The U.S. Currently Has An Opportunity In the Emerging Technology of the Metaverse to Shape A Better System of Enforcement Actions

Executive Summary

2020 was an inflection point for the social issue of police brutality in America. Instances such as the killing of Breonna Taylor and George Floyd led to nationwide protests across the country against racially-based violence that continue to plague the system of enforcement actions. It became increasingly apparent that policing as a whole requires systemic change to fulfill its purpose of protecting the community.

Political and legal challenges impede the progress of programs focused on police reforms. Political gridlock in Congress and the power of police unions are significant impediments to implementing change to the system through legislation or through criminal justice reform. Moreover, the individual liberties and protections afforded under the U.S. Constitution are always implicated on issues of policing and further complicate the matter. One can posit that a resolution to the overall issues of law enforcement is unlikely to exist in the physical space of our society.

The potential viable solution to the current police system exists in the emergence of the metaverse technology. The metaverse is the most developed alternative society that extends the boundaries of what is humanly possible. These alternative societies are being researched and developed using alternative reality and virtual reality technologies.

The metaverse’s lack of regulation by the federal government invites criminal activities such as fraud, sexual assaults and tax evasion to spill over into the physical world. Furthermore, practical risks in privacy and possible biases in data could further impede the adoption of this technology. However, the metaverse still presents a unique opportunity for effective police reforms because its developers may be able to implement changes more efficiently than Congress, and are not subject to constitutional constraints. Therefore, the federal government should strongly consider the adoption of the metaverse as an opportunity to demonstrate that a more effective method of policing is possible.

TABLE OF CONTENTS

I. Introduction: A Broken System in Policing
II. Space Re imagined: The Alternative Society
A. The Reality of Positive Impact: How Industries are Changing with the Metaverse
B. The Risks are Just as Real: Criminal Activity in the Metaverse
III. Opportunity in an Unregulated Space – How Might the Metaverse be the Solution?
IV. Government Control – The Need to Regulate Commerce
V. Considerations in Addition to Controls – Practical Risks
VI. Conclusion
Footnotes

I. Introduction: A Broken System in Policing

On March 13, 2020, a misdirected police raid in Kentucky led the Louisville Police Department (LMPD) to carry out a no-knock warrant late into the night at Breonna Taylor’s home.^[1] Without knowing who was forcibly entering their home, Breonna and her partner intended to defend against the unknown intruders. Breonna, an African American woman, was shot dead by the LMPD after they fired more than 20 rounds into her apartment. Two months later, an officer in Minneapolis, Derek Chauvin, knelt on the back of George Floyd’s neck continuously for 9 minutes and 29 seconds.^[2] George Floyd, who is also African American, was choked to death during the incident.^[3] Chauvin was ultimately arrested and convicted of manslaughter for his actions.^[4]

These two instances were the tipping point in a series of police brutality cases that caused the nation to demand a change in the governance of police forces in the U.S.^[5] Organizations like the Black Lives Movement led protests to demand legal accountability for police actions against racially-based violence.^[6] Although the current policing model may have arguably worked as a system of enforcement actions in the past, these protests demonstrated that policing as a whole requires systemic change.

Standing in the way of such an objective is a combination of political and legal complications. The current gridlocked Congress makes it extremely difficult to pass any legislation.^[7] More specifically, the powerful police unions are important stakeholders in elections that could have leverage over election results.^[8] In addition, as in all matters pertaining to any type of state enforcement actions, the rights and protections afforded under the Fourth, Fifth and Sixth Amendments of the U.S. Constitution are always going to be implicated and may further complicate the matter.^[9] In the present state of the society, a solution to the U.S. policing problem may simply not be feasible in the physical space as we know it. This paper identifies an opportunity and a strategy, using an evolving technology, to tackle the constraints of current policing governance. The potential economic values in this space will also generate great interest from the federal government to regulate, which could impede its potential as a catalyst for change. In addition, there are practical concerns about the applicability of the technology to achieve the objective of creating a fair and just system of enforcement actions. Yet the technology represents a rare opportunity for the U.S. to create systemic change that otherwise may be nearly impossible to accomplish.

II. Space Reimagined: The Alternative Society

The slow progress on police reform remains an uphill battle across the U.S., but perhaps there is an alternate reality where there are not as many barriers to change. There are two types of technology that have emerged to create entirely new spaces – alternate reality (AR) and virtual reality (VR). AR augments the surroundings “by adding digital elements to a live view” and is “designed to coexist with the real environment.”^[10] On the other hand, VR “encompasses a completely environmental simulation that replaces the user’s world with an entirely virtual world.”^[11] 

Between AR and VR technologies, the boundaries of human life continue to be pushed beyond its current capacity. At alternative reality’s very pinnacle, the “metaverse” is made up of a collection of virtual alternative worlds.^[12] Using an oversimplified explanation, the technology enables a user’s avatar in the metaverse to travel all across the world and perform all types of actions without the person having to physically move anywhere.^[13] The complexity of the current state of the technology has now enabled what was once a science fiction fantasy to become an inevitable future.^[14]

A. The Reality of Positive Impact: How Industries are Changing with the Metaverse

In many ways there has not been a tool as versatile as the metaverse since the internet developed and created new arenas for communications and for e-commerce. The healthcare sector is currently at the forefront of the adoption of the metaverse because of the new space that it offers for interactions between doctors and patients.^[15] Gone are the days of administrative offices that took up valuable real estate within hospitals. The reach of non-physical health care, such as mental health, can now provide services into any corner of the world that could log onto the metaverse. Furthermore, the overall quality of care by doctors and other health care professionals could see tremendous improvements because they can now to be trained on complicated procedures in the alternative spaces in the metaverse first as if they are performing it firsthand in the physical space.

The legal world will have similar impetus for the adoption of the technology. In fact, a law school in Canada recently moved their moot court program into the VR space and began conducting their competitions in the metaverse.^[16] Not only will VR technology enable law students to compete without having to travel, but each contestant could do so without sacrificing the valuable experiences of operating under real trial-like environments. If projects like this could replace the moot court experiences in law school, then the legal sector must question whether VR could replace the court system altogether. The entire court system’s cost of operations could be significantly reduced by eliminating travel time because it would enable the courts to hear more cases. In turn, the burden of litigation placed on those who could not afford to take time off of work could also be minimized. In a very practical sense, the legal industry could extend the delivery of its services beyond distance barriers in the same manner as the medical field.

Moving forward the sports industry have two obvious uses for the metaverse that will change the business forever. First, the general consumption of sporting experiences will be revolutionized when fans can experience the senses they would have in stadiums without having to leave the comfort of their own homes.^[17] In a sense, it is the next step up in experiences just as the games were first brought to radio and then to television. Finally, the metaverse created a brand new field of fan articles that are authenticated through blockchain technology.^[18] These fan articles, known as non-fungible tokens (NFT), are valuable collectibles that are creating a new revenue stream for sports.^[19]

B. The Risks are Just as Real: Criminal Activity in the Metaverse

The unregulated and unfamiliar nature of the metaverse logically invited criminal issues to arise out of its adoption. Reports of users being sexually harassed by strangers have already been reported when Meta, the social media company formerly known as Facebook, first opened up access to its VR social platform (for simplicity, this note will address Meta by its former name, Facebook, to avoid confusion).^[20] The behavior of harassment is hardly anything new in the world of online gaming, with the majority of kids reporting that they have experienced harassment while gaming.^[21] However, the difference in the metaverse is that the immersive experiences of VR leads the users to endure stronger emotional reactions.^[22] The victim who reported the incident of the sexual harassment explained that “VR adds another layer that makes the event more intense.”^[23] 

Facebook’s response to these incidents points out that there are safeguards installed in the user experience (UX) design.^[24] Embedded in the program is a tool called the “Safe Zone.” This tool enables the user to activate a safety bubble where no one can interact with them in any way whenever they are feeling threatened.^[25] Though Facebook expressed that it is “never a user’s fault if they don’t use all the features,” designing the safeguard as an action that the victim has to elect to take effectively places the responsibility on the users themselves.^[26] Rather than having the UX designed to remove the problematic behaviors, Facebook’s approach signals one that appoints the victimized users to self-govern behaviors they do not deem appropriate. In practice, the Safe Zone not being utilized illustrated its ineffectiveness and its failure as a safeguard measure.^[27] The crime rate in the metaverse is unlikely to reduce under the current approach taken by Facebook, therefore further enforcement actions must be implemented to deter and govern this space.

The same concern for further action also arises from the constant struggle between freedom of speech versus censorship on cyberspaces such as social media platforms.^[28] In building a cyberspace environment the operating entity must balance the three pillars of anonymity, autonomy, and accountability.^[29] Theoretically, these three objectives are impossible to satisfy at the same time.^[30] For the most part, Facebook has chosen to prioritize the anonymity and the autonomy in the right to free speech of its users over enforcement actions that bring accountability.^[31] 

On its face, Facebook prohibits hate speech because they “believe that people use their voice and connect more freely when they don’t feel attacked on the basis of who they are.”^[32] However, Facebook struggled with distancing itself from allegations of misinformation, fueling hate speech in India, and inciting the genocide in Myanmar.^[33] Not surprisingly, activists and journalists were extremely critical of Facebook Chief Executive Officer, Mark Zuckerberg, and his lack of action against former President Donald Trump during the Black Lives Matter protests.^[34] The activists and journalists argue that Zuckerberg favored Trump’s autonomy and the right to free speech over accountability of false implication that violence should be the rightful response to protestors.^[35] Concerning the possibility of hate crime motivated activities in the metaverse, it is hard to imagine a feasible solution when Facebook, in its original form as a mainly textual interfaced social media, could not successfully distance itself from the same behaviors.

III. Opportunity in an Unregulated Space – How Might the Metaverse be the Solution?

The metaverse is currently being developed and constructed under the joint efforts of over a 160 companies.^[36] For the most part, these companies enjoy the autonomy to develop the method of governance without oversight from the federal government.^[37] Issues arising from Facebook’s VR space demonstrates the bounds of such autonomy because the issues were resolved privately by Facebook alone without government intervention, at least for now.

Facebook’s governance regime operated with the assumption that the metaverse is an extension of social media and thus Facebook governed the metaverse as such.^[38] On social media platforms such as Twitter, Facebook, and Instagram, the users must agree to terms of services that bind them to the company’s own community guidelines.^[39] As a result, issues on these platforms typically default to principles of contract law as the legal authority to resolve disputes.^[40]  The opportunity thus arises under the contract law principle that allows the contracting parties to make up their own terms, so long as they adhere to the basic principles of a contract.^[41] 

In the user agreement that brings the users online to a platform, the user is giving up certain autonomies and rights as consideration. A contract effectively forms when users agree to the terms and conditions of the platform in exchange for the company providing its services.  Therefore, the companies that own these platforms have the ultimate legislative power to enact their own set of rules that are typically narrower than the laws of the society. For example, a U.S. citizen enjoys the broad rights of free speech under the First Amendment of the Constitution. However, when a user agrees to the terms and conditions of a platform, certain types of speech that are protected under the First Amendment could result in the user being banned from the platform.^[42]

The autonomy of these companies to act as the legislative body of social media suggests that a similar regime will ensue in the metaverse. This feature is particularly applicable to address the gridlocked Congress issue of policing because it allows for a faster change in the law. For example, Facebook’s dual-class shares system enables its CEO, Mark Zuckerberg, to make unilateral decisions about the company with approximately 55% of voting shares.^[43]

Zuckerberg can avoid the complexity of the bicameral system embedded in the U.S. Congress, or even the separation of powers feature of the U.S. government, by acting in place of both the legislative and executive branch.^[44]

There are certainly reasonable rationales against government tyranny behind bicameralism and the separation of power features of the U.S. However, it is easy to imagine the benefit of fast-acting changes surrounding police brutality issues. If the same issues were to arise in the metaverse, Zuckerberg could easily make changes as he sees fit without running into the current issue of police reform bills being stuck in Congress.^[45]

That is not to say that the metaverse is under the control of a single person, Zuckerberg. Facebook’s newly formed Oversight Board acts in the traditional role of the Supreme Court to overturn Zuckerberg’s decisions.^[46]

Even then, Zuckerberg could at least implement the changes he sees fit until it is overturned by the Oversight Board. Furthermore, unless he decides to sell his shares, Zuckerberg also does not need to worry about police unions having the ability to turn an election against him. Unlike the U.S., where the members of the police unions are both voting citizens and an interested party in the matter, only Facebook’s shareholders get to vote and are typically not a party to whom the enforcement actions would be against. Therefore, the shareholder’s voting patterns will likely align with decisions that make the metaverse safer for its users because that is likely going to attract more users and is thus good for business.

Aside from satisfying its shareholders and board of directors, Facebook has no real direction overseeing their operations in the metaverse. While it is true that Facebook governs the metaverse and that state law governs corporations, transferring jurisdiction and bodies of law from the physical society into the VR space is not a simple application. Certain actions in the metaverse, such as intellectual property transactions, could apply general laws as if the metaverse is simply another space on the internet.^[47]

However, some bodies of law simply have no direct application in the metaverse. Criminal matters remain an unresolved issue as to which state’s criminal code should apply, where to summon the jury from, and which Constitutional rights are afforded to each defendant.

Other constitutional issues surrounding police action, mainly arising out of the Fourth, Fifth, and Sixth Amendments, will also not apply in the metaverse. Each of these Amendments affords different rights to citizens and protects them against certain state actions but will not be implicated since the enforcement actions in the metaverse do not involve the federal government. Whichever way Facebook decides to conduct their policing actions, they are operating as a corporation and not as a part of the state. In essence, the applicable laws across the whole metaverse are in limbo as the “Zone of Death” area in Yellowstone, where one could theoretically get away with murder because there is no jurisdiction nor do constitutional rights apply.^[48]

IV. Government Control – The Need to Regulate Commerce

Despite the unclear directions as to which laws to apply, the federal government remains highly interested in the seemingly unregulated spaces of VR. The potential volume of economic transactions, whether from real property, collectibles, or other sales in the metaverse, has further effects that extend beyond VR and into the current physical world. The metaverse is expected to enable companies and individuals to extend their economic activities from the physical world into the virtual world.^[49]

The introduction of NFTs represents a new class of digital assets, thus creating value by placing a market price for these goods.^[50] In addition, users are also able to purchase real property such as land and houses in the metaverse, which introduces the body of users who are buying into the VR space with investment intentions.^[51] Naturally, with economic interests interjected into the equation, the government will look to a tax system to incentivize and deter certain economic activities in the space.^[52]

There is no possibility that the U.S. government allows for unregulated commerce because economic activities implicate tax issues, where the government is a party with direct interest on the matter. However, once a system of taxation is established, individuals will attempt to avoid paying as much taxes as possible by reducing their tax liabilities as close to the limit that pushes them over the legal boundaries into tax evasion.^[53]

The U.S. Internal Revenue Service recently released an updated guideline on its approach to tax cryptocurrency activities.^[54] The announcement signaled an important direction that the U.S. government is taking to tax cryptocurrencies in a scheme that would more or less mirror the current taxation approach.^[55]In particular, the requirement of record-keeping is emphasized for cryptocurrency exchanges just as it is compulsory for traditional businesses and investments.^[56] Given the lack of guidance and governance on accounting practices of economic exchanges in the metaverse, the space is likely to attract interest from those who seek to reduce their tax liabilities by parking their assets there.^[57]

It is hard to imagine a future in the metaverse where tax fraud is not the norm if no further accounting requirements are incorporated into the space. Moreover, such requirements will likely need to be more stringent than the current laws concerning transactions in the physical space. The current practice of accounting is already barely sufficient to meet the requirements, and with the higher transaction speed in VR, the new requirements must be sufficient to keep up with the number of transactions expected.^[58]

Ultimately, if the number and speed of transactions becomes unmanageable to monitor, the federal government may decide to prohibit the metaverse altogether as a threat to the current economic system as other countries have done.^[59]

Despite a tremendous amount of freedom currently afforded to corporations like Facebook to govern their own VR space, to the extent that such spaces will be a transactional ground for economic activities, governmental regulations will still apply.^[60]

Along with government oversight, progress in the development and adoption of the technology will decelerate as parties become more meticulous with their actions. Therefore, in spite of the opportunity to model and implement an effective police force, that objective may be impeded by a lack of willingness from the government to allow the metaverse to remain unregulated for much longer.

V. Considerations in Addition to Controls – Practical Risks

Between the tension of unregulated VR space being a possible model for policing practices and the potential economic interests of the federal government, other issues surrounding the practicality of the metaverse becoming a catalyst for change remains. While VR could enable a boundless space to reimagine solutions, each solution may impose further complications. If anything, the lack of enforcement actions imposed by Facebook thus far demonstrates the high level of complexity embedded in the issue of what enforcement practices would look like.

One possible solution of an enforcement scheme may incorporate blockchain technology and smart contracts to automate policing. When users conduct certain illegal actions in the metaverse, the result is some sort of ban or restricted access for that user. The decentralized nature of blockchain would enable different jurisdictions to arise in the metaverse just as the current U.S. system is built. However, neither Facebook nor the U.S. government is likely to relinquish control over actions in the metaverse because the nature of the activities in the space cannot fully avoid real-world law. Therefore, a completely decentralized policing practice is nearly impossible to create. Evidently, some level of human oversight to govern must be reserved to eliminate mistakes.

The capacity to override decisions made by codes in the blockchain creates another tension that perhaps human biases could not be fully eliminated from the code that operates the metaverse. The main concern is that if Facebook builds a VR police force that resembles the current U.S. police forces, how would they eliminate the biases reflected in current police practices? If the codes to govern VR worlds are written from data collected from a series of human decisions, then logically their human biases would also flow into the codes too.

If Facebook can minimize biases in their codes, their next challenge would be to convince users to entrust their confidence in this new enforcement scheme. Facebook’s troubling public relations history will undoubtedly cast doubts on the company’s motives to create positive social changes.^[61]

Beyond the issue of biases, Facebook must also justify that they should be the centralized entity in control of all data generated in the metaverse. Current antitrust laws will likely impose further difficulties in this task if users do not have the option to choose a different VR world to operate in.

Conclusion

The enforcement action scheme in the U.S. may have worked in the past with the police forces, but that system of policing no longer serves the purpose of bringing justice to the community. Facebook’s opportunity to self-govern the metaverse effectively bypasses the challenges arising from the political inefficiencies in Congress, the conflicting interests of police unions against police reforms, and the fundamental rights afforded by the U.S. Constitution. In an environment that lacks directions in governance and precedence in enforcement actions, the metaverse has an opportunity to be a model that reimagines what an effective and fair policing system looks like.

The U.S. government will continue to monitor economic activities in the metaverse, which may impede the adoption of VR technology if they wish to impose regulatory controls. The government may even decide to restrict the metaverse altogether if it deems the technology to cause too much disruption to the current economy. In addition, companies like Facebook will face practical challenges in convincing the public to accept and entrust them with the power to police the community.

Luckily, just as the current U.S. police reforms were not accomplished overnight, concerns regarding the police practices in the metaverse need not be resolved in a single instance. The valuable opportunity is metaverse’s current lack of directions in governance and enforcement actions that creates the space to reimagine how we choose to police our society. If there is a case to be made for positive societal changes, the metaverse could further function as a kind of laboratory for other social science issues. Therefore, the issues arising from the metaverse shall not be held simply as risks or threats to the adoption of VR technology but as opportunities to demonstrate that there is a better solution to how to police our society.

Footnotes: