Is Justice Real When “Reality is Not?: Constructing Ethical Digital Environments

By Katherine B. Forrest and Jerrold Wexler

Is Justice Real When “Reality is Not?: Constructing Ethical Digital Environments examines how frameworks and concepts of justice should evolve in virtual worlds. Directed at researchers working in, or with an interest in virtual reality, as well as those interested in the fields of artificial intelligence and justice, this book covers research regarding impacts on human psychological states existing within alternative ethical frameworks. With chapters dedicated to behavioral impacts of virtual events, robotics and "unconscious", and human psychological states of role playing and existing, readers will be well-equipped to navigate the virtual worlds in which millions of people currently spend time.

• Provides an introduction into virtual worlds in which humans increasingly spend significant time
• Analyzes the psychological impact on humans of spending time in virtual worlds
• Discusses ethical and justice frameworks, robotics, the psychology of role playing and future virtual worlds

• Language: English
• Publisher: Academic Press
• Release date: Jul 6, 2023
• ISBN: 9780323956215

Katherine B. Forrest

Katherine B. Forrest is a former United States District Judge of the United States District Court for the Southern District of New York. Nominated by former President Barack Obama on the recommendation of U.S. Senator Charles Schumer (NY), she received her judicial commission in October 2011 and presided over several thousand cases, including more than 100 trials, and, in 2016, became chair of the Grievance Committee for the Southern District. After retiring from the federal bench, she returned to practice at Cravath, as a partner in the firm’s litigation department. She is a regular technology contributor to the New York Law Journal in the area of AI and Justice; and frequently lectures in the same area. She provides annual lectures to the New York Judicial Institute and the National Judicial Institute on AI. She has spoken at the E3 conference on the topic of Virtual Reality, Ethics, and Justice. In addition, Forrest continues to practice law with a particular focus on issues in the digital environment.

Book preview

Preface

There are many choices that writers make, usually and hopefully not apparent to the reader. We try to find ways to express our views and support them appropriately in ways that are smooth and readable. Our horror, we can speak for many authors on this point, is to distract the reader—taking them out of the moment in our carefully constructed text—with a choice that is colloquially known as a clunker, or an overly broad assumption that draws an internal hmmmm… from the reader. That is, something that just does not work. We wanted to let you know, right now at the beginning, of a few choices we have made, and ask for forgiveness as well as indulgence if these choices don’t work for you as they do for us.

First, in instances in which we refer to a person in the singular form more than once, we use the word they rather than he or she. This is more than just the desire to rid ourselves of the cumbersome and never satisfying he or she, but rather an acknowledgment that today, the word they is more inclusive. So when you see a they followed by a singular verb, you will now know that is not a missed grammar class in the fourth grade, but a choice.

Second, throughout this book we have written as if people all over the United States and the world have access to digital environments. This is based on some clearly incorrect assumptions about the ability of people everywhere to access the Internet at all, to have access to devices that can do so, and that those devices have the technical capability of rendering sophisticated graphics. Our computers and similar devices in fact vary considerably based on when we acquired them and the capabilities included within them. Most devices that we focus on—computers, consoles, smart mobile devices, VR headsets—in fact have sufficient capabilities to render a version of the digital environment we discuss. Nevertheless, it is important to acknowledge that such devices are not yet universally accessible.

Third, we want to acknowledge that individuals, singly or with partners, have frequently been the creative forces behind the initial design, coding, and distribution of a digital environment. Later, sometimes (often, in fact), they have been acquired by companies that add resources for distribution, administration, updating software packages, and the like. For convenience, we have used the phrase creating companies throughout the book to refer to all of the efforts of the various individual and group participants in the process. Each digital environment has its own backstory, its own creation history, and its own current version of how it is currently owned, maintained, and distributed. We found that to add in these details distracted us from the points we wanted to make and so chose a reductionist term that allowed us to group all of this together. Please do not think we have lost sight of the person in their garage who had the original idea, coded all night for weeks and months, to finally have a product that others could use. We honor this individual innovation. We also acknowledge that for large-scale digital environments, corporate resources have typically been an enabling force to bring them to the widest possible audience.

Finally, digital environments change every day. Our points are typically larger than whether we are a step behind in a particular narrative structure, or a rule has been changed in a newer version. We, again, ask that you look beyond some of these no doubt time-bound details and focus on our larger points about how ethical systems find their way into digital environments, and the implications that they have for our physical world now and in the future.

Introduction

We are not far from a time when most people will inhabit at least two worlds and possibly many more. Not by way of space travel, but by entry into virtual worlds—digital environments. Some people—millions even—have already made the journey. Through avatars they have entered worlds in which they have rich social and romantic lives, go to concerts, engage in political discussions, attend protests, engage in competitions, create businesses, and make money exchangeable for currencies in the brick-and-mortar world, that is, the physical world that humans inhabit. In other digital environments such as Twitter or online discussion groups, usernames both represent and anonymize a participant. This allows them to interact with and reach others through digital connectedness in ways far different from the physical world.

We live in a society organized around an ethical framework that combines concepts of fairness and justice into broad agreements of what is right and wrong, fair and unfair. Over the course of hundreds of years, these concepts have been embedded in expectations and laws that together have come to form the social code we live by. This social code represents our communities’ views developed over hundreds of years. As a collective, we have been and continue to be participants in its creation. In the United States, elected officials represent a constituency’s shared values in the passage or repeal of laws.

We also have a clear understanding of what happens when we violate the social code, reflected in laws. Some violations result in social opprobrium, and others in monetary damages or criminal penalties. One of the authors of this book, Katherine B. Forrest, was a federal judge, appointed by an elected US President and confirmed by elected US Senators to enforce the social code.

This book is a wake-up call. It is a ringing alarm without a snooze button. Digital environments are communal spaces, and whether intentional or not, they embed social codes. Millions and millions of people spend significant time in digital communities in which rules designed to protect investments in innovation and provide insulation from legal liability have become accidental social codes.

It has been happening incrementally: users access digital environments by agreeing to a series of contractual terms that set codes of behavior, rules of right and wrong, and parameters around ownership, violations, and consequences. This developed when we were not yet immersed by the millions in digital environments. Many of us today, and more tomorrow, are and will be participating in digital communities that are at least as important to us as those in the physical world. But the social codes of those communities are not set by us. We are not direct participants in their construction. What is right or wrong, what conduct is socially acceptable—none of that is a necessary product of human social evolution. The implication? That we may 1 day wake up and find ourselves existing in digital spaces in which we are bystanders to the rules: we don’t make them and we don’t enforce them. Let’s hope we like those environments because we won’t have the power to change them.

We are at a unique period in human history as we watch in real time the warp-speed evolution of digital worlds. When the Big Bang created our physical universe, we were still billions of years away from our own evolution. But we can watch the Big Bang of the digital world happening before our eyes.

Every day we see the balance shifting of the amount of time between the digital and the physical environments in which we spend time. It’s like watching the sand in an hourglass move smoothly through the narrow neck, dropping into the digital reservoir below. We are witnesses to the sand running faster and faster through that narrow neck—and the reservoir below getting larger. The velocity of change is accelerating.

Think about the fact that the Internet, the beginning of our digital connectedness, only became widely accessible in the mid-1990s. The two earliest popular browsers, Netscape Navigator and Internet Explorer, were products of the mid-to-late 1990s. But the combination of exponential increases in fiber optic and satellite connection, computing power, and access to big data puts us into warp speed in the early 2000s with regular spectacular increases in technical capabilities every couple of years. Over the past three decades, we have also demonstrated an extraordinary willingness to take our lives online. We carry smartphones that are extensions of ourselves—almost another limb and perhaps more valuable. They put access to the information of the world at our fingertips, so we don’t have to remember it if we don’t want to; we use them to conduct business and manage social connections through email, chat, and the phone; we conduct our banking, do our shopping, access social media; use the portals to provide entry into millions of digital environments that allow us to experience alternate lives, maybe for entertainment, maybe because we need it. We use them to show us what’s happening in the world through curated news, music, movies, and advertisements; they tell us where to go and how to get there. They are supercomputers full of artificial intelligence in our pockets and on our desktops. They are ubiquitous, and doing more for us every day.

Compare this to the millions of years it took humans to develop their cultures, connections, and ways of living in the physical world. The pace of physical world history has depended on the laws of physics, the ability of humans to communicate and interact orally and in writing, and the speed at which those things could occur. Physical history has been determined by climatic, cosmological, and biological events over which humans have had little to no control. This is different from digital environments—places that we humans have created—and over which we have total control, for now.

The physical Earth is populated by people who have developed thousands of different cultures and many different ways of governing themselves. Over time, we have organized monarchies, theocracies, democracies, autocracies, or oligarchies. Our ways of governing can and do shift from one form of government to another—from the monarchy early Americans lived under to a representative democracy, for instance. Russia has gone from a monarchy to a communist form of government and now to a clear autocracy.

In the physical world, diverse cultural histories have resulted in ethical and moral systems with distinct conceptions of what constitutes a good or a bad act; what it means to live a good life. And who is to say if one is more correct than another? Our societies have rules, formalized and unformalized. The rules change according to cultural norms, evolving over time. In the United States, there was a time when slavery was allowed, when women could not vote, and when children could be put to work in sweatshops. Our expectations, our sense of right and wrong, changed, and our laws changed accordingly.

We—people from all over the world—participate in acts of cultural creation every single day. Our personal cultural creation has a through line to our form of governance, to our sense of right and wrong, and to what is to be done when a wrong act has occurred. We have judicial systems designed around our ethical norms—systems that correspond to the unique and accumulated acts of cultural creation. Our view of what is fair and just changes and evolves as our sense of right and wrong does. We are the creators of our world as well as participants in it. When early American settlers believed the English monarchy should no longer rule, the American Revolution followed. A different government, different rules, elected representatives, and eventually the US Constitution came out of it. The new American people chose the broad principles that reflected their values, their ethical beliefs. And we have lived with those choices, and the layers upon layers of laws and enforcement mechanisms that emanated from that. We are participants in the creation of the ethical norms and systems of justice that define our society.

It is against this backdrop that we are witnesses to the unfolding of a new era. Digital connectedness is changing where and how we spend our time. We are absorbed in digital environments, immersed in them. They are becoming societies we live within. But they are environments that have an entirely different evolutionary path—and one that has significant implications for the ethical structures and concepts of fairness and justice that will govern our actions in the future.

We are able to trace the historical evolution of digital environments far more clearly than the history of human’s physical world. Digital environments are the product of human innovation, creativity, effort, and financial investment. The same rules that our physical societies built over generations provided the backdrop for these creations. We have laws that incentivize companies to spend the resources to innovate—our intellectual property laws. These laws allow the creators to own the fruits of their creativity; licensing arrangements protect ownership in those creations, allowing others access according to terms the owners set. The digital products—the digital environments—that are the subject of this book are made by creators living and working in this physical world. Some of the laws in the physical world can’t be ignored in the digital world: laws against the exploitation of minors, money laundering, or unauthorized gambling are among them. The creating companies¹—because mostly they are companies—are acting wisely and reasonably when they include restrictions to protect against this limited set of illegalities.

In addition, these creating companies want to obtain and retain a user base. To do so, they design rules prohibiting conduct within a digital environment that might drive them away. At the same time, they have mechanisms for dealing with rule violators, such as terminating or suspending an account. The user base is the source of the economic return—whether it be through a one-time payment, a free download with the possibility of later sales (microtransactions) within the digital environment, a subscription fee, or advertisements. The user base provides modes for economic return needed to maintain the incentive structure for innovation. The creating companies impose the rules needed to protect their investment, comply with the laws of the physical world, and attract a user base through relatively standard contractual arrangements called end-user license agreements or EULAs, terms of service (TOS or ToS), and codes of conduct, among others. There is everything rational and nothing nefarious in any of this.

In 2023, we now have millions of digital environments, and a few dozen that have been particularly good at obtaining and maintaining their user bases. But something unexpected is happening—and that is why we are writing this book. These digital environments are in direct competition with the physical world as places to spend time and inhabit, and the balance between them is shifting.

Three to four factors come together to create the culture and ethical codes within a digital environment: the rule set established by the creating companies, the extent to which that rule set is enforced, the narrative or storyline (if one exists) that paints a picture of a world into which a user’s avatar can walk, and a self-selecting user base. The user base also creates a buzz about the environment, attracting or dissuading additional self-selection. When these elements come together, an ethos of a digital world comes into being.

As of today, a vast number of us are not participant creators in the rules that govern these digital worlds. Unless we work for one of the companies, we are just users of their creations. The rules do and will have an enormous impact on what we are entitled to do within the environments, what rights we do and do not have, what we are able to take with us should we leave, and what happens when someone deems that we have violated one of the rules. The rule sets—the EULAs, terms of service, and codes of conduct—the primary purpose of which was to protect the innovations of the creating companies—are becoming de facto social contracts. These are social contracts by default—setting basic ethical rules for the environment in which millions may find themselves. These ethical rules set forth what actions are good or bad, right or wrong, and what constitutes justice when violations occur. The environments are independent of the rules and codes humans have spent tens of thousands of years developing, except to the extent that they are embedded within us and necessarily embedded in the minds of the designers. Make no mistake about it: human participation in the evolutionary creation of social contracts governing the physical world is being replaced by nonparticipatory contractual arrangements. This is a breathtaking transfer of power and control.

But, as we will see, the rule sets governing environments with vastly different cultures and ethos are largely the same. That is why the rules are just a starting point, and the other three elements (enforcement, narrative, and self-selection) must be added into the mix to make the environment not just a cookie-cutter experience.

There is also no reason that a digital environment must correspond with the basic rules of civil society or civilized conduct in the physical world. It might be a civilized place, or wild and unruly. A digital environment might be utopic, providing opportunities for expression, socialization, and actualization otherwise unavailable. In short, anything is