So, in the interests of blatant self promotion, my short essay encouraging government to respect privacy interests in virtual worlds is now up at www.yalelawjournal.org. But I wanted to take this further: I think our acquiesence to the rule of contract law in virtual worlds has come home to roost. Bad law combined with EULAs are to blame for our loss of civil liberties in virtual worlds. More on this admittedly controversial statement after the fold.
I admit: I have an axe to grind. I think EULAs are being used to control behavior that has nothing to do with copyrights. I think that a EULA that requires a consumer to vote Democrat, or only to wear purple, or to use no third-party software programs has long ago left behind the traditional reasons we enforce consumer contracts.
But nowhere does this expansion of contracts so bother me as in the area of government surveillance. Under our current regime, search warrants are simply unnecessary. We have all agreed to permit game gods to surveil our every word and action, and to hand the information over to law enforcement and the intelligence community. The Stored Communications Act makes it pretty clear that clicking "I Agree" to a virtual world EULA means "I voluntarily suspend my Fourth Amendment rights pretty much permanently."
Don't get me wrong: I understand that routine surveillance by game gods is fine and necessary for customer service. There's no government action, so no problem. And, otherwise how could a GM go back and check to see if that guy did indeed ninja the Foozle? And I understand that parties can waive constitutional protections by consent: I can consent to a search of my house, or the tapping of my telephone. So why not permit blanket consent proactively to have any of the eleven million people in WoW monitored and the footage handed off to law enforcement or the CIA?
Part of the problem is informational. Customers are signing away constitutional rights (assuming, as I do, that constitutional rights do not cease upon entrance to a virtual world -- in itself a controversial position as far as I can tell) in clickwrap agreements without the slightest knowledge of what they're getting into. So, fair enough: I guess I'm into telling people what they're signing away when they agree to Section 6.1 of the Second Life ToS or Section 17.C and 17.D of the World of Warcraft TOU.
That information problem is also an enforceability issue. Contracts that overreach that far are unconscionable. But unconscionability isn't much of a defense under the Fourth Amendment. You consented; there was no duress. The government can access the information.
But there is a further problem with the argument as a whole. Imagine if signing away your constitutional rights were a prerequisite of engaging in any commercial activity. We could refuse to sell people food unless they signed contracts like this. We could certainly make agreeing to wiretapping a prerequisite to getting telephone service. We could require your "consent" to the installation of cameras in your house as a precondition of getting a building permit, or as part of the sales contract of a house.
You might say: "Sure, but if anyone required me to install cameras in my bedroom, and made me waive the constitutional restrictions on the footage being handed over to law enforcement or intelligence, I'd pretty clearly not agree to the deal! I'd pretty clearly go elsewhere!" Well, manifestly not, given the behavior of people in virtual worlds.
What if there is no elsewhere to go? I guess we see what happens: people do agree to shred their constitutional rights just to get the ability to get on with their lives, in virtual worlds and, by extension, in the real world.
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