The knotty problem of applying real-world laws to VR and AR

As we continue to grapple with governance imperatives for artificial intelligence (AI), the emergence and acceleration of augmented and virtual reality (AR/VR, also known as XR) presents a related and important governance frontier – raising novel and complex challenges for which we, and our legal system, are ill-prepared.

Historically, we have let societal, judicial and legislative forces produce rules for new technologies. We are slow to innovate legal frameworks for new technologies that require new ways of thinking. XR is outpacing this watch-and-wait approach, however, precisely because of its whole-world and dimension-shifting capabilities.

XR technology is immersive, increasingly realistic, and evolving fast:

As more users interact in and with XR environments, commercial rules are being formed through supply contracts, terms of use, and risk and rights allocations – well before we fully understand how XR will impact individuals and organizations, the types of disputes they produce, or the challenges they present to social and judicial systems.

The US relies heavily on litigation to establish functional boundaries on behaviours, resolve disputes and interpret laws. This means that new enforceable standards (a) take a long time to develop; (b) tend to trail the emergence of societal norms and expectations; and (c) tend to focus on edge cases that (d) are decided by judges and juries with differing levels of expertise in this technology. It's also worth noting that in the US alone, more than 85,000 local government districts enforce laws governing everyday and extraordinary conduct – with many differences one to the next.

Relatedly, the public frequently expects more expansive protections from this iterative legal system than it gets. This gulf – between what the public expects and what the law actually does – shows up in frustrated calls for overly expansive use of the antitrust laws, or for the assertion of broad privacy rights, more strenuous efforts to curb stalking, public corruption, and untrue, hateful and harassing speech (often directly threatening women) online. The law is cautious in regulating offensive conduct short of direct physical or financial harm (and enforcement is notoriously uneven). If our experience with the internet is any guide, relying on litigation – or norms and manners – to govern our XR experiences will prove to be disappointing and ineffective.

As we think about what will govern XR experiences, we must recognize that all behaviours, assets and disputes encountered in real life will also occur in XR, along with dazzling new dimensions of conduct and capabilities (flying! transforming! invisibility!). This provokes many questions beyond those we are already struggling with in online settings. A few to consider:

These and many other novel questions will challenge society and our legal system as we encounter behaviours and outcomes in XR for which the courts – alone, or at all – do not offer adequate process or redress. Legal scholars are beginning to unpack these issues, but there is a very long way to go. As one character observes in the sci-fi novel Ready Player Two: “And sometimes when you think you’ve reached the end of the game, suddenly you find yourself standing at the start of a whole new level. A level you’ve never seen before.”