NSA Reportedly Infiltrated World of Warcraft and Second Life

I am a bit late to the game on this story, but my conflict of laws exam on Wednesday was a bigger priority for me.  But now that the exam is out of the way, I thought I would make a few remarks on points that I have not yet heard emphasized in the coverage I have read.

Earlier this week, a trio of news outlets broke the story that agents from the CIA, FBI, the Pentagon, and Great Britain had "infiltrated" the worlds of World of Warcraft and Second Life in an effort to gather intelligence on possible security threats.  The Guardian retrieved leaked NSA documents on this program from Edward Snowden, and shared these documents with ProPublica and the New York Times.  All of these outlets have reported on the story, and the names of each of the outlets link to their coverage.

The Times reports:

Fearing that terrorist or criminal networks could use the games to communicate secretly, move money or plot attacks, the documents show, intelligence operatives have entered terrain populated by digital avatars that include elves, gnomes and supermodels. 

The spies have created make-believe characters to snoop and to try to recruit informers, while also collecting data and contents of communications between players, according to the documents, disclosed by the former National Security Agency contractor Edward J. Snowden. Because militants often rely on features common to video games — fake identities, voice and text chats, a way to conduct financial transactions — American and British intelligence agencies worried that they might be operating there, according to the papers.

I posted earlier about why I thought that online information can generally be collected without Fourth Amendment problems.  The opinions I voiced in that post apply to the tactics the agents used here, although the characteristics of the fantasy worlds infiltrated in this case raise a few more interesting, and amusing, Fourth Amendment questions.

Upon reading this story, my first thought was whether government agents could "seize" an individual in an online game like World of Warcraft, or if every encounter in the game would be a consensual encounter.  In the real world, police are permitted to ask people various questions, such as their names and whether people are concealing contraband, without implicating the Fourth Amendment.  These are "consensual encounters" -- interactions where the individuals being asked questions by the officers feel reasonably free to terminate the encounter.  These consensual encounters may escalate to a "stop" or a full on arrest -- with the stop requiring reasonable suspicion that the suspect has committed a crime, and the arrest requiring the officer to have probable cause that the suspect has committed a crime.

Could a government agent "stop" another player in World of Warcraft or Second Life?  The players are not physically present next to one another, so the player would not have to worry about the agent following the player or using physical force on the player.  The government agent may tell a player that the agent is, in fact, working for the government and that failure to cooperate or terminating the encounter will result in legal repercussions.  While this might typically constitute a stop, or a full seizure, the online environment in which the encounter is taking place may lead the player to think that the agent is just another player who is lying, so the question of whether that player would feel reasonably able to terminate the encounter is a bit more complicated than an encounter that occurs in the real world.

Also, scholars like Devon Carbado have raised concerns that police tend to focus on racial minorities such as blacks and Latinos, and that this over-focus of law enforcement on racial minorities has led to the main Supreme Court cases that allow police to carry out consensual encounters (see, e.g., this excerpt from Carbado's (e)Racing the Fourth Amendment, 100 Mich. L. Rev. 946 (2002)).  Would an over-focus on specific groups in fantasy world encounters raise equal protection concerns?

Police officers' subjective intents in conducting consensual encounters are typically not relevant to whether any seizure is reasonable because courts have held that no seizure takes place in a consensual encounter.  This means that if agents' encounters in the World of Warcraft focus specifically on, say, Orcs (or, in the most recent version of the game, Pandas), there will not be any equal protection concerns (at least, none that the law would recognize).

The government may be right to infiltrate the World of Warcraft.  While the previously-mentioned reports note that the government has not found any terrorists as a result of this approach, it is good to know that the government has an eye on the fantasy world as well as the real world.  Terrorism and tragedies occur in fantasy worlds -- it has been just over a year since hackers figured out a way to kill players' characters and characters in the game and used this exploit to massacre entire virtual cities.

Lots of people are reacting smugly about the NSA's concern with these games.  But as somebody who has seen the harrowing photos of the skeleton-filled streets of Orgrimmar, I am happy that our virtual worlds are going to be a lot safer.