New Laws Needed on Capturing Data Collection From Mixed Reality, Experts Say

March 8, 2021—Experts are concerned about the privacy implications emanating from the use of virtual and cross reality devices, which they say could collect user data without consent, and are clamoring for new laws to keep up.

While most Americans are already familiar with virtual reality popularized by devices like Oculus Rift and Sony’s PlayStation VR, cross reality, or XR, is technology that incorporates both physical and digital components that further blur the lines in a user’s brain between what is “real” and what is simply simulated.

As these technologies continue to become more common place, legislators need to catch up and address some of the implications for them, according to experts discussing these mixed reality on Thursday.

Brittan Heller, an attorney who specializes in technology and human rights with Foley Hoag, coined the term “biometric psychography” to describe the way that data is collect in an VR/XR environment.

“It is like a ‘Like’ button on steroids,” she said. Heller explained that while a “Like” button allows a consumer to deliberately inform advertisers what they like, VR/XR tech collects data that a user might not even be conscious of.

“If you go to play [a video game in VR/XR], you really consent to having somebody know whether or not you’re telling the truth, or whether or not you have a proclivity towards neurological ailments like Alzheimer’s schizophrenia or ADHD or we are sexually attracted,” Heller said. “It’s the closest thing to reading you mind.”

Joseph Jerome, a privacy and technology attorney and information privacy professional in Washington, said America’s current privacy standards are not sufficient to address this new technology. When something seemingly as innocuous and unconscious as pupil dilation can be used by advertisers to exploit a consumer’s subconscious desires, a whole new level of privacy legislation is required.

“We’re moving to a universe where you’re going to need more consents for all of this type of information,” Jerome said. He argued that far more time will need to be invested in not only informing consumers what kind of data will be collected from them but educating them on the significance of what they are agreeing to.

Jerome said that privacy advocates and other experts that work in proximity to Big Data need to do more to educate legislators and regulators on the implications of VR/XR technology. He elaborated by saying that the walls of text found in user consent forms and terms of service will be woefully insufficient to inform consumers on what they are precisely agreeing to.

Heller was not just concerned about private corporations, however.

“I’m concerned about the day when I go back and work with the government again and they put a headset on me and ask me questions related to security clearances.”

Editor’s Correction: A previous version of this article erroneously stated that Brittan Heller of Foley Hoag coined the term “biometrics iconography.” In fact, the term he coined is “biometric psychography.”