The Potential Dangers of Minds Getting Played

I clearly remember hearing about a new kind of game back in the late 90s- a friend handed me a magazine while I was playing Descent. The article detailed a new genre of game: Alternative Reality, in which the content of the game connected with the real world, and the gameplay was woven through physical space as much as game space. The article focused on a game called Majestic. Even before law school secured my youthful cynicism, I was already concerned about the potential for disaster with this game: trespassing, distracted operating of motor vehicles, unfortunate confusion with actual crime- by both police and criminals, etc. The game, and the genre, never really took off, and so a lot of the issues got pushed aside and ignored for a decade and a half.

Then Pokemon Go came out.

I) How do we Distinguish Alternative, Augmented, Virtual Realities from Plain Ol’ Boring Reality?

As Jerry “Tycho” Holkins has pointed out, when someone is experiencing a reality that differs from the reality that others are experiencing, we usually conclude that the singular experience of reality is a hallucination of some kind. So, inviting a parallel version of reality is a bit ambitious for a species that still has some fundamental questions about the nature of reality and the capacity to perceive it. But humans tend to be ambitious.

Metaphysics has tried for several millennia to explain what reality is, and epistemology and philosophy of mind (now backed up by nascent efforts of neurobiology) have tried to understand how the human mind interacts with whatever reality is. These kinds of questions seem tiresome and sophomoric because they seem to be trying to solve a problem that we don’t have. Fortunately for philosophers, scientists, and lawyers, humans are good at creating interesting problems.

II) Augmented Reality, Virtual Reality, Social Media, and AI: A Combination for Confusion

The biggest danger isn’t really just immersing the human mind in an alternative reality. Literature and media have been doing that since the first tools of imparting imagination were created. However, there have always been clear markers about the borders of fiction and reality: the edges of pages, the entrance to the theater, the “play” button. Since video games started making recognizable depictions of reality, political bodies have been concerned with the ability of the mind to keep the fiction of the game separate from reality.

Some games have recently made a deliberate effort to blur the distinction between the game and reality. In Batman: Arkham Asylum, the villain Scarecrow created a visual effect that looked to the player as though the game-machine itself was having technical problems. Metal Gear Solid villain Psycho Mantis had similar behaviors, interfering with the usable controller ports on the Playstation, reading memory cards to learn what other games the player plays, and giving the appearance of technical problems with the visual display.

The connection of games to social media platforms and profiles perforates some barriers between games and reality. These perforations tear wider the more the game uses them. How much more of a leap would it be for a game to read the social profiles of a player and allow a villain to make threats against the actual friends and family members of the player?

This trajectory, combined with increasingly better artificial intelligence programs that can learn and affect both game worlds and real worlds, creates the potential for some bizarre problems that will still seem like science fiction even after the first time we read an article reporting on why a 22 year old is dead after a cat walked across her keyboard while she got a soda. It may not be long until someone is arrested in real life for a murder committed in a game due to a bug or an AI program getting out of control. Or, perhaps even more likely, some hacker will make use of the obfuscated and blurred boundary between the game and reality to either commit a crime or frame someone for one.

III) Pokemon Go: Traps, Muggers, Molesters

If these possibilities seem like pure fantasy, we should remember that we’ve already seen some of the first iteration of the dangers of people trying to handle two realities simultaneously. Pokemon Go serves as an example the nature of the problems and the sometimes tragic stakes of not handling the problems well. There have been reports of muggers and sex offenders using the game to their own malicious ends, as well as reports of accidental deaths and car accidents from the simple carelessness of distracted (or overly-ambitious) players.

If you die while playing Pokemon Go, you die in real life.

IV) Philosophy is still relevant

In 1967, Phillipa Foote introduced the famous “Trolley Problem”: a hypothetical dilemma of choosing to allow a train (or trolley) to kill several people, or choosing instead to intervene and divert the train to kill only one person. The problem was meant to probe people’s moral intuitions, as the goal was not so much the answer to the problem but the justification for the choice. Many people outside of philosophy dismissed this hypothetical as irrelevant nonsense that showed how stupid and meaningless academic philosophy had become in the enlightened, advanced age of the 20th century. Then, in the early 21st century, automotive engineers and programmers confronted the exact problem in determining how to program self-driving cars when confronted with similar dilemmas.

The story for the philosophical field of Aesthetics (the area concerned with understanding art and beauty) is similar. In the coming years, the interactive entertainment media industry will have to confront problems of understanding the boundaries of how, when, and why fiction is experienced. The analysis of essays on the use of the fourth wall and meta-humor will be important to cutting-edge games looking to balance novel thrills with consumer safety.

V) Solutions: Design for Safety, Be Helpful

The law can make some efforts to protect the public, but it’s almost always going to be reactive, not proactive, in these matters.

Developers should design for Audience Meta-Awareness. Yes, the much-touted quality of immersion adds fun to the experience. However, it is necessary to provide safety outlets for that immersion. The game creates a space- players need to always be able to see the door to the space and get out of it. They need to be clear about when they are in that space and when they are not. Games that actively seek out players to update them about the game undermine that distinction. Games that don’t allow players to put down the game, or don’t allow players to know when they have put down the game, are looking for problems.

The community can create safety nets, as we saw with Pokemon Go players acting as safety guards in potentially dangerous scenarios. However, if we’ve learned anything from the internet, it’s that groups of people knit together by cyberspace are not always a recipe for safety and well-being. Still, the more that games resemble mind-altering drug experiences, the more important it is to have a sober friend nearby.


4/14/17 UPDATE: One of my favorite web series on game design, Extra Credits, apparently also thinks this is an interesting subject. They provide a lot of examples of the concepts I addressed.


The Strategic Benefits of Balanced Consumer Protection


Reigns is an interesting game because you can lose by winning too hard. As the monarch of a fictional country in something like Middle-Ages Europe, you must make decisions that will affect your nation in four areas: food, military, religion, and population. Intuitively, if any area reaches zero, you lose the game. However, you also lose the game if any area does too well. Consumer protection law is an area of law that must be kept in a similar balanced state for optimal results; actually having too much success in consumer protection law is really a loss for everyone.

Consumer Protection: Is There Ever A Downside For Consumers?

The benefits of consumer protection law are pretty apparent. Laws help protect consumers from dangerous and harmful products, and also curb the deception and misinformation from advertising. By imposing regulations and penalties on companies, the law increases the overall safety of goods and services for consumers and creates a means of recourse when harms occur. By codifying requirements around safety and advertising, consumers can trust in a minimal floor of consumer protection, and companies understand the standards to which they are held.

As with most good things, it can be hard to believe that there can be too much consumer protection. Could consumers ever be too safe or too well-informed? I don’t think any American will ever be in danger of such a fate – but to the point at hand, it’s important to understand the downsides of consumer protection law. Compliance with safety regulations comes at a cost. Buying higher quality materials, training employees to a higher level, quality-control checking goods, and other dimensions of complying with consumer protection requirements require time and money. If legal restrictions or regulations ran out of control, companies would struggle to remain compliant. Furthermore, consumer protection provides for monetary penalties (either as government fines or as awarded damages after a lawsuit); fear of these penalties can chill a company’s innovation or expansion, and a single lawsuit could completely destroy a company if the damages were high enough.

Shutting down a single, reckless company or imposing high safety standards doesn’t seem undesirable at all, of course. But shutting down multiple companies for single, harmless infractions, or imposing such high quality standards as to raise prices by tremendous proportions—those things hurt both the company and the consumer. Setting aside any moral arguments about whether strong consumer protection undermines the societal notion of personal responsibility, rampant consumer protection leads to undesirable economic outcomes.

Short Case Studies

An example of well-balanced consumer protection comes from a ruling in New Jersey last month. A New Jersey consumer protection law allowed consumers to bring claims against a company for certain violations contained in documents like End User License Agreements. A court dismissed two cases under this law because there were no harms that resulted from the violations in question. The result is that consumers still have recourse if they are harmed, but companies are free to draft their documents how they like and will only be penalized if consumers are actually harmed.

A new question in consumer protection is whether software developers should be held liable for bugs in software. This question becomes more pressing as software becomes a functional part of the lives of consumers in everything from cooking and hygiene to medical care and construction. The disproportionate amount of expertise held by developers and the complexity of the product in question are reminiscent of one of the earliest subjects of consumer protection law: automobiles. Perhaps crafting new laws for software liability should begin with considering the reasoning behind regulations on manufacturers and sellers of cars in the mid-20th century.

It will be important to bear these principles of balanced consumer-protection in mind in the future, as questions will only continue to become more complicated. A lawsuit against Niantic poses several questions, such as responsibility for placing digital content on private property. In August, a New Jersey resident filed against the developers of Pokemon Go because players kept asking if they could go into his backyard to catch a pokemon. Plenty of other controversies from Pokemon Go have raised questions, but this one includes both liability for digital content and using that digital content to influence consumers to behave in ways which (hypothetically) could become illegal (e.g., if the players started trespassing or started harassing the plaintiff).