AR as a civil right

CHAPTER

Civil Rights

INFORMATION IN THIS CHAPTER:

• •  Civil rights for the disabled

• •  How AR can help the disabled

• •  AR as a civil right

INTRODUCTION

With all the wonder and anticipation that surrounds augmented reality, it is easy to forget that there are already millions of people whose experience of reality through their five senses has already been involuntarily altered. More than 50 million Americans - about 18% of our population - have some form of disability. Whether their condition impairs one or more of their five senses, their freedom of movement, or their cognitive abilities, these individuals do not enjoy the same capacity to experience reality that others have.

When discussing this fact in the context of AR, it is tempting to make the observation - as I have mistakenly done in the past - that disabled persons already experience an “augmented reality.” That is, until one remembers that to “augment” means to “make greater or larger.” Physical and mental disabilities do anything but. They “substantially limit[] one or more of the major life activities of such individual,”1 2 3 thereby diminishing that individual’s opportunity to experience physical reality in ways that others take for granted.

Yet AR does have an important role to play for these individuals. Custom-designed augmented world devices could go a long way toward bridging the experiential gap imposed by disabilities. Although the end result may be only an approximation of typical human experience, the inherent value of the augmentation to that individual certainly could be significantly more meaningful than an equivalent improvement in a normally abled person’s experience.

The United States and many other nations have various laws on the books designed to encourage providers of goods and service to make extra effort to accommodate the disabled, in order to minimize the degree to which disabilities keep people from enjoying everyday life experiences. When certain methods of accommodation become sufficiently economical and logistically feasible, they tend to become requirements instead of suggestions. As AR technologies improve, it seems inevitable that some of them will first be encouraged, and ultimately become prescribed, methods of accommodating disabled persons.

THE CURRENT REQUIREMENTS FOR ACCOMMODATING THE DISABLED IN DIGITAL MEDIA

THE GOVERNING LEGAL FRAMEWORK

The Americans with Disabilities Act of 1990 (ADA) is the flagship of legal protection for the disabled in the United States. It was adopted to ensure, among other things, that no one is “discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”2 The law has required public and private entities across the country to make a number of significant accommodations in the way they do business, and modifications to their physical structures, to assist disabled individuals. Various other Federal3 and state laws supplement these protections.

By and large, these laws have received broad, bipartisan support, and have even been strengthened over the years. But striking the right balance between accommodating the disabled and respecting the liberty and economic interests of businesses is not always simple, especially in light of how quickly technological and economic realities change.

When regulations requiring accommodation are perceived as imposing too heavy a burden on businesses, a backlash can erupt. For example, in 2010, the Department of Justice published updated regulations under the ADA. These regulations adopted the 2010 Standards for Accessible Design, which, for the first time, contain specific accessibility requirements for many types of recreational facilities, including swimming pools, wading pools, and spas. In January 2012, the Department issued guidance titled “ADA 2010 Revised Requirements: Accessible Pools - Accessible Means of Entry and Exit” to assist entities covered by Title III of the ADA, such as hotels and motels, health clubs, recreation centers, public country clubs, and other businesses that have swimming pools, wading pools, and spas, in understanding how the new requirements apply to them. Many owners of such businesses, however, did not care at all for what they learned, sparking a firestorm of criticism. The DOJ relaxed its enforcement of the new regulations a bit, by delaying the deadline for implementation and emphasizing that “there is no need [under the ADA] to provide access to existing pools if doing so is not ‘readily achievable,’4 especially in a weak economy. 4 5

Pressure to provide more accommodation is building on the international level as well. The UN Convention on the Rights of Persons with Disabilities - the first human rights treaty of the twenty-first century - was opened for signature in 2007. The United States is one of the 149 member states to sign the treaty, although Congress has not ratified it as of this writing.

The same debates will continue in the augmented world. As noted above, the points of conflict in today’s world are over such issues as building ramps into swimming pools and making sure sidewalks have adequate curb cuts - because these are “readily achievable” means of providing equal access to “places of public accommodation.” Tomorrow, as virtual “places” become more important venues for commerce and entertainment, the fight will likely be over equal access to those experiences. It will be interesting to observe whether the law continues to view such immersive content as purely software and speech,5 or according to the metaphors of physicality and place that we use to describe them. If the latter, then we may see laws treat massively multi-participant virtual experiences as “places of public accommodation,” at least for purposes of civil rights laws. The question will then be which forms of ensuring equal access to those “places” are “readily achievable” for its creators to provide.

DIGITAL ACCOMMODATION IS STILL IN ITS EARLY STAGES

Equal access standards are only beginning to make an impact in digital technology. Section 255 and Section 251(a)(2) of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, require manufacturers of telecommunications equipment and providers of telecommunications services to ensure that such equipment and services are accessible to and usable by persons with disabilities, if readily achievable. The UN Convention likewise “recognizes access to information and communications technologies, including the Web, as a basic human right,”6 7 but that standard will not apply in the United States unless Congress ratifies and implements the treaty.

The Federal government actually holds itself up to a higher standard than others in this area. Section 508 of the Rehabilitation Act of 19738 was first added in 1986, and has been updated several times since. This legislation requires all Federal departments and agencies to “ensure ... that the electronic and information technology [they develop, procure, maintain or use] allows [disabled persons] to have access to and use of information and data that is comparable to the access to and use of the information and data”9 by individuals without disabilities. This provision applies “regardless of the type of medium of the technology,”10 but comes with a variety of

FIGURE 9.1

Chief Operations Officer Torsten Oberst demonstrates FEDVC’s software, which reads web page content aloud at a 2011 program highlighting Section 508.11

caveats, including an exception for when “an undue burden would be imposed on the department or agency.”12

Nevertheless, these standards put the Federal government ahead of most private providers in terms of access to digital materials. As applied to online resources, such as websites, Section 508 and its enabling regulations are modeled after the access guidelines developed by the Web Accessibility Initiative of the World Wide Web Consortium, or W3C (Fig. 9.1).13 The W3C advertises that its “guidelines [are] widely regarded as the international standard for Web accessibility.”14 Indeed, some of the W3C’s basic tips for making websites more accessible - such as alternative text for images, allowing for input by keyboard instead of a mouse, and transcripts for podcasts15 - are becoming increasingly common. That said, such standards still remain largely voluntary in most circumstances.

Applying such laws to the digital economy, however, is tricky. For one thing, so much digital content is inherently audiovisual in nature that it may be either practically impossible, or at least very expensive, to create satisfactory accompaniments for the blind or deaf - especially in light of the sheer volume of digital data available. What is more, there is not the same tradition of access to such materials as there are for more basic functions such as climbing stairs and crossing streets. On the other hand, our society becomes more dependent on digital and online data with each passing day, meaning that those without meaningful access to that world are getting increasingly left behind.

Therefore, advocates on both sides of the issue tend to be particularly vocal when disputes arise. For example, in March 2012, a federal judge in California allowed the Greater LA Council on Deafness to proceed with a lawsuit against CNN for failing to provide close captioning for videos on its website. Similar accommodations for the deaf have become customary in many television broadcasts, which has created an expectation for similar options with online video.

To date, close captioning has been required online only for video that was originally broadcast on television. In 2012, the Federal Communications Commission required closed captioning only in full-length TV shows that were rebroadcast online. By 2016, this requirement will be extended to “so-called ‘straight lift’ clips using the same audio and video .... A year later, the rule will apply to montages involving multiple straight-lift clips. And by mid-2017, closed captioning will be required on live and near-live TV over the web, including news and sports.”16 Some providers already go beyond these minimum expectations, however - such as the text transcripts that YouTube auto-generates for many of its videos - and there is every reason to believe that the requirement will eventually be imposed on more, if not all, video content provided online, and perhaps other content as well.

Indeed, in June 2012, a judge in Massachusetts became the first to rule in favor of those seeking to require Netflix to close caption its online video.17 The foundation of this ruling was the judge’s finding that Netflix and other websites had become “placets] of public accommodation” - the first time any court had reached that conclusion. The implications of this holding are not modest. Leading internet law commentator Eric Goldman, of the Santa Clara University School of Law, saw this as a dangerous and errant deviation from previously settled law that threatened to do real damage to internet commerce:

This is a bad ruling. Really terrible. It’s ... potentially ripped open a huge hole in Internet law. ... If websites must comply with the ADA, all hell will break loose. Could YouTube be obligated to close-caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen? I’m not creative enough to think of all the implications, but I can assure you that ADA plaintiffs’ lawyers will have a long checklist of items worth suing over. Big companies may be able to afford the compliance and litigation costs, but the entry costs for new market participants could easily reach prohibitive levels.18

Nevertheless, that case settled a few months later, with Netflix agreeing to caption 100% of its videos by 2014, and to reduce the time the service takes to add captions to new streaming content down to 7 days by 2016.19 The National Association for the Deaf, which brought the lawsuit, heralded this agreement as “a model for the streaming entertainment industry,” although it’s still not clear two years later whether the Netflix model will indeed become the norm anytime soon. As of this writing, courts remain “split about the extent to which private websites are subject to the accessibility requirements of Title III of the Americans with Disabilities Act (ADA), and the U.S. Department of Justice (DOJ) has not yet published any clear regulations about the issue.”20

Meanwhile, Federal regulators continue to push for greater accommodation not only by websites, but in mobile applications as well. In June 2014, the Department of Justice reached its first settlement agreement that included a provision requiring the settling party to make its mobile app ADA-compliant. “The [DOJ’s] investigation found that the [Florida State University] Police Department’s online application form asked questions about a past or present disability and other medical conditions in violation of the ADA.”21 One of the steps FSU agreed to take to rectify the problem was “ensuring that the FSU Police Department website, including its employment opportunities website and its mobile applications, conform to the Web Content Accessibility Guidelines 2.0 Level AA Success Criteria and other Conformance Requirements (WCAG 2.0 AA).”22

These developments demonstrate the growing political and legal pressure to make digital media more accessible to disabled persons. Especially in light of the increasing median age in the United States and other developed nations,23 there is every reason to expect this trend to continue. This means that those developing the augmented world should proactively include access concerns in their design strategies from the very beginning. It also suggests there will be lucrative markets available for digital solutions that enhance access to digital content.

HOW AR CAN MEANINGFULLY IMPROVE THE LIVES OF DISABLED PERSONS

Fortunately, the augmented medium provides several natural methods of enhancing disabled persons’ access to digital information. Again, Google is largely responsible for sparking most of the public conversation on this topic because its Glass device was the first digital eyewear to get widespread attention. (Not to mention the “smart” contact lenses that Google announced in July 2014, which are said to be capable of “monitor[ing] the wearer’s blood sugar levels.”)24 Some have said of Glass that “not since the invention of text-to-voice and other speech-recognition software has a tech invention had such potential to help the disabled.”25 The issues and opportunities Glass raises, however, apply to the entire category of wearable computing.

THE DEAF

Enormous sums of money and political capital have been spent to achieve the modest improvements in close captioning availability that resulted from the Netflix and CNN cases and related FCC regulations. Yet AR-infused eyewear could accomplish far more in terms of giving the deaf access to the everyday world.

Google Glass has already offered a glimpse of what this future might look like. Because the device (by default) conveys sound through bone conduction - i.e., through the skull directly into the inner ear - rather than headphones, it actually allows even many deaf persons to perceive the sounds. Digital marketing professional David Trahan, who is deaf in his right ear, experienced this first-hand. The audio produced by his Glass device allowed him to hear through his right ear for the first time, and now it has become an integral part of his life.26

Combining digital eyewear with speech recognition software has the potential to radically enhance life for deaf individuals by essentially close captioning anything and everything in life. People wearing such digital eyewear could potentially see the words of someone speaking to them superimposed on their field of vision in more-or-less-real time. Obviously, technological barriers to such devices still remain. Software would need to improve, and it would need to sync with directional microphones that could isolate the speaker’s voice from the background noise. But the impressive quality of voice recognition products like Dragon Naturally Speaking and Siri bring hope such a product is not far off.

Voices are not the only sounds that deaf people could benefit from “hearing.” Wearable devices could be programmed to recognize and alert to the telltale sales of oncoming traffic, traffic control signals, music, alarms - all the sounds that others take for granted every day - and display appropriate text notices in the user’s field of view.

These solutions would allow a deaf person to understand the sounds around them, but could AR help the deaf communicate? For more than a decade, researchers have been working toward that exact goal. As early as the 2003 IEEE International Symposium on Wearable Computers, a team demonstrated the ASL OneWay, a tool designed to help the deaf community to communicate with the hearing by translating American Sign Language.27 The device consists of a set of sensors in a hat worn by the signer, and two wristwatch-sized devices, one on each hand. The system recognizes the hand gestures that make up a sign and deduces the English phrases most closely associated with the signed phrase. The deaf person sees these phrases in his eyewear and selects the appropriate one, which the device then speaks through a speaker in the hat. As one would imagine, these prototypes were a bit cumbersome, but the concept was potentially revolutionary.

More recently, researchers at the multi-university project MobileASL have been working to develop visual recognition software capable of detecting hand gestures and transmitting them in real time over standard mobile phone networks (Fig. 9.2).28 Other projects hope to someday be able to translate the signs in to written or spoken speech in near-real time. These projects have advanced far in the past decade, and it is feasible to imagine them installed in digital eyewear within the coming decade. Likewise, designers have at least begun to conceive of gloves that can track the wearer’s gestures in three dimensions, also providing instant translation from sign to speech. Such developments could increase deaf persons’ ability to integrate into society by orders of magnitude.

Once such on-the-fly captioning becomes even marginally feasible, we are likely to see political pressure grow to make the technology available to the deaf community. The first implementations will almost certainly be voluntary, by providers who seek

FIGURE 9.2

The MobileASL project.

to distinguish themselves from their competitors. By that time, much of the programming that we currently receive on televisions may be broadcast on eyewear instead, meaning that the same close captioning rules that currently apply to TV will be in force there as well. What is more, the deaf will not be the only market for the technology. Just like noisy bars will activate the close captioning feature of their televisions to allow patrons to follow the programming, normally abled people could encounter situations in which they too can benefit from technology originally intended for the disabled.

Once the technology gains a track record, insurance companies may begin to subsidize it for persons who lose their hearing as a result of injury or disease. Government officials and politicians who today ensure that a sign language interpreter is present with them onstage may instead make live-captioning eyewear available to those in the crowd who need it. Eventually, provisions like the Rehabilitation Act may require Federal employees to provide such “access” to their live speeches. By various means, live close captioning in the physical world will eventually become commonplace.

THE BLIND

Games like Inception the App ,2 which “uses augmented sound to induce dreams,” already promise to digitally augment our sense of hearing. AR devices could accentuate 29 the hearing of blind individuals in a way analogous to the visual information it could provide for the deaf. Users could receive audible alerts when they come into proximity with a person, vehicle, traffic control device, sign, or any of a hundred other significant objects. In 2012, Japanese telecommunications giant Nippon Telegraph and Telephone Corp. developed a prototype pair of glasses designed to do just that. Running the company’s “SightFinder” technology, the device “sends streaming images from a camera to one of NTT’s data centers to recognize and identify street signs or potential obstacles. In real time, NTT’s computers analyze the images and provide warnings - street construction causing a detour or a cone in front of a pothole -via an Internet-connected device like a smartphone to help the visually impaired to move freely.”30

Dr. Peter Meijer, a senior scientist at Philips Research Laboratories in the Netherlands, has been working toward this goal for years. His software, called the “vOICe,” is “a universal translator for mapping images to sounds.”31 Already available as a free Android app, the software uses a mobile phone’s camera to take an audio snapshot of the user’s surroundings, associating height with pitch and brightness with loudness. Presumably once the user grows accustomed to this system, it will become second nature and allow the blind to roam more confidently than is possible with a mere walking stick for guidance. As of this writing, the app has earned an average of 3.5 out of 5 stars from more than 77,000 reviews in the Google Play store - a respectable indication of real utility.

One could imagine similar functionality being added to Word Lens or almost any other visual recognition app, allowing the app to audibly explain to the user what it sees. The blind community has certainly imagined this future. One sight-impaired Explorer shared his thoughts after testing Glass:

I imagine a future where Glass can read a menu to me in a restaurant. A simple glance at the menu and glass recognises the text and begins to read aloud. Or perhaps, opening a book and have it read aloud, reading a book - that is something I have not been able to do in a long time. Object recognition, the ability to identify objects in a specific scene, or recognise my friends and acquaintances, and speak their names in my ear. Essentially, Glass would allow me to more readily operate in social environments, fill in the gaps created by my lack of vision.32

The impact of such advances would be so profound for blind individuals that they are likely to become common and even required by the same mechanisms discussed above with respect to accommodations for the deaf.

As one step in that direction, the “vOICe for Android has already been demonstrated to run on Google Glass, letting the blind ‘see’ for themselves and get visual feedback in a second. A talking face detector and color identifier is included.”33 A significant caveat to this idea is the limited battery life of Glass in its current form. Users are cautioned to use an external battery, and even then “[i]t is recommended to run the vOICe for Android on Google Glass only for up to a few minutes at a time, to avoid overheating risks.”34 These present-day limitations, however, have not tempered the excitement Glass has stirred within the blind community, with some already calling it “a blind man’s window into the world.”35

Dr. Meijer has proposed an even more radical version of this idea by integrating the vOICe app directly into a dedicated eyewear device promises “synthetic sight” by essentially hacking the brain to accept audio signals as visual images. According to Meijer’s website, “neuroscience research has already shown that the visual cortex of even adult blind people can become responsive to sound, and sound-induced illusory flashes can be evoked in most sighted people. The vOICe technology may now build on this with live video from an unobtrusive head-mounted camera encoded in sound.”

Digital eyewear also offers a promising new platform for apps like VizWiz, which might be described as crowd-sourced AR. Currently a smartphone app, VizWiz allows blind people to upload pictures of their surroundings and ask questions about them, then get feedback from seeing persons around the globe. “Where smartphonebased VizWiz users have to contend with the inherent hassle of ‘using a handheld device while blind, Glass offers the chance to provide continuous, hands-free visual assistance,’36 according to the service’s founder.

Of course, audio signals are not the only way to enhance life for the blind. Those who read Braille could still benefit from enhanced haptic technology. In theory, the feel of virtually any surface could be augmented with additional sensory feedback, including in the Braille language. Therefore, a blind person wearing a haptic glove could “feel” Braille text on any surface, without that writing physically being there.

THE PHYSICALLY HANDICAPPED

Digital information alone can’t do anything to increase the mobility of those with physical impairments. Better databases and way finding applications, however, could make it a lot easier to find the accommodations designed to make their lives easier. For example, Mapability,37 an existing data layer on the Layar browser, helps the disabled locate the nearest wheelchair-accessible venue.

The introduction of Glass has also done much to illustrate how digital eyewear can improve the lives of the physically disabled. Just the simple ability to take pictures and video has been a sea change in the lives of disabled users. One Glass Explorer wrote, “[m]y injury was a spinal cord injury that occurred in 1988 and yesterday I was able to take a picture unassisted for the first time in 24 years!”38 Similar stories abound.

The disabled have even had a hand in helping to overcome the limitations of first-generation devices like Glass. Because Glass is still (as of this writing) a beta product, its Explorers have an active voice in shaping future enhancements and revisions. Disabled users have made such suggestions as making the volume control less buried in the command menu,39 decreasing the sensitivity of the touchpad,40 and allowing alternate methods of controlling the video camera (because those without use of their hands cannot tap the touchpad, as is presently required).41 Input like this allows the device (and those that come after it) to be designed with accessibility in mind.

One specific community that has benefited from Glass has been those with Parkinson’s disease, which causes uncontrollable tremors. “With custom apps, experts have tuned Glass to provide subtle alerts reminding volunteers to take their medication and notify them of upcoming medical appointments. Sufferers are also prompted to speak or swallow to prevent drooling. Glass’ motion sensors are put to good use too, preventing patients from ‘freezing’ by displaying visual cues to help them unblock their brain and regain a flow of a movement.”42 One can easily imagine those afflicted by any number of diseases with analogous physical symptoms to benefit from the same functionality.

For example, patients with ALS (Lou Gehrig’s disease) and muscular dystrophy -both of which lead to loss of motor control throughout the body - have experienced increased quality of life through digital eyewear. One volunteer who works with ALS patients said, “Some patients have no use of their hands, and others are losing their

FIGURE 9.3

EyeSpeak by LusoVU.

vocal abilities. But they talk to Glass and it understands them.”43 In July 2014, the Portuguese company LusoVU successfully completed a Kickstarter campaign for its own “augmented reality glasses” called EyeSpeak (Fig. 9.3).44 This device - which was inspired by the CEO’s father being diagnosed with ALS - is designed to capture in a wearable device the same eye-tracking technology currently used by desktop computers to turn patient’s eye movements into written letters and words.

Because the impairments suffered by these communities are more often the result of injury, disease, or advanced age, they are more likely to receive AR devices through their health insurance provider or medical professional.

THOSE WITH COGNITIVE IMPAIRMENTS,

LEARNING DISABILITIES, AND EMOTIONAL TRAUMA

One study in Ohio created simulated virtual environments to aid the rehabilitation of those with traumatic brain injuries and other cognitive impairments.45 Similarly, Dr. Helen Papagiannis - a designer, researcher, and artist specializing in AR - has written an AR pop-up book designed to let those suffering from phobias directly encounter their fears in augmented space46 called “Who’s Afraid of Bugs?” the book

FIGURE 9.4

Sension app for autistic users.

features various insects that appear to come alive through a companion AR app. It “was inspired by AR psychotherapy studies for the treatment of phobias such as arachnophobia. AR provides a safe, controlled environment to conduct exposure therapy within a patient’s physical surroundings,” Papagiannis writes, “creating a more believable scenario with heightened ‘presence’ and greater immediacy than Virtual Reality (VR).”47

Wearable devices even hold promise for those with severe neuro-psychological impairments. The startup company Sension, for example, develops software that recognizes people’s emotional state by analyzing their facial expression (Fig. 9.4). The company’s Glass software maps 78 points on the face and labels the faces with onscreen keywords like “happy” and “angry.”

“Emotional recognition (software) is still in its early days, at about the state of a 3-year-old, but I still felt passionate about trying to do something meaningful,” says Sension founder Caitalin Voss. “From my personal experience, I know that the issues (for my cousin) are recognizing an expression, and then smiling back. Glass is good for the first, and can help with the second.”48 Here, too, health insurance companies and medical professionals will be the most likely source AR-based treatments.

The possibilities for AR in the educational field are seemingly endless. Brad Waid and Drew Minock have been at the forefront of this topic for some time. They were each elementary school educators in Bloomfield Hills, Michigan, when they began touring the country teaching other educators how to use AR in the classroom. Now employed by Daqri to do the same work on a broader scale, they have seen countless educators break down barriers to learning and open up exciting new pedagogical possibilities with AR applications. For example, AR allows kinesthetic learners their best opportunity yet to interact with digital objects in a way that fits their learning style.

Although these techniques offer new worlds of possibilities for all kids, the potential is particularly tantalizing for kids with learning disabilities and other barriers to comprehension. Educators are currently limited in what they can offer by such pesky constraints as budgets, resources, and the laws of physics. AR overcomes those barriers by virtually replicating and allowing students to meaningfully interact with anything they can imagine. Kids who need to learn through particular senses can have their instruction tailored to those needs.

Driven by such legal mandates as the Individuals with Disabilities Education Act (IDEA), which was reauthorized in 2004, the public education system is constantly searching for alternative methods to teach kids who do not respond to traditional pedagogical techniques. For example, the IDEA requires that a meeting of parents, educators and other professionals be convened for each student with special needs, resulting in an Individualized Education Plan (IEP) designed to accommodate the child’s specific disabilities.

IDEA 2004 already requires IEP teams to consider the use of “assistive technology” so as “to maximize accessibility for children with disabilities.”49 An “assistive technology device” is defined as “any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of a child with a disability.”50 IDEA defines an “assistive technology service” as:

“any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. Such term includes

• (A) the evaluation...

• (B) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices...

• (C) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing...

• (D) coordinating and using other therapies, interventions, or services with assistive technology devices...

• (E) training or technical assistance for such child, or ...the family of such child...

• (F) training or technical assistance for professionals...”51

The Act also requires schools to provide training in the assistive technology for the teachers, child, and family.52

These statutory provisions already provide the legal foundation for requiring AR-based tools as part of a disabled child’s IEP. Once educators have a sufficient track record with AR pedagogical tools to prove their effectiveness - which, thanks to passionate educators like Waid, Minock, and many others, will not be long - we could very soon see conversations about augmented reality happening in IEP meetings across the country.

The incredible promise of augmented world devices and experiences to improve the lives of the disabled suggests that legal incentives and sanctions will soon encourage or require its use in various contexts. The concepts discussed in this chapter highlight some of the rationales by which that may be accomplished.

CHAPTER

Litigation Procedure

10

INFORMATION IN THIS CHAPTER:

• •  Evidence and V-Discovery

• •  In the courtroom

• •  Exercising personal jurisdiction

INTRODUCTION

On the whole, the legal profession is a conservative institution. It does not move quickly to adopt new technologies or change the way it does things. To the contrary, it serves to bring some semblance of balance and consistency to a rapidly changing society by applying the lessons of the past to solve today’s disputes. Change does come even within the legal system, however, and like everything else in contemporary life, change seems to be coming at a faster rate than it did before.

So it will be with augmented reality. As of this writing, only a handful of disputes involving AR have made it through the legal system. It will be some time before use of the technology becomes anywhere near commonplace within the system itself. Nevertheless, some legal innovators have already begun to see the value AR can add in the way they do their jobs and represent their clients’ interests. As the ability to tell stories in AR improves, it should become a more frequently used tool for legal persuasion. And before any of that change sets in, lawyers will likely be scrambling to understand and adapt to the AR data that their clients create in the course of their more-rapidly adapting businesses.

GATHERING EVIDENCE FOR USE IN LEGAL PROCEEDINGS

One of the main attractions of digital eyewear is its ability to capture users’ experiences from their own first-hand perspective, in a hands-free manner that prevents the device from interfering with what it’s recording. The advertisements and popular apps in this space emphasize the use of such capabilities for recording fun, recreational activity, like playing with kids, shopping, and even skydiving. As with anything else in AR, though, these devices simply provide a platform. It’s up to the user to determine the content.

Augmented Reality Law, Privacy, and Ethics

259

Copyright © 2015 Elsevier Inc. All rights reserved.

One group of people that cares quite a bit about accurately reproducing scenes from everyday life as accurately as possible is the legal profession. Law enforcement officers, detectives, inspectors, and lawyers all seek to gather and preserve evidence of what other people are doing in order to be able to accurately retell that story in the neutral context of a courtroom. Just as wearable technology holds the promise of being able to capture moments more accurately and uniquely than other methods, so too does it stand to enhance the ability to introduce those experiences into evidence.

MOBILE VIDEO AS AN INTENTIONAL MEANS OF GATHERING EVIDENCE

United States courts already have a predisposition in favor of video evidence. In the landmark case Scott v. Harris,53 decided in 2007, the United States Supreme Court announced what almost amounts to a per se rule of deference. The plaintiff in that case alleged that the defendant police officer had used excessive force by ramming the plaintiff’s car during a high-speed chase, causing a crash that badly injured the plaintiff. The lower courts had allowed the lawsuit to proceed, determining that a reasonable jury could rule for either party based on its interpretation of the evidence.

The Supreme Court in Scott reversed, holding as a matter of law that the evidence could only support a judgment in favor of the officer. Its primary basis for reaching this conclusion was the “existence in the record of a [dashcam] videotape ... [that] quite clearly contradicts the version of the story told by [plaintiff.]”54 Specifically, the video demonstrated that plaintiff’s driving had “resemble[d] a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury,”55 56 and therefore justifying the degree of force used by the defendant officer. The guiding principle for future cases set forth by Scott is one that commands deference to unrebutted video evidence:

When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. [Plaintiff’s] version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.11

Of course, video recordings can be altered. “There [were] no allegations or indications that [the Scott] videotape was doctored or altered in any way, nor any contention that what it depicts differs from what actually happened.”57 Video editing technology has come a long way even in the years since Scott, such that litigants in later cases may have to do a little more work to prove the authenticity of their records. But Scott’s rule of deference still governs.

Meanwhile, one of the predominate features of augmented world technology is the proliferation of devices that can record audiovisual footage. It is little wonder, therefore, that people have already begun using these devices for the purpose of gathering evidence to use in court. In April 2014, New York City - which had already experimented with giving its police officers digital eyewear - next decided to give the devices to their restaurant inspectors.58 Around the same time, the Phoenix, Arizona personal injury law firm Fennemore Craig launched a program it called “Glass Action” (groan), through which the firm lent its digital eyewear devices to its clients. “The idea is to let the clients communicate with their lawyers via Glass to show how their injuries impact their daily lives. Ultimately, Fennemore Craig hopes to turn these communications into evidence.”59 The program is a testament to the fact that the intimacy generated by first-person-perspective video can also subtly influence a jury to empathize with the person behind the recording, “see[ing] the nuances of a victim’s daily challenges firsthand.” 60 It is as close as video evidence can come to putting the viewer in the victim’s shoes.

PRESERVING THREE-DIMENSIONAL EXPERIENCES IN AR

Writing in 2003, police futurists Thomas J. Cowper and Michael E. Buerger foresaw “[a]utomatic sensor readings that calculate distance and height and directly create digital and AR maps for court presentation.”61 By 2011, private accident reconstruction firms in the United States were already beginning to employ 3-D laser scanner for just this purpose, although only on a small scale.62 “Mounted on a tripod, a laser scans the horizon and records up to 30 million separate data points, down to submillimeter resolution. Each sweep takes four minutes, and investigators will typically make four sweeps.... The image can then be processed into a 3-D computer model, allowing investigators to see where the vehicles are located relative to each other, tire skid marks, and other evidence.”63

The following year, as discussed in Chapter 9, Danish researchers presented a multi-sensory system designed to allow investigators to capture a full crime scene in AR:

“The goggles consist of two head mounted 3D-cameras feeding video to a backpack with laptop. With this tech, you’d be free to move and look around while you manipulate the electronic display with a pair of gloves. The left hand brings up a set of menus and tools, while the right hand acts as a pointer. By pointing to a blood splatter or bullet holes (for example), you’d be able to tag them as points of interest in a 3D-model of the crime scene. The system is also set up to completely document the crime scene with a video and audio track. This sort of virtual record would allow a new investigator to explore the crime scene and it may also be accepted as evidence in future court cases.”64

Such technology, however, would be just as useful for civil litigation as for criminal prosecutions, as discussed further below.

GATHERING EVIDENCE FROM DIGITAL REMNANTS

Of course, a fundamental characteristic of digital data is its permanence. Once created - and especially once it is uploaded to a server - digital information is notoriously difficult to ever truly, permanently delete. Therefore, it will not always be necessary or even preferable to use wearable devices to capture events as they happen. Rather, most AR evidence used in legal proceedings will likely be found after the fact, often because it was shared socially by the very person against whom it is to be used.

The bounty of evidence being collected in social media today bears this out. Three particular examples serve as interesting transitional species, so to speak, in the evolution from social media to the augmented world. First, as discussed in Chapter 7, California bicyclist Chris Bucchere struck and killed an elderly pedestrian while Bucchere was competing for the fastest recorded time on the competitive bicycling social network Strava. At a hearing in his prosecution for manslaughter, “data from Bucchere’s Strava account ... had been used to show how fast he had been going and to prove he had ignored stop signs.”65 Likewise, Bucchere’s comments made through the social network after the crash - in which he lamented the “heroic” loss of his helmet - helped establish his reckless disregard for the consequences of his actions.

FIGURE 10.1

Alleged excerpt from Cecilia Abadie’s Google+ account appearing to show a picture taken through Glass while driving.

Another case discussed in Chapter 7 was the first-ever traffic citation for wearing Google Glass while driving, issued to software developer and avid Glass Explorer Cecilia Abadie. She was found not guilty because the officer could not prove that the device was actually turned on while she was behind the wheel. This prompted some internet sleuths to investigate her Google+ and YouTube social media accounts, where they found photos and recordings that appeared to have been taken while driving (Fig. 10.1). Apparently, they also found a message Abadie had posted saying “I just received a message ... while driving.” Of course, none of this “evidence” would have been likely to make a difference in the actual hearing on Abadie’s citation, nor is it conclusive proof that she was the one who made the recordings, or that she did so while driving (which, it should be observed, is not necessarily unlawful or even dangerous; see the discussion in Chapter 7). But it does illustrate the fact that there are evidentiary goldmines online, and that wearable devices will create even more opportunities for lawyers to discover such gems - if they have the stamina and wherewithal to sift through all the available data.

A third, almost-real example came in August 2014, when online news outlets reported that Gainesville, Florida police had used a murder suspect’s interactions with his iPhone to prove he committed the crime, including the “fact” that he had asked Siri where to hide the victim’s body.66 “In addition to the Siri query, [the suspect’s] phone had no activity between 11:31pm and 12:01am on the night [the victim] disappeared. [The suspect] also used the flashlight app on his phone for a total of 48 minutes that day.. ,”67 Although later reports recanted much of this narrative, the fact of its plausibility demonstrates just how many digital remnants we leave behind already using today’s technology. As the world becomes more augmented, even more of our everyday actions will be preserved, allowing others to come back after the fact and reconstruct - or misinterpret - our actions in litigation.

V-DISCOVERY

THE PRECEDENT OF e-DISCOVERY

As these examples demonstrate, advances in digital and computing technologies can make litigation, like anything else, more effective and efficient. Lawyers have so many more tools at their disposal for crafting and communicating persuasive arguments than they did 10, or even five years ago.

But this rapid expansion of technology has also been giving lawyers a whole lot more to do. Generally speaking, any documents, files, emails, spreadsheets, or information that is reasonably likely to reveal evidence that could be admissible in court is fair game for discovery during litigation.68 Increasingly, the digital data stored and exchanged by the people and companies involved in lawsuits are becoming important to the issues being fought over. Especially over the past decade, that has meant that lawyers and their staff often have to gather “electronically stored information” (ESI) during the discovery phase, in addition to the paper documents and testimony - a phenomenon we call “e-discovery,” Therefore, lawyers end up with even more data to sift through in order to figure out what happened than they used to a lot more.

“Perhaps no case could be a more monumental example of the reality of modern e-discovery,” says a 2011 article in the ABA Journal, “than the [then-]ongoing Viacom copyright infringement lawsuit against YouTube filed back in 2008. In that dispute, the judge ordered that 12 terabytes of data be turned over”69 - more than the printed equivalent of the entire Library of Congress. Even after a few years, this example still remains a prodigious monument to the burdens of e-discovery. “Experiences like these,” the article continues, “have left law firms and in-house attorneys scrambling to make sense of the new risks associated with the seemingly endless data produced by emerging technologies like cloud computing and social media.”

How will law firms and litigants cope, then, when augmented reality becomes mainstream, and digital technology leaps off the computer monitor to overlay the physical world? At least four potential problems seem apparent.

ORDERS OF MAGNITUDE MORE DATA

The first problem will be one of volume. Consider this: in 2013, it was calculated that “[a] full 90 percent of all the data in the world has been generated over the last two years.”70 And that was before the wave of wearable communications and healthmonitoring devices that began shortly thereafter.

Companies such as Vuzix and Google already have digital eyewear on the market, and several more are in development. If a site like YouTube can amass enough video footage to make the prospect of reviewing it all seem (quite rightly) ridiculous, how about when everyone is wearing digital eyewear that is capable of recording more or less everything we look at? Will paralegals be sifting through days and weeks worth of mundane, first-person audio and video to find the relevant portions of a litigant’s experiences? As more of our reading takes place on digital devices, we are already creating troves of data about our activities in browser caches and RAM memory. But how much larger will our digital footprints be when everyday physical objects become opportunities (even necessities) for encountering and creating geotagged data?

TRACKING IT ALL DOWN

The second, and closely related, problem will be locating and collecting all of this data. As recently illustrated by the comedic film Sex Tape, it is hard enough nowadays to locate data stored in “the cloud,” which actually means some remote server farm nestled somewhere in the distant hills. Presumably, that data will be stored in even more diffuse ways in an AR world, in which our digital experience is likely to be generated by a mesh of interconnected devices. Whether or not my eyewear will require a centrally broadcast “signal” or “network” in order to function, it will certainly be interacting with any number of signals sent to and from objects that I physically encounter, leaving digital traces of my physical presence behind.

We are already halfway there. Consider Color, the social media startup that gathered a lot of attention for a brief period in 2011. Its premise was to give users access to other people’s photo streams merely by coming into physical proximity to those people. Foursquare, Waze, and similar sites likewise track users’ locations in real time and offer them discounts to businesses near their current, physical location. Once transactions like this become the centerpiece of a lawsuit, will it require lawyers to pinpoint where particular people where when they accessed these apps?

If it becomes relevant in litigation to retrace someone’s steps through an augmented reality, how would one do it? That will depend on how and where the data is stored. If, as is the case today, almost all data resides either on central servers or on the mobile device itself, there will be obvious points for collecting the data. But as the data disperses, it may become necessary to actually visit the locations where the person being investigated traveled, in order to retrieve the bits of digital data they left behind in nearby connected devices. Or perhaps we will all be equipped with personal “black boxes” that keep track of our digital experiences - all too often, probably, for the purpose of uploading them to lifelogs, or whatever social media has by then become.

MAKING SENSE OF FIRST-PERSON AR DATA

A third problem will be one of triangulation. Today, ESI may take various forms, but it all has one thing in common: it’s almost always viewable on a two-dimensional screen. That will not be universally true for much longer. How one perceives augmented reality will depend first on how they’re looking at their physical surroundings. It may not be possible to interpret digital data stored in a server somewhere without knowing exactly where the individual(s) viewing it were located, the direction they were facing, what other data they had open, and so on.

As an example, take the situation discussed in Chapter 5: a trademark infringement lawsuit in which the plaintiff alleges that a virtual version of his trademark was geo-tagged onto the brick-and-mortar location of his competitor’s store, leading confused customers to patronize his competitor instead of his own business. (This is a fairly straightforward extrapolation of all the lawsuits being filed nowadays over sponsored ads in search engine results.) That plaintiff’s claim will rise or fall in part based on how that geotag actually looked to customers. That, in turn, may depend on where the potential customers were when they looked at the logo. Was it visible through the trees, or in the sun? On which AR platforms was it viewable (assuming that there will be multiple service providers)? Did different brands of eyewear render it in the same way? Was it a static display, or did it sense and orient itself toward each individual viewer?

Even more complex issues come into play with other forms of AR, such as haptic feedback. A server or device memory may record that a glove or other haptic device delivered a series of electrical impulses, but determining with any reliability exactly how that felt to the user may not be possible without recreating the experience.

PRESERVATION

Fourth, after courts and the Federal Rules of Civil Procedure began to acknowledge the significance of electronically stored information, it also became clear how easily and frequently individuals and companies were deleting potentially significant evidence - whether intentionally or merely out of ignorance. Out of this realization came the recognition of a duty that every person has to preserve evidence relevant to a potential legal claim - including ESI - whenever that person “reasonably anticipates” litigation over the claim. When someone ought to have that anticipation is necessarily fact-dependent; it could be by receiving a formal complaint or warning that a lawsuit is coming, or when a disagreement becomes sufficiently contentious that a reasonable person would see litigation as a distinct possibility. If the duty is triggered in a corporate setting, the company’s lawyers or other representative will often issue an internal “litigation hold” warning, putting all employees on notice not to delete digital information that could relate to the issues in the potential lawsuit.

Just when corporate officers were beginning to wrap their brains around the idea of preserving vast amounts of emails, spreadsheets, and word processing documents, the duty of preservation expanded to such platforms as social media accounts, voicemails, and text messages. The introduction of wearable devices, AR interfaces and v-discovery will expand the burdens of preservation yet another order of magnitude. There will come a time in the near future when companies will need to catalog, or at least query their employees when needed on, the types of wearable devices they use and the data those devices accumulate. When one employee sues over stressful or discriminatory workplace conditions, for example, it may become necessary to collect the health-monitoring data of each employee in the office to establish the average level of stress and the factors that tended to increase it. If some individuals delete such information about themselves during the relevant timeframe, however, the company could find itself sanctioned for destroying evidence.

These are just a few of the potential issues; rest assured, there will be others. But it all comes with a silver lining. Just a few minutes contemplating the complexities of virtual (or “v-”) discovery makes the current fuss over e-discovery seem not so bad after all.

ASSISTING LAWYERS WITH LEGAL RESEARCH

At a 2014 legal technology conference at Harvard Law School, Wayne Weibel presented his own customized “citation extraction” software for Google Glass.71 Although public details on the project are scarce, it appears to recognize legal text that the person wearing Glass is looking at and find the case law citations in the document. From there, the software could presumably look up and display the case being cited. More advanced versions might even detect the name of a case when spoken in the courtroom, and provide the wearer with instant intelligence on the cited opinion.

Of course, finding a legal opinion only tells half the story. Lawyers regularly rely on one of two databases - Shephard’s® and Keycite® - to determine whether the holding of a particular opinion remains valid law in light of subsequent interpretations and rulings by other courts. A really useful Glassware app, then, would be one that could also run a case citation through one of these databases, and superimpose the user’s view of the written text with the databases’ red, yellow, and green flags, allowing the user to easily spot potential weak points in a legal argument on the fly.

AUGMENTED REALITY IN THE COURTROOM

TELEPRESENCE

Public speakers have traditionally honed their presentations by performing in front of a mirror, but digital eyewear will provide lawyers with a whole new level of selfanalysis. The personal injury law firm of “Fennemore Craig is ... considering using Glass with expert witnesses, or putting Glass on ‘jurors’ in mock trials to see court presentations from that perspective.”72 The lawyers could then analyze the footage to determine how well a presentation is playing to the jury.

Other trial lawyers plan to use the technology as a teaching or client-relations tool. “Just before the clerk calls our case,” speculated trial lawyer Mitch Jackson, “I command Glass to ‘go live’ and a real time audio and video feed displays back at the office and private Youtube, Google Hangout, and Spreecast channels so that the new associates can watch the law and motion and oral argument from our various offices across the U.S. A private link is also shared with the clients so they can watch the procedure poolside from their hotel in the Bahamas where they are vacationing.”73 Presumably, lawyers outside the office could also watch the argument in real time (on their own headset, of course), and offer the incourt attorney real-time input that affects the outcome of the hearing. Similar methods are already being used to give medical students a unique, first-person perspective of surgeries from the surgeon’s own perspective, and to allow treating physicians to collaborate in real time. Applied in the courtroom, such techniques could ultimately save clients significant sums on travel expenses and allow greater collaboration at times when it could make a critical difference in the outcome of an argument.

Telepresence in the courtroom may also expand the concept of “testifying in court.” Today, when a witness gives testimony outside of the courtroom, there are only two commonly-used methods for preserving it: having it typed by a stenographer or video recorded. Adding the ability to record and play back testimony in three dimensions would certainly add to its persuasive effect in the courtroom. By the same token, witnesses who now (in rare circumstances) are allowed to testify in court by means of live videoconferencing could instead someday soon “appear” on the witness stand by means of a life-size, interactive hologram, a device frequently seen in Star Wars films (Fig. 10.2).

Without a serious shift in legal precedent, however, telepresence testimony is not likely to be widely adopted in criminal proceedings. At least four of the United States Courts of Appeal have decided that criminal defendants must be physically present in the courtroom when being sentenced, regardless of how effective

FIGURE 10.2

The Star Wars films have perfected the concept of telepresence.

videoconferencing technology may be. “Being physically present in the same room with another has certain intangible and difficult to articulate effects that are wholly absent when communicating by video conference. As written, the Rule [43(a) of the Federal Rules of Criminal Procedure] reflects a firm judgment in favor of physical presence and does not permit the use of video conferencing as a substitute,”74 wrote one such court in 2011.

Similarly, the Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.” This bedrock provision of constitutional law is already posing obstacles to the use of videoconferencing in criminal trials,75 and would likely also hinder the use of telepresence technology. Recent Supreme Court case law interpreting the Confrontation Clause, however, has suggested that courts may soon begin opening the door a little wider to the possibility of “[using] remote testimony as a method to satisfy the Confrontation Clause when a witness cannot be present at trial.”76

IMMERSING JUDGES AND JURORS IN THE EVIDENCE

I described above how lawyers might use digital eyewear to capture video footage of a scene or of an injured person’s experiences from a first-person perspective. Capturing the footage, however, is only half the process. Ultimately, the footage must be conveyed to the judge or jury who will decide its significance. Here again, digital eyewear could be a great assistance. For example, if each member of the jury were given a set of digital eyewear, they could all simultaneously experience the content first-hand, rather than viewing it on a two-dimensional monitor. The immersive experience would draw the jurors into the experience, necessarily increasing its emotional resonance and hence its persuasive effect. This would likely be best accomplished with eyewear meant to deliver a wide, stereoscopic field of view like the Epson Moverio or the Meta Space Glasses, rather than smaller displays like Glass or Vuzix devices.

Such immersion could also go beyond video footage to include additional senses. In 2012, a Detroit police officer stood trial on involuntary manslaughter charges after a botched raid of a house that resulted in the shooting death of a seven-year-old girl. A critical fact in the case was that the police had set off a flashbang grenade, which “is a non-lethal device meant to disorient and give an advantage to police during a raid.”77 Arguing that “words alone can’t describe the [disorienting] effects [this type of grenade] has,”78 the prosecutor in the case argued that the jurors could only understand the circumstances of the shooting by experiencing the explosion first-hand. The judge agreed, and assembled all of the jurors in a room where a flashbang grenade was detonated.79

Though the experience was doubtless enlightening, such extreme measures are also exceedingly rare, as well as expensive. Equipping courtrooms to deliver multi-sensory experiences through haptic and audio-visual AR could revolutionize the practice of presenting evidence in court at least as much as the introduction of video recordings and computer-generated reconstructions have done. Jurors could feel the chill of a dark city street, hear sounds from specific directions, and generally put themselves in the shoes of those of whose actions they sit in judgment. If done correctly, such juries would gain a much more precise understanding of the evidence, presumably leading to better-informed verdicts.

The various technical difficulties in accomplishing that precise re-enactment, however, coupled, with the inherent subjectivity involved in how competing parties present their respective cases, may lead to more arguments over the permissibility of such experiences. These arguments are likely to center on Federal Rule of Evidence 403, under which a “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” In particular, intense, immersive demonstrations may be argued to “prejudice” the jury by arousing a strong emotional reaction. Some jurors may even have physical conditions that would make it dangerous to view the augmented content.

Moreover, appellate review of cases involving such evidence could be particularly difficult. Typically, legal appeals are fairly sterile processes, involving oral arguments in pristine halls based on the written transcripts of trial court proceedings. Video and other electronic evidence can be preserved and re-examined by appellate courts easily enough. The uniquely experiential nature of multisensory AR evidence, however, would presumably make it very difficult, or at least complicated, to recreate after the fact. When the admissibility or weight of such evidence is the subject of an appeal, appellate judges may find themselves with no other choice but to strap on the same equipment used by the jurors to experience the AR evidence, more than likely with assistance from the parties or their experts.80

PERSONAL JURISDICTION

Picture this: a California based software company writes an augmented reality program that allows people to engage in a digital experience tied to their respective locales. An end user in New Jersey downloads the app, and is injured while using it. (Maybe it gives her bad directions that cause a traffic accident, or maybe it gives her improper instructions for how to use a product.) She sues the California company in a New Jersey state court. Has she sued in the correct court? Is the California company subject to the New Jersey court’s authority?

This is a question of “personal jurisdiction” - the power of a court to exercise authority over a specific person (or company). As a general rule, state courts may not exercise judicial power over a person or company not located in that state unless the defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”81 U.S. courts have spilled a lot of ink over hundreds of years trying to define the circumstances under which it is “fundamentally fair” for a state court to exercise jurisdiction over a person or company not located in that state.

Augmented reality media will give digital data a physicality that it has never had before, allowing creators and users of software to project their influence in specific, remote locations like never before. As this means of interaction expands, courts will have new opportunities to explore when it is fair for courts in one state to assert jurisdiction over someone in another state.

JURISDICTION REQUIRES A MEANINGFUL CONNECTION BETWEEN THE DEFENDANT AND THE FORUM STATE

As of this writing, the most recent and definitive word on the subject of personal jurisdiction comes from the United States Supreme Court’s 2014 decision in Walden v. Fiore.82 The Court’s unanimous opinions described the issues as follows:

The Due Process Clause of the Fourteenth Amendment constrains a State’s authority to bind a nonresident defendant to a judgment of its courts. Although a nonresident’s physical presence within the territorial jurisdiction of the court is not required, the nonresident generally must have certain minimum contacts such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.83

The inquiry into whether a defendant has sufficient “minimum contacts” with a State “focuses on the relationship among the defendant, the forum, and the litigation.”84 That “relationship must arise out of contacts that the defendant himself creates with the forum State,”85 and “looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.”86 “[T]he plaintiff [who lives in the forum State] cannot be the only link between the defendant and the forum. Rather, it is the defendant’s conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him.”87

A line of cases beginning with the Supreme Court’s 1984 decision in Calder v. Jones88 found sufficient minimum contacts, and hence jurisdiction, by focusing the effect that a defendant’s remote conduct had in the forum State. In that case, the Florida-based defendant published a newspaper article that libeled a California celebrity; the Court upheld the exercise of jurisdiction in California because the “brunt” of the injury caused by that libel was felt in California.

The Court’s 2014 decision in Walden reigned in the application of this “Calder effects test.” In Walden, a Georgia policeman seized funds at an airport belonging to a Nevada resident. The Nevada resident sued in Nevada, and argued it was fair to subject the officer to jurisdiction there because he knew that his actions would have consequences in Nevada. Relying on Calder, the Court of Appeals agreed. But the Supreme Court unanimously reversed, holding that “[t]he proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct connects him to the forum in a meaningful way.”89 This officer’s actions, the Court explained, were not inherently aimed at Nevada. The connection to Nevada existed only because that was “where respondents chose to be at a time when they desired to use the funds seized by petitioner. Respondents would have experienced this same lack of access in California, Mississippi, or wherever else they might have traveled and found themselves wanting more money than they had.”90

Because mobile apps can be downloaded and used anywhere, this principle will be particularly instructive in applying personal jurisdiction law to digital content. Applied to AR and its particular connection to distinct places, however, Walden may actually increase the likelihood of jurisdiction being exercised.

THE PRECEDENT OF TODAY’S INTERNET LAW

Courts have developed various tests for determining whether a defendant’s activities online meaningfully connected him to another forum so as to allow a court in that forum to exercise jurisdiction over him. In the early days of the public internet, the predominate test focused on a website’s “interactivity.” Under this approach - sometimes called the “Zippo sliding scale” analysis, after the case that coined it - courts place a website on a spectrum from “passive” to “interactive.” The more interactive the site is, the more likely it is that the site owner is using it to intentionally interact with users in distant states.

As “interactivity” online has become more common, however, the Zippo sliding scale analysis has become less useful. Writing in 2010, for example, the Seventh Circuit Court of Appeals, ruled that “a defendant [should] not be haled into court simply because the defendant owns or operates a website that is accessible in the forum state, even if that site is ‘interactive.’ Beyond simply operating an interactive website that is accessible from the forum state, a defendant must in some way target the forum state’s market.”91 Other courts were quick to “generally agree”92 with this holding, but “[c]ourts differ .. regarding which Internet activities constitute conduct ‘purposefully directed’ at the forum state.”93

These “interactivity” or “sliding scale” tests proved to have especially little utility when applied to individual users of social media, which is the predominate online activity as of this writing. “While the websites at issue in this case may themselves be considered interactive,” the Texas Court of Appeals explained, “a third party’s use of the website may, in effect, be a ‘passive’ usage of the internet, i.e. an act of simply posting information which is accessible anywhere the internet is accessible. Such passive usages of the internet do not support jurisdiction over a non-interactive website under a sliding-scale analysis.”94 Similarly, in the case Capitol Records, LLC v. VideoEgg, Inc.,95 a New York federal judge did not exercise jurisdiction over a video-sharing website just because New York residents were able to share and view videos on it. Because the site did not charge its users, the court concluded, the site’s relevant “business” activity for purposes of personal jurisdiction was not video sharing, but selling advertising.

Yet the court did ultimately exercise jurisdiction in the case, because the specific advertising on the site was targeted at New York residents. “Documents produced in discovery show that [defendant’s] employees touted the company’s large New York user base to potential advertisers and responded directly to advertising inquiries from New York-based companies, including companies seeking to promote recording artists. Documents also support Plaintiffs’ allegations that [defendant] either actively sought or actually consummated advertising sales transactions that targeted New York users.”96 The specific business conducted by the site, therefore, tied it in a meaningful way to New York, supporting the exercise of jurisdiction there.

EXERCISING JURISDICTION OVER PROVIDERS OF

AUGMENTED REALITY EXPERIENCES

These precedents offer some inkling of when courts will be allowed to exercise jurisdiction over an AR service provider in another State or country. The mere fact that a particular AR app obtains information from the online cloud in order to perform its function, for example, does not distinguish it from any other use of the internet, and therefore is quite unlikely to support the exercise of jurisdiction over the data provider by a court in the user’s forum. Like the defendant in Walden, the fact that an app user happens to be in a particular State when using a generally accessible mobile app is purely the consequence of the user’s choice, not the provider’s, and does not meaningfully connect the provider to that forum.

What makes AR different from other digital experiences is the way it enhances a user’s physical experience of the world around them. This could be a general enhancement of a particular sense regardless of surroundings - such as, for example, an aid for deaf individuals to read sign language. In that circumstance, there would still be nothing in particular about the experience that tied the experience provider to the user’s location.

Many visual AR applications, however, will be tied to a specific physical location. That could include augmented advertising through particular physical signs, providing an interactive game tied to particular physical landmarks, a travel app designed to lead tourists around a certain city, or any one of a thousand other applications. In these cases, the experience provider has targeted its services toward the residents of a particular location as in the VideoEgg case, and is “meaningfully connected” to that location as discussed in Walden, because the experience will not work properly anywhere else. In these cases, even if the data for the AR experience is provided from a remote location, there is a much more persuasive basis for arguing that the experience provider will be subject to jurisdiction in the users’ forum.

Whether courts apply Walden to AR experiences in this manner, however, remains to be seen.

CHAPTER

Politics and Civil Society

11

INFORMATION IN THIS CHAPTER:

• • AR as a vehicle for social change

• • AR as a mechanism for enforcing political correctness

• •  AR’s potential to exacerbate groupthink on political and social issues

INTRODUCTION

The medium of augmented reality holds almost boundless potential for sharing information, potentially eclipsing even the advances in communication made to date by the internet. As our experience with the internet has amply demonstrated, however, people do not often do an admirable job at taking advantage of such potential. Instead, we often seek out only that which we already know will please or entertain us. Humans are, after all, finite beings with pleasures, preferences, and opinions that are often quite deeply ingrained.

Digital media can mobilize people to accomplish remarkable things, often to the benefit of society. When individuals use digital media to further ensconce themselves in their preferred, pre-selected points of view, however, they have less opportunity or desire to interact with, understand, or find common ground with others of a different persuasion. This harms the fabric of relationship and common purpose that binds societies together. By expanding the reach of digital media into our previously non-digitized daily experiences, augmented world technologies will inevitably carry the potential to further exacerbate these negative social developments.

AR AS A MEANS OF MOBILIZING PEOPLE FOR SOCIAL GOOD

REDISCOVERING AND REBUILDING CIVIC IDENTITY

Beginning in September 2010, the city of Christchurch, New Zealand was rocked by a series of devastating earthquakes. As a result, several longstanding, historical buildings have been destroyed or demolished, and reconstruction efforts are underway. “Even for people who have lived in Christchurch all their lives it is difficult to

Augmented Reality Law, Privacy, and Ethics

277

Copyright © 2015 Elsevier Inc. All rights reserved.

FIGURE 11.1

The CityViewAR app from Hit Lab NZ.

walk through the earthquake damaged city and remember what buildings used to be there.”97

It happens, however, that Christchurch is also the home of Dr. Mark Billinghurst -one of the world’s most pedigreed experts in AR - and his Hit Lab NZ organization. His team reacted to the earthquakes by developing “CityViewAR,” a “mobile Augmented Reality application that allows people to see how the city was before the earthquakes and building demolitions. Using an Android mobile phone people can walk around the city and see life-sized virtual models of what the buildings looked like on site before they were demolished, and see pictures and written information” (Fig. 11.1).98 The team intends future updates of the app to enable users to not only view past buildings, but also see and comment on proposed future construction. In this way, the app has the potential to encourage greater civic participation and ownership in the community’s reconstruction.

PROTESTS AND SOCIAL CHANGE

Superimposing digital data on the physical world is not just for “the one percent” social elite. As more of our innovators, artisans, and marketers experiment with augmented reality, the tumultuous politics of our times are beginning to follow suit.

2011’s “Occupy” movement broke new ground in various ways that will keep sociologists and political scientists busy for decades. One example is how some of the protestors resorted to free AR apps to keep the public informed about related events and locations. Using Metaio’s location-based AR browser Junaio, one AR developer launched an “Occupy channel” that provides locations, contact information, and resources for all the Occupy protests in various cities across the country. The Occupy Wall Street group in New York took this idea one step further, using Junaio to superimpose signs, placards, and related imagery over areas from which they were restricted from physically protesting. A related site called “AR Occupy Wall Street” styled itself as a “call to all AR activists,” and collects a series of protest-themed images from various AR designers.

Of course, the utility of these apps to the overall movement remains an open question. One first has to have a compatible device and software, then download the app (or subscribe to the right channel inside an app), then be in the correct location, then use the app, all before one can encounter the experience that the apps intend to convey. Someone who jumps through those hoops is likely to be someone already sympathetic to the cause - which means these may be the first real-world examples of AR’s tendency to entrench existing political divisions.

Nevertheless, these examples do illustrate AR’s power to crowd source a movement’s message. They allow individual artists located anywhere in the world to add their own spin on the group’s message - using different perspectives, images, and even languages - in a way that no mere physical demonstration could ever hope to accomplish. If even one of those protest “filters” catches on with a critical mass of individuals, it could change the entire course of the movement.

This technique of spurring social change isn’t limited to protesters, either. The Dutch government recently used AR billboards as a form of experiential Public Service Announcement. The goal was to avoid a situation like one that occurred in New York City, where passersby left a “homeless hero” to die in public after he saved a woman from a mugging. The billboard superimposed a violent criminal encounter over live video footage of the area where viewers stood. The onlookers could do nothing to interact with the scene or stop the crime. But they got a stark visual reminder of how appalling doing nothing can look.

POLITICAL CAMPAIGNS

Just as Barack Obama proved in 2008 that social media could be an effective means of rallying support, so too are political parties beginning to discover AR’s potential value in political campaigns. The Green Party in Germany partnered with Metaio to launch an app that lets constituents leave comments geo-tagged to specialized billboards and specific physical locations and that represent a certain issue - and to hear pre-recorded statements by party officials about those very issues.

Just in time for the 2012 presidential campaign in the US, AR startup GoldRun announced a feature called “Visualize the Vote” that lets users pose for a picture with their favorite presidential candidate - super imposed over the user’s physical location - then share that photo with their friends.

NEW AUGMENTED COMMUNITIES

Several of the previous chapters have discussed different aspects of AR games. In Chapter 6, we saw how these experiences are giving players new reasons to get off their couches and intermingle, often forming genuine communities in the process. This is a tangible example of how AR can contribute to social cohesion.

As society grows more accustomed to engaging with customizable layers of reality, AR’s ability to affect social change will deepen exponentially. For example, GoldRun also announced plans to launch a location-based reminder service that automatically alerts you to a particular cause when you come within a certain distance of a related location. (Virtual personal assistants and similar apps offer analogous functionality.) The first example that was mentioned is showing you the image of a dog or cat when you walk within a mile of an animal shelter.

But this same technique could easily be applied to any social or political issue. Driving over a bridge might bring you a layer of information about the “pork barrel spending” that went into funding it. Entering a road construction area might prompt data on “your tax dollars at work,” or perhaps information about that company’s safety record. And whether a particular geotagged location sends you negatively or positively spun information could well depend on which political group’s channel you’ve already subscribed to (reinforcing a tendency toward political groupthink, as discussed below.)

Perhaps the most radical vision of AR’s impact on society can be found in Daniel Suarez’s books Daemon and Freedom™. In that two-part story, members of the AR-driven “Darknet” form a networked society that begins to subvert and supplant the existing political and economic order. Members of the community wear AR eyewear that allows them to see the information on which their Darknet society is based. All manner of virtual information like that described above is available to these people, except in a fully immersive, always-on manner. If someone writes a virtual protest sign on the side of a building, for example, that sign is equally visible to Darknet members as if it had been written with physical paint.

But Suarez’s meditation on how AR would affect society goes deeper than virtual graffiti. Each of these people develop “reputation scores” that are visible to other Darknet members as numbers floating in midair above their heads. These scores are the cumulative averages of the “rating” that person has received from other Darknet members based on their credibility, honesty, proficiency, and the like. The higher that score - especially as the “base” number of ratings increases - the more trustworthy that individual is considered. It would be like living in a world where everyone judged you by your rating on eBay.

Even more interesting is Suarez’s concept of the power meter. In addition to reputation scores, Darknet members achieve experience levels by accomplishing various tasks - exactly as in a video game. The higher one’s experience level, the more abilities they unlock within the Darknet, and the more data to which they gain access. In order to keep any one person or faction from gaining too much power over others in this way, however, all Darknet members are able to see not only the experience levels of others around them, but also the distribution of power within a given community. If power is concentrated in too few hands, the needle tips to the right. But if it’s dispersed too thinly - i.e., if there are no potential leaders within the group - the needle leans left. The optimal distribution of power is considered to be somewhere in between those extremes.

In this way, Daniel Suarez posited a solution to the inequities protested by the Occupy movement well before that group existed. But is that the way in which AR is likely to shape society?

AR AND THE EROSION OF CIVIL SOCIETY

THE DEVALUATION OF PHYSICAL PROXIMITY AND INTERPERSONAL COMMUNITY

As a powerful new communications platform, it seems inevitable that AR will increase the amount of interaction between individuals and draw them closer together. As mentioned above, we have already seen examples of this in the context of AR gaming. It is tempting to believe that these deeper interactions will be to the benefit of all, but that may be naive. Instead, the shadowy netizens of Daniel Suarez’s Darknet may be a more realistic example. By its very nature, AR is an invisible medium in that, in most cases, it is not immediately recognizable by our unaided physical senses. It requires a digital device to decode physical objects and reveal the digital message hidden in plain sight. In this way, AR rewards the discovery of gnosis, i.e., metaphysical knowledge that cannot be derived through ordinary physical senses. One might refer to this particular means of divining special knowledge as “aug-gnosis.”

For this reason, AR is likely to build communities - but more often than in other types of groups, they may be isolated, bespoke communities that do not directly interact with the general populace around them. Marshall McLuhan’s famous maxim that “the medium is the message” captures the fact that the means we use to convey information tends to shape how that information is understood and applied. Although it may be too severe to call AR “anti-social” or “anti-democratic,” a society in which AR is a prevalent or predominate mode of communication is, at best, a gated community that can only be accessed using some sort of digital key. Indeed, a closer metaphor would be that AR enables the creation of multiple gated neighborhoods amidst and on top of each other, and that the neighborhood in which any given individual resides depends on which keys he holds.

We have already seen this to a degree in the way mobile devices have come to dominate our lives over the past decade. Most Americans today use a smartphone, tablet, or similarly interactive mobile device. A 2013 study found that the average person checks their mobile phone approximately 150 times per day, for such purposes as messaging, voice calls, and even just to get the time - to say nothing of internet use. During peak times, this amounted to once every six seconds for the highest-frequency users.99 In 2014, another study found that the average American adult spent 34 hours

FIGURE 11.2

Mobile devices now permeate the lives of many individuals in contemporary society.

per month on mobile internet applications, seven more hours than they spend in front of desktop or laptop computers. Forty-seven percent of those used social media on their mobile devices on a daily basis.100 Therefore, as a result of today’s digital media, the gross number of social interactions may well be on the rise, but the increase in digital communication is coming at the expense of face-to-face conversations. (Fig. 11.2)

Accessing digital content via digital eyewear may liberate us from looking down at a hand-held device, but there is no reason to suspect that it will necessarily lead to more in-person interactions. Rather, our physical surroundings will take the place of our smartphone screens. If the other human beings in our vicinity are not part of the same digital simulation that we see through our eyewear, then we are more likely to look through them than at them. We may come to think of them as distractions from our personal realities rather than cohabitating the same physical plane.

At the very least, there will be fewer reasons to think of ourselves as being part of the same society as others just because they are in close physical proximity to us. Again, this is simply a continuation of a trend that is already well underway. When we sit in a crowded room ensconced in our mobile Facebook app, it is because we would rather interact (however obliquely) with our online friends than with the human beings to whom we are physically near. The more time we spend in digital worlds - whether through a social media platform or a massively multiplayer online roleplaying game - the more we come to consider the members of those groups (who could be actual people, virtual assistants, or AI-driven fictional characters) our “real” community, to the exclusion of the other people we encounter. A persistently augmented world frees (or “enslaves,” if you prefer) us from ever having to leave that digital world in which our digital friends live, even when we look away from a particular device with its two-dimensional screen. It is only natural, then, to expect that many of us will come to accord even more personal significance to the people with whom we interact digitally, and less to those in our physical proximity.

In the abstract, there may be nothing inherently wrong with this idea. The real-world consequences, however, may include a fraying of the already-worn bonds and social contract that holds us together as a society. In communities where those bonds are already in danger of breaking, developments like these may be enough to bring them to an end.

POLITICAL GROUPTHINK, OR THE “ECHO CHAMBER” EFFECT

Another socially deleterious consequence of digital media that we already see at work by virtue of today’s technology is groupthink: the reinforcement of our preexisting opinions and the filtering out of anything that is inconsistent with those opinions. Psychologists for Social Responsibility define groupthink as follows:

Groupthink, a term coined by social psychologist Irving Janis (1972), occurs when a group makes faulty decisions because group pressures lead to a deterioration of “mental efficiency, reality testing, and moral judgment” (p. 9). Groups affected by groupthink ignore alternatives and tend to take irrational actions that dehumanize other groups. A group is especially vulnerable to groupthink when its members are similar in background, when the group is insulated from outside opinions, and when there are no clear rules for decision making.101

To be sure, we do not need to wait for an augmented world to make political groupthink a reality in the United States. Commentators are already bemoaning the sharp rise in political partisanship and rancor, and the corresponding dysfunction of civil society.

The diversity of media channels and news sources makes such polarization orders of magnitude easier than it used to be. Whatever your political leaning, you can find a customized website, satellite radio station, news channel, and talk show host who will give you the news filtered through that perspective. Opposing viewpoints are increasingly things to be mocked, shouted down, or ignored, not to be respected, understood, or even considered. To see the consequences of this trend, one need look no further than the record-breaking level of gridlock in the United States Congress.102 On the issue of the national debt ceiling, for example, two parties with deeply entrenched political ideologies played an unprecedented game of chicken while the threat of a sovereign debt default loomed, triggering a downgrade of the country’s creditworthiness and a stock slide.

Even some of the most ardent and hard-working AR advocates acknowledge this concern. As hard as artist BC Biermann is working to enable ubiquitous AR experiences, he freely acknowledges the drawbacks that would come with it. I asked him whether this ability to filter one’s experience of reality could lead to more political groupthink. “The question is right on target,” says BC, “and honestly, I have no good answer for it right now.” Eventually, he suggests, there should be a way to combine filtering with an avenue for unfiltered information as well. But the echo chamber problem is already inherent in our current media environment, he notes, and on balance, he believes that ending what he sees as commercial dominance of public spaces will still be a net-positive.

Others are more bullish on the conviction that the augmented medium will do much more foster education and open minds rather than box them in. Daqri CEO Brian Mullins is one such person. His favorite example is the scene in The Matrix where Trinity needs to learn how to fly a helicopter. “She just calls up the instructions,” he recounts, “and they’re delivered to her on the spot.” AR will likewise deliver information on the spot when needed. “AR will become a way to get knowledge in people’s heads much faster than any other way that we’ve done education,” Brian says. “It could possibly allow the sum total of human knowledge to be presented in the most effective way possible. Everybody should have access to that.”

ENFORCEMENT OF POLITICAL CORRECTNESS

One disturbing outgrowth of groupthink that is already becoming increasingly more evident by the day is the growing use of social media to enforce homogeneity of thought and shaming of minority (and even majority) views. Ubiquitous AR has the potential to carry this trend forward as powerfully as it could some of the other social phenomena described in this chapter.

In March 2014, for example, Mozilla’s co-founder and CEO Brendan Eich was driven to resign his position after a short but passionate online campaign seeking that result. His crime? Having made a donation in 2008 to support California’s Proposition 8, a law that a then-majority of the state’s voters passed to prohibit the recognition of same-sex marriage. Eich’s donation had been public knowledge since 2012, but the Supreme Court’s 2014 decision striking down Proposition 8 had emboldened those who sought to punish those who had supported it.

In the immediate aftermath of Eich’s resignation, even many of those who denounced Proposition 8 distanced themselves from the shaming campaign against him. In the words of the popular marketing executive Ashley Brown, who is vocal in his support for same-sex marriage, what happened to Eich was “wrong. .. While in hindsight Eich’s contribution to the Prop 8 campaign was probably unwise,” Brown wrote, “he is by all accounts a great, fair, and passionate leader. He also doesn’t shouldn’t have to check his freedom of speech at the Mozilla front door. As long as it’s not a workplace matter, it’s as fine for someone to oppose same-sex marriage as to support it.”103

Yet the same story played out in the following weeks when a Duck Dynasty cast member (crudely) voiced a similar position on the same topic, and when HGTV cancelled Flip This House before it ever aired, because a little-known blog managed to stoke controversy over year-old comments of a similar nature made by the show’s would-be hosts, David and Jason Benham. After the latter incident, Brown wrote that “[t]he Eich disaster, the Duck Dynasty kerfuffle, and now this fiasco make clear that no one in business or entertainment can expect privacy of personal belief. We urgently need to settle as a society where our fundamental freedoms meet our professional lives. Until then, we’re living in the wild west .. ,.”104

To be sure, there has been vociferous disagreement on political and social issues since the dawn of civilization. What is unique about these examples, however, is both the degree of access that the entire world has to virtually every recorded statement ever made by a particular person, and the ease with which any other individual can make their ire over those statements known to the rest of society. The internet - and particularly social media - makes all of this not only possible, but so easy as to be inevitable.

The same ability of digital media to impose a viewpoint is seen in more subtle ways as well. For decades, courts and litigants have wrestled with the question of how accessible law enforcement booking photos - i.e., mug shots - should be to the public. For many years, courts (and most police departments) generally sided with newspapers and other media outlets who argued that the photos were public documents that should be made freely available under Freedom of Information laws. This is why we are accustomed to seeing such photos prominently displayed in news reports of a celebrity’s arrest.

Then the internet and big data came along and changed the equation. In recent years we have seen an explosion of mug shot websites that obtain huge troves of the photos, post them online, then demand extortionate “takedown fees” from embarrassed individuals. As a result, the legal status of mug shots has become a bit murkier.

Those campaigning to restrict access to the photos, however, have found an easier solution to litigation. They have instead put social pressure on the companies that make the mug shot websites possible. As a result, many credit card companies stopped processing payments for the sites, and search engines changed their algorithms to lower the sites’ popularity in search results.105 Overnight, the ability of these sites took a massive - and in some cases, lethal - hit.

FIGURE 11.3

The game Othello.10

Or consider the cases in which e-book publishers have unilaterally deleted copies of purchased books from customers’ mobile devices, along with any notes or annotations the user may have made.106 107 Such incidents have usually been commercially driven, because of disputes over intellectual property rights and the like. But there is no reason that internet-driven social pressure could not lead to similar decisions, echoing Rage Against the Machine’s lyric about modern thought control: “They don’t gotta burn the books, they just remove ‘em.”108

Ubiquitous AR will not fundamentally change this tendency to enforce a particular stance of particular political and social issues, but it will enhance the temptation and ability to do so. This phenomenon has become so much more prevalent in recent years only because, for the first time in millennia, virtually all of society interacts through the same platform - the internet. Like a late-game move in board game Othello, applying social pressure online is often the easiest way to flip the positions of the greatest numbers of individuals with the least amount of effort (Fig. 11.3). By extending the degree to which the internet envelops our daily activities, AR will magnify our exposure to digitally reiterated social messages.

FIGURE 11.4

An example of “diminished reality.”

DIMINISHED REALITY

AR apps will contribute to partisanship and polarization as much with what they prevent us from seeing as with what they display. In November 2009, Jamais Cascio published a spot-on piece in The Atlantic called “Filtering Reality: How an emerging technology could threaten civility.”109 Cascio saw in AR the potential to “strike a fatal blow to American civil society,” as people use their immersive AR eyewear “to block any kind of unpalatable visual information, from political campaign signs to book covers.” Moreover, as those devices become more able to give us information about particular individuals in our field of view (perhaps based on facial recognition technology, social media-linked RFID tags, or nanotaggants), we can start blocking those people as well. “You don’t want to see anybody who has donated to the Palin 2012 campaign?” Cascio writes. “Gone, their faces covered up by black circles.”

Again, we can already see the results of similar motivations today. A photo taken in the White House situation room on the day Osama Bin Laden was killed appeared on newspapers and websites across the world. Di Tzeitung, a Brooklyn-based Hasidic newspaper, wanted to use it as well - but its religious rules do not allow it publish photographs of women. Their solution? They simply edited out the two women present in the picture, and said nothing about it to their readers - until they got caught.

People are already talking about the ability of AR to do the same thing to our everyday lives, in real time. They call it “diminished reality” (DR) - augmenting our view of the world not to add more data, but to make things we don’t want to see disappear. (Fig. 11.4)

FIGURE 11.5

A facial recognition app that sparked controversy by being less able to recognize darker-skinned faces.

AR/DR apps would not have to be directly related to politics in order to have a negative effect on civil society. Suppose someone does not want to see evidence of poverty in their neighborhood. AR could make those ratty foreclosures look like splendid estates, and the homeless panhandler on the corner appear as if he’s wearing a tuxedo. DR apps could simply block them from view altogether, using an algorithm to extrapolate the background view behind them and show you that instead. The less we see of the negative aspects of society, the less motivated we will be to remedy them. Out of sight, out of mind.

The same technology has implications for race relations as well. In 2009, Hewlett Packard stepped into a firestorm of criticism when consumers discovered that its facial recognition technology did not work very well on people with dark skin (Fig. 11.5). Now consider more malicious apps intentionally designed to produce the same result - apps that recognize a particular shade of melanin and replace it with another - so that the user can live in their own artificial version of a racial utopia. Such augmentations would make it that much harder to ever moderate, reform, or even challenge an individual’s racist attitudes.

LABELING OTHERS - LITERALLY

Perhaps even more corrosive to civil society than ignoring people with opposing viewpoints or different ethnicities is the ability to (literally, in this case) label and objectify people. Cascio asks, “You want to know who exactly gave money to the 2014 ban on SUVs? Easy - they now have green arrows pointing at their heads.” Even more probable are labels that AR users choose for themselves. Social media is likely to be one of the primary forces driving the adoption of AR. As soon as the technological capacity is there, expect to see Facebook profiles and Twitter feeds floating over their authors’ heads.

Again, we already have real-world precedents. Cascio highlighted one:

After California’s Prop 8 ban on gay marriage passed, opponents of the measure dug up public records of donors supporting the ban, and linked that data to an online map. Suddenly, you could find out which of your neighbors (or the businesses you frequent) were so opposed to gay marriage that they donated to the cause. Now imagine that instead of a map, those records were combined with an AR system able to identify faces.

This precise scenario is all too likely in light of what happened to Brendan Eich and others for supporting the same measure.

There is an endless array of other labels that users may want to see hovering over other peoples’ heads as well - including tags identifying religious affiliations, club memberships, socioeconomic background, alumni groups, fraternal orders, or sexual proclivities. That would be as simple as importing one’s Facebook or other social media profile into AR space, something that will certainly happen as soon as technologically possible. And if we choose to see such labels in a real-time AR display, it is probably because we either want to associate with, or disassociate from, “those kinds” of people.

Or worse. Recall the case of Michael Enright, the New York college student who, in August 2010, went out looking for a Muslim to kill. According to Enbright’s confession,110 when he asked his cabbie, Ahmed Sharif, if he was a Muslim and the driver said “yes,” Enbright stabbed him several times. If Enbright had been wearing AR eyewear that tagged Sharif (or anyone else, rightly or wrongly) as a Muslim, he would not have even had to ask. Instead, Enbright or someone like him could seclude themselves on a hidden perch with a rifle and wait for their chosen victims to come into view - lit up with targeting information just like a video game.

With apps like these running in our AR eyewear, literally everyone we meet during the course of a day could come pre-labeled as a friend or enemy - or at least as interesting or uninteresting. What space will that leave for getting to know someone as an individual? For learning from someone with experiences that are different than ours? For taking seriously a viewpoint that doesn’t already fit into our worldview?

Such a world would certainly “diminish” our realities - in more ways than one. When I was in high school, we often read the Opposing Viewpoints series of booklets, each one of which summarized differing views on a particular subject. I’ve always remembered the slogan printed on those books: “Those who do not know their opponents’ arguments do not completely understand their own.” It’s a good reminder that a truly critical thinker is never 100% convinced that his own perception and understanding of any given issue is entirely complete or correct. Even strong opinions can be further nuanced, modified, reconsidered - or, if nothing else, strengthened - by confronting an opposing viewpoint. And even the most passionate advocate can still acknowledge the basic human dignity and worth of someone who disagrees with him. Disagreement and debate can - and should - be a respectful, constructive process.

People who understand that concept are a necessary prerequisite to a healthy civil society and a functioning democracy. And at this point in American history, we could use many more such people.

HOPE REMAINS

Simply banning AR or DR applications is not the answer. That is not a realistic option in a free society, nor should we throw the baby of progress out with the bathwater of misuse even if it were possible to do so. The only question is how we as individuals will apply these tools, and how we allow them to shape our society.

It is not inevitable that widespread use of AR will visit upon us all of the social ills listed in this chapter. As BC Biermann encourages and present-day AR games show is possible, those developing the medium should be intentional about using AR to draw people into genuine community and real conversations - interactions with more depth than what today’s two-dimensional screen-based social media allow. Will Wright, who created such acclaimed games as SimCity, The Sims, and Spore, gave a similar admonition in his keynote address to the 2013 Augmented World Expo. He said, “I’m less interested in putting zombies on the real world and more interested in how we focus in on what’s actually there.”111 He went on to extoll the “tremendous value” that diminished (or “decimated,” as he called it) reality has to remove the excess information that society already throws at us, in order to train our focus on the things most important to us. With tongue only halfway in cheek, Wright even suggested that the Amish were the group of people who have done the best job to date about being intentional in selecting only the technology that enhances, rather than distract from, the way in which they desire to experience the world around them.

Wright ended his speech by encouraging developers to design AR media that allows us to experience the physical world more viscerally, in a way that works with the user’s intuition instead of against it. In sum, the AR he wants to experience is that which “helps me see beauty in the world, and not to see the world as just a better way to browse the internet.” 112

A few hours’ drive south of the Santa Clara-based AWE conference, educators at Fuller Theological Seminary reached remarkably similar conclusions about the promise of AR.113 Examining an educational program of theirs that interwove digital interaction with interpersonal contact, and contrasting it against wholly online learning experiences such as those offered in bespoke virtual worlds like Second Life, opened their eyes to the power of augmented education.114 “Augmented reality,” wrote the Fuller authors, “recognizes that the most meaningful experiences and relationships in human beings’ lives take place in the created world, and that no artificial, sub-created world will ever be able to approach the created world for richness, depth, and meaning. Technology’s role, including information technology, is not to replace this world but unearth its latent wealth of potential.”

The types of AR experiences that Wright and the educators at Fuller describe could greatly strengthen, rather than fray, the bonds of civic society, not to mention our own individual abilities to appreciate life experiences. The more we think through questions like these ahead of time, the better our chances will be of using AR in a mature, constructive manner.

CHAPTER

Personal Ethics

12

INFORMATION IN THIS CHAPTER:

• •  Eroding our ability to make ethical decisions

• •  Corrupting our ethical decisions

• •  Forming bad habits

INTRODUCTION

“You have a responsibility ...: to understand what you are doing and how you are doing it and obey [social rules] appropriately ..”115 That is what Google’s executive chairman Eric Schmidt was quoted as saying in an interview about the impact Glass will have on social etiquette. As a genre-creating device, Glass has served as the poster child for the ways in which wearable computing - and eventually AR—will shape individual behavior and social norms. Schmidt’s point was that, as the ones helping to induce the change, Glass users should accept responsibility for their actions and for the way those actions make others feel. They should behave with an appropriate level of self-awareness and caution, lest they actually become the “Glasshole” that others may accuse them of being.

The same advice will apply with equal, if not greater, force as true AR becomes ubiquitous. As discussed in the previous chapter, the very nature of AR is to provide access to secret knowledge, which inherently affords some measure of power. Users must be cautious and transparent about their exercise of that power, lest it become a corruptive influence on their own ethical and moral sensibilities.

WILL AUGMENTED WORLD TECHNOLOGIES ERODE

OUR ABILITY TO MAKE ETHICAL DECISIONS?

SELF-MONITORING APPS ARE INCREASINGLY GIVING

US ETHICAL GUIDANCE

The “quantified self” movement is all the rage as of this writing. Dozens of wearable devices currently on the market or about to launch are designed to sense information about their user’s physical condition, such as heart rate, physical activity, and hours slept. Popular entries in this category include the Fitbit and Jawbone Up bracelets; there are new lines of beds that track the same information.116 Mobile app stores are awash with health monitoring software. Apple’s HealthKit—the newest and most high-profile example as of this writing—promises an entire ecosystem of apps that it says “just might be the beginning of a health revolution.”117

293

To be sure, having more and better information about ourselves has the potential to help us improve our lives. Futurist and author John C. Havens has dedicated a good portion of his professional career to advocating this view. He is the founder of the H(app)athon Project, an organization dedicated to “identifying how our actions affect our wellbeing [so] we can track what behaviors increase our happiness.’118 In March 2014, Havens also released the book Hacking Happiness: Why Your Personal Data Counts and How Tracking It Can Change the World, in which “Havens proposes that [the increased collection of ‘quantified self’ data] will lead to new economic policies that redefine the meaning of ‘wealth,’ allowing governments to create policy focused on purpose rather than productivity.”119 Through several personal interactions, I have gotten to know the sincerity with which Havens pursues these goals, and I am encouraged by the potential his work has to make a meaningful difference in people’s lives.

But he has his work cut out for him. The trouble so far is that very few people currently seem to know what to do with all this self-tracking information. In the summer of 2014, Fortune magazine reported that as many as “[85%] of fitness tracking devices [sold] had become inactive,”120 because people had simply stopped using them. Although these devices and apps offer encouragement and superficial feedback on how we’re doing, it turns out that people’s habits are not changing very much as a result.

This is not to say that the industry is giving up on the quantified self. Quite to the contrary, observed Fortune, the newest wave of devices is taking a harder line with their users. “Instead of incentivizing users to exercise or sleep or eat healthy, and rewarding them for it with virtual badges and digital high-fives, this new class of devices use shame, guilt, and in one case, a physical shock, to keep their owners in line.”121

As one mild example, take the devices currently offered by Palo Alto start-up Lumo. Each is focused on encouraging proper posture. The Lumo Back is a strap worn around the lower back, while the Lumo Lift clips to a user’s shirt underneath the collar bone. Each monitors the user’s posture, and gives a gentle vibration whenever their wearer slouches. Analogous devices from other companies provide haptic feedback to discourage speed eating122 or too much sitting.123 “But the most punishing device,” says Fortune, “is the Pavlok, its name a nod to the father of classical conditioning research”. According to its creators, this bracelet “doesn’t just track what you do. It transforms who you are.”124 Users can program it to track any number of goals, including when they wake up, their physical activity, how they use the Internet, whether they meditate, and so on. “If the user hasn’t completed their goal [by 7 p.m. each day], they get a shock through the bracelet and charged money through the app.”125 It can also “shame post” automated messages to the user’s Facebook page, letting their friends know that the user is a slacker, or deny the user access to their phone.126 “If [users] complete their goal, [however,] they get rewards like lottery tickets or money.”127 “This is an expensive spin on the idea of wearing an elastic band that you ping when you have thoughts or behavior you want to change.”128 The device’s creator, Maneesh Sethi, offers his own social science research to justify his approach, arguing that real consequences are necessary in order to incentivize users to actually meet their goals. Sethi practices what he preaches; he gained his initial infamy by paying a woman $8 an hour to slap him in the face whenever he wasted time on Facebook (Fig. 12.1).

When such applications run on digital eyewear, they may very well resemble an active, three-dimensional version of the content filters that can be found in most Internet browsers today. Family-friendly applications will likely take advantage of “diminished reality” techniques to remove from the user’s field of view material deemed objectionable. The next chapter discusses the availability of pornography in the augmented medium, but digital eyewear could just as easily remove or regulate such fleshly temptations that we encounter in the physical world. A married man

FIGURE 12.1

The inspiration for Pavlok.

wearing such glasses may see black rectangles interposed over his view of passing women in short skirts, for example—or, if the glasses are made by Pavlok, he may receive an electric jolt each time the glasses catch him looking.

On one level, external reinforcements, both negative and positive, have always had their place in shaping our decisions. But contemporary ethicists are troubled by the inexorable growth in outsourcing our ethical decision making to digital assistants. Professors Thomas Seager and Evan Selinger (of Arizona State University and Rochester Institute of Technology, respectively) have studied the new wave of behavior-reinforcing apps, and predict that “the range of ethical dilemmas they can weigh in on will only increase. At this rate, Siri 5.0 may be less a personal assistant than an always-available guide to moral behavior.”129 They refer to such apps as “digital Jiminy Crickets,” after the omnipresent voice of reason in Disney’s Pinocchio. With good reason, however, they do not view this possibility as a positive one.

The belief that “endurance builds character”130 is ancient wisdom that is still repeated throughout popular culture (though often in a less-than-sincere manner131). At its root, this concept recognizes that exercising one’s will to choose a course of action that one believes to be morally right, even though it results in less immediate gratification than the alternatives, strengthens the individual’s ability to make similarly virtuous choices in the future. In this sense, it is directly analogous to physical exercise. Repeatedly lifting heavy objects results in short-term injury to muscle fibers, but when the body repairs itself, the muscles grow larger and stronger. No pain, no gain. Consistently relying on another person (or robot) to do the heavy lifting, however, leaves us with no opportunity to develop our own physical strength, so our muscles atrophy. We get weaker and less healthy.

So it is with exercising our ethical muscles. Consistently relying on others— whether other people or digital Jiminy Crickets—to make the hard decisions for us leaves us with less ability in the next situation to decide correctly for ourselves. That is not to say that advice and counsel are necessarily debilitating. To the contrary, both ancient132 and modern133 philosophers have praised individuals who choose to consider the input of others when making ethical decisions. But the decision must ultimately be made by the individual in order for that person to gain any moral benefit. Deferring instead to the advice of a piece of software does nothing to challenge an individual’s moral convictions, and therefore threatens to atrophy the person’s ability to resist temptations to decide otherwise the next time they encounter a similar ethical dilemma.

Philosopher Robert J. Howell of Southern Methodist University took this trend to its logical conclusion in the 2012 scholarly essay “Google Morals, Virtue, and the Asymmetry of Deference.”134 As a hypothetical example, Howell posited an app he called “Google Morals”—the ultimate digital Jiminy Cricket. “When faced with a moral quandary or deep ethical question,” went Howell’s thought experiment, the users of this app “can type a query and the answer comes out forthwith .... Never again will I be paralyzed by [an ethical dilemma]. I’ll just Google it.”135 Realized in augmented reality, such an app may very well take the form of an angelic adviser seated visibly on the user’s shoulder; Evan Selinger even suggests that alerts from the app could take the form of “the sound of angelic harps playing.”136 137 138

Summarizing Howell’s essay, Selinger tells us that the most obvious concerns with this scenario are not its most troublesome features. For the sake of argument, he explains, “[l]et’s imagine [the app] is infallible, always truthful and 100% hacker-proof. The government can’t mess with it to brainwash you. Friends can’t tamper with it to pull a prank. Rivals can’t adjust it to gain competitive advantage. Advertisers can’t tweak it to lull you into buying their products.”137 What is more, use of the app is not compulsory, so it is not a question of losing individual autonomy. “Even so, Howell contends, depending on it is a bad idea.”138

Why? Because “deferring to [an app to make moral decisions] can reveal preexisting character problems and stunt moral growth, both short and long term.”139 In other words, it would demonstrate just how ethically immature the user is. Even asking some questions would reveal more about the user than the user could ever hope to gain from the app. “For example,” says Selinger, “if you need to ask Google Morals whether it is wrong to tell a lying promise to your best friend, you display callousness and disloyalty. This, in turn, reveals poor habituation and the influence of an underdeveloped character.”140

Deference to such an app could also prevent the user from ever gaining the experience necessary to flex, let alone strengthen, his or her moral muscles. Among the hazards that Selinger (elaborating on Howell’s argument) identifies141 are that users: “might not exert the effort to learn why a course of action is good or bad”; might become intellectually lazy; might fail to see the broader principles behind distinct moral decisions; and might, by virtue of having delegated away all of the higher reasoning functions that distinguish us from other creatures, ultimately lose their humanity. Howell’s highly technical essay and Selinger’s summary of it examine these arguments in much greater detail, but the implications are clear. People are increasingly relying on wearable devices and mobile apps to help them make decisions. Taking advantage of useful tools is fine, but the temptation to abdicate even more of our personal decision-making responsibility to software will only increase as augmented interfaces make interacting with them all the more intuitive and frictionless. If we are not careful, such habits could easily detract from our ability to fulfill our human potential, leaving us with a morally diminished reality.

Even for individuals who opt not to use ethical-advice apps, their mere availability could radically alter what others expect of us. “Much the same way the rise of Blackberries and mobiles has raised expectations around instant reachability and response,” writes MIT research fellow Michael Schrage, “the pervasiveness of [such software] seems sure to reset expectations about self-monitoring and interpersonal behaviors. It may be considered rude—and/or remarkably unprofessional—not to have your devices make sure you’re behaving yourself.”142 “[L]arge-scale adoption[, then,] might do more than change personal behavior. It could transform ethical norms—the very fabric of what members of a society expect from one another.”143 144

WILL AUGMENTED WORLD TECHNOLOGIES CORRUPT OUR ETHICAL DECISIONS?

Tish Shute, cofounder of the Augmented World Expo, is fond of referring to augmented reality as a “superpower”—and of pointing out that there is nothing to guarantee that those with such powers will become superheroes as opposed to supervil-lains.30 After all, “power tends to corrupt,”145 as Sir John Dalberg-Acton first said and social science has repeatedly confirmed.146 As discussed in Chapter 11, AR is, by its very nature, a “secret” medium, accessible only to those with access to the necessary decoding device. And as another famous maxim puts it, “knowledge is power.” It seems logical, then, that the more tightly the access to a particular augmented medium remains controlled, the more the power to access the secret knowledge within that medium will tend to corrupt those who have it.

It is somewhat foreboding, therefore, that three completely separate short films about augmented reality released between 2012 and 2014 depict nearly identical visions of that exact prospect.

SIGHT

The first is a 7-min short film called Sight, released in August 2012 (Fig. 12.2). It follows a young man in his late 20s/early 30s as he prepares for and goes out on a date. Both he and his date wear the “Sight” line of AR contact lenses, which in that future has become commonplace. The main character, it turns out, works for the Sight company, and the plot centers around his use of a “dating app” installed on his contacts. The app acts as his wingman, reading the woman’s body language for signs of interest and intoxication, and giving helpful suggestions such as “act interested” and “suggest different location.”

These tips become vital for helping him overcome some early faux pas in the date and in eventually persuading her to come home with him for a nightcap. The system apparently even “keeps score” of his successes and awards badges for in-date

FIGURE 12.2

The brilliant short film Sight.

accomplishments. It’s those badges that ultimately give him away; when his date sees the virtual icons with her own contacts and recognizes that she’s being played, she storms off toward the door. That’s when the lead character’s creepiness goes from subtle to overt. He commands her to stop, and she freezes. Exactly why is unclear; there is debate in my circles as to whether the system somehow takes control of her body, or whether she was a virtual character all along, a test run of the dating program. In any event, his mastery over her actions is clearly against her will. The video ends with him intoning, “Let’s try this again.”

INFINITY AR

The second video, released June 12, 2013, is remarkably similar to Sight—except that it is a 3-min concept video by what held itself out as an actual AR company (complete with its own OTC stock symbol) working on actual AR products (Fig. 12.3). This video (which echoes elements of Sight, Google Glass promos, and the real AR Pool147 application) also follows a hip young man who uses a nondescript pair of AR glasses to augment his night on the town. Our hero begins his evening by using the 3D instructions given to him by his AR glasses to hustle other competitors in a billiards contest, all of whom appear unaware that he’s being guided by prompts from his glasses overlaid onto the pool table. He then follows up his conquest of the pool table by approaching a svelte, young bartender and wowing her with the secret knowledge conveyed to him by his eyewear. First, the glasses read her face to (somehow) determine her astrological sign, and register her as being “intrigued” by his ability to discern it. A little conversation and a Facebook friend request later, she shows up at his house, where (as in Sight) he watches virtual TV programs projected

FIGURE 12.3

A scene from the creepy concept video posted by Infinity AR.

on his empty wall. The glasses then somehow figure out her favorite wine, and read her as being “impressed” by his selection. The video ends there, but with the clear implication that the protagonist’s luck will not.148

EX POST FACTO

“Living in a world of grey, two M.I.T. graduates invent a gadget that will not only rival one of the world’s largest tech companies but the morality of our society as a whole.” That is how first-time filmmaker Antonio R. Cannady summarizes Ex Post Facto, the 13-min short film he published on YouTube on August 5, 2014. The film’s subtitle is even more direct: “If rape was legal, would you do it?”

Most of the film is dialogue between the two aforementioned recent college grads who have invented a new digital eyewear device with great commercial potential. Exactly what it does isn’t made clear at first, but what is clear is the stock role that each character plays in the story. One is the Voice of Greed and Amorality; he actually says “morals hinder progress; do yourself a favor and dump ‘em.” The other is the Good Guy With the Conflicted Conscience about what effect the device might have on others.

From both the dialogue and the characters’ nonverbal interactions, we soon get the idea that the device does something that women will find creepy and invasive. The characters are told that “women’s rights groups, religious groups, civil rights groups” and others will be up in arms over the device. The Voice of Greed brushes

FIGURE 12.4

A scene from Ex Post Facto.

FIGURE 12.5

The wish-fulfilling avatar created by the AR eyewear in Ex Post Facto.

into something of a nightmarish proportions. Everyone from hackers, pedophiles and morally bankrupt individuals will find ways to misuse [digital eyewear] for their own personal and misguided use. I wanted my film Ex Post Facto to paint a harsh and cold reality to get people to think before embarrassing this technology.

Whatever other logical or artistic disagreements I may have with Mr. Cannady about this film, these concerns certainly ring true.

A DISTURBING UNANIMITY

Knowledge is power. And in each of these three videos, the male protagonist uses it to gain an advantage—specifically, sexual dominance—over an unsuspecting female character, through either subtle influence or overt force. In each case, if the woman had known that the man was using the app, it would have completely undermined the effect. We see that in the female Sight character’s angry reaction to discovering the app, and it’s safe to assume that the Infinity AR video’s bartender would not have been particularly “intrigued” or “impressed” to know that her suitor was simply using his glasses to scour her social media accounts. The woman in Ex Post Facto expressly rejects the male character’s advances, and never anticipates her impending augmented assault.

Of course, sex sells, and there’s a bit of wish fulfillment going on here too. Men have been imagining ways to increase their odds with women throughout human history. Nor are these videos the first to wonder how digital eyewear might be used in dating. The fact that the Infinity AR video got more than 1.5 million YouTube views suggests that viewers liked what they saw. Ex Post Facto, on the other hand, leaves no room for private titillation, and instead forces viewers to confront the stark moral consequences of this power imbalance.

But underneath each of these videos is the suggestion that AR offers clever users the ability to gain secret information about—and, thus, power over—those around them. That same dynamic plays out with con men, stalkers, rapists, Peeping Toms, burglars, and similarly ill-intentioned types. And it’s this association that can make AR feel creepy.

So it’s one thing when a fictional film such as Sight or Ex Post Facto posits such a future, but it’s another thing entirely when an actual company does it, and when others in the industry trumpet the video—which they did with Infinity AR’s video— as “the future of AR.” No wonder today’s pioneers of digital eyewear sometimes encounter such resistance from the general public. If those in the AR industry are highlighting the underhanded ways in which the technology could be used, you can bet that the general public will as well.

There are mitigating factors, of course. For one thing, it’s hard to believe that any product as revolutionary as the one depicted in the Infinity AR video—which is light-years ahead of today’s capabilities—would be as unrecognizable as it would have to be to fool anybody. As with today’s digital eyewear, others would see the digital data flashing on the lenses, alerting them that the device is active. And even if the device’s camera wasn’t visible, most people would either have seen the product advertised or be so accustomed to the technology that they’d instantly suspect what was going on. But the industry as a whole still has work to do in convincing the public that these devices don’t facilitate deception—at least, not any more than any other consumer electronics on the market—and in promoting safeguards and social norms to combat such misuse.

If, on the other hand, such a profound imbalance of power really is inherent to the augmented medium, then the industry has an altogether different problem. In that case, the best hope for introducing AR in a societally healthy way is to do so cautiously, with plenty of safeguards built in to both devices and AR networks to ensure that users cannot gain an undue amount of leverage over unsuspecting individu-als—for the benefit of those users who could otherwise be ethically corrupted by the devices’ power as much as for those who would be hurt by their actions.

WILL AUGMENTED WORLD TECHNOLOGIES LEAD US TO FORM BAD HABITS?

THE INSEPARABILITY OF FANTASY AND REALITY

Beloved American author Kurt Vonnegut wrote, “We are what we pretend to be, so we must be careful about what we pretend to be.”149 The values and aspirations on which we focus our attention reveal what is truly inside us. We may be drawn to think and behave in a certain way in augmented (or any other) media that we would have never done anywhere else. But if we nurture that second life to the point that it becomes what we truly desire, the role becomes our true self, both inside and out.

Few issues are more hotly contested in contemporary social science as the question of whether violent video games contribute to violent behavior in children. If we are honest, much of the resistance to the conclusion that there is a link comes from the fear of having to give up our own ability to play such games. “Approximately 90% of children in the U.S. play video games, and more than 90% of those games involve mature content that often includes violence.”150 For many of us—children and adult alike—such games are a fun escape from the boundaries of real life.

There is evidence on both sides of the debate. For example, “[researchers at the] Center for the Study of Violence at Iowa State University found hints that violent video games may set kids up to react in more hostile and violent ways,”151 according to a study they published in the journal JAMA Pediatrics. “What this study does is show that it’s media violence exposure that is teaching children and adolescents to see the world in a more aggressive kind of way,”152 said study leader Craig Anderson. In other words, the more someone thinks about resolving conflicts with violence, the more likely they are to choose a violent solution over a nonviolent one. As the saying goes, “when all you have is a hammer, everything looks like a nail.”

The rapid rate at which this literature evolves, however, “is why some researchers, including Christopher Ferguson, chair of the psychology department at Stetson University, insist there isn’t strong evidence that exposure to violent video games leads to more aggressive behavior.”153 He notes that actual rates of crime have not risen along with exposure to violent media. The truth in this debate, therefore, likely lies somewhere in between the two extremes. Although people cannot escape their personal moral responsibility by blaming their actions on video games, and most people are easily capable of distinguishing in-game escapism from real-life norms, repeated exposure to violent fantasies must have some effect on a person’s manner of thinking, feeling, and acting, at some level.

AR, MUSCLE MEMORY, AND DESENSITIZATION

All of this research, however, has been confined to present-day, two-dimensional media. Although video games are interactive, they are still a 2D simulation on a flat screen. There is every reason to expect that augmented experiences will have a far more powerful effect on our habits and thought patterns, precisely because AR is designed to perceive exactly as experience actual, physical reality.

Unlike—or, at least, to a much greater extent than—traditional video games, AR can convey muscle memory. This term refers to “a form of procedural memory that involves consolidating a specific motor task into memory through repetition. When a movement is repeated over time, a long-term muscle memory is created for that task, eventually allowing it to be performed without conscious effort.”154 As suggested by the common phrase “it’s like riding a bike,” many believe that muscle memory cannot be unlearned, but rather, at most, only covered over with new habits.155

Industry and the military alike have already lauded AR as a training mechanism for this exact reason. Explaining the utility of an “Augmented Reality Training System” for soldiers, Major General Thomas M. Murray of the United States Marine Corps was quoted as saying, “It’s like a quarterback taking snaps; the more snaps he takes, the more ready he’ll be for the game. We deal with many possible situations so the units can react like muscle memory. We want that reaction to become as routine as possible to handle situations that you can’t anticipate.”156 The term shows up often in AR literature, including in reference to using haptic feedback for learning to play an instrument or read Braille,157 practicing surgical techniques,158 learning the texture of tumors,159 and relearning how to walk for the elderly and neurologically injured.160 We also see it in applications such as the “Soldamatic Augmented Training” helmet that teaches industrial workers how to weld by reproducing the look and texture of the actual welding process without using hot, dangerous metals.161 In each of these examples, and countless others like them, the goal is to acquaint a person with the movements and sensations involved in a particular task through repetition, until it becomes second nature to them. When those tasks are (in reality) dangerous or intimidating ones, such as welding or warfighting, the goal is also to desensitize the user to that fear in the augmented simulation before they encounter it in the flesh.

There is no principled reason why playing games in this manner would not produce exactly the same sorts of muscle memory and desensitization. Indeed, the growing use of gamification in various industries162 suggests that many of the “serious” training programs will have game elements in them, and educational “games” are (as with today’s variety) likely to include many “educational” aspects. So there will be very little practical distinction between an augmented “game” and “training program.”

What will this mean for augmented video games containing violent, misogynistic, sadistic, or other escapist role-playing? We know by both intuition and actual examples that the demand for such content is, and will continue to be, high. Twodimensional AR shooting games have been on the market for years, and in 2013 a Louisiana high school student was arrested for posting to YouTube a video of himself using the game to imagine himself shooting his classmates.163 Concept videos of immersive AR first-person shooters164 and hand-to-hand combat games are plentiful online (Fig. 12.6).165 Some even involve running and jumping on a circular, omnidirectional treadmill and wearing haptic feedback clothing that delivers the sting of pretend bullet wounds, all to further simulate the battlefield experience.166 Meanwhile, one of the world’s most popular video game series, Grand Theft Auto, is notorious for rewarding players who commit random acts of unprovoked violence and for engaging prostitutes to gain “health” (Fig. 12.7). This is just one example in the long-running controversy over sex167 and torture168 in video games.

Bringing games like these into the augmented medium will change the debate on whether it is ethical or socially responsible for anyone—let alone children—to play such games. If repeated experience through AR simulation is so widely acknowledged as a training tool in every other facet of life, it will no longer be plausible to deny that similarly repeating violent and prurient actions in the same manner will have the same effect. Just as AR uses high-resolution 3D video and haptic feedback to impart muscle memory to a surgeon, welder, or soldier, so too might Augmented Grand Theft Auto players gain muscle memory of what it is like to steal a car, torture

FIGURE 12.6

Real and imagined first-person shooter games in AR.

a rival, or bed a prostitute. It seems inevitable that such training will encourage players to replicate those behaviors in real life, if only out of ingrained habit.

In some senses, though, whether that proves true will hardly even matter at that point. As a New York Times blogger writes, “all of this ‘reality’ might be a bit too

FIGURE 12.7

A scene from Grand Theft Auto.

much for many of us. As much as I like playing a first-person shooter game once in a while ... I’m not sure I want to run through a war zone and see lifelike brains sprayed across my face. I might need some virtual therapy after playing a game that realistic.”169 By repeatedly simulating the actions and experiencing the consequences through their own physical senses, the effect on players’ own ethical sensibilities may be the same as if they had committed the actual acts. They will, as Vonnegut warned, have become what they pretended to be, with all the emotional desensitization and altered moral outlook that comes with it.

Applying the medium to the opposite sort of content, of course, stands an equal chance of producing the opposite result. Training people through AR to make right choices will build the muscle memory that makes such behavior second nature. A hybrid approach is also possible, as shown by the Dutch billboard discussed in Chapter 4. By inserting pedestrians into an augmented scenario in which they ought to come to the aid of a first responder being attacked, but cannot, the subject is meant to feel both the impulse to behave ethically and the shame that ought to come from not acting on that impulse. This is meant to serve as negative reinforcement that sensitizes the person to the need to take action in such scenarios.

The discussion in this chapter is meant to demonstrate that we cannot wield the tool of AR to change the world we live in without also changing ourselves in the process. In the next and final chapter, we will ask whether and to what extent we can trust ourselves to create our own worlds, by highlighting some of the darkest and most seductive vices with which we will be tempted to populate our new worlds.

CHAPTER

Addiction and Pornography

13

INFORMATION IN THIS CHAPTER:

• • Addiction to AR

• • The reality and inevitability of adult augmented media

• •  The socially destructive potential of AR porn

INTRODUCTION

The previous chapter ended with a discussion of the negative habits we could form by indulging in the wrong sorts of AR experiences too often. This chapter begins by acknowledging one logical consequence of that behavior: addiction. It then examines what is already guaranteed to be the most prominent vice in the augmented medium: pornography. These are emblematic of the pitfalls that an augmented society will need to overcome in order to derive the greatest value that AR has to offer.

AR ADDICTION

SOME PEOPLE WILL GET HOOKED ON AUGMENTED

WORLD TECHNOLOGIES

Augmented reality is all about customizing the world around us. Through videoenabled smartphone and tablet apps, and soon directly through eyewear, AR overlays digital data over our perception of the physical world. The virtual world gets layered directly on top of the real one.

A key buzzword within the AR industry is “immersive.” Immersiveness is a measure of how seamless the integration is between virtual and physical data. The more immersive a user’s experience (or “UX”) is, the less the user consciously perceives the augmented content as being separate from, or inferior in quality or value to, what he or she sees with his or her naked eye. For designers of almost any AR app, the more immersive an app is, the better. In a fully immersive environment, a user perceives the virtual data as being equivalent to, and indistinguishable from, his or her physical surroundings - in other words, just another part of the landscape.

Of course, no AR company is currently in a position to achieve complete immersion. Hardware limitations make that impossible. As engrossing and useful as the display on a monitor, smartphone, or tablet screen is, it only augments one small

Augmented Reality Law, Privacy, and Ethics

311

Copyright © 2015 Elsevier Inc. All rights reserved. rectangle in your field of view, and only as long as you hold the device up in front of you. Looking away from the screen doesn’t take much effort. Even the best AR app is no more immersive than a really good movie would be.

But what about in the not-too-distant future, when AR-capable eyewear is commonplace, and AR content is plentiful? At that point, it will be possible for a user to become totally “immersed” in a digitally enhanced view of the world. If recent experience with consumer technologies has taught us anything as a society, however, it is that the more engrossing a form of entertainment is, the more likely it is that a certain segment of the population is going to develop an unhealthy fixation with it. Whether you call it “addiction” (a diagnostic term that gets thrown around far too often, but that makes for catchy headlines), compulsive behavior, or simply a deeply ingrained habit, the fact is that people love to immerse themselves in fantasy worlds to escape the doldrums and difficulties of real life. And fully immersive AR will be orders of magnitude more engaging and attractive than even the best of today’s digital content.

We see this type of behavior everywhere today. Gamers will sit in front of their consoles playing massively multiplayer online games for hours and days on end. In 2011, someone died from a blood clot after sitting too long playing Halo 3 on Xbox. I have personally seen people dedicate the majority of their nonworking hours to online role-playing games such as EverQuest and World of Warcraft. The 2014 documentary Web Junkie takes place in “a division of a Beijing military hospital, where teenage boys are being treated for Internet addiction - more specifically, addiction to ‘World of Warcraft’ and other games like it.”170 In 2010, a South Korean couple was arrested for allowing their newborn infant to starve to death while they did 12-hour stints at an Internet cafe raising a virtual baby in the online role-playing game “Prius Online.” “Online game addiction can blur the line between reality and the virtual world,” a South Korean professor said about the case. “It seems that taking care of their on-line game character erased any sense of guilt they may have had for neglecting their daughter.”171

I am not without sympathy for those who get absorbed into video games. There were portions of my college years when I certainly spent more than my fair share of time playing the computer strategy game Civilization and other games like it, although the Internet connectivity of newer games adds a social element that draws players in even further. None of these games are bad in and of themselves. Rather, they are so good - so immersive - that players with poor self-discipline can easily get sucked into playing them longer than they should.

The problem is not limited to games. In a 2013 TEDx talk, Dr. Zoe Chance of the Yale School of Management admitted her addiction to a wearable device -specifically, a “smart pedometer.” Driven to reach the daily goal of 10,000 steps that the device set for her, Dr. Chance’s entire waking experience soon became filled with trying to move as much as possible. Her marriage began to suffer, she admitted, as her new obsession led her to bond instead with other compulsive users of the device, both in person and online. “They market it as a ‘personal trainer in your pocket,’ Chance said. “No! It is Satan in your pocket.”

Silicon Valley venture capitalist Marc Andreessen predicted that, once digital eyewear goes mainstream, many of its users will have a similar degree of attachment. “The idea of having the Internet with you all the time, being able to see, literally to be able to have the Internet in your field of vision ... and to be able to talk to it, it basically just wraps you in all the information you would ever need all the time,” he said. “I think people are going to find they feel, basically, naked and lonely, when they don’t have this at some point.”172

The AR medium will make digital experiences even more appealing and compelling than they already are. The explosive growth in recent years of proto-AR gaming systems, such as the Wii, Kinect, and Nintendo 3DS, demonstrates that AR is the future of digital gaming.

Toward the end of a very thoughtful panel discussion on the challenges of designing AR user experiences at the 2011 ARE Conference, Brendan Scully of Metaio said, “I certainly wouldn’t trust myself to design my own UX.” This reminded me of some of the cautionary tales that pop culture has already given us about the drawbacks of having complete control over our surroundings. Star Trek: The Next Generation did this frequently (sometimes to a fault) via the “Holodeck,” a holographic room capable of replicating any environment and character imaginable. In the episode “Hollow Pursuits” (and later episodes), the socially inept character Reginald Barclay literally becomes addicted to living in the artificial worlds he creates there - complete with racier versions of his real-life female acquaintances and diminutive parodies of the men that intimidate him (Fig. 13.1).

The ability to create similar scenarios of our own may not be far off. “[S]ome scientists and researchers say we could have something like holodecks by 2024.”173 This has some futurists concerned. Ernest Cline, author of the popular sci-fi novel Ready Player One, also commented: “Once video games become so real, when you’re wearing goggles and gloves and you’re completely logged in, then [it will get worse]. Once it becomes like the holodeck, how will people avoid becoming more addicted?”174

Then there’s the classic virtual reality film Lawnmower Man, in which the title character conquers an artificial world and declares, “I am God here!” The special

FIGURE 13.1

Reginald Barclay in the holodeck.

effects in these shows may be dated, but their message is timeless: the more control we gain over their personal environments and surroundings, the more those surroundings will tend to reflect our own narcissism.

It seems inevitable that at least some AR users will demonstrate the same tendencies, to varying degrees. For most people, AR will probably be a lot like text messaging or Facebook is today - a technological convenience that many people may actually spend too much time with and joke about being “addicted” to, but that leads to few actual cases of bona fide dependence. Even if it doesn’t amount to “addiction,” though, the potential for unhealthy behavior through AR will always be present to some degree. Even today, for example, a jilted lover or spurned suitor could use an AR app to display their desired partner’s face at the physical location of every past date - reinforcing a vicious cycle of negative emotions. As discussed further subsequently, pornographic content - already ubiquitous and responsible for an array of unhealthy behavior - can be displayed anywhere in ways that standard, two-dimensional monitors won’t be able to match.

As AR hardware and capabilities mature beyond today’s comparatively simplistic communication technologies into a more immersive environment, the potential for abuse will grow accordingly. To those who become accustomed to living in a Domestic Robocop-type world, nonaugmented reality may start to seem unbearably mundane by comparison. At that point, we could very well see a number of real-world Reginald Barclays.

WHAT CAN AND SHOULD BE DONE TO PREVENT ADDICTION?

Will government or industry step in to regulate AR content and head off some of these consequences? Perhaps. Although governments have more or less lost the ability to regulate violent content, age restrictions on prurient material remain enforceable, and would certainly be applied in this new medium. Crackdowns on illegal gambling programs may well follow. Just as we see counselors specializing in addictions to such content today, we’re likely to see similar services available for those who lose themselves in their own augmented worlds.

“The trouble,” says Nir Eyal, author of Hooked: How to Build Habit-Forming Products, “is this: The attributes that make certain products engaging also make them potentially addictive. There is no way to separate the fun of gaming, for example, with its potential for abuse. Social media is exciting principally because it utilizes the same variable rewards that make slot machines compelling. Spectator sports or television watching, enjoyed by billions of people, share common traits with the primary function of illicit drugs - they provide a portal to a different reality. If what we’re watching is engaging, we experience the high of being mentally elsewhere.”175

Eyal, therefore, proposes that the creators of immersive digital experiences should bear some ethical and moral responsibility to prevent addiction. This is due in part to the unique metrics that digital technology provides about individual users. “Makers of alcoholic beverages for example, can throw up their hands and claim they have no idea who is an alcoholic. However, any company collecting user information can no longer take cover under the same excuse. Tech companies know exactly who their users are and how much time they are spending with their services. If they can hypertarget advertising, they can identify harmful abuse.”176 Eyal argues that these companies therefore “have both an economic imperative and a social responsibility to identify addicts and intervene.”177

He proposes that tech companies establish what he calls a “Use and Abuse Policy,” which helps establish the parameters of healthy use and redlines that trigger an intervention when crossed. “Of course, what constitutes abuse and how companies intervene are topics for further exploration,” writes Eyal, “but the current status quo of doing nothing despite having access to personal usage data is unethical. Establishing some kind of upper limit helps ensure that users do not abuse the service and that companies do not abuse their users.”178 Some companies, he notes, already take similar measures. The technical Q&A site StackOverflow, for example, limits how often the site can be accessed by a single user. “Programmers should be out there in the world creating things too,”179 writes cofounder Jeff Atwood, rather than spending all of their time on his website.

REASONS FOR OPTIMISM

Just because AR will be immersive does not automatically make it addictive or dangerous. No matter how convincing its digital content is, AR is, by definition, the intersection between that data and the real, physical world. The most exciting possibilities for immersing oneself in AR are also the same features that would take

FIGURE 13.2

The AR pop-up book.

users outdoors. Therefore, augmented content may never have the same tendency to isolate users into online communities and separate them from physical interaction the way that console-based gaming systems with monitor-dependent displays do today. Proto-AR systems such as the Wii and Kinect are already heralded as getting gamers off the couch; AR could be the killer app for getting them outside and into the world around them.

Counselors, meanwhile, need not wait for AR-addled patients to start taking the technology seriously. Today’s innovators are already devising ways that AR can be used to counsel patients. As mentioned in Chapter 9, Helen Papagiannis designed the world’s first AR pop-up book for the iPad (Fig. 13.2).180 It is designed to let users interact with virtual representations of their phobias - spiders, for example - in a visually convincing, but perfectly safe, way.

PORNOGRAPHIC AND PRURIENT CONTENT

PORNOGRAPHY IS ALREADY GOING MAINSTREAM

THROUGH TODAY’S DIGITAL MEDIA

Regardless of your moral outlook, porn is a serious and growing presence in contemporary society. Paul Fishbein, founder of Adult Video News, correctly notes that “Porn doesn’t have a demographic - it goes across all demographics.”181 An analysis of 400 million web searches demonstrated that 1 in every 8 searches of all searches was for erotic content.182 “By 2015, mobile adult content and services are expected to reach $2.8 billion per year, mobile adult subscriptions will reach nearly $1 billion, and mobile adult video consumption on tablets will triple [over 2013 levels].”183

“It’s not news, of course,” the New Yorker wrote in 2003, “that men are into porn - or that the Internet has made it possible to delve into the dirty without slipping into the back room at a video store or hunkering down in a Times Square peep booth.” But “thanks to the advent of cable modems and DSL connections,” it continued, “the mass consumption of cyberporn has slyly moved from the pathetic stereotypes (fugitive perverts, frustrated husbands) into the potent mainstream (young professionals, perhaps your boyfriend) .... Porn is not merely acceptable; it’s hip.”184 By 2013, “more and more adult companies [were] expanding into new fields of business. And business has been good. Hustler leads the charge in this area, having spent years building up a successful clothing line, opening casinos and even publishing the occasional mainstream magazine.”185 That is the society into which AR is being introduced.

PORN WILL BE PLENTIFUL IN AUGMENTED MEDIA

The Internet meme called “Rule 34” is a maxim that states, “If it exists, there is porn of it. No exceptions.” This bit of popular wisdom reminds us that we will encounter prurient content in AR, and that such content is not unique to the medium. Nevertheless, AR’s unique capabilities will bring an unparalleled degree of anonymity and accessibility to explicit content that will magnify the erotic temptation, compulsion, and dysfunction with which our society is already riddled.

Visual content

The fact that the public is already accustomed to downloading digital porn may be why, as soon as the first video teaser186 for the first mainstream digital eyewear - Glass - was released on YouTube, a recurrent theme in the viewers’ comments was how it could be used for pornographic applications. For example:

“you can watch porn on the go!”

“Awesome, with this remarkable device it’s possible for me to watch porn while

i watch porn on my computer. Life’s goodQ”

“download porno on a crowded bus!”

The sentiment is easy to comprehend. Anonymity has always fueled porn consumption. First, there were magazines in slick black bags. Then pay cable stations. Then the Internet. Now, digital eyewear will enable users to take the content with them outside the house, viewing it in public while still remaining anonymous. One of the New Yorker’s interview subjects wrote of the thrill of danger he got by viewing porn in his university’s computer lab, while others worked in adjacent cubicles. AR-equipped thrill-seekers will be able to take this one step further, and watch explicit content while actually standing in front of and talking to those same colleagues face-to-face. At school, work, home, on the bus - no setting will ever again reinforce a social stigma against watching it, because only the wearer will see what is on their AR lenses.

In the few years since Glass was first announced, independent developers have indeed been busy finding ways to apply the device to pornographic purposes. In June 2013, a small company called MiKandi released the first explicit app for the device, fittingly titled “Tits & Glass.”187 The app “allows users to view and share pornographic content from a point-of-view angle ... [and] to comment and vote on their favorite content.”188 Unamused, Google promptly revised its Glassware policy to prohibit “content that contains nudity, graphic sex acts or sexually explicit mate-rial.”189 The app returned to the unofficial market of “side-loaded” Glassware, but now cautions users to share only images that are “safe for work.”190 The revised terms of service did not, however, “preclude [MiKandi] from enabling users to go buckwild in sharing their own POV creations.”191 So MiKandi launched a traditional website to store users’ first-person perspective videos - the first of which was contributed by infamous porn star James Deen - and teamed up with a larger company in the industry to sell videos containing the results.192

Soon thereafter, a three-person team of developers caused a stir with their entry to a London-based hackathon, which they called “Sex With Glass.”193 The idea was to allow two partners, each wearing Glass, to see on their own devices the other person’s point of view, in real time, during sex. With the public’s imagination aroused, the developers refined the software into an app now called “Glance.” As of this writing, Glance is available for the iPhone, although the version for Glass is still under development. When released, the goal is that each user will “say ‘ok glass, it’s time’ and Glance on Google Glass will stream what you see to each other.”194 Taking a cue from Snapchat and other ephemeral social media, the app keeps the resulting video for 5 h, after which it is deleted if one of the users does not actively save it.195

The renewed interest in virtual reality sparked by the Oculus Rift has gotten developers working on adult content for that medium as well. “Adult-film streaming service SugarDVD announced [in March 2014] that it is working on an app for the [Rift] ... that will stream adult movies and content to the device.”196 At the same time, the company was already “working with motion-capture studios in Los Angeles to generate original, VR-optimized content that will take full advantage of the Rift’s technology.”197 A small California start-up called Sinful Robot announced that it was doing the same.198 These would be fully immersive, interactive experiences that play out as a Choose Your Own Adventure story with benefits.

Visual recognition software and user-generated content

There is another reason that viewers are likely to take their AR porn into the public square. The ability to overlay explicit content on the real world - or, more to the point, on real people - will offer synergies that have been heretofore relegated only to private imaginings.

“I’m just going to say this right now,” blogger Jordan Yerman wrote on the same day the first Glass teaser was released. “The dev teams for every online porn outfit on the web are watching the Google Project Glass video . and thinking, ‘we can create an app that matches sex footage from our libraries to the body positions of passersby spotted by augmented-reality glasses.’ I promise you, that’s what they’re thinking.”199

The demand for such technology was proven in 2009, when a video advertise-ment200 for the mobile app Nude It201 - which purported to allow users to see through

FIGURE 13.3

Nude It.

clothing - went viral (Fig. 13.3). Despite the obvious fact that it was a spoof - something the originators quickly acknowledged - that didn’t stop thousands of eager users from demanding the ability to download it. Perhaps the most enabling development, however, has been the beta-level introduction of mobile devices able to scan three-dimensional environments in real time. Devices such as Occiptal’s Structure Sensor202 and Project Tango203 demonstrate technology that, once perfected, will enable the masses to create their own digital avatars of anything and anyone around them. You can have three guesses as to how selfie-obsessed teens will use this technology, as long as each guess is “for sexting.”

Haptic interaction

Vision will not be the only sense to be digitally augmented for prurient purposes. Digital sex toys have already been on the market for years. These include those devices traditionally intended for women - such as the music-driven OhMiBod204 - as well as a growing market for digitized receptacles made for male use. These are sold under the brand names Fleshlight and RealTouch, and were originally designed to sync haptic pulses with the action portrayed in prerecorded videos.205 The latter brand, however, has since introduced a service called RealTouch Interactive, which puts male device owners in touch with live “models” for “private 1-on-1 fantasy encounters.”206 According to the company, “your RealTouch senses both the velocity and depth of motion that models perform on their joystick. This is the most realistic live sexual experience the world has ever known and we are proud to call it True Internet Sex!™”207

This is only one facet of the rapidly expanding genre some have labeled “teledil-donics.”208 “While similar in design to the RealTouch Interactive,” for example, a company called LovePalz differentiated itself by marketing its services to couples.209 “LovePalz is intended for use by couples in long distance relationships. Rather than a single purchasable device, there is one designed for female anatomy and one for male. Partners connect via video chat software and the devices communicate information back and forth via bluetooth and the internet. What one partner does with their device, the other feels.”210 The company soon spread its marketing to a broader demographic, however; as of this writing, its website also advertises the “LovePalz Club,” which promises members thereof, “Stay in your room and start meeting new people all over the world.”211 An Amsterdam-based start-up attempted to fund through Indiegogo a similar service called Kiiroo, which it billed as “the first social platform with an intimate touch.” As of March 2014, however, the project fell short of its funding goal.212

Even the blow-up doll industry is getting into the digital age. The first commercial sexbot, called “Roxxxy,” was introduced in 2010, and the company behind it now offers a wide range of units in the series. “Roxxxy is decidedly a robot ... [and] mannequin-like,” offering little more nonphysical interactivity than a Teddy Ruxpin bear. “Right now, [however,] we’re at an inflection point on the meaning of sexbot,”213 says Kyle Machulis, a California-based computer scientist who focuses on sensual technologies.214 “Henrik Christensen, founder of the European Robotics Research Network, thinks that sex with robots is only five years away.”215 In a report released in August 2014 by Pew Research, GigaOM Research’s Stowe Boyd predicted that, by 2025, “robotic sex partners will be a commonplace.”216 By 2050, predicts artificial intelligence researcher David Levy, “Love with robots will be as normal as love with other humans while the number of sexual acts and lovemaking positions commonly practiced between humans will be extended, as robots teach us more than is in all of the world’s published sex manuals combined.”217 Already, in May 2014, Florida resident Chris Sevier filed a lawsuit seeking the right to marry his pornography-laden MacBook, characterizing himself as not materially different from same-sex couples and other “sexual minorities” seeking the right to marry.218

The beauty of AR is that it liberates content from two-dimensional monitors and sets it free into the physical world. But we may also come to see that as AR’s curse.

SOCIETY WILL SUFFER AS A RESULT

No blog post I have ever written got as much reaction - both positive and negative -as when I criticized the effects that augmented pornography could have on society. Many people agreed; yet many also responded with vigorous disdain and defensiveness. The subject strikes a chord, perhaps because so many people already consume adult content on a regular basis and cannot, or do not want to, examine it objectively. The experiences of millions, however, do not lie. One does not have to be a prude to recognize the corrosive effects adult content can have on individuals and society. To the contrary, one must try hard not to see it.

Compulsive behavior

Much of the debate over pornography’s impact on the person viewing it gets hung up on terminology. As mentioned in the previous section, it is easy and commonplace to throw around the word “addiction.” That is what a panel of experts did in 2004 when they testified on the subject before the Senate Commerce Committee’s Science, Technology and Space Subcommittee. “Pornography really does, unlike other addictions, biologically cause direct release of the most perfect addictive substance .... It does what heroin can’t do, in effect,” said one witness.219 Similarly, in 2010, “[t]he National Council on Sexual Addiction and Compulsivity estimates that 6 to 8 percent of Americans -or 18 million to 24 million people - are sex addicts. And 70 percent of sex addicts report having a problem with online sexual behavior.”220 Yet other experts in the field scoff at the term “pornography addiction,” and “the panelists themselves acknowledged [that] there is no consensus among mental health professionals about the dangers of porn or the use of the term ....” “‘Compulsive’ is [a] more appropriate [term]” to describe those for whom pornography leads to unhealthy behaviors, said one sex therapist.221

This debate, however, misses the point. Whatever one calls it, adult content is easy to abuse. Just like a drug, not every encounter will necessarily lead to unhealthy or compulsive behavior, but line between use and abuse is difficult to perceive and easy to cross. Those who do fall into compulsive habits struggle mightily to overcome them, and those who cannot break free suffer a variety of negative consequences.

One of the most pernicious things about pornography is its staying power. Those addicted to drugs “can get the drug out of their system, but pornographic images stay in the brain forever.” They are thoughts that cannot be unthought; the best that one can do is to try and drive the images out of one’s conscious brain by training one’s self in new thought patterns. That is where having constant, heads-up access to prurient content on digital eyewear will prove so destructive. It virtually ensures that one whose mind is already dwelling on adult topics will have those explicit thoughts on their mind constantly, thereby reinforcing the negative thought patterns that lead to compulsive behavior. That calls to mind the warning of seventeenth century poet Thomas Traherne, who said, “As nothing is more easy than to think, so nothing is more difficult than to think well.”222 Walking around in the wrong AR layers will make it even more difficult to think well.

There is also evidence that repeated exposure to explicit content literally messes with one’s head. A recent study in Germany published in JAMA Psychiatry, for example, found that “[m]en who report watching a lot of pornography tend to have less volume and activity in regions of the brain linked to rewards and motivation.”223 Likewise, “[scientists at Cambridge University recently studied the brain scans of porn addicts and found that they looked exactly like those of drug addicts.”224

It has also become widely understood - as was the subject of the 2013 film Don Jon - that habitual porn users find “less enjoyment during sex”225 with actual people. Psychiatrist Norman Doidge, author of the book The Brain That Changes Itself, observed that these men “had rewired the arousal pathways in their brains,”226 and explained how that occurs:

“Pornography,” writes Doidge, “satisfies every one of the prerequisites for neuroplastic change,” - that is, the brain’s ability to form new neural circuitry. The most important condition is the release of dopamine, the neurotransmitter that gives us a feeling of exciting pleasure, which porn triggers. The more often you watch porn and get the dopamine hit it delivers, the more the activity and the sensation become entwined in your brain.

Doidge puts it like this: “since neurons that fire together wire together, these men got massive amounts of practice wiring these images into the pleasure centres of the brain.” And, “because plasticity is competitive, the brain maps for new, exciting images increased at the expense of what had previously attracted them.”227

In other words, the brain learns what it likes, and devotes more resources over time to recreating that experience instead of less-satisfying alternatives - in this case, interaction with actual people. A related consequence of the same process is the development of tolerance. Over time, it takes more and more stimulus to achieve the same amount of dopamine.228 “It’s known as the Coolidge Effect, or novelty-seeking behavior. Porn, after all, trains the viewer to expect constant newness.” Whatever you call that state of being, it certainly bears a striking resemblance to what we commonly call “addiction.”229

The impact on healthy adult relationships

For compulsive pornography users, this leads to “what Doidge politely calls ‘potency problems.’ Anecdotal surveys have suggested that as many as 34% of frequent porn watchers suffered performance issues with their partners, while 60% felt their performance improved after committing to stay away from adult content. Since - in the physical world - it takes two to tango, this cannot help but undermine the health of marriages and relationships.

Indeed, the deleterious impact of Internet porn on healthy adult relationships has been well documented. As early as 2003, the New Yorker ran a piece on mainstream, well-educated, professional men who found themselves increasingly hooked on explicit Internet imagery. This and other articles found the men correspondingly unable to relate to,230 or maintain a healthy relationship with, the actual women in their lives. At the same time, those women found it increasingly difficult to find a man whose mind isn’t dominated by such content. One woman interviewed in the New Yorker article admitted, “I think it will be really rare, and hopefully it will happen, that I can meet a guy who will be happy with only me.”

Other women find themselves compromising their own standards to meet men’s unrealistic ones. “Even among more casual users, porn is wreaking havoc in the bedroom.” Men are increasingly reported to expect “pornified sex” from their partners. Cindy Gallop, an advertising executive, TED speaker, and founder of the website Make Love Not Porn, says “guys watch porn and when they go to bed with a real woman, all they think about is recreating that scenario. ... [Women, meanwhile,] start believing that that is what they have to be like in bed as well.”231 “The result is mutual unhappiness, frustration and disappointment. And, according to Doidge, [young men face] a potentially permanently addled sexuality thanks to the presence of porn during this highly plastic period of brain development.”232

Unsurprisingly, this situation takes its toll on marriages. “According to the Web site Divorcewizards.com, huge numbers of divorce lawyers report that pornography is a big issue in divorce these days, which it never was before the advent of the Internet.” What happens when erotica become available not only on computer screens and mobile devices but also 24/7 in augmented space?

Perhaps the worst-case scenario of what could happen across society is the situation already beginning to play out in Japan. According to a 2013 report, “45% of Japanese women aged 16-24 are ‘not interested in or despise sexual contact.’ More than a quarter of men feel the same way.”233 Although such a broad demographic trend cannot reasonably be traced back to a single cause, digital technology and the social acceptance of Internet-fueled fetishes play a strong role. “Lacking long-term shared goals, many are turning to what [some call] ‘Pot Noodle love’ - easy or instant gratification, in the form of casual sex, short-term trysts and the usual technological suspects: online porn, virtual-reality ‘girlfriends’, anime cartoons.”234 One Japanese therapist related the story of a client - a virgin in his 30s - unable to become aroused “unless he watches female robots on a game similar to Power Rangers.”235 In 2009, a Japanese man even went to the length of holding a wedding ceremony at the Tokyo Institute of Technology to solemnize his marriage to Nene Anegasaki, an anime character in the Nintendo DS video game LovePlus.236 It was reported that the ceremony paid homage to the otaku (loosely translated as “nerd” or “geek” fans of manga and anime237) subculture “that nurtures this type of creativity.”

According to Japanese-American author Roland Kelts, however, it is inevitable that both young men and women in Japan will find their social relationships driven by technology. “Japan has developed incredibly sophisticated virtual worlds and online communication systems. Its smart phone apps are the world’s most imaginative.” One has to wonder how much further augmented reality, with its inherent emphasis on “immersion” into digital content, will tip that balance away from in-person interaction.

The national government sees this “celibacy syndrome” as a mortal threat to the nation’s future. “Japan already has one of the world’s lowest birth rates. Its population of 126 million, which has been shrinking for the past decade, is projected to plunge a further one-third by 2060.”238 If people in that society continue to find sexual satisfaction from sources other than each other, Japanese culture could quickly pleasure itself out of existence. This is not the only society in this predicament, however. “A 2010 census showed that 31.4 million Americans live alone ... [which] allows people to pursue individual freedom, exert personal control and go through self-realization, but these people have fewer children.”239 That has left the United States with a birth rate just below the replacement level of 2.1, while the rate in most of the rest of the developed world is far below that. (Germany, Italy, and Spain, for example, are each at 1.4.240) From a demographic perspective, the last thing that any of these societies need is something else to dissuade their residents from reproducing.

Reinforcement of misogyny and sexual aggression

“Pornography itself is about the objectification of women. In this context women are treated as things, receptacles and socially dissociated objects to be used and tossed aside.” The principal attraction to erotica is that the viewer (usually, but not always, a man) gets to choose a partner with the exact physical and behavioral specifications he is in the mood for at the time. And if he wants something different the next time, he can find that too. There is no mutuality, no requirement or even possibility of serving the needs of another person. It is all about the viewer and his whims. Similar to the discussion of “muscle memory” in Chapter 12, this sort of habituation cannot help but ingrain in viewers a debased understanding of sexuality as a means of conquest and self-gratification, and nothing more.

Consuming this content through the augmented medium can only deepen that habituation. We have already established that experiencing content in the augmented medium - where it seems more real to us because we experience it through our physical senses in an intuitive way - is an excellent way to train our minds and bodies to react in certain ways in a given situation. It follows, therefore, that pornographic content in the augmented medium will be even more effective in training people to objectify others than its two-dimensional counterpart.

This is even more troubling with respect to content that is more graphic than simple erotica, such as rape and other sexual violence. Leaving aside the effect of consuming too much adult content in general, the specific characteristics of much of this content raise additional concerns. Already, according to one study, over 88% of explicit content online depicts some form of physical aggression, while almost half include verbal aggression.241 Viewers already intent on viewing such content will be eager to experience it as only AR allows. The short film Ex Post Facto (discussed in Chapter 12) presaged this development (however imperfectly) with its tagline: “If rape was legal, would you do it?” The same question is inherent in the very concept of digital replacements for human sex partners, whether that takes the form of digital content with haptic augmentation or robotic prostitutes. “[E]ven if sexbots are not currently conscious, they do have the external markings of personhood, and we are programming them to be person-like. Indeed, we are programming them to be like a specific type of person: the type of woman who can be owned by a heterosexual man.” To own and use such a device would be to habituate oneself in the experience of having a sex slave, which cannot possibly make a positive contribution to that person’s general socialization.

Indeed, we already have essentially the same thing today in the form of Real-Touch Interactive and other live digital interactions. RealTouch’s “models” are little more than telecommuting prostitutes, performing sex acts with a digital device for the pleasure of paying clients. The technical distinction between how they and a more traditional prostitute ply their respective trades, however, is likely to render these “models’ services legal in more jurisdictions than just Nevada.

Children’s access to porn

One of the most troublesome numbers in the statistics that has been gathered on pornography is “11.” That is the average age at which a boy first encounters explicit material online. The Daily Mail recently featured an interview with a mother who told how her 11-year-old son’s “entire character” changed after he began watching porn on his laptop in his own bedroom.242 She wrote:

If Charlie had been on Class A drugs he couldn’t have been more transformed.

He became withdrawn, moody and sullen. He wasn’t sleeping at night. He lost his normal gargantuan appetite. He looked hollow-eyed and listless. He had none of the boyish energy and high spirits that we were all used to.

He began writing things like ‘I hate myself’, or ‘Charlie is s***’ on scraps of paper, newspapers, books, even his bedroom furniture and walls. He drew obscene cartoons with speech bubbles filled with the filthiest words in the dictionary.

I once rolled back his sleeve to find ‘I am disgusting’ scrawled on the inside of his arm. I managed to stop myself from crying until I’d left the room. But the moment the door closed behind me I broke down completely.243

After intensive intervention, Charlie recovered. But millions of other 11-year-olds encounter similar pitfalls. In their article “Why Shouldn’t Johnny Watch Porn if He Likes?,” educators and authors Gary Wilson and Marnia Robinson explained that “sexual-cue exposure matters more during adolescence than at any other time in life.”244 That’s because the age of 11 or 12 is “when billions of new neural connections (synapses) create endless possibilities. ... By his twenties, he may not exactly be stuck with the sexual proclivities he falls into during adolescence, but they can be like deep ruts in his brain - not easy to ignore or reconfigure.” This echoes the findings of psychiatrist Norman Doidge quoted earlier. In other words, constant, easy access to porn-on-demand conditions young men to stimuli that real-life interactions can never match, setting them up for frustration and failed relationships later in life.

And yet the Internet is already exposing kids even younger than this to adult content. One survey found that “kids start watching porn from as early as the age of 6.”245 Another found that “children aged 12 to 17 are one of the largest consumer groups of online porn ... [which] can hook kids on hardcore and often violent imagery.”246 If this is what happens over desktop and mobile computers, then children will be all the more likely to find such content on digital eyewear. With no one else able to look over their shoulders to check what they are watching, kids will be even less able than adults to resist the temptation to indulge in such content anywhere and everywhere.

AR creation tools will also give already sexually frustrated teens even more ability to create and publish lewd content of their own. Social media and texting already provide ample opportunity for sexting and shaming with explicit content. In a world where all teens wore devices that allowed them to see digital content on top of the physical, bullied teens could be forced to walk in a world where they see embarrassing photos of themselves posted on literally every wall. As mentioned in Chapter 12, moreover, the instant 3D scanning technology that is already beginning to hit the market will soon be - if it has not already been - used to create digital avatars that can then be made to perform all manner of lewd acts, either with or without the permission of the person scanned.

Exploitation of children

Some of those whose physical forms will be digitally scanned - or digitally augmented with explicit content - will be minors. Some devices may (hopefully!) be programmed not to process the images of those who are obviously children, but verifying the ages of teens would be beyond its ability. And the truth is that a depressingly large number of men would use such devices for exactly that purpose. AR Dirt commentator Joseph Rampolla - whose day job as a police captain and consultant has included many years of cybercrime investigation - has repeatedly warned that “wherever society finds pornography, child pornography is not too far behind.”247 Experience on the Internet to date has repeatedly proven him right.

This dark rule of human nature will play out in all augmented contexts, not only with regard to digital images. The same commentators discussing human-like sex-bots, for example, have already anticipated “a hypothetical company that starts producing child sex-robots to satisfy deviant sexual desires.”248 Indeed, some have even advocated for this development. Ron Arkin, Georgia Tech’s Mobile Robot Lab director, has “said that while he doesn’t approve of child sex bots for recreational use, he’d like to see them .. used for pedophiles the way methadone is used to treat drug addicts.”249 Arkin’s motivation - “to possibly provide better protection to society from recidivism in sex offenders”250 - is noble enough: but the possible unintended consequences of investing in such technology (even Arkin worries about a black market for the devices), and the very idea of positively reinforcing pedophiles’ impulses, are so revolting as to warrant serious hesitation in considering this approach.

Even more troubling is the distinct possibility that, if (really, when) such devices become available, they may very well be perfectly legal. In the 2002 decision Ashcroft v. Free Speech Coalition, the U.S. Supreme Court ruled that digital images that look like child porn, but do not portray actual children, are protected speech and cannot be punished under the laws against child porn.251 It goes without saying that it has gotten increasingly easy to create photo-realistic digital images, and that it will get even easier in the very near future. In 2011, for example, clothing retailer H&M acknowledged that the models in its catalogs were merely digitally enhanced mannequins with the heads of real models photoshopped onto them (Fig. 13.4).252 Yet it took a very discerning eye to notice that the images were artificial. Combining user-generated digital imagery with AR eyewear will allow anyone to immerse themselves in the objects of their desire, even if those objects happen to be in the form of children.

The best that can be said in response is that the legal lines around such content are at least fuzzy. In 2012, for example, a Georgia lawmaker proposed a statute to

FIGURE 13.4

H&M’s digital models.

outlaw superimposing a minor’s head onto an explicit image,253 and in July 2014, the United States Court of Appeals for the Eighth Circuit upheld a man’s child pornography conviction for doing exactly that.254 Using augmented world technologies to make or display explicit images blending real and digital images, then, might well be punishable. Moreover, Free Speech Coalition was a 6-3 decision, so it is not entirely insulated from being narrowed or reversed by a future Supreme Court, especially if an explosion of explicit AR content makes a measurable impact in the lives of many individuals. It may also prove easier to prosecute augmented child pornography in other countries. In 2013, a 48-year-old Canadian man ordered a child-sized sex doll; the shipment was intercepted and he was charged with child pornography. If the prosecution succeeds, it could stand as a potent warning to the simulation of child porn in augmented media as well, at least in Canada.

CONCLUSION

Augmented reality will be an interesting and powerful medium, with the ability to do both good and harm to individual psyches and society as a whole. It will offer users the ability to psychologically immerse themselves in artificial content to a degree

1

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2

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3

Copyright © 2015 Elsevier Inc. All rights reserved.

4

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6

See Chapter 6 for a deeper elucidation of this concept.

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USDA/CC BY2.0 license.

12

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Interestingly, this initial version of the video was later removed by YouTube for violating its terms of service. https://www.youtube.com/watch?v=8GcYWdg81BQ. On April 23, 2014, Infinity AR reposted a new version of the same video with most of the interaction between the protagonist and the bartender removed. Infinity AR, Infinity Augmented Reality Concept Video, YouTube (published on April 23, 2014), available at: https://www.youtube.com/watch?v=fJI8tNG1rbQ (last visited on Sept. 9, 2014). these comments off. Then another character makes an offhand remark that the device “basically rapes” people—a characterization already foreshadowed in the film’s promotional material. This comes off as a figure of speech, and at this point in watching the film, I was sure that the fictional device does exactly what I have often predicted: capture the three-dimensional images of unsuspecting strangers so they can be made into digital avatars for prurient uses by others.

Sure enough, that’s exactly where the plot goes. When Good Guy can no longer take being spurned by the Girl Next Door, he spies her through the window using his invention (Fig. 12.4). The eyewear recognizes the woman and processes her three-dimensional image. In seconds, Good Guy sees, through his eyewear, a digital version of the scanned woman walk into his apartment door with a sexy outfit and a come-hither look (Fig. 12.5). You can guess where their interactions go from there.

The final moments of the film then take an unexpected and unnecessary twist that leapfrogs well beyond the degree to which any reasonable viewer would be willing to suspend disbelief. By some magical plot device that is never explained, the real-life woman whose image was scanned by the glasses actually feels, physically and in real time, what Good Guy is doing to her digital avatar. So, whether he realizes it or not (and the whole moral dilemma leading up to this moment suggests that he does), he ends up actually raping this woman, albeit from a distance.

Inexplicable and disturbing though this plot device is, Mr. Cannady intended it to drive home his conviction that AR will seduce many of its users into unethical behavior. As he told me:

Yes, it was a very intentional and harsh commentary on the morality of this technology. ... [T]he bad apples that populate our society who will most likely turn this fun device

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It further calls to mind the lyrics of the 1987 Guns N’ Roses hit, “Mr. Brownstone,” about the band’s experiences with heroin addiction: “I used to do a little, but a little wouldn’t do, so the little got more and more. I just keep trying to get a little better, said a little better than before.”

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