How Will the Metaverse Be Public? A Perspective from U.S. Digital Law

Abstract

As our collective online experience becomes increasingly immersive and persistent, adopting widespread use of technologies such as augmented and virtual reality, this new “metaverse” (or these new “metaverses”) will force a further reckoning of when online spaces are “public”—both as a practical and a legal matter. A working definition of a metaverse probably includes at a minimum immersiveness, that users feel fully a part of (or surrounded by or embedded in) a virtual space, and persistence, that the virtual space continues even when particular users are not present. Some commenters add the requirement of interoperability and others add different kinds of interactivity. See, e.g., Ling Zhu, The Metaverse: Concepts and Issues for Congress, CRS Report R47224 (Aug. 26, 2022); Jon M. Garon, Legal Implications of a Ubiquitous Metaverse and a Web3 Future, 106 Marq. L. Rev. 163 (2022); Michael Zyda, Let’s Rename Everything “the Metaverse!,” IEEE Computer, March 11, 2022, at 124; Markus Weinberger, What Is Metaverse?—A Definition Based on Qualitative Meta-Synthesis, 14 Future Internet 310 (2022). Markets and governments will, over time, evolve fitfully as always, as will the social understanding. For now, immersiveness and persistence seem adequate. As they have with previous internet platforms, businesses and other private metaverse creators will choose degrees of openness based on economics, brand reputation, social acceptability, and a variety of other factors. Governments too will create metaverses: to interact with constituents, to provide services, and perhaps to engage in even greater surveillance and control. These choices will have legal consequences for both private and public parties, particularly raising questions of the extent to which governments might limit or otherwise control private platforms and services. In this paper, I focus on precedents in the United States that bear on public governance of emerging metaverse platforms. Legislative precedents reach as far back as 1887, when the U.S. federal government first regulated the railroads and began to extend utility and common carrier regulation across the U.S. economy. See An Act to Regulate Commerce, 24 Stat. 379 (1887) (now known as the “Interstate Commerce Act,” this statute applied common carrier regulation to railroads); see also James B. Speta, A Common Carrier Approach to Internet Interconnection, 54 Fed. Comm. L.J. 225, 258-68 (2002) (setting out the history of the ICA being copied into statutes governing much of the transportation and utility economy); Joseph D. Kearney & Thomas W. Merrill, The Great Transformation of Regulated Industries Law, 98 Colum. L. Rev. 1323, 1330-1332 (1998) (same). Some states passed common carrier and utility laws before the federal government acted. See William Z. Ripley, Railroads, Rates, and Regulation Ch. 2 (1999). Judicial precedents are even older, as the U.S. law of common carriage and public accommodation has its roots in English common law. See, e.g., Speta, supra note 2, at 251-58. These bodies of law provide examples for government enforcement of the publicness of the platforms. Here I will focus on more recent history, for the regulation of private communications services and internet platforms provide the most direct analogies. Indeed, as reflected in the renaming of Facebook to “Meta,E.g., Mike Isaac, Facebook Renames Itself ‘Meta,’ N.Y. Times, Nov. 10, 2021 (“The move punctuates how Mark Zuckerberg, the chief executive, plans to refocus his Silicon Valley company on what he sees as the next digital frontier, which is the unification of disparate digital worlds into something called the metaverse.”). in both Apple E.g., Kellen Browning & Mike Isaac, Apple Is Stepping into the Metaverse: Will Anyone Care?, N.Y. Times, June 2, 2023 (on the launch of Apple Vision Pro VR technology). and Google’s VR E.g., Jack Kelly, The Metaverse Set Off A Battle Between Tech Giants Google, Apple, Microsoft And Meta To Build Virtual And Augmented Reality Headsets, Forbes.com, Jan. 21, 2022. efforts, and in the emerging immersive, multiplayer, world-building gaming experiences, current platforms are the most likely creators of early metaverses. Metaverses then will reflect the United States’ unusual history of private ownership of the principal communications services, subject to public regulation. See, e.g., Kearney & Merrill, supra note 2, at 1400 (noting that European countries generally chose public ownership of transportation and utilities, while the United States chose private ownership). Common carrier and public utility law are long-standing exceptions to the common law rights of property owners and most businesses to choose how and with whom to do business. By enforcing “publicness” I mean both government requirements that the entire public can access services and that the control the manner in which the services are offered to ensure they serve the “public interest.” I first highlight the mixed private incentives for “open” metaverses. Despite private ownership and frequent non-regulation, many current internet services have significantly open structures and practices, and this openness, in part, creates the “publicness” usually associated with more significant government regulation. On the other hand, platforms (and metaverses) at the same time have incentives to moderate content and to limit users. Part I. I then turn to the U.S. precedents that will bear on the notion of private metaverses being in public service. U.S. courts have generally rejected arguments that internet platforms themselves should be treated as government services, notwithstanding their essential nature, although a case currently pending in the United States Supreme Court raises this issue. Part II. And both courts and regulators have generally (but not always) rejected claims that internet services and platforms were (or should be) treated as public utilities. Nevertheless, the open nature of metaverses, their potential social significance, and the ways in which they will encourage and depend upon user generativity will provide significant historical support for their regulation. As metaverses grow, so will the pressures for regulation. Yet, those pressures could be restricted by the U.S. first amendment, if the prevailing view that platforms have first speech rights continues. Part III. Finally, I note that publicness has different consequences where the government itself sponsors an open metaverse, for in those circumstances the first amendment indisputably limits any government restrictions on private access to the government-provided service. Part IV. Several United States courts have held that President Trump and other officials have created “public forums” when using social media platforms for official purposes, and, as a result, that those officials violated the first amendment when they blocked commentators—although this issue too is pending in the United States Supreme Court. In this way, law explicitly enforces a notion of publicness that is particularly important if the metaverse becomes a key focus for official communications and services. I conclude with some broader speculation about governance of the metaverse.