Back to the future: crime and punishment in second life.

• Author: Smyth, Sara M.

The avatar landscape is rocky and full of strange flowers. Here's a page now. I am looking at a small image of a man punching himself in the head. Next to him is Che Guevara. The other images are of lightening striking; a woman with large breasts; a 1950s cartoon of a dancing pig; bouncing breasts (no woman is attached to them this time); a sombrero; Adolph Hitler eating a watermelon; a Pokemon rabbit playing Dance Dance Revolution; someone' s butt.

These are all avatars.

But what are they? (1)

1. INTRODUCTION

   Imagine that you are sitting at your computer ready to plan your next vacation. Why not consider taking a trip to Second Life? This world is likely to be as familiar to you as the one you already inhabit. There is no need to pack any luggage because you can buy everything you need when you arrive. You can spend the morning browsing for new body parts and an outfit in a major shopping center. (2) Then you can teleport to an eighteen-hole golf course or a ski resort (complete with quadruple lifts and an apres-ski lodge) for some fun. (3) If sports are not your thing, you can check out an art show, listen to a live lecture, (4) or hang out in a coffee shop with some friends. At night, you can gamble your hard-earned money away in a casino or tear it up on the dance floor of the hottest nightclub around. (5) But watch out for miscreants trying to steal your money or otherwise cheat you in some underworld scheme. Are you confused? Well, welcome to the wonderful world of Second Life!

   In basic terms, Second Life is a three-dimensional virtual world created by its inhabitants. (6) One of Second Life's designers, Cory Ondrejka, discovered that it was possible to create a three-dimensional virtual world similar to the one described by Neal Stephenson in his science fiction novel Snow Crash. (7) In the mind of CEO and creator of Second Life, Philip Rosedale, Second Life is not a game, but "a new country." (8) While this might sound farfetched, Second Life has many things in common with a real-world nation, including a stable and developing economy and a valuable currency. (9)

   Since opening to the public in June 2003, Second Life has grown explosively and is inhabited today by about sixteen million Residents from around the world. (10) For the most part, the inhabitants of Second Life are ambitious and determined to explore new opportunities and realize their dreams. (11) In this exotic land, they might achieve the fame, fun and fortune that they cannot realize in their real-world lives. For these individuals, Second Life can make their "first" lives more exciting, intellectually challenging and meaningful. (12) Others are deeply troubled by the fact that millions of people are exploring their fantasies inside a giant virtual world. (13) Their concern is that with so many people migrating to Second Life, the virtual world risks becoming a new kind of "Wild West," characterized by lawlessness, depravity and corruption. (14)

   On any given day, it is possible to find millions of users shopping, conversing, dancing, attending meetings and even engaging in political protest in Second Life. (15) But Second Life also contains many of the problems that exist in the real world, as well as some interesting new ones. In the few short years since its public release, this virtual mecca has provided new opportunities for crime because of its global reach, relatively low cost and near perfect anonymity. The damage that users can inflict in Second Life is not limited to the virtual world, but can result in significant harm to victims in real life. (16) However, it is not always apparent in Second Life whether conduct is criminal or how domestic law enforcement officials might gather evidence to identify perpetrators and determine the extent of their criminal conduct in realspace. (17)

   In this article, I explore the ways that crime can be controlled in Second Life. I argue that regulation should incorporate a number of different modalities and be viewed along a continuum from self-regulation to statutory regulation. This framework contradicts the assumptions made by early cyberlaw scholars who argued that national governments could not effectively regulate the Internet; substantive arguments about national government regulation were displaced by procedural arguments that state actors lacked jurisdiction in cyberspace. (18) However, these views have largely been discredited and cyberspace currently provides government actors with numerous options for controlling illegal behavior online. (19) While existing legal doctrines are still pertinent to the regulation of Second Life, the nature of distributed networks has historically meant that no one group or country can effectively police the Internet. In addition, social norms which are taken for granted in the real world are often difficult or impossible to enforce in cyberspace. The rapid pace of innovation in technology and computer networking can also leave significant gaps between the time that new technology is introduced and the point at which it is regulated. Cyber-criminals often exploit this delay to commit crimes before law enforcement officials discover that the technology is being used for nefarious purposes.

   This article is divided into five parts. Following this introduction, Part II provides a brief history and overview of Second Life, where millions of people live, work and play in a virtual world. In Part III, I trace the history of virtual worlds beginning with the early text-based playgrounds, called "Multi-User Domains," or MUDs. I also explore the origins of current cyberlaw discourse by examining the arguments raised by first-generation cyberlaw scholars who questioned whether real-world laws can be applied in the virtual world and questioned whether legislatures and courts should leave the regulation of these new environments to owners and users.

   In Part IV, I examine how crime is now being perpetrated in Second Life. I ask how we should deal with new crimes perpetrated in Second Life, ranging from online crimes (e.g., denial of service attacks) to traditional crimes that have significant permeation into the real world. I look at whether our traditional legal standards need to be modified to take into account the fact that crimes are now being perpetrated differently online. I then recommend a broad view of regulation and underscore that effective regulation in Second Life requires cooperation from many parties.

   While regulation does not always require the involvement of state actors, code and contract alone are insufficient to deter crime in the virtual world. Ideally, we need a balance between the rules established by the owners and users of virtual worlds and those enforced by the state. Traditional legal rules have enormous potential to regulate conduct in Second Life by compelling service providers, content providers and users to conduct themselves responsibly. This includes requiring service providers to verify the accuracy of account information provided by users and to discourage users from performing activities that are detrimental and harmful to others. Following this analysis, I close with a brief summary and conclusion in Part V.

2. PEOPLE, PLACES AND THINGS IN SECOND LIFE

   These days twenty to thirty million people from around the world "spend more time in virtual environments than they do in their real jobs or engage[] with their real-world communities." (20) As such, it should come as no surprise that since 2003, Second Life has attracted close to fifteen million users from around the globe. (21) Those who inhabit this virtual realm refer to themselves as Residents. Residents generally own an avatar, a virtual character that they create and control in the online world. (22) About seventy to eighty percent of Residents have human avatars; the rest resemble a wide variety of creatures in all shapes and sizes, including angels, elves, famous artwork (Van Gogh's self portrait is but one example), aliens, ponies, sunshine and clouds, even giant phallic symbols and a mound of feces. (23) Residents interact with each other in the same virtual space, using three-dimensional graphics resembling an animated movie. (24) The avatars can communicate with each other through a chat-based system whereby the user types words using his keyboard and his text automatically appears on the screen for other users to read and respond. (25) The method used to control avatars is simple: with a computer mouse and keyboard, a user can make his or her avatar perform any number of tasks. Some examples include flying, jumping, walking, communicating with other Residents, dancing, flirting and even having sex. (26) All of these movements and interactions are depicted on the individual user's computer in 3-D animation.

   What makes Second Life so intriguing is that it is an online world that is created entirely by its users. By contrast, in most other immersive online gaming environments, a player can choose his or her character's identity and how it behaves, but the central narrative, which determines how the players interact, has already been scripted by the manufacturer and cannot be changed by the user. (27) Rather than pre-determining the social environment to guide the characters within the system, the creators of Second Life allowed the users to create their own world (using software which they can download for free) and to own the rights to the intellectual property they create. (28)

   Second Life uses an internal programming language called Linden Script Language (LSL), which is similar to C+ and lets users customize and control the narrative within this virtual world. (29) Once they become familiar with the Linden Scripting Language, users can create almost any kind of content imaginable. The avatar, or central character, is also created by the user and it defines itself in relation to other avatars, as well as the content that he or she creates. The avatar is...