Cybercrime and Fantasy Crime: The Law in Virtual Worlds

January 28th, 2009  |  Published in SLENTRE.COM Magazine Feature Articles  |  4 Comments

By Sigmund Leominster, News Editor

Professor Susan Brenner is the NCR Distinguished Professor of Law and Technology at University of Dayton School of Law in Ohio. She is a member of the American Bar Association’s International Cybercrime Project, a member of the U.S. Department of Justice’s National Forensic Science Technology Center Digital Evidence Project, and has served on the National District Attorneys Association’s Committee on Cybercrimes. She is also the author of the recent article, “Fantasy Crime: The Role of Criminal Law in Virtual Worlds,” published in the Fall 2008 issue of the Vanderbilt Journal of Entertainment and Technology Law.

The Concept of Harm

In an eminently readable style, Brenner begins by reviewing the difference between “hard” and “soft” harms as they apply to real world crimes. Hard harms are “the bedrock of the criminal law; they involve the infliction of tangible, egregious injuries to persons or property and, as such, are the oldest and most persistent harms.” (p.6)

This includes direct physical harms like murder, rape and robbery; property harms such as arson and theft; and derivative harms exemplified by fraud, counterfeiting, vandalism, and forgery.

These contrast with soft harms, which are “the infliction of some type of injury – which can be tangible or intangible – to morality, to affectivity, or to a systemic concern with the safety of individuals or the integrity of property.” (p.8)

Morality harms are those which affect the moral sense of the community, which can obviously vary to some degree. Blasphemy and prostitution are two such examples, where in some countries neither are treated as criminal activities, but in others can result in severe sanctions. Gambling and drug abuse are also moral issues.

Affectivity harms are even harder to pin down. Generally, these refer to “hurt feelings,” such as the loss of reputation related to libel. Measuring the degree of “hurt” can be subjective and difficult to classify and determining a proportionate response becomes further complicated. Defamation and harassment fall under the umbrella of affectivity harm.
Finally, systemic harms are those that don’t affect an individual per se, but a society or community. Antitrust or environmental laws are aimed at ensuring the well-being of all members of a society.

Virtual Worlds

After providing an inital background covering the concept of harm, Brenner then offers a brief history of virtual worlds; from the early MUDs (multi-user dungeons) of the late 70’s and early 80’s, through the MMORPGs (massive multiplayer online role-playing games) of the 90s, and ending with today’s less-structured “Metaverse” environments such as the Second Life™ virtual world. Unlike the MUDs and MMORPGs, Brenner points out that in the SL® environment, there are no treasures to collect, points to amass, quests to follow or game rules. In fact, she summarizes the virtual world as being:

“… a somewhat fantastical, slightly skewed replication of life in the real world; the experiences it offers are consequently real-life-plus, offering the same experiences as in real life, but with additional features that are physically or practically impossible in the real world. Many, perhaps most, of the activities that Residents engage in are analogues of activity in the external, physical world. They have jobs; they buy land, build structures, and furnish them; they give parties; they get married; they have sex; they have pets; they create art and play music; they go to school; they travel; they play sports; they practice their religion; and so on.” (p.48)

In this sense, the separation between the real and virtual worlds is always narrowing. And if the virtual world is potentially similar to the real, then there is a case to be made that real world law should apply to virtual world crime. In fact, Brenner is explicit about this when she makes two assumptions, explaining;

“We will come to spend an increasing amount of time online in virtual worlds…(and) we will spend at least the majority of that time in augmented reality worlds like Second Life. If those assumptions are correct, we will live a substantial part of our lives in worlds that are at once real and unreal. This means that what we do in these worlds can, to paraphrase a popular slogan, either ‘stay in those worlds’ or bleed out of them to have an impact in the real world. Those alternatives have important consequences for how we develop the laws and policies governing virtual worlds.” (p.53)

There is, according to Brenner, a dichotomy between cybercrime and fantasy crime.
Cybercrime is “essentially computer-mediated crime; that is, it consists of using computer technology to inflict harms…. The methodology used to inflict the harm is novel, but the harm itself is not. This is, I submit, true of all cybercrime.” (p.54-55)

On the other hand, fantasy crime is activity in virtual worlds that would constitute a crime if it were committed in the real world. Rape, murder, pedophilia and other such hard harms would fit here.

Prosecuting Cybercrime

A central issue in what constitutes a crime in Second Life is that of harm. If an avatar stalks another avatar in the virtual environment, there is harm involved. Although it may be assumed that because this happens in an artificial environment, and because avatars are “immaterial,” there is no actual harm involved. However, this viewpoint ignores the fact that there are people behind the avatars, and that these people do exist in the real world and can experience harm. And, as Brenner noted earlier, what happens in the virtual world “bleeds out” into the real.
There is no need to create new laws to deal with cybercrime because as it is “merely the transposition of ‘regular’ cybercrime into a new virtual context, it should not require the adoption of new, virtual-world-specific cybercrime laws.” (p.62)

The problem is more that “using our criminal laws and criminal justice system to control in-world cybercrime lies not in defining offenses or establishing jurisdiction but, as with ‘regular’ cybercrime, in finding the resources and expertise necessary to enforce our laws in this new context. Regular cybercrime challenges our law enforcement system because of its complexity, because it tends to be transnational, and because it tends to be committed on a scale far exceeding that possible in the physical world.” (p.63)

This approach is certainly taken by Second Life residents who create materials for sale, only to find them copied and resold at lower prices. Typically, prosecution is based on intellectual property law, specifically under the Digital Millennium Copyright Act. In 2007, a group of residents lead by Stroker Serpentine (real-life Kevin Alderman) sued Rase Kenzo (real-life Thomas Simon) for copying their in-world products and reselling them. Simon clearly adopted the viewpoint that no harm could come from actions in a computer simulation. In an article from the New York Post, Simon said, “They can say whatever they want to say… It’s a video game.”
However, their lawyer, Frank Tanney, said they had a strong case based on intellectual property rights. “This is not a joke,” he said. “This is not a game. This hurts them.” The word “hurts” was clearly chosen to establish the concept of harm.

In fact, the case was resolved in December 2007 with Simon having to pay $525 in damages for lost sales. The case was said to “stand as the first formal, if tentative, recognition of virtual property by a U.S. court.”

Prosecuting Fantasy Crime

By “fantasy crime,” Brenner is referring to any “activity (that) consists of, or involves, conduct that would constitute the commission of a crime in the real world. That is, it results in the infliction of a hard or soft harm that has been more or less generally outlawed by the nations of the world.” (p.65). Furthermore, she is focused here on activity within Second Life that “might seem to constitute cybercrime committed in a private area of cyberspace, (but) it cannot readily be assigned to that category of cybercrime because the harm apparently inflicted is fictitious—a fantasy.”

She divides these into (a) victimless crimes, such as gambling, drug use, prostitution and bigamy, and (b) traditional crimes, which include property harms (arson and theft) and personal harms (rape, murder and pedophilia).

With regard to the victimless crimes, she argues that unlike cybercrimes, applying real world law to virtual life would be ineffective because there is little real harm that can be recognized. For example, if a resident engages Second Life drug use (she uses the example of Seclimine, a scripted “drug” available in SL that mimics the effects of real life drugs), there is no harm inflicted sufficient to warrant real world legal action – against the user or the dealer.

Where the issue of applying real law comes to the fore is in the severe harms of rape, murder and pedophilia. There seem to be two fundamental questions: are acts in Second Life an expression of Free Speech, and do such acts constitute systemic harm sufficient to warrant prosecution?

Brenner believes that although the residents of Second Life may reside anywhere in the world, the virtual world’s “home” is legitimately the US; it belongs to a US corporation, Linden Lab, located in San Francisco. Thus, US First Amendment privileges apply – Freedom of Speech. If Second Life is a fantasy role-play existence, then it is essentially a story, a play or an artistic expression.

Virtual rape is, in the vast majority of cases, consensual rape – a term she notes as being contradictory. Thus, instances of rape play are essentially role play and there is no harm committed. Prosecution for rape would be pointless. In the rare instance where an avatar is raped by being coerced into accepting a script, Brenner argues that the level of harm caused would not justify a real-world prosecution. The victim may suffer emotional stress but not sufficiently so to be considered “serious harm.”

She uses a similar approach in relation to virtual murder. Should an avatar be “killed” in a combat area, even without consent, there is no death. As she points out, “The victim returns to life, having endured no pain or physical suffering, and since the victim consented to his or her (or its) demise, the event presumably did not inflict emotional trauma. Here, again, we have no individual harm that could justify the use of criminal liability to discourage a virtual analogue of a real world crime.” (p.92)

At a more emotional level, sexual activity between child and adult avatars appears to be more of a potential activity potentially invoking real prosecution. But even this is not as simple as it may appear.
First, in age play, there are no real children. There is no child abuse because the activity takes place between consenting adults. Distasteful as the practice may be, it is still protected – at least in the US – by Freedom of Speech. In Ashcroft vs. Free Speech Coalition (2002), it was determined that virtual child pornography – drawings/cartoons of child sex – is protected as an expression of free speech. The notion is that the law makes a distinction between words and deeds, and that the law should not be able to prosecute people simply for what they say, no matter how distasteful. On this basis, sexual child play in Second Life is not illegal.

In fact, when Linden Lab banned such activity in May 2007, it was NOT because of the threat of prosecution or recognizing illegalities, but that it was “disallowed in recognition of our Community Standards … and international laws.”

Where Brenner thinks there may be a case – although she doesn’t recommend it – is if the argument can be made that such fantasy crimes pose a significant systematic harm to real life communities. Opponents of any type of distasteful virtual activity typically assume that the fantasy activity leads to real-world crime. Fantasy rape encourages real rape; fantasy child abuse leads to real child abuse; fantasy Grand Theft Auto Leads to real grand theft auto.

Up until now in the US, little evidence has been found to confirm that this happens. In Ashcroft, the conclusion was that the argument that “virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct” held little water because available research had “shown no more than a remote connection between viewing virtual child pornography and any resulting child abuse.” (p.97). If such connections could be firmly established, the Ashcroft decision could be overturned. A recent article by Caroline Meek-Prieto (2008) argues, once again, that age-play in Second Life “facilitates harm to real children by providing affirmation of pedophilic conduct via social support from like-minded individuals.” (p.108). The paper uses the notion of systemic harm as its lynchpin.

Brenner’s article is readable and thought provoking. Her blog, CYB3RCRIM3, is a great source for legal discussion about all things virtual and a highly recommended bookmark for your browser.

References

Brenner, S. Fantasy Crime: The Role of Criminal Law in Virtual Worlds, in The Vanderbilt Journal of Entertainment and Technology Law’s Fall 2008 issue, Vol. 11 No. 1. http://works.bepress.com/susan_brenner/1/

Meek-Prieto, C. Recent Development, Just Age Playing Around? How Second Life Aids and Abets Child Pornography , 9 NC JOLT Online Ed. 88 (2008). http://cite.ncjolt.org/9NCJOLTOnlineEd88.

CYB3RCRIM3 Blog: http://cyb3rcrim3.blogspot.com/

Responses

  1. Ken Walters says:

    January 29th, 2009at 10:14 am(#)

    I’m an artist and builder in Second Life, the type of crime I find most aggravating, is the renting of commercial or residential property then finding you haven’t rented anything.
    This has happened to me twice in SL, the second time just a few weeks ago when I rented a vendor space at the Queen’s Hive. I clicked on the rental box as per usual, paid the rent and then the box disappeared leaving a vendor space already occupied.

    This can happen because most vendor spaces are put together, then left to run themselves by their owners. So are largely ‘unoccupied’.
    The level of theft is small, usually up to L$500 a time. So it doesn’t hit your pocket too hard, but how often do these people take money in this way?. Is it small time pocket money, or do they get lots of such hits and cash their money in quickly.

    The most galling thing about it is Linden Labs will do nothing to stop this happening in SL. They offer to help any Police force who may investigate the case, but how many Police outside of America would bother with such a small crime? would Linden Labs give you the real name of the criminal involved? considering the secrecy policy I’d say you wouldn’t get help of that kind. In my opinion Linden Labs is helping these criminals by doing nothing to stop them. What’s the phrase about good people doing nothing while bad does what it wants?

  2. Douglas says:

    October 7th, 2009at 5:23 pm(#)

    In addressing the legality of sexual ageplay in virtual environments, Professor Brenner doesn’t seem to take the PROTECT Act of 2003 into consideration. Passed in response to Ashcroft v. Free Speech Coalition, the PROTECT Act bans any depiction of child pornography, even drawings, if they are obscene.

  3. Jack p says:

    April 19th, 2010at 1:27 am(#)

    I learned a lot of information from this piece and will definitely keep it in my RSS. Thanks for the effort you took to expand upon this topic so thoroughly. I look forward to future posts.

  4. adele pace says:

    October 31st, 2010at 5:22 pm(#)

    Great article. Thanks. Great point about second life spilling out into the real world. I think there have been a few murders in cybercafes over currency fights in China. I hadn’t ever considered virtual crimes as possible crimes which could be prosecuted under law, being a simulation. However I have read in Wired that it causes trauma to ‘victims’. Even if you hacked into the virtual world and killed an avatar that might amount to a breach of our criminal code? accessing or modifying data without authorisation or similar state criminal law. But without an actus reus I can’t see how it could ever constitute the ‘real crime’.