The metaverse raises several curious questions regarding its legal implications. Just like other forms of social media, there will be a series of compliance and legal requirements that impact the metaverse. Exactly how any regulations will materialize and be implemented can only amount to speculation at this stage. What is not speculation, is the challenge of collecting, processing, and understanding the data of a virtual world when litigation presents itself, as it almost surely will. How sophisticated will the information governance practices around managing and understanding data from the metaverse need to be? What new tools will technology firms and service providers need to develop to perform competent and timely discovery operations? How long will it be before we see the worlds leading law firms develop tailored practice groups specific to litigation in the metaverse? Given the amount of data in question, one would think they would be silly not to pursue this avenue with vigor.
How we got here
For the past twenty years we have been conditioned into constant contact with technology. Your smart phone is an extension of your person. Without it, you would immediately notice the inconvenience. Through constant use you have grown a virtual profile that could be social, professional, or something in between. If you’re part of the millennial generation you would have started this process on platforms like Facebook and Myspace in the early years of this century. At the time, these felt like silly platforms you could use to communicate with friends across town or around the world. They were reminiscent of the internet message boards that attracted widespread use in the 90s. Shortly after social media platforms came into existence they would expand in type and size. New social media companies would emerge, and with each exciting addition our interaction would grow.
Over time, a person’s consistent use of digital platforms would allocate a larger percentage of each day to screen time. Every Sunday my phone tells me how pathetically addicted I am to it with a cheery “you’re screen time has increase by X% this week”. This constant use has had a natural effect of increasing the importance and value of one’s digital profile. For many people, the growth of their digital profile would be an unconscious outcome of a new way of communicating or doing business. For others, their digital profile would be a carefully curated idea of how they wanted to be perceived. The motivations vary, but examples include fame, notoriety, money, or even a preference for their digital self over the real-world version.
Social media became so perverse that as early as 2012, meeting a partner for the millennial generation would more commonly occur over dating apps. At the end of the 90s the idea of meeting someone over the internet was novel, and perhaps even a little weird. As of 2022, it’s considered novel to meet someone anywhere other than dating apps. They are designed to connect with our social media profiles and, depending on the app, provide analytics that better connects potential matches based on everything from religious affiliation to education and hobbies.
These events tell the story of a massive shift of our time and attention toward our digital identify, something we’ve created willingly over a period of nearly twenty years. Add two years of reduced social interaction due to the COVID-19 pandemic and you’ll find an acceleration of this trend. During the pandemic our professional world shifted hard to conferencing and collaboration platforms. Now that we are over the hill, so to speak, there has been a notable preference for many to remain working from home. The move to favor convenience is a natural result of the experience we’ve all endured. Yet the outcome is akin to that of Facebook or Twitter. The digital profile takes a lead, replacing the human interaction of entire organizations, many of which exist nearly exclusively as remote working environments.
This brings us to the metaverse – the future of humanity’s social interaction and, dramatically, the coup de grace of our real-world identities. The shift will feel natural to most people. Social media has become a cornerstone of daily life. Waking-up and immediately checking Instagram, I’m ashamed to admit it, has become a reflex action.
The metaverse refers to 3D virtual worlds focused on social connection. Access points for metaverses include general-purpose computers and smartphones, in addition to augmented reality (AR), mixed reality, virtual reality (VR), and virtual world technologies. For many years virtual reality was a dreamed of future technology that only materialized in science fiction. It had a significant journey to travel before it could achieve a quality that could compete with classic gaming systems like Nintendo, PlayStation, and Xbox. But all that changed following a carefully orchestrated product development strategy which began when Facebook purchased Oculus for $2 billion in 2014. Zuckerberg understood exactly where the future was heading, and perhaps more importantly, he understood the necessary steps required to deliver on the technology. Facebook, one of the first true digital social universes has absorbed the attention of billions. Exactly how a user wanted to look, sound, and communicate could be designed from scratch. The most literal example of this would emerge as Instagram, delivering the first universe dedicated to a visual form of communication. Facebook purchased Instagram for $1 billion in 2012.
The timeline of the social media giants has aligned almost perfectly with a gradual shift toward digital currency and blockchain technology. Major investment banks and some of the world’s largest hedge funds have established dedicated crypto portfolios worth billions. Over the past few years, the digitization of commodities has taken a fascinating turn to include non-fungible tokens (NFT’s). NFT’s are a unique and non-interchangeable unit of data stored on a blockchain or digital ledger. They can be associated with reproducible digital files such as photos, videos, and audio. The digital ledger is used to provide a public certificate of authenticity or proof of ownership, but do not restrict the sharing or copying of the underlying digital files.
So, you could own the NFT for Nirvana’s classic Nevermind, but everyone can still listen to the song as much as they like. The value is held by the certification of the digital token on the blockchain. The sums invested are as high as the profiles of celebrities advertising digital investment vehicles. Matt Damon regularly appears on cable TV advertisements for crypto trading platforms, and Snoop Dog owns several properties in the metaverse. This increases the profile and user interest, especially for younger generations. Essentially, they’re making it cool. A few months ago, someone paid $500,000 for the lot next to Snoop. There are enormous sums of money finding its way toward purchasing digital real estate in the metaverse. These assets have real value, and the commerce is taking place in a digital world.
One curious example is Decentraland, a virtual world that launched in 2017 where users can buy virtual plots of land in the platform as NFTs via the MANA cryptocurrency. When it launched, parcels of digital land sold for about $20, and mana tokens sold for $0.02. The game’s first map, Genesis City, was made up on 90,601 parcels of land. In April 2021, during a surge in popularity for NFTs, parcels sold for between $6,000 and $100,000. Right now, the general quality of these virtual experiences is good enough to achieve 300,000 daily active users. This might not sound like much, but the adoption is accelerating.
Facebook recently launched a metaverse that’s open to anyone with a Facebook profile (currently numbering 1.93 billion daily active users). Within Facebook’s metaverse you will be able to do everything you can do in the real world, only in the metaverse you can start from scratch and be whoever you want. This will have a seismic impact on society as people make the choice about how much time they want to devote to either reality. Alongside the existential crisis, the metaverse will raise questions about the assets, events, and activities within the virtual realm, and where the law intervenes.
Beyond purely social use, we’re already seeing some conferences provide a metaverse of sorts where attendees can create their own avatar and interact with vendors and clients from the comfort of their own home. This first iterations of this appeared during the pandemic. As the quality of this technology improves, it is entirely possible, if not likely, that many conferences and interactions will move entirely digital.
The eDiscovery industry took off once people understood there was money in managing, exploring, and understanding data. After all, lawyers essentially performed an analog version of this since task since the practice of law began. Performing discovery in the virtual world is a challenge which will require some serious attention. There will be a lot of money to be made by the law firms and service providers that begin work on this opportunity now.
The tipping point is the quality of the virtual world, a moment that we’re accelerating toward at full clip. The quality of computer graphics and supporting hardware has produced significantly more complex and lifelike experiences in recent years. However, dependence on VR technology has limited metaverse development and wide scale adoption. Likewise, there has been no wide-scale adoption of a standardized technical specification for metaverse implementations, and existing implementations rely primarily on proprietary technology.
Don’t take this as an excuse to look the other way and consider these challenges some future eDiscovery professionals’ problem. The accelerated innovation in this space will change the rate of adoption significantly over the next five years as access to hardware, increased quality of software, and willingness to participate all meet standards that enable widespread adoption. The infrastructure is already set up, all that must happen now is the registration of an individual’s identify and their choice of avatar.
It is worth taking the time to contemplate how the metaverse will align with the future of work. Entire companies now exist as remote workforces. If the remote workforce shifts to a virtual reality (i.e., corporateland) users could presumably be paid in cryptocurrency where they could also purchase land and other assets in the form of NFT’s. When that happens, it will only be a matter of time before your employment and assets are growing in the metaverse faster than they are in the real world. This might be hard to imagine if you’re well into your career and see retirement on the horizon. Yet as someone who can map the increased value my generation has accorded to their virtual identify, the shift to a virtual reality feels very, very real.