This article challenges government cybersurveillance norms and practices by introducing virtual reality, a unique digital environment which may be justifiably subject to constitutional physical privacy protection. In liberal democracies, government surveillance is driven by public security and enforcement interests, and checked by individual privacy rights. In recent years, this balance has been gradually shifting. Government surveillance of cyberspace has become extensive and constant, effectively unhindered by legal restrictions and judicial oversight; surveillance of physical spaces, subject to the Fourth Amendment, is not as prevalent nor as unrestrained.
We are in the midst of a virtual reality renaissance; new virtual reality devices and services are announced every day. Should government surveillance of virtual reality environments be subject to current lax cyberprivacy norms or to the more substantial Fourth Amendment protections of physical space? Understanding the legally significant features of virtual reality technology points to the latter. Unlike other technological media, virtual reality is built to deliver a psychological effect believably simulating the physical world. Multidisciplinary research shows that this technology infuses users with real-world legal expectations and mirrors human social values, justifying a real-world standard of privacy protection.
Experts believe that virtual reality technology will evolve cyberspace, creating a virtual reality cyberspace where substantial physical privacy protection from government surveillance is expected and justified. Unrestrained government cybersurveillance could become a thing of the past as the balance between enforcement and security needs and privacy values is reestablished. This technological change presents an interesting opportunity but also a serious danger. If legal institutions do not act to restore the balance, the virtual reality cyberspace may usher in an Orwellian future.
Gilad Yadin, Virtual Reality Surveillance, 35 Cardozo Arts & Ent. L.J. 707 (2017)
Yadin, G. (in press). Virtual Reality Surveillance. Cardozo Arts & Entertainment Law Journal, 35(3), 707-743