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

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.

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

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.

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

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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.