VOLUME 166, ISSUE 5 April 2018

Virtual Reality (VR) and Augmented Reality (AR) are going to be big—not just for gaming but for work, for social life, and for evaluating and buying real‐world products. Like many big technological advances, they will in some ways challenge legal doctrine. In this Article, we will speculate about some of these upcoming challenges, asking:

(1) How might the law treat “street crimes” in VR and AR—behavior such as disturbing the peace, indecent exposure, deliberately harmful visuals (such as strobe lighting used to provoke seizures in people with epilepsy), and “virtual groping”? Two key aspects of this, we will argue, are the Bangladesh problem (which will make criminal law very hard to practically enforce) and technologically enabled self‐help (which will offer an attractive alternative protection to users, but also a further excuse for real‐world police departments not to get involved).

(2) How might the law handle tort lawsuits, by users against users, users against VR and AR environment operators, outsiders (such as copyright owners whose works are being copied by users) against users, and outsiders against the environment operators?

(3) How might the law treat users’ alteration of other users’ avatars, or creation of their own avatars that borrow someone else’s name and likeness?

(4) How might privacy law deal with the likely pervasive storage of all the sensory information that VR and AR systems present to their users, and that they gather from the users in the course of presenting it?

(5) How might these analyses reflect on broader debates even outside VR and AR, especially order without law and the speech–conduct distinction?

Many patents cover inventions that do not work as described. Fingers often point to the U.S. Patent and Trademark Office (Patent Office), which is criticized for doing a poor job of examining patents. But the story is more complicated for at least three reasons. First, the Patent Office is at a clear disadvantage from an information standpoint. Inventors have little incentive to disclose failure because it might compromise patentability. Second, an inventor is not required to actually make everything that is claimed (or verify that everything that is claimed actually works) before filing a patent application. Third, inventors have an incentive to file patent applications early in the inventive process. Often, filing occurs during the initial stages of research and development, before much experimentation has been done and when the level of uncertainty is high. Together, these factors set the stage for an issued patent covering subject matter that does not work as described.

Of course, inventors continue to experiment during the years of patent examination. This additional experimentation inevitably reveals more information about the invention than the inventor knew at the time of filing, including if any of the claimed subject matter fails to work as described in the patent application. This raises an important issue that has been overlooked by both courts and scholars: When post‐filing experimentation reveals that some of the claimed subject matter does not work, is there a duty to act? This Article argues when failure comes to light the inventor has a legal obligation to, at a minimum, amend the claims. It then explains how to encourage inventors to disclose details about the failure in the patent record. This additional disclosure would have several upsides for the inventor: it would improve patent (examination) quality, enrich the public storehouse of technical knowledge, and promote the broader goals of the patent system.

The Fourth Amendment is generally seen as a procedural provision blind to a defendant’s conduct in a given case, distinguished on that very ground from the Supreme Court’s frequently moralistic assessment of conduct in its due process privacy caselaw. Yet ever since the Court recentered Fourth Amendment protections around an individual’s reasonable expectations of privacy, it has consistently tied those protections to the nature and, specifically, the social value of the activities involved. As in its substantive due process cases, the Court frequently allots Fourth Amendment privacy interests based on its moral evaluation of private acts, privileging conventional social goods like domesticity, romantic relations, and meaningful emotional bonds. And in some cases—most notably those involving aerial surveillance, home visitors, and drug testing—the Court has adopted an expressly retrospective analysis, tying Fourth Amendment rights to a defendant’s actual conduct at the time of a search.

This unrecognized strain of moralism in the Fourth Amendment is a troubling development, unmoored from the Amendment’s text, hostile to its well‐documented history, and obstructive of its practical operation in regulating police abuses. Not least, that moralistic approach upends prevailing understandings of privacy, as a refuge from the pressures and expectations of society. Especially in the electronic age, as digital technologies vastly expand the police’s ability to parse categories of private data, the Court must cabin its moralistic turn, restoring a richer view of Fourth Amendment values as encompassing individualistic and unorthodox pursuits. This Article identifies two immediate steps for moving forward: renouncing the Court’s privileging of “intimate” over impersonal conduct and reconsidering the controversial binary‐search doctrine gleaned from the Court’s drug‐testing cases. More fundamentally, it joins an ongoing debate about the adequacy of the Court’s privacy‐based Fourth Amendment framework, suggesting both the importance and the difficulty of restoring a Fourth Amendment attuned to liberal values of individualism and moral autonomy.

Finally, this Article addresses what the surprising rise of Fourth Amendment moralism suggests about constitutional privacy rights more broadly. Belying the value of privacy as a sanctuary from social judgment, the Court’s persistently moralistic jurisprudence challenges the extent to which our Constitution has ever protected, and perhaps can ever protect, a robust right of “privacy” as such.