Wednesday, April 29, 2009

Video Games and Dreams - 4



Roger Travis pointed out in the last essay that the relationship we have with our dreams can often be applied to any work of fiction in varying degrees. Although interaction may make the archetypes and need for balance in an experience much more pronounced, these are still the same common elements that have been in other media for centuries. For as much as video games might function as a kind of dream, perhaps all media do the same thing in varying degrees. In films we are the voyeur, in games we are the actor, and in books we can follow either. Just as a film can cause a self-revelation or a book provide an outlet for a psychological need, so too can a video game. What this fourth and final essay seeks to address is the potential for using the archetypes and concepts of the mandala as a way to get games beyond their fantasy-fulfillment and nightmare mastery nature. The final goal of the dream is to transform the dreamer through self-awareness and personal exploration. How can a video game change someone?

The best place to start is to ask what is appealing about a video game. Will Wright once said, “Most people are very narcissistic…The more you can make the game about that person, the more interested, the more emotionally involved they will get." Peter Molyneaux explains about the nature of game stories, “The greatest story ever told? I think it’s going to be in a computer game. And I think that if I play the greatest story ever told in the same game as you play it, your greatest story is going to be different to my greatest story.” For either designer, the key to the video game is that personal investment a game allows which can reflect back on us. They are a kind of personal expression. They constitute an act that, although not technically real, still represents something to us. That is the core of the connection between dreams and video games: both are abstract personal acts. Both involve mental engagement and both are without consequences in the real world. The difference is simply a matter of scale. The video game is, in its still developing form, still not powerful enough to equal the personalized nature of a dream.




Yet increasing the personalizing capacity of a game in the pursuit of narcissism is inevitably going to start changing the nature of the fantasy for a person. What begins as wish fulfillment inevitably becomes common and then, if overindulged, even drudgery. Going back to Raph Koster’s argument that all games are doomed to become boring by their very nature, the pursuit of narcissism for pleasure in games is a self-defeating venture. You’ll eventually beat the game, you’ll find all the secrets, and the replay value will become an exercise in going through the motions. Jason Rohrer argued in his GDC lecture ‘Games and Other Four Letters’ that one of the most important ways to start addressing this issue is to simply stop thinking this was the only thing that games are capable of. That they don’t have to always be fun, addictive, or time-consuming tasks to accomplish. When we start to ask ourselves what an artistic medium that necessitates the user putting themselves into it can do besides be fun or create a sense of mastery, the Jungian goal of dreams becomes an interesting option.

Video Games could become a source of personal transformation.

One of the complaints that Jung, Robert Moore (the one who wrote that Masculine Archetypes book), and even Joseph Campbell have about modern society is that we no longer practice transformation rituals. One of the ways people in the past would help men abandon juvenile behavior and become adults is through a ritual process of simulating death and rebirth. Campbell explains a tribal ritual like this: when a boy starts to show an interest in girls the village shaman and other men would warn the mother and then come to their hut that night. Dressed in tribal garb to resemble monsters, the mother would pretend to defend the child but be driven back, until the boy was abducted. It is important that the child see that their traditional sources of protection are gone and they are on their own. What happens from there can be somewhat problematic. Moore describes putting the child through a lot of physical trauma like leaving him on an ant bed, but physical violence during this process is mostly meant to continue to scare the hell out of the subject and make them fear for their life. The biggest misstep rituals that use physical violence make here is thinking the amount of pain inflicted somehow equates with improving the process. The purpose of convincing a person that they are about to die is the psychological death of the current personality.



The person’s way of behaving, of thinking about the world, are abandoned in the wake of frightening circumstances for the new lifestyle. This can often happen naturally for a person such as losing a job or loved one. The loss of a parent is often seen as a transformative phase for a person because the protective force in their life has moved on. How can a video game do this?

Technically, some already do. The archetypal structures of MMO’s are almost always dependent on King archetypes about accumulating power, applying order to the universe, and mixing these with other designs. Moore’s mapping of juvenile behavior explains that the transformation ritual is taking this tiny kingdom the child has created and has them abandon it for the higher, more profound adult one. What makes an MMO be able to have this experience of loss is that other players do it to you. An example would be the growing need for therapy that specifically handles trauma in MMO games. The cited article details an EVE Online player who lost $12,000 dollars worth of goods and had his entire life vanish after being assassinated. Yet for as much as that person has experienced a huge loss, balance that with the fact that nothing in real life has happened. They have not been physically hurt, they have not lost anything tangible, it has all occurred in their minds. Milder variations would be players realizing that World of Warcraft turned sour after their guild turned on them or the pettiness of the lifestyle finally became too much. An article with Science Daily highlights one of the interesting discoveries about comparing MMO games versus single player ones: the emotional stakes are much higher. The experiences can either be much more negative than losing in a single-player game or much more positive.

What’s appealing about this process is that the engagement is entirely voluntary. The player generates the values and realities that setup the ritual for us. Instead of the mother pretending to protect the child but not being able to stop the metaphorical outside world, the player invests themselves into a game. When they experience loss, when they lose their epic empire or character, the player is simulating the same loss that these rituals provided. The things they valued in the world and relied upon are gone and they must find a new outlook to continue on. The ritual’s success is ensured not because of some clever design or by how large the loss is, but rather that the person has already established that this is the thing they care about because of the time devoted to it. What the child treasures before the ritual is abandoned to learn the ways of being an adult. The appeal of the video game is that you’re not actually hurting the person beyond the mental realm.




It’s hard to discuss this topic without sounding malicious so I want to emphasize now that I’m not proposing video games should be seen as some way to destroy a person. If you have an artistic medium where a person is putting themselves into the experience, then the trauma of loss in a video game can hardly be called as cruel as if I was proposing everyone needed something physically done to them. Is the loss of our wife in Jason Rohrer’s Passage incorrect because it is sad? Or is it poignant because in some unique way the loss is real without actually being real?

In many ways all this article is proposing that games can be used for the exact opposite purpose that we’re using them for today. We're talking about a game that isn't just about making you happy or feel a sense of mastery and competence. Expressions of The Warrior or The King tap into our unconscious needs. The way we know this is working is because addiction is already becoming prevalent for people who cannot find these feelings in their day to day lives. A Washington Post article on gaming addiction explains, “Symptoms included spending increasing amounts of time and money on video games to feel the same level of excitement; irritability or restlessness when play is scaled back; escaping problems through play; skipping chores or homework to spend more time at the controller; lying about the length of playing time; and stealing games or money to play more.” For as much as we want to call it escapism and wish-fulfillment, the source of those desires always go back to a person’s own life. A study based on 813 college students found that people who play games heavily often report having unsatisfying social lives. Did their lives turn sour because of the games or did they turn to games because they couldn’t find much satisfaction in the college lifestyle? Jeremy Taylor (one of the dream therapy writers) points out that the chronic sign of emotional repression is a repeating dream. Identifying what kind of experience a game is generating and the possible psychological connections may be a great way to help people start dealing with the issues their excessive use indicates. If the choice of games is indicative of a personal need, how is that not all the diagnosis one needs for how to find a more fulfilling life?



None of this explores the already perceived benefits that people feel from having something in their lives that allows them to act out the archetypal behavior of empowerment. A survey of 1,000 gamers asked each to explain why they like to play video games. The study synopsis explains, “Players reported feeling best when the games produced positive experiences and challenges that connected to what they know in the real world. The research found that games can provide opportunities for achievement, freedom, and even a connection to other players.” The article phrases this with the typical “Why Are Games Hard To Give Up?” slant that is prevalent in a culture that’s afraid of games, but the potential for virtual experiences really can’t be underestimated. Another survey that asked players to explain specific advantages notes, “Among the top skills gamers feel they’ve acquired were improved hand-eye coordination, faster reaction times and reflexes and more interactivity. Other skills cited included patience, understanding, creativity and precision.” The first couple are expected: they’re stuff someone fulfilling a warrior archetypal fantasy would say they’re developing. But patience, understanding, and creativity? These are the things a person who feels like they’re living a balanced and positive lifestyle would claim to feel, not an addict.

Or it might simply be a part of a larger coping mechanism. After finding out his cousin had been critically injured by an IED one blogger talks about playing Call of Duty 4 as a form of catharsis. He wanted to find some way to connect with his cousin. He explains, “COD 4 tapped into our national insecurities, providing gamers a safe way (if only indirectly) to fight back.” Even though he wouldn’t have survived ten minutes in Iraq, the game allowed him to vent his frustration and feel like he was participating in the conflict in a meaningful way. Is it the real thing? No. But it might be good enough for a person who wouldn’t be involved in combat in the first place.

That is how the ideas of Jung on dreams could be applied to video games to make them a vehicle for change in a person.



On another note, sorry if these last two have stuck with strictly male psychology stuff. Since so many games are tapping into male fantasies I decided I might as well stay with what people are familiar with. I’d also imagine a woman would be a better authority on what they’re getting after in games. I do agree with Moore though, it’s pretty obvious that no matter what your gender we’re mostly getting the same things out of games.

And that massive tone shift brings us to an end. This series has been a joy to write and something that I’ve been thinking about for about a year. My Mom is a therapist and one night while I was visiting for dinner we got to talking about the psychology going on in video games. She does a fair amount of marriage counseling and brought up how you turn a lot of it into a video game like Wii Sports. I actually ended up posting it back when Steve Gaynor was doing that Call to Arms Series, if you want to see how the idea works. I was developing the Zarathustran series then and that was what I founded most of the experience ideas on. I tried working out the concept in the final essay and I got close, but I wanted to come back to what I thought games were capable of. I’m going to end with the Joseph Campbell quote I ended that one on almost a year ago. He wrote,

“Art, literature, myth and cult, philosophy, and ascetic disciplines are instruments to help the individual past his limiting horizons into spheres of ever-expanding realization. As he crosses threshold after threshold, conquering dragon after dragon, the stature of the divinity that he summons to his highest wish increases, until it subsumes the cosmos. Finally, the mind breaks the bounding sphere of the cosmos to a realization transcending all experiences of form – all symbolizations, all divinities: a realization of the ineluctable void.”

I’ll be simmering these four down to a nice piece for Popmatters and as always will take the comments into account. Thank you very much for your time.

Tuesday, April 28, 2009

ZA Critique: Gears of War

I know what you're thinking. The other blogs have slowed down or you got lost and you clicked into here, looking for some kind of inspiration. Some sense that yes, my desire to read about video games to this degree will be validating someday.

My friend, that day has come. Because what you need, what the world needs, is another Gears of War post.

A thorough description of the reload mechanism. An engaging look at how the game actually isn't really that sexual with quotes from Vorpal Bunny Ranch. A charming comparison between Homeric epics and the game's motifs thanks to Roger Travis. Yes...it's all right here folks. Just thinking about that game now makes me hear that beautiful ring, that classic sound:

Pew...pew pew pew. Pew pew pew pew pew pew pew.

Thursday, April 23, 2009

Privacy Rights in MMORPGs



Contrary to what it seems like, I do actually deal with legal stuff a fair amount. Last semester I studied copyrights and patents in video games, this semester I took a privacy law class and studied MMORPG's. Riding on the heels of being vindicated about the gaping flaw in video game copyrights and patents in the last paper, I thought I'd post this one too. If you want the complete document with footnotes, just e-mail me.

Before we begin,

I AM NOT A LAWYER. IF YOU HAVE ANY QUESTIONS ABOUT THIS TOPIC, PLEASE CONSULT A LICENSED ATTORNEY. THERE IS A SPECIAL PLACE IN HELL FOR LAW STUDENTS WHO RUN THEIR MOUTHS WITHOUT EXPLAINING THAT AND YOU DON'T EVEN HAVE TO DIE TO GO THERE.

Quick Summary

Presuming you don't feel like digging through a mountain of legal theory, the basic explanation about privacy rights in online games is that you haven't got any privacy. Your friend lists, who you're talking to, when, how long you're playing, what you say, ALL of it is owned by the company.

At the current stage that's not too big a problem. Most companies self-regulate and their in-house lawyers were not born yesterday. The problem is that there isn't anything making them regulate their conduct because they've declared ownership on everything you do in the game. Several companies stipulate that they may sell this data to researchers and several have already done precisely that. The other reason this isn't an issue yet is that most privacy disputes on the internet come from child pornography, which no one is inclined to defend. If someone is fired or gotten in trouble for something they did on the internet, they were probably broadcasting sensitive information in a public forum.

This leads to a lot of legal theory because defining what is private in a court of law is actually pretty hard. The basic formula is to gauge intent and social necessity, which pretty squarely divides people. Almost everyone in an MMORPG intends for their conduct to remain private unless they broadcast otherwise. The companies, on the other hand, need to access your data to gauge the quality of the game and make improvements.

I then outline the basic problem that the whole thing is headed towards and recommend that clear legislation be created to guarantee the privacy of users. I'll repost the last paragraph:

The problems that may potentially occur in virtual worlds is in many ways the stuff of science fiction. A prominent blogger could rise to popularity and influence only to be revealed to be a young child prodigy and immediately dismissed. An online player experimenting with both gender and identity who does not wish for others to know about it may be discovered inadvertently due to disclosed online information. An employee could be fired for things said with every expectation of privacy in a virtual world that are later discovered by the company. These are the hypothetical situations that are crossing over from fiction and into fact. As with all issues of privacy it is simply a matter of expectation and what is reasonable. What is unreasonable, just as it is in the real world, is to declare that we have no expectation of privacy at all in these new virtual worlds.

Introduction

American privacy law has always been rooted in the concept of a person’s expectations versus what is reasonable for society to allow. A person may have every expectation that his mail will not be opened, but if that piece of mail is to be read by multiple people or the recipient hands it over to the authorities, then that expectation has been voided. At some point something becomes private and at some point it ceases to be. The greatest stumbling block for this approach to privacy law has been the internet and all its various forms. Often relying on analogies and archaic legal tests like comparing user information to phone records and ISP’s to phone companies, these methods continue to endanger a new class of information that people regularly exchange with every expectation that it will remain private.

Although many cases have dealt with the rights of both the government and citizens when it comes to online chatting and e-mail, one of the most potentially problematic areas of online interaction are Massively Multiplayer Online Role Playing Games or MMORPG. In these games, users adopt an anonymous persona and role play as a character in a virtual world. Intense rivalries, charged emotional relationships, and even gender experimentation all occur in these settings while the user typically expects his interactions with others as well as his identity to remain private. The potential for discrimination and abuse, should this data be made public, is quite possible depending on the conduct a person engages with in this safe, virtual world. It is important to establish a proper legal approach while ensuring some degree of privacy for users for this growing industry to continue providing a reasonable place for people to enjoy themselves.

There are two specific parallels in American law that are applicable to the legal approaches in MMORPGs. The first is state and federal approaches to warrantless searches of electronic data. The second are the various distinctions courts have tried to draw between the content of electronic data and the labeling and origins of that data. After outlining these parallels, this article will explain the current legal and contractual situation with several popular MMORPGs. Finally, potential solutions and applications to this situation will be discussed in the conclusion.
Case Law

Much of the case law regarding electronic communications and warrant requirements has been created in the past two decades but it principally draws on the ruling in United States v. Miller . In that case, a whiskey bootlegger was arrested and accused of defrauding the government of various taxes. His bank account reports were used extensively as evidence in the case, which were handed over willingly by the bank when requested by federal investigators. The defendant attempted to argue that his Fourth Amendment rights had been violated because the investigators did not have a warrant. The Court explains, “This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed”. The presence of a third party observing and handling the documents, in this case the Bank, made the exchange permissible because the third party willingly handed over the documents. The court uses language from California Bankers Assn. v. Shultz to point out that bank records cannot reasonably be called “intimate areas” of one’s life.

This principle of a third party’s rights with private information was taken into consideration in the criminal prosecution of a pedophile in Commonwealth of Pennsylvania v. Robert D. Proetto . Defendant sent several sexually explicit e-mails along with a picture of himself to a minor. The minor copied these and gave them to the police. Pennsylvania law does not allow a person to “intercept” an electronic communication and disclose this to others, so the Defendant attempted to argue this law had been violated. The court rejects this argument because an e-mail is intrinsically unlike a phone call. The e-mail has been recorded and anyone sending it is aware that the recipient may print or redistribute this data to others. They explain, “By the very act of sending a communication over the Internet, the party expressly consents to the recording of the message.” The case is important because it acknowledges both the lack of protection that is inherent when communicating online and the ability of a third party to obviate whatever protection may possibly exist anyway. The criminal circumstances of this case differ considerably from the civil issues this paper is contemplating; however the blanket declaration that there is no protection for electronic communications will come up in other states and courts.

The Sixth Circuit adopted a similar standing as the Proetto case. A federal task force seized two computer bulletin board systems (BBS) and were sued by the users in Guest v. Leis . Both BBS services contained disclaimers that privacy was not guaranteed in any communications, since a system operator could view even the “private” messages at any time if needed. The chief issue was the numerous users of either BBS who were not engaged in illicit conduct. The courts ruled that the scope of the warrant was not exceeded because innocent data was seized along with the illegal material, particularly when the service was so vast that an extensive search was required to locate the material. The court dismissed allegations of misuse, stating, “Plaintiffs are essentially relying on an assumption that because defendants could have read e-mail, there is evidence that they did read e-mail.” The courts go on to explain that the search method involved the task force using a list of files and users and then combing the system for anything using those labels. Innocent data, unless tagged incorrectly, would not be searched. Since the circumstances required removing the BBS computers the seizure was not unreasonable and probable cause did not have to be found because no search of the non-illegal material took place. In this way, the courts have established that not only is there no expectation of privacy for regular users of electronic systems, but this expectation can be obviated by the problematic nature of electronic data in the first place. The data can simply be seized because there is no other way to find what you are looking for quickly and easily.

The court for the District of Connecticut took a similar stance in Freedman v. America Online, Inc. In that case, an employee of a rival political party sent a threatening e-mail to a candidate running for a local office. The employee claimed that the e-mail was meant to be taken as a joke and argued that both his First and Fourth Amendment rights had been violated when the service provider, America Online, disclosed his private information to the authorities. No warrant was present, they were faxed a copy of the request form only and AOL obliged six days later. The information included Freedman’s name, address, phone numbers, account status, membership information, software information, billing and account information, and his other AOL screen names. The court pointed out that every single case dealing with Fourth Amendment violations and electronic communications has ruled that internet subscribers do not have a reasonable expectation of privacy with respect to their subscriber information. This is reinforced by the Electronic Communications Privacy Act of 1986 which permits Internet Service Providers (ISP) to disclose subscriber information to both third parties and the government. The court outlines the two part test for a Fourth Amendment violation: first is there an expectation of privacy by the individual, and second, is society prepared to recognize this? In summarizing the past arguments of cases like Hambrick or Kennedy the court explains, “the distinction [is] between the content of electronic communications, which is protected, and non-content information, including a subscriber’s screen name and corresponding identity, which is not.” The case is important because it expands on the limitations that the courts applied in Guest concerning what kinds of data third party ISP providers can freely distribute. Although much of users’ actual identity can be disclosed under the common law and ECPA, the actual content of their exchanges must remain private without a warrant.

This protection of content was reinforced in the Sixth Circuit case Warshak v. United States. The facts of the case are unusual, Warshak was the owner of a pharmaceutical company being investigated for mail and wire fraud, money laundering, and related federal offenses. His ISP was ordered by the government to turn over both billing information and content of all of Warshak’s e-mails. Because the government waited a year before reporting the tapping to Warshak, it violated the Stored Communications Act which normally requires notice to be sent within 90 days. This became more problematic because the courts decided the SCA’s lower requirements to gain access to electronic data were essentially a subpoena, which requires notice so that it may be contested if a party chooses to do so. In so ruling the courts quote Miller, “”the party challenging the subpoena has “standing to dispute [its] issuance on Fourth Amendment grounds” if he can “demonstrate that he had a legitimate expectation of privacy attaching to the records obtained.” The courts contrast this expectation to the one used in Miller and in the case Katz v. United States, which argued that a pen register for a telephone call was not the same thing as disclosing the content of the conversation despite the possibility of a third party overhearing the exchange. The courts concluded, “[The government] cannot bootstrap an intermediary’s limited access to one part of the communication (e.g. the phone number) to allow it access to another part (the content of the conversation).” The expectation of privacy concerning content is not waived simply because one is using an ISP. They do note that in the instances where a user explicitly provides that digital content will be monitored it might extinguish a reasonable expectation. Simply being able to access the files in limited circumstances is not enough justification. The SCA also encourages this approach, such as section 2701 prohibiting unauthorized access to e-mail accounts and 2702 requiring ISPs to acquire user permission before disclosing digital content. However, the court does admit that if a waiver of privacy can be proven, then disclosure through notice to the ISP would be permissible.

The struggle for modern courts, upon establishing a distinction in electronic data between user information (which can be distributed how the third party sees fit) and content (which is protected), is identifying the sheer volume and types of content on the internet. Content in this essay refers to any communication or exchange with a person. Using the definition outlined in Katz, user information would be the equivalent of the telephone number while content would be the actual conversation itself. The following cases will outline a brief history of the content definitions used by various courts.

The distinction between content and data for the courts, as in the Miller case, revolves around the courts grappling with companies that owned personal information attempting to sell private content as well. An attempt at a class action law suit in Ohio serves as a prime example in the Eighth Appellate District case Shibley v. Time, Inc. The magazine was selling the personal information of their subscribers. Not only were their addresses being distributed, but profiles based on what magazines they were already receiving were compiled to identify what ads should be sent to what houses. The Ohio definition of an invasion of privacy constitutes exploitation of one’s personality that the public has no interest in such a manner as to cause humiliation to an ordinary person. The courts ruled that the right to privacy does not extend to one’s mailbox and that none of the typical conceptions of false advertising or endorsement were occurring here. What’s curious about the case is that the plaintiff’s claimed that the information the magazine was selling was a “personality profile” of their consuming habits. The courts decided this would cross into creating new law and recommended the plaintiffs take it up with the legislature.

This concept of a “personality profile” was addressed twenty years later in the Illinois case Dwyer v. American Express Company. Not only were addresses being sold, but consumer habits such as what goods were being purchased by whom were rented out as well. As in Shibley, the court draws a distinction between selling content and personal information by arguing that so long as the content remains anonymous it is not violating privacy law. They argue, “They are not disclosing financial information about particular cardholders. These lists are being used solely for the purpose of determining what type of advertising should be sent to whom.” The individual names are of no interest to merchants and there was no tortuous intent present. The courts did conclude that the company’s failure to disclose precisely what they were going to do with the information constituted a misrepresentation. However, because there were no damages from the disclosure and mental anguish was hardly induced by the conduct, the case was dismissed.

When applying these concepts to electronic data, a case in the military began to impose limits on the access to content an investigation could seize without a warrant. In the case United States v. Maxwell a soldier was convicted of transporting obscene materials and child pornography. The obscene materials charge was problematic because these involved seizing e-mails that went outside the scope of the warrant. The ISP was America On-Line (AOL), whose employees do not read or monitor e-mail on the service, but gave the information away when asked by the F.B.I. The e-mails in question were between another officer discussing sexual orientation and preferences. The court argues that e-mails are analogous to telephone calls, so that like Katz their content is protected. The expectation of privacy also comes from the fact that AOL guarantees privacy by storing all e-mails on a private server. Although communicating in a chatroom or posting on a bulletin board would void this expectation, the mere possibility that it might be forwarded or hacked into does not void the expectation of privacy. This is the opposite standard adopted in Proetto, which declared that e-mails were more similar to leaving a message on an answering machine. Since the message could be heard by anyone after it was left, e-mails equally did not create an expectation of privacy. Both cases involve child pornography, but the military court is imposing limits on the government’s right to seize and charge for unrelated content discovered.

The Fourth Circuit was forced to address this issue when yet another invalid subpoena was used to seize personal information from an ISP. United States v. Hambrick is another pedophile case but in this instance it is distinct because the courts acknowledge that a person might have an expectation of privacy in the content. They explain, “While under certain circumstances, a person may have an expectation of privacy in content information, a person does not have an interest in the account information given to the ISP in order to establish the e-mail account, which is non-content information.” Relying on both Katz and Miller, the court dismissed the appeal because only the defendant’s personal data was disclosed. The content information was never used by the government in the case and thus suppression was denied.

Finally, in a case decided in January of 2007, the Court of Appeals in United States v. Ziegler acknowledged that in the event that the third party owns the computer or employs the plaintiff the content can be given over without a warrant. The court outlined that the expectation of privacy must be both subjective and objective, personal and one that society is willing to acknowledge. Interestingly, the court acknowledges that having a password on the computer is enough to establish a subjective belief in privacy. This goes against earlier reasoning of no expectation of privacy for content by establishing some standard for showing intent to keep something private. The situation does not meet the objective standard however. The court explains, “the government…may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Authority or some relationship with the premises gave the third party the right to distribute content without a warrant.

In conclusion, case law shows a common trend in both federal and common law that the internet does not allow privacy for one’s personal information such as addresses, phone numbers, or even spending habits. However, content information such as private e-mails do merit some form of protection. This standard has developed in both civil and criminal suits.

MMORPG’s and Potential Privacy Violations

One of the advents of broadband internet connections has been the growing popularity of massive virtual worlds. These services have existed since the late eighties in the form of text-based interactions but the increased connection speeds have allowed for their interfaces and graphics to be more accessible to a wider audience. The games typically require the users to provide their real names, credit card information, and subsequent billing data. They are then allowed to create an anonymous identity that has a name, visual representation, and can accumulate virtual items while interacting with other players. The most popular of these games has an estimated 11 million users and is played throughout the world.

The problem with these services is that they typically provide almost no privacy guarantees for player content. In February of 2009 Sony Entertainment arranged a deal with several research groups to give the entire accumulated content of a no longer active MMORPG, Everquest, for research in a wide range of fields. Much of the data was utilized by Sony to study how players group together, distribute items, or play in the game. Several psychological and sociological studies were also conducted on the content. The Privacy Policy of Sony states, “when you communicate within any game or any other communication feature within The Station (e.g. live chat, instant message services and the like), even "privately" to another person, you do so with the understanding that those communications go through our servers, can be monitored by us, you have no expectation of privacy in any of those communications and, accordingly, you expressly consent to monitoring of communications (including technical support and customer service communications) that you send and receive.” They further qualify that they will not distribute personal information such as e-mail or a billing address without consent. The content of the MMORPG, however, may be used for anything and makes no mention of requiring consent.

World of Warcraft follows a similar pattern but instead claims that they themselves own all of the user content being generated. Their Terms of Use outlines that the player never actually owns the game or anything they create or accumulate within it. They are instead licensing the product in an arrangement that can be terminated at their discretion. Specifically, “Blizzard may, with or without notice to you, disclose your Internet Protocol (IP) address(es), personal information, Chat logs, and other information about you and your activities: (a) in response to a request by law enforcement, a court order or other legal process; or (b) if Blizzard believes that doing so may protect your safety or the safety of others.” Both the chat logs and “other information about you and your activities” constitutes what would be the actual player’s content. Like an e-mail, a chat log is the means of communication for a player by typing in what they want to say to other players.

The activities aspect would be a novel definition of content in the legal sense but it is functionally similar to the definition of content in that what you are doing in the game is still a form of communication. Just as conduct such as bartering, fighting, or exchanging goods could considered the activities one would do in an e-mail, so too are they a form of content in this instance. The following section of the User Agreement further modifies this right to player content by adding, “BLIZZARD MAY MONITOR, RECORD, REVIEW, MODIFY AND/OR DISCLOSE YOUR CHAT SESSIONS, WHETHER VOICE OR TEXT, WITHOUT NOTICE TO YOU, AND YOU HEREBY CONSENT TO SUCH MONITORING, RECORDING, REVIEW, MODIFICATION AND/OR DISCLOSURE.”

Although the disclaimer that they can reveal all player content at will without notice is somewhat troubling given the growing case law arguing for an inherent right to protection, Blizzard is equally careful to ensure they are not liable for any damages these disclosures may cause. The EULA states, ““IN NO EVENT WILL BLIZZARD BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES.” Given the potential damages that disclosing private content could have on a player, both the Terms of Use and EULA give Blizzard open discretion to do as Sony has done with Everquest and disclose or sell this information with no consequences to themselves.

Other MMORPG’s are slightly more conservative in the right to player content. Another game, Lord of the Rings Online, still declares ownership of all player content but have also created an active privacy policy. Should a user broadcast information in a public manner then that is susceptible to disclosure but otherwise the content will not be traceable back to the user. They are clear that such content will in no way be traceable back to the user in either its aggregate or individual form. What is problematic is that these protections are in no way guaranteed should the company running the game be sold or disbanded. Their privacy policy states, “In the event of a merger or consolidation of Turbine, or the sale of all or substantially all of its stock or assets, or the transfer of the operation and distribution of certain products or services to a third-party, or bankruptcy of Turbine, your personally identifiable information may be transferred to Turbine's successor or assign resulting from such events.” As Sony has done with their defunct game’s data, Turbine may also consider doing in the coming years.

Turbine’s privacy policy is interesting when compared to Blizzard’s because they make a distinction between private and public content in their game. In the average MMORPG it is possible to engage in a private conversation with another player that people around them cannot hear. They can also broadcast information to large groups around them and even to every player in the game via a global chat system. Turbine declares these large broadcasts can be disclosed at will while they will not disclose the private communications in a way that can ever be traced back to the user.

The possibility of identifying a player from disclosed content such as Turbine’s proposed method or Blizzard’s blanket declaration is not improbable. Players in MMORPG’s must often join organized groups that work together otherwise known as guilds. Although the template for creating one’s appearance in these games is limited and thus repeats, the outward appearance changes based on what equipment the player is wearing in the game. Many of these items are statistically rare to come by and are often worn along with other statistically rare items. This creates the possibility that a person observing a published picture or reading a disclosed conversation, even when the user name is masked, could potentially identify the user based on the rareness of the items in their appearance. Factors such as who they are with, where they are in the game, or what they are doing would also make them recognizable. Other telltale signs may simply be the wealth they have accumulated, the resources they have invested in, or the other players they have fought in the game. Disclosing this kind of content is in many ways analogous to publishing a photograph of a random person for mass publication. The majority of the population will be unaware of the identity of the user, but their close friends within the game may recognize who they are.

What potential damage could erupt from such a disclosure and recognition? Joseph Blocher argues that reputation itself can be considered a form of property. He explains, “What that economy demonstrates, especially in its virtual form, is that reputation itself—social status and the respect of others—can usefully be understood as a form of property. Strands of this theory appear in law and scholarship, but they have not been tied together in a way that shows that reputation can be property-like even without demonstrating economic value.” In a virtual world, one’s reputation is the only thing that makes it possible to stand out amongst a large group of similar characters. If this were not the case, why do most MMORPG’s and Online services not allow two players to have the same name? A virtual reputation, despite its artificial nature, takes time to accumulate and is actively relied upon by a player. They may be the leader of a guild, be allowed access to rare portions of the virtual world, or simply enjoy a close association with likeminded people. By disclosing their private content and having it recognized by their fellow players, that reputation can potentially be damaged. An insult that was only sent privately to another player may be discovered and dissolve a guild. A disruptive act that went unpunished may be discovered and cause the player to lose clout.

Obviously this would probably not pass as damage in a court in the real world but the psychological problems that it can cause most certainly can. One of the fastest growing areas of therapy is learning how to treat traumatic events or losses that occur in virtual worlds. Jerald Block is one of the first clinical psychologists to begin actively treating pain and loss that occurs in a virtual context. The biggest problems for these players is even finding validation for the losses that occur in this realm. There is often a great deal of shame to admitting they care about what has happened in this virtual world despite the fact that they invested years of their lives into it. Block humorously notes that people who are addicted to internet pornography suffer less shame than the average player who needs therapy. He explains one particular case about an Eve Online player, “He was one of the most powerful characters in the universe of this game. He had played for years and accumulated great wealth; he would have been worth about $17,000 if he sold his character and all his virtual assets on eBay. Well, within the game someone took out a contract on his life. And in the span of one night, this guy lost thousands of dollars, lost his alter ego, and was betrayed by everyone he knew in this world.” Even though none of this actually happened and he does not own the assets despite their black market value, the mental loss is still very real psychologically. At the very least, the insurance industry is going to start taking notice when they want to know who is responsible for their clients requesting therapy coverage.

The particular discussed event does not necessarily relate to a privacy violation, but the potential discovery of which anonymous player betrayed the organization could have repercussions. When several players of an MMORPG were elected to represent the various factions and attend a meeting with the creators of the game, it was discovered that several of the characters who were women were played by men. Many players engage in transgender conduct and even develop relationships without ever telling the player of their true identity. A transgender player, after trying to form a guild based around this, had the guild dissolved and banned when the content was discovered by the company. What would happen if a guild, titled something innocuous, still revolved around transgender players? The loss of prestige would not even be the biggest problem, these groups would be subject to harassment and cruel treatment in the virtual world. Equally possible is that the player has disclosed their true identity to the group so that it may even have repercussions in the real world. With the number of firings based on information found on Facebook growing, the potential experimental conduct in games inducing prejudice and problems in the work place and private life are also possible. Several divorces have occurred due to a spouse discovering their partner was having a purely virtual relationship with someone else. What if they discovered this because a company disclosed private content?

Conclusion

There are several laws that apply to different industries that could be fruitful for protecting the privacy consumers. The Cable Communications Policy Act prohibits a cable television company from using the cable system to collect personal data without prior consent and bars them from disclosing such data. It authorizes punitive, costs, and attorney’s fees against cable television companies that violate the act. Since these online games are more analogous to television as sources of entertainment than a communication service like AOL, it would make more sense to apply such rigid restrictions since there isn’t really a reason to allow these companies such wide access to user content.

Another analogous law would be the Customer Proprietary Network Information Act which applies to telegraphs, telephones, and other radio communications. The general prompt explains that every telecommunication carrier has a duty to protect the proprietary information of customers. The law expressly forbids releasing individual customer’s data while still allowing them to use aggregate data for limited purposes so long as it is not prejudicial to other carriers.

At the core of the problem with MMORPG’s is that there are no laws of any kind regulating their conduct. They are not exactly ISPs, cable systems, or telecommunication services. Nor does the consumer technically own the software or what they are producing, since most companies label the user as a licensee. The Electronic Communications Privacy Act does not apply to these groups because the person accessing the content must not have authorization, which doesn’t help since the company can obviously authorize itself to access whatever it pleases.

In order to remedy this situation three specific areas need to be clearly addressed by the legislature in order to ease the court’s burden of interpreting this new data. First, clear laws at both the state and Federal level must be established that define the difference between content and user data. Greater protection must be placed on content and it should require a warrant in order to be seized. Second, online games must be required to clearly inform their players about what is considered content and what is user data. It cannot be tucked away in a EULA or Terms of Service that people read, but should be explained throughout the game through warning messages or carefully explained during the game’s introduction. Third, control over this content must be guaranteed. Companies who are sold en masse must stipulate that the contract with the user cannot change without their consent. So if Turbine were to be sold, the users must have the right to destroy content should they not agree to the new Terms of Service.

The problems that may potentially occur in virtual worlds is in many ways the stuff of science fiction. A prominent blogger could rise to popularity and influence only to be revealed to be a young child prodigy and immediately dismissed. An online player experimenting with both gender and identity who does not wish for others to know about it may be discovered inadvertently due to disclosed online information. An employee could be fired for things said with every expectation of privacy in a virtual world that are later discovered by the company. These are the hypothetical situations that are crossing over from fiction and into fact. As with all issues of privacy it is simply a matter of expectation and what is reasonable. What is unreasonable, just as it is in the real world, is to declare that we have no expectation of privacy at all in these new virtual worlds.

Tuesday, April 21, 2009

Patenting Lawsuit Theory


I was flipping back through my paper on video game copyright issues because of the post for BPM this week when, right on time, this little gem of news came from Gamasutra.

In brief chunks:

As the judge pointed out, this actually would be a good idea for Activision too, since DJ Hero is in development - he noted: "If you [Activision] get tainted, then your game gets tainted, and then they [Genius] wind up owning both games."

From there, it was into a complex discussion of what needed to be returned and the circumstances under which the 'return' clause was invoked.


and

From there, with the judge having decided that the 'source code' did indeed need to be given back to Genius and Numark, a key issue was discussed - what constitutes source code? Does 7 Studios have to give out developer's tools as well?

According to one of the lawyers, the engine used for the project is: '7 Core - including pre-existing and future iterations in a multi-platform 3D Game engine.' It includes the potential use of third-party tools such as Havok Physics, FMod, Lua, and ShaderFX. Likely even more vital to complete the game are a number of proprietary tools used the generate or convert the game's assets.


That is 6 million dollars worth of development and it just got handed over based on a ruling by a judge whose never played a video game in his life relying on a patent system that barely protects anything about a video game.

Methinks the legal world of video games is about to become a very, very hectic place.

2009 GDX

I went down to SCAD and GDX for a lot of reasons last week. Needed a change of scenery, saw some people I wanted to meet, but I also found myself sorely in need of a reality check. Between work and most people I know in RL not playing many video games, it’s easy to enter into murky mental territory. Samuel Johnson’s joke about the weatherman thinking he’s controlling the weather often comes to mind because reality checks can be few and far between with this hobby. Perspective is an easy thing to lose.

There’s an easy little test to know when this is happening. Ask yourself what you think would happen if everyone started to think like you do. Do you think that a) chaos and destruction would consume the Earth, b) a new era of peace and love would descend on humanity, or c) we’d revert back to tribalism?

If you ever even remotely consider b) as an answer, you’ve lost your mind.

Thursday, April 16, 2009

GDX & Other Stuff

All that GDC envy has finally gotten to me and I'm heading down to GDX in Savannah today. I'll try to check my e-mail at some point during the day if you want to grab a brew but this is a very limited venture, I have to get back to studying.

Yet another controversy has descended on the gaming world in the form of Six Days in Fallujah. I'm getting into the habit of just watching the arguments unfold for a few days and then poking at both sides, which seems to go over well with people.

Like most debating based on previews, it is best to just wait and see.

Tuesday, April 14, 2009

Short Games

I wish I could think up something more clever for this new wave of games coming out on the internet besides “Short Games”. It gets the point across and most people will recognize the reference, but someone will probably think up something better 20 years from now when we’re all playing something else.

Given how few games there are to work with in this genre, the post is a bit garbled but I think the main point gets across. When you shorten a game, you make it so the player has invested less time and thus does not feel as violated when you screw with their sense of progress. So despite their name, the actual defining element of these titles, to me, is that they are all poking around with the notion of progress. G. Christopher Williams pointed out in my Eternal Darkness write-up that one of the scariest parts of the game is when it threatens to delete your save files. Which became the source of both a tacky joke but also the founding principle for how I explain these games: the player’s progress in the game is the one thing they are enslaved to. They may not care about Alyx Vance, they may skip your cutscenes, but threaten to take away their best items or confine them to an unpleasant decision and suddenly they’re wide awake. The problem with these threats is that they are mostly empty thanks to save files, ergo the terror Eternal Darkness invokes.

Most of the initial pokes at this relationship by these games is to either exaggerate the amount of progress required (You Have to Burn The Rope) or leave chunks of it out (Gravity Bone). Progress, in this particular instance, being defined as the options/choices the player is offered to make and convincing them that there will be more. Then it’s time to give The Graveyard a dance for old time’s sake because they gave a swing at this concept and did something serious with it. Jury still out on other things about the game, but they certainly experimented with lack of options.

I don’t know how much mileage the whole aesthetic can produce in the end. Eventually someone is just going to have a game where, after spending hours clawing you way to the last level, the game asks you if you truly believe you are the best. If you have faith that you are the chosen one. If you say “Yes”, it deletes all your save files and sends you through the last level. Which will be hard.

S***, could you do it?