Can you be arrested for "online" theft or murder?

Davey Winder | Apr 29, 2008 4:48 PM

Can 'crimes' committed online, such as theft or murder, get you in trouble with the police? Davey Winder investigates.

Like millions of others, I spent much of 2007 within the virtual worlds of Second Life, There.com and World of Warcraft. For most, time spent in these online arenas is pure escapism; for others these fantasy worlds are serious business: avatars are more than cartoons, they’re entrepreneurs and celebrities within their worlds. Real-world issues such as crime, taxation, copyright, property law and sexual abuse have all become hot issues.

There’s a growing body of evidence to suggest that the real-world consequences of our behaviour within virtual worlds is starting to bite. My involvement in these environments was part pleasure, part professional research, and I was exposed to some of the unexpected risks you face while indulging in what you might think is harmless identity play. The virtual universe is a great playground and a fertile place to do business, but you need to know your virtual rights to survive the legal pitfalls that litter this still-evolving environment.

The virtual blue line

Although data is not available for Australia, internet identity specialist Garlik called on some of the leading criminologists in the UK to paint a picture of the online crime landscape toward the end of last year. The resulting report concluded that 3.2 million cybercrimes were committed in a single year. While the report also revealed that 92,000 of these crimes related to identity theft, it admitted the actual figure could be much greater, as it’s generally accepted that 90% of cybercrimes go unreported. People are often unsure if an online crime has actually broken the law and are equally uncertain if the police would be able (or even willing) to act.

The in-world newspaper, Second Life Herald, exposed the ageplay problem at the start of last year.

The boundaries become even more blurred when you move criminality into the strictly virtual world. Can you be prosecuted for acts of vandalism to property that exists only within a fantasy world contained on a server? What about 'pretend’ paedophilia, where adults indulging in ‘ageplay’ act out sexual encounters between adult and child avatars? Moral boundaries will have been crossed, but what of the legal ones? Can an avatar rape or murder another avatar in any real sense, and are there real-world legal consequences? Or is the only recourse available that which is decided by the Game Gods, the developers, creators and owners of these online worlds?

World of Warcraft dominates immersive online gaming, but not all encounters are harmless dragon-bashing fun.

Massively Multiplayer Online Role Playing Games (MMORPGs) such as World of Warcraft (WoW) are built around the notion of fighting and trading your way within a virtual world. With more than eight million players, WoW is the most popular online game of its ilk, merging traditional online gameplay with ongoing social interaction within an immersive 3D environment. The ability to explore this vista is one of the many attractions, yet there are parts of the map that are regarded as off-limits to all but the most foolhardy or ignorant. In these wastelands, highly organised murder gangs exist purely to ambush and “kill” those who stumble within, looting their characters of virtual belongings, which can be traded for in-game gold. This gold can later be traded on black-market exchanges for money, yet no real-world crime has been committed. Chinese online role player, Qiu Chengwei, discovered the police can’t investigate the virtual theft of an object that doesn’t exist outside a computer game when his sword worth 7200 Yuan (around $1500) was stolen. He took the law into his own hands by tracking down the thief and killing him in real life.

Virtual sex crime

Certain legal boundaries are more clearly defined even within the virtual realm. Take computer-generated imagery that depicts children involved in sexual activity, something that’s illegal in Australia. However, following a Supreme Court ruling in 2002 that said no real children are harmed by the making of such virtual pornography, these images remain within the law in the US.

Some mistakenly think this provides a defence where the virtual world is hosted on US-based servers, but if you view such images your web browser has to ‘download’ them onto your computer, which is based in Australia, and you’re then at the mercy of Australian law. Under Schedule 5 of the Broadcasting Services Act 1992, an offensive depiction of a person who is or appears to be a child under 18 is considered to be child pornography even if they are not engaged in sexual activity, and it is an offence to view such depictions. Given that the the applicable laws cover computer game classification, such that anything that would be rated RC (refused Classification) would be considered offensive, images made by computer graphics and avatars fall into murky territory. The test of where to draw the line for offensive depictions must surely come soon with the growing interest in virtual sexual perversion.

German law-enforcement agencies have already investigated acts of simulated sex between adult and child avatars within Second Life, although no arrests have been made. A German TV station claimed to have downloaded real child porn images from within Second Life, which the authorities are also investigating. Belgian police have gone so far as having detectives from the Federal Computer Crime Unit patrol the virtual environment to interview potential witnesses following an allegation of avatar rape.

Even in the unlikely event that the police catch the perpetrators, surely the real question is can an avatar be raped at all? To perform a sexual act in Second Life, for example, both avatars have to consent to the animation being activated, that even includes the ‘rape kit’ animations you can purchase as avatar add-ons. Indeed, does a virtual representation of an individual within a virtual world have any legal rights? Vincent Scheurer, a qualified barrister renowned for his legal work within the computer games industry, claims “the law of the land will apply to the real world only, not the virtual world.” Scheurer goes on to explain that he can’t see how rape could apply to avatars as they aren’t human beings. However, “a simulated rape of an avatar may,” depending on the detail, “constitute an obscene publication in the real world,” which could be illegal, depending upon jurisdiction.

Courts have enough trouble agreeing on jurisdiction in the real world, let alone throwing international servers and domains into the works. Take the example of someone living in Australia who publishes something that’s illegal in Canada on a website hosted in Singapore; does that person have to answer for breaking a law in another country when breaking none in their own? The short answer is no, unless the crime committed was extraditable and an extradition treaty exists between the countries concerned. Even then, the law as it stands doesn’t allow for a virtual extradition treaty. If the crime was a fraud or hacking offence online, extradition may apply to any country whose citizens were affected by it, but not for a ‘crime’ contained within a virtual world that only affects a virtual, and therefore borderless, population.

Clicks and mortar crime

You might think, considering the hundreds of dollars and countless hours spent developing property within a virtual world, that this investment would be protected under the law. Think again. Your hard-earned and fully paid-for property can be deleted without either warning or compensation from the Game Gods, or anyone else for that matter. Online casinos in Second Life discovered this last year when, following an FBI investigation into whether strict gaming laws were being broken (online gambling is illegal in the US), Second Life decided to ban gambling in its virtual world, even when operators and players are both based outside of the US. The owners of highly profitable virtual casinos found their property had been literally wiped off the map overnight.

Linden Lab, which operates Second Life, stated quite clearly at the time that “there will be no reimbursement if Linden Lab removes objects or activities that violate this policy.” For the people who had invested heavily in building these virtual businesses with a real-world profit margin, the loss was instant and not subject to appeal, online or off. Second Life, in the eyes of the law, is just a game and its players are subject to the terms and conditions they agreed to. To all intents and purposes, Linden Lab is judge, jury and virtual executioner. The worrying thing for Second Lifers is that it makes the law as well.

So where does this leave the likes of Ailin Graef, the Chinese-born German citizen who, as the Anshe Chung avatar, became the first person to make a real million-dollar profit out of a purely virtual business within Second Life? Yes, you did read that right, $1 million of real money. She did this in two years by buying “land” on the Second Life map and building a huge property portfolio of houses, flats, shops and even entire shopping malls, which are rented out to other in-world citizens. Her initial investment was just $10.

Although frowned upon, finding World of Warcraft gold for sale online isn’t difficult.

The Second Life economy operates using an in-house currency known as Linden Dollars, which you buy with real money. There’s also a currency exchange mechanism to turn your virtual cash into real money. On an average day, $1 to $2 million of real cash is spent within Second Life. Graef could lose everything in the virtual world at the whim of the Game Gods – a big risk for an entrepreneur with real offices in China and a staff of more than 60 developers.

Gold farming, copyright and taxation

Graef isn’t the only entrepreneur to cross over from the virtual into the real business world, but some of the others are shady to say the least. According to documentary footage online, an estimated half a million Chinese citizens are now earning around $120 per month by playing WoW and similar games for up to 12 hours a day in sweat-shop conditions. The phenomena, known as gold farming, uses this cheap labour to earn the in-game ‘gold’ currency by completing tasks, fighting others and playing the game more intensively than most of us have the time to do. The owners of the gold farms then sell this to the money-rich, time-poor players looking for the rapid route to gaming glory.

World of Warcraft weapons command a high price in the real world.

Although such enterprises are scorned by honest gamers and those who despise the exploitation of cheap labour, no laws are being broken. At worst, those involved at either end of the transaction are in breach of the game terms and conditions, which isn't a hanging offence. Nor is stealing a sword from another player within WoW – indeed, some might well argue it’s all part of the game. It certainly isn’t theft, which requires the physical removal of an object, although hacking offences could be on the table if an account were manipulated to acquire the weapon. Scheurer argues that in certain circumstances, a quasi-theft offence, such as obtaining a pecuniary advantage by deception, might apply where an item has a real-world value and has been obtained dishonestly.

At the end of 2006, Linden Lab responded with a ban to complaints from its members after an avatar called Prim Revolution started selling a program called CopyBot, which enabled anyone to copy an object in the game without paying the purchase price. It’s all well and good the Second Life terms of service stating that “You retain copyright and other IP rights with respect to content you create in Second Life,” but if your property is so vulnerable to theft from clever coders, one has to ask why anyone would bother building a business selling it? However, because the creator ‘owns’ the IP for the property, an explicit right of ownership granted by Linden Lab, the fact that it’s a virtual object of use only to avatars in a virtual world should be of little legal consequence.

Where the boundaries between virtual and real world are most definitely not blurred is when the Australia Taxation Office gets involved. If you’re selling virtual property within a virtual world and making a virtual profit, all kept entirely within the realm of that world, there’s nothing to declare as far as the ATO is concerned. As soon as any virtual profit is exchanged for actual money, however, everything changes. Alistair Kelman was one of the early generation of computer lawyers, defending the first people charged with hacking offences in the UK, a case that led directly to the introduction of the Computer Misuse Act. These days, Kelman is head of content at the Epoq Group producing legal technology products for high-street banks. “I am told the Second Life economy is growing by 10 to 15% a month. The taxman is going to take a piece of that,” he says. “If you buy or sell virtual property using real money you generate income.”

If you make any real money online, it must be declared like any other income stream, although there’s no evidence to suggest tax inspectors disguised as Orcs are roaming the WoW or Second Life maps just yet. However, with growing concern over money laundering to aid international terrorism, the virtual black market that such systems can represent won’t escape both attention and legislation for long.

I am the law

Most people appreciate the legal dangers of defaming someone in an online forum, and the same goes when it comes to copyright law online, obscenity and sexual harassment. Yet hardly anyone can grasp the need to apply the law of the land within the virtual realm. At the moment, we’re only just beginning to understand the need to protect our virtual assets, including our identities.

Law firms are opening offices within virtual worlds, but can real laws protect virtual citizens?

Some argue that the mere fact Second Life and WoW have grown to the size they have, with few legal scrapes, proves that self-regulation and policing work fine. Others have compared it to the evolution of mercantile law in Venice during the Renaissance where commercial practice eventually became law. The danger, of course, is that as governments and the corporate world recognise the commercial value of virtual life, there will be a rush to legislate to protect a potentially lucrative revenue stream.

Although gambling was banned by Linden Lab, gaming rooms remain easy to find

However, as Kelman warns, make the laws too quickly and “they will not correctly map the virtual reality.” The corporate world is perhaps not best placed to be drafting legislation that will govern acceptable behaviour within what are largely socially interactive domains. But when the likes of Coca-Cola, Dell, IBM and Reebok all have a Second Life presence, when MTV has created an entire virtual platform based on There.com technology, when US presidential candidates use virtual worlds as a campaign platform, there’s a certain air of inevitability that something will be done.

Law firms are already springing up within these environments, bringing their flashy offices into the virtual realm to provide a meeting space where avatar lawyers offer advice to citizens and businesses alike. But the irony of the situation shouldn’t be lost: until nation states can agree on what constitutes an online crime in the real world, the pretence of imposing any kind of meaningful law within the virtual world is the biggest bit of role-playing fantasy of all.

This article appeared in the May, 2008 issue of PC Authority.