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All Fun and (Mind) Games? Protecting Consumers

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All Fun and (Mind) Games? Protecting Consumers ALL FUN AND (MIND) GAMES? PROTECTING CONSUMERS FROM THE MANIPULATIVE HARMS OF INTERACTIVE VIRTUAL REALITY 2019 UILJLTP 299 | Yusef Al-Jarani | University of Illinois Journal of Law, Technology and Policy Document Details All Citations: 2019 U. Ill. J.L. Tech. & Pol'y 299 Search Details Jurisdiction: National Delivery Details Date: March 3, 2020 at 7:50 PM Delivered By: kiip kiip Client ID: KIIPIP Status Icons: © 2020 Thomson Reuters. No claim to original U.S. Government Works. ALL FUN AND (MIND) GAMES? PROTECTING..., 2019 U. Ill. J.L. Tech.... 2019 U. Ill. J.L. Tech. & Pol'y 299 University of Illinois Journal of Law, Technology and Policy Fall, 2019 Article Yusef Al-Jarani d1 Copyright © 2019 by The Board of Trustees of the University of Illinois; Yusef Al-Jarani ALL FUN AND (MIND) GAMES? PROTECTING CONSUMERS FROM THE MANIPULATIVE HARMS OF INTERACTIVE VIRTUAL REALITY Abstract Information technologies increasingly influence our daily lives. While mostly benign, revolutionarily affective technologies are emerging that pose potential autonomy, economic, and privacy harms to consumers. Interactive virtual reality, or VR gaming, is arguably chief among them. But despite its rapid adoption by consumers (often for use by children) and its demonstrable power to manipulate human cognition and behavior, the law is ill-equipped to curtail its harms. This is owed to a general incognizance of the now-extensive research on the technology's manipulative effects and the consequent lack of discussion in public forums on how best to constrain them, both doctrinally and practically. This Article aims to enlighten lawmakers, jurists, and the general public about the effects of interactive VR, demonstrate how First Amendment doctrine permits the constraint of its manipulative harms, and illustrate what those constraints might look like in practice. In doing so, it raises the question: what or who is being played--the game or the consumer? TABLE OF CONTENTS Introduction 300 I. The Manipulative Harms of Virtual Reality Games 305 A. The Manipulative Effects of Virtual Reality Games 305 1. Cognitive Psychology 305 2. Behavioral Psychology 306 3. Physiology 310 B. The Dangers of Manipulative Entertainment 311 II. The First Amendment and Constraining Virtual Reality Games 314 A. “Objective” Psychosocial Harms 315 B. Deceptive Marketing (and Health Risks) 324 C. Subliminal Messaging and Unconscious Influence 328 1. Commercial Speech 329 2. Noncommercial Speech 331 III. Optimally Constraining Virtual Reality Games 332 A. What Regulation Might Look Like 333 1. Noncommercial Content 333 2. Commercial Content 333 B. Future-Proofing Through Products Liability 334 1. Practical Considerations 334 2. Doctrinal Considerations 336 IV. Applying Products Liability to Virtual Reality Games 338 A. Virtual Reality Games as “Products” 338 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 ALL FUN AND (MIND) GAMES? PROTECTING..., 2019 U. Ill. J.L. Tech.... B. Product Defects and Assigning Liability 341 1. Design Defect 342 2. Manufacturing Defect 344 3. Warning Defect 344 C. Injury and Causation 347 1. Harms Inflicted on Gamers 347 a. Physical Harm 347 b. Psychological Harm 349 2. Harms Gamers Inflict on Third Parties 351 Conclusion 353 *300 “[W]e're really proud to be able to say we can change the brain. We can change behavior, do positive things to make a difference for people with disabilities or mental health conditions and all of that. But if you're going to say that, you've got to accept the flip side of the coin.” --Albert Rizzo, Director of Medical Virtual Reality, USC 1 INTRODUCTION Virtual reality (VR) is often compared to the Wachowski sisters' hit film, The Matrix. 2 It is obvious why, so I will not belabor the point. I do, however, submit one more mind-boggling film into the equation. In Christopher Nolan's Inception, 3 an “extractor” named Arthur explains to Japanese businessman Saito the difficulty of planting an idea in someone's subconscious (what the film calls “inception”), only for his partner “Dom” Cobb to contradict him: Arthur: Okay, here's me planting an idea in your head. I say to you: don't think about elephants. What are you thinking about? Saito: Elephants. *301 Arthur: Right, but it's not your idea because I gave it to you. The subject's mind can always trace the genesis of the idea. True inspiration is impossible to fake. Cobb: That's not true. As it turned out, Cobb was right; the protagonists proceeded to successfully plant the idea of breaking up his father's energy conglomerate in Robert Fischer's mind. 4 While real-life inception may not be possible, the human mind is malleable enough to be subject to a great deal of idea-planting. 5 The use of a mix of technology and psychology to manipulate people into thinking, feeling, or doing one thing or another forms the basis of business marketing, 6 political campaigning, 7 and police interrogations, 8 among other activities. These techniques may be off-putting, but they are by and large legal. 9 But what if a technology came along that was unparalleled in its ability to subtly alter people's preferences and behaviors? What if it was marketed as entertainment, perhaps for your children? For the reasons presented in this Article, VR games pose precisely that risk--one that can and should be constrained by law. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 ALL FUN AND (MIND) GAMES? PROTECTING..., 2019 U. Ill. J.L. Tech.... VR has advanced considerably, both technologically and in popularity, in recent years. Google's Vice President of Virtual Reality recently remarked that within ten years, VR will create experiences so immersive that they will be indistinguishable from reality. 10 While VR has a variety of applications, its greatest growth has been in video games. 11 VR was arguably advanced the most by Palmer Luckey, a “video game enthusiast,” and John Carmack, a renowned *302 video game programmer who is now the Chief Technology Officer at Oculus VR. 12 In 2017, Mark Zuckerberg, Chief Executive Officer of Oculus's parent company Facebook, set a goal of achieving an install base of 1 billion users. 13 According to industry forecasts, the market will be halfway there by 2025, 14 when software consumption will have far outpaced hardware purchases. 15 VR games look poised to continue to drive software growth for the foreseeable future. 16 When Zuckerberg made his announcement, he alluded to the fact that the sector is fraught with potential liabilities. 17 It should thus be unsurprising that the rapid adoption of this revolutionary technology has been trailed by a flurry of writings about it in the legal literature. The two who have most comprehensively taken up this task--Mark Lemley and Eugene Volokh-- primarily address criminal and tortious online interactions between different VR users, 18 though they also touch on consumer privacy, intellectual property (IP), and antitrust issues. 19 They largely overlook the less obvious but equally prominent psychological and behavioral harms that the technology can uniquely inflict on users. 20 Consequently, they underestimate the need for constraints overall, advocating instead for a “hands-off approach to regulation of VR,” 21 and *303 in turn fail to conceive of a First Amendment doctrine that would allow for sufficient VR software constraints. 22 Others have taken up similar issues with similar shortcomings, namely the failure to address VR's psychosocial harms, 23 the consequent need for constraints, including through products liability, 24 and relevant First Amendment issues accompanying such constraints. 25 All of these *304 authors raise important problems that legislatures and courts will inevitably have to consider if not solve. The problem is not that they cannot see the forest for the trees, but that they are overlooking an especially prominent tree: interactive VR's unique and powerful ability to influence human thought and behavior. 26 This Article contributes to the nascent discussion on VR law by filling these gaps in the literature. In Part I, I detail the various psychological and behavioral harms posed by VR games and why those harms are unique to VR games, as opposed to VR software generally. In Part II, I show why constraints on VR games would not pose insurmountable First Amendment obstacles under existing jurisprudence. In Part III, I briefly consider different approaches to constraining VR games, namely product safety regulation and products liability. In Part IV, I outline how a plaintiff might make their case under products liability law. Through this exercise, I demonstrate that VR games increasingly impose psychosocial costs on consumers and society in the form of manipulation and *305 potentially other harms, and propose doctrines and constraints that can be used to address them. In particular, I argue that VR game developers and publishers can (constitutionally) and should (from a public policy perspective) be required to warn of the manipulative effects their products cause. I. THE MANIPULATIVE HARMS OF VIRTUAL REALITY GAMES Before embarking on a lengthy discussion as to how interactive VR (i.e., VR gaming) can constitutionally be constrained and which constraints are optimal, it seems logical to start with why such a discussion is necessary. The very notion of playing games betrays a sense of fun, and popular suggestions that video games cause violence and other serious adverse effects have largely been debunked. 27 This Part examines the various interfaces through which VR can be experienced and their associated psychological, behavioral, and physiological effects. 28 The © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 ALL FUN AND (MIND) GAMES? PROTECTING..., 2019 U. Ill. J.L. Tech.... aim is to deduce, through a rough meta-analysis, the variety and extent of the psychosocial effects produced by VR games.
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