Presented at the Stanford Trust and Safety Research Conference 2023, on Sep. 28.
Imagine that you are sitting at home, doing your usual activities. A moment later, some police officers arrive at your house, knock on the door, and express their intention to search your place for evidence that might potentially lead to your arrest for an alleged crime, whatever that may be. In such a situation, you would typically expect the police to have a search warrant issued by a court based on probable cause. They cannot simply enter; it’s your place!
But, that might not be the case once you enter your virtual home in the Metaverse! Given the current laws and regulations, we doubt that law enforcement would require a search warrant to enter and inspect your virtual space, even if you created it solely for personal exploration.
This is due to the ‘Third-Party Doctrine,’ established by the Supreme Court long ago in 1976. This doctrine assumes that once you share something with a third party, you give up your expectation of privacy over that data. Consequently, the government can access such data without a search warrant, which would typically be required by the Fourth Amendment.
In today’s Metaverse, it’s highly probable that your data resides with third parties. While a fully decentralized virtual world is still in progress, platform developers collect and store your digital footprints (e.g., your virtual activities and interactions). Your identity is often disclosed when engaging in online transactions due to Know Your Customer (KYC) requirements, and XR device companies capture and analyze your biometrics (e.g., eye prints and movements).
Therefore, we propose the theory of control, which suggests that ‘control’ in the Metaverse directly correlates with the government’s search standard under the Fourth Amendment (i.e., when a user opts to maximize control over their virtual environment and activity, a search warrant upon probable cause should be required)
We argue that, first, control is a common underlying component among the different Fourth Amendment Court interpretations, including the Fourth Amendment protecting ‘property,’ the Fourth Amendment protecting ‘expectation of privacy,’ and the Fourth Amendment protecting ‘property-based privacy.’ Second, control is instrumental to the Web3 community, those who envision the Metaverse as a completely decentralized world. The law and search policy should, therefore, at least recognize this collective expectation.
Thus, a warrant should still be required in certain Metaverse searches. Suppose a user has built a personal space for their self-explorations. Although the platform is run by a third party, the user has implemented the available control measures (such as requiring an NFT-key for access). In this case, our proposal holds that law enforcement cannot simply invade such a user’s space looking for evidence that would put them in jail without a search warrant.
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