As The Register noted, this possibility raises the prospect of “virtual prosecutions” and of “virtual FBI agents kicking down virtual doors”. As The Register also noted, “the mind spins.”
The context here is that Linden Labs, operator of Second Life, has recently invited FBI agents to “take a look around” in Second Life and “raise any concerns” they may have about gambling going on there. According to a Linden Lab representative, the agents “did look around in a virtual casino” but no made no arrests.
The reason for that, of course, is it is far from clear whether gambling in Second Life, or in any other virtual would, would violate
There are basically three federal statutes that could (emphasize “could”) be used to prosecute gambling in Second Life. One is the Travel Act, 18
Does the gambling that goes on in Second Life occur “in” any
Okay, let’s further assume that John Doe (our favorite person to pick on in law school) operates a casino in Second Life. Doe lives in
We have no indication he traveled in interstate commerce as part of operating his online casino, so that option is out. Using the Internet would qualify as using a facility in interstate or foreign commerce, so if we can say he used the Internet to carry on or facilitate the conduct of a gambling operation that violated California law, then he could, it seems, be prosecuted for violating the Travel Act. Doe, who lives in
That raises a very interesting issue, one that runs through a lot of legal analysis involving online activities. We’re dealing with an emergent reality here – with a virtual construct that becomes the scene of conceptual human activity as surely as the real, physical world is the scene of physical human activity. Do we treat this emergent reality as a “real” reality or do we reduce it to a physical reality? That is, do we say that the gambling going on in Doe’s casino occurred in Second Life and nowhere else . . . which would put it outside the scope of the Travel Act? Or do we say it occurred, presumably simultaneously, in
These are very important questions because the other two federal statutes that could criminalize gambling in virtual worlds such as Second Life also require that the gambling have been illegal under the law of a
This is where we come to my two cents. It seems incredible to me that we would create these complex, heterogeneous online worlds and then attempt to reduce them to parochial venues. As far as I can tell (having dabbled a bit in Second Life), one reason, if not the principal reason, people participate in Second Life is to have experiences that transcend what is available to them in their localized physical reality. For that matter, many of the experiences people can have in Second Life transcend what is available to anyone in any physical reality currently existing anywhere on the globe, which makes it even more interesting.
The U.S. Supreme Court has implicitly recognized that it will have to deal with this issue in a different context – in the matter of defining what is and is not obscene. For some reason, in the
Now, that test may have made sense when sexually-oriented material was only available in hard copy and had to be physically shipped to a location and displayed there for sale. In that world, the material itself came into the community which, at least arguably, could give the community the interest and the right to exercise some control over it.
The migration of sexually-explicit material online makes that standard changes that equation and makes that standard essentially meaningless. The material does not come into the community; the community (or those members of the community who are interested in such material) seek out this material by going online. This means that they gain access to something that is being distributed for a much wider audience – a global audience, in effect. As the Supreme Court has intimated, it is clear that relying on the community standard to define what is and is not obscene is an obsolete artifact of a different world. What made sense when
Obviously, I think the current federal approach to criminalizing gambling should not apply to activity in Second Life or in any other virtual world. So far I’ve based that argument simply on parsing the language of the applicable law, with a gloss added as to how we interpret when – if – virtual activity occurs “in” a physical venue.
Let’s go beyond that now and discuss a related issue: If online gambling occurs purely online, and if it only involves the use of virtual currency, what, then, is the “harm” with which the law should be concerned? I’ve never been quite clear as to what “harm” is involved in real-world gambling. The social concern seems to be to protect people from themselves, i.e., to protect people from gambling away all their money.
I don’t see why we need to be concerned with this victimless crime, when people are quite free to fritter away their money on cars, worthless real estate, jewelry, or their latest infatuation. Nor do I see how criminalizing gambling can be justified selectively; as we all probably know, in the
But let’s go with the premise that there is some justification for criminalizing gambling in the real-world because of the loss of “real” assets. The proponents of online gambling might point out that in Second Life, anyway, the gambling involves the use of
The opponents of online gambling would no doubt point out that gambling in Second Life involves the use of
Let’s still assume, for the purposes of analysis, that there is a valid reason to criminalize gambling in virtual worlds like Second Life and that we have figured out a rational way to apply federal law to this end. One logical possibility would be to quit using state law as a definitional component of the statue criminalizing online gambling and just adopt a federal statute that made online gambling a crime. There are reasons why that approach might be problematic, but while we’re hypothesizing let’s just assume that was done and it worked. This brings us to the enforcement issue.
If everything else is in place, how would federal agents enforce laws criminalizing gambling in Second Life (and similar online venues)? The obvious way to do this is to put pressure on Linden Labs to crack down on virtual casinos. Since Linden Labs is located in the
If that were to happen, I’m sure Linden Labs would comply, to the best of its ability. The problem is, as a Linden Labs representative recently pointed out, since there are millions of registered accounts in Second Life and millions of places and objects in Second Life, it simply would not be feasible for Linden Labs to be able to keep track of every virtual casino that cropped up . . . especially not if the operators took steps to conceal what they were doing.
So, what would be the solution? As The Register said in the quote I began with, we’d presumably wind up with virtual federal agents conducting virtual undercover investigations (virtual snitches?) in Second Life. I don’t know about you, but I’m just not persuaded that we need to go there.