United States: The 5G-Enhanced Potential Of Augmented Reality Comes With Interesting Legal Issues

Last Updated: October 1 2019
Article by Daniel C. Wood

In case you don't know, William Gibson is the prescient science fiction author who effectively coined the terms "the matrix" and "cyberspace" as we currently use them, way back in the early 1980s. He also predicted augmented reality applications. In his 2007 novel, Spook Country, a character has taken to creating "locative art" installations in the real world that can be viewed only through mobile devices that use the GPS grid to create a virtual overlay on top of the real world as recorded through the device. For example, the artist recreates the scene of River Phoenix's death, complete with annotations, that can be seen when the viewing device is brought to the real-world location where Phoenix died and aimed at the spot where his body was found. A character in the book describes such locative art this way: "Spatially tagged hypermedia. The artist annotating every centimeter of a place, of every physical thing. Visible to all, on devices such as these." Today, we simply call that "augmented reality"—or AR for short.

In Gibson's early imagining of the technology, he thought it would be artists pioneering the way. Apparently, he didn't see video games coming. (He's remarkably prescient, but I guess not that prescient.) When the popular mobile game Pokémon Go was released in 2016, he sent the above tweet, apparently quoting fellow science fiction author Bruce Sterling. By now there are numerous AR apps on the market, ranging from the utilitarian (like Google Translate) to the silly (like AR stickers) to the informative (like Night Sky). None areas widely used as games like Pokémon Go and Harry Potter: Wizards Unite (both of which come from software developer and Google internal startup Niantic, whose earlier AR game Ingress has been described as a proof of concept for and provided data for the games that followed).

Even from the beginning, AR applications that relate to real-world locations have generated some interesting legal issues. In the early days of Pokémon Go, players frequently found themselves trespassing on private property while chasing down Pokémon. Then there's the problem of intellectual property, as game elements incorporate real-world places and things, often in pictures, which may potentially violate owners' intellectual property or privacy rights. And, of course, there is the question of the user's privacy, particularly with respect to the massive amounts of location data created and to what game companies and individuals alike might be doing with that information.

In order to provide an overlay with which to augment reality, the technology relies on recording and analyzing the physical world indiscriminately. Essentially, it is a form of continuous surveillance. AR applications can convey a user's surveillance stream to a company for analysis and storage, raising tricky legal questions:

  • Do you have an expectation of privacy in your own home if your guests are playing AR games that might capture photos or audio of you?
  • What are the potential liabilities if a game maker is hacked, exposing users' location data?
  • To what extent does the creation of a virtual overlay that incidentally incorporates copyright or trademark protected materials violate intellectual property laws? And is there a fair use defense?
  • What are users' rights with respect to inferences that can be made from the large amount of data gathered from an AR application? (For example, if the app tracks where you are, how quickly you are moving, your reaction times, and so forth, what health information might be inferred?)

Such questions have been around since AR started to appear on mobile phones, but with the coming transition to 5G mobile networks, these issues will likely grow more complicated. Some of the significant improvements coming with 5G include much higher speeds (5G can be 10 times faster than 4G), but also significantly reduced latency (the time between when your device sends a command or request and receives a response) and greater connection density (the capacity to support high concentrations of network-connected devices). Improved latency will have an enormous effect on AR and VR. For comparison, current 4G networks have a latency range of 30-45 milliseconds; 5G is currently demonstrating a latency range of 1-10 milliseconds. This leap forward in latency will enable more real-time applications.

Of course, 5G is expected to come with some significant privacy concerns of its own. Namely, 5G operates at a higher frequency than current wireless networks, and because higher frequency waves have a harder time traveling over distance or through objects, 5G antennae will have much shorter ranges than 4G cellular towers. As a result, to provide ubiquitous 5G coverage will require significantly more antennae over a similar geographic area. With a 5G antenna installed every 500 feet, companies collecting location data will be able to track users' locations with pinpoint accuracy, which has raised privacy concerns from experts.

But moreover, the tangled areas of law surrounding AR will be become more prominent with the adoption of 5G networking simply because 5G's capacity for real-time reaction speeds open up new possibilities for AR applications. Consider some of the applications that become possible because of extremely low network latency:

  • autonomous cars that can react instantly to instructions from wireless traffic control devices
  • apps that can provide running language translation during ongoing conversations
  • virtual doctor programs that guide a surgeon through an unfamiliar procedure, reacting in real time to developments of the patient, or
  • vehicle heads-up-displays that overlay your view of the road with navigation information, hazard warnings, or other important information.

5G has the potential to take AR apps that currently are glitchy or somewhat unreliable and push them into much wider adoption simply by making them more useful or immersive. Of course, as William Gibson and Bruce Sterling were observing in 2016, this combination may mostly result in more people walking around the neighborhood trying to catch Pikachu. Either way, we can expect AR to further permeate modern life, towing along with it its raft of difficult legal issues. Now if you'll excuse me, I gotta go catch 'em all.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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