My friend Orin Kerr is a leading expert in the area of cybercrime and the author of the Computer Crime Law casebook, the first legal casebook in this area. He is also a blogger at the Volokh Conspiracy, one of the most-visited legal weblogs. Orin has just posted a draft to SSRN of his forthcoming essay, Criminal Law in Virtual Worlds. It's quite timely, given the ongoing discussion of Arno's recent post. Here's the abstract:
When does conduct by an online player in a virtual world game trigger liability for a real-world crime? In the future, will new criminal laws be needed to account for new social harms that occur in virtual worlds? This short essay considers both questions. Part I argues that existing laws regulate virtual worlds with little or no regard to the virtual reality they foster. Criminal law tends to follow the physical rather than the virtual: it looks to what a person does rather than what the victim virtually perceives. This dynamic greatly narrows the role of criminal law in virtual worlds. Existing law will not recognize virtual murder, virtual threats, or virtual theft. Virtual worlds will be regulated like any other game, but their virtualness normally will have no independent legal resonance from the standpoint of criminal law.
Part II turns to the normative question: Are new laws needed? It concludes that legislatures should not enact new criminal laws to account for the new social harms that may occur in virtual worlds. Virtual worlds at bottom are computer games, and games are artificial structures better regulated by game administrators than federal or state governments. The best punishment for a violation of a game comes from the game itself. Criminal law is a blunt instrument that should be used only as a last resort. The state's power to deny individuals their freedom is an extraordinary power, and it should be reserved for harms that other mechanisms cannot remedy.
Online virtual worlds may seem real to some users, but unlike real life, they are mediated by game administrators who can take action with consequences internal to the game. Internal virtual harms should trigger internal virtual remedies. It is only when harms go outside the game that the criminal law should be potentially available to remedy wrongs not redressable elsewhere.
Dan and I took a look at this issue back in 2004 and reached conclusions that accord (generally) with this. Prosecutions involving virtual property are theoretically possible, but the presence of game rules should generally limit the applicability of conventional approaches. As far as I know, Orin's essay is the first U.S. law review publication on virtual crime since our effort. It adds new case law precedents, new policy arguments, new factual developments, and the imprimatur of Orin's expertise in criminal law.
I'd just like to note how Orin approaches the Habbo situation Arno mentioned:
Within the Habbo Hotel virtual environment, virtual furniture could only be purchased with real money and could not be “stolen” by other users: the sum of all the furniture that the teenager moved was apparently purchased for thousands of dollars. This conduct properly led to criminal charges because it was an actual theft, not a virtual representation of one.
There's already a substantial discussion underway at Volokh Conspiracy -- people may want to join in the thread there.