Extended Privacy for Extended Reality: XR Technology Has 99 Problems and Privacy is Several of Them
4 Notre Dame J. Emerging Tech (Forthcoming 2023).
40 Pages Posted: 16 Sep 2022 Last revised: 15 Nov 2022
Date Written: August 28, 2022
Americans are rapidly adopting innovative technologies which are pushing the frontiers of reality. But when they look at how their privacy is protected within the new extended reality (XR), they will find that U.S. privacy laws fall short. The privacy risks inherent in XR are inadequately addressed by current U.S. data privacy laws or court-created frameworks that purport to protect the constitutional right to be free from unreasonable searches. Many scholars, including Ryan Calo, Danielle Citron, Sherry Colb, Margaret Hu, Orin Kerr, Kirsten Martin, Paul Ohm, Daniel Solove, Rebecca Wexler, Shoshana Zuboff, and others, have highlighted the gaps in U.S. privacy protections stemming from big data, artificial intelligence, and increased surveillance technologies.
However, the depth and breadth of what XR technology reveals about a person, the risks it poses to bystanders, and the imminent paradigm shift of a public space versus a private space are new problems. This article provides three central contributions to technologists, legislators, and anyone interested in privacy rights: first, a brief guide to understanding XR technology; second, a survey of the current U.S. privacy landscape and the gaps in U.S. privacy protections for XR; and third, an easily digestible list of solutions that legislators and technologists can pursue to better protect privacy in XR.
Keywords: privacy, Fourth Amendment, constitution, data privacy, XR, extended reality, augmented reality, virtual reality, mixed reality, data protection
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