity in VW. VW are not like a public space like a street. They are a service offered by a compagny.

    2. Cia / FBI would easily make an agreement with compagny under the lasted terrows laws to create a Vitual echelon (http://en.wikipedia.org/wiki/ECHELON)

    3. Depending of the localisation of the Gamer / server, the powers / laws will be differents. If a canadian gamer player is logged at an EU server, what will be the applicable law for the US spy ?!

    4. Is the Terms of agreements clause’ designating the US law to be applicable to the contract imply that the constitution apply to the VW ?!

    sorry for the bad english… my first language is french.

    http://www.jeuridique.com

    pod

18. on 21 Oct 2008 at 4:16 am18 Mikyo
    

    How sad that a Professor of the Air War College (”The Intellectual and Leadership Center of the Air Force”) has such poor comprehension of his own subject. Tsk, tsk!

19. on 21 Oct 2008 at 6:57 am19 Jon Weinberg
    

    I’m a law professor, and I teach constitutional law and Internet law. One of the things students learn in the first year of law school is that any question in the form, “is A a B?” or “is A like a B?” has to be answered, “In what context? Why do you want to know?” That applies to the question “is an avatar a person?” In some contexts and for some purposes, it’s plain that computer-generated images aren’t people, and aren’t much like people. Posting an image online of a real ten-year old child engaging in sexual actions potentially has very different real-world consequences for that kid, as he grows up, than drawing a picture of an imaginary child and posting that. That’s what the Court said in Ashcroft v. FSC. But in other contexts, the answer may be different. As Ashcroft Burnham said in the very first comment, following an avatar around might effectively invade the privacy of real people. Ashcroft v. FSC doesn’t tell us anything useful about issues like that.

20. on 02 Nov 2008 at 11:03 am20 Benjamin Duranske
    

    Congratulations to Mr. Breedlove for his insightful comment predicting the professor’s justification precisely. Your book is on the way.

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