Augmented Reality (AR) and Mixed Reality (MR) are advancing quickly in the market, with estimates projecting more than 50 percent annual growth. While the best-known use for these technologies is gaming, they are penetrating industrial, medical, retail and other applications.

Today, AR and MR companies collect, store, and use various user data to enhance the user experience and sometimes share data with network affiliates and business partners, including data related to a device's movements and the dimensions of the room in which the user is using equipment. In addition, AR technology may give a company the ability to constantly record data in relation to everything a user is doing.

This is posing interesting questions around privacy and security – some of which can put up serious roadblocks to AR and MR company's success. Inside Counsel sat down with Kimberly Culp, an attorney at Venable LLP who is closely involved in the challenges facing producers and companies looking to use augmented reality.

Lately, she has already seen litigation over trespass and nuisance claims. She expects the success of those claims to turn largely on the language in the relevant terms of use and how consent was obtained to those terms. But, those claims reflect a big problem: Who is responsible for the behavior of users interacting with the application and the real world? And, how do you control that behavior?

According to Culp, a district court in Milwaukee recently answered that question by suggesting that the governmental controls should be placed on the users, not the game developer, at least in that case. Then there is the question of public safety – in other words, designing controls in apps and hardware that address user safety issues. Game developers should be thinking ahead to how to implement mechanisms in the game to preempt user misuse. She said, “These preemptive efforts are worth the effort to stave off some legal risk.”

“I think one of the biggest challenges is, or will be, the confluence of big data and cybersecurity,” Culp explained. “These immersive experiences have the potential to be particularly engaging where developers can craft an experience targeted to the specific user's interests. That, of course, means that you necessarily have a lot of information about not just that user, but many users.”

There have been many opportunities for branded-partnerships in the AR space where you may have multiple parties interested in accessing that data. So, questions along the lines of: Who owns that data, who can use the data? What can they do with the data? etc. will arise as the applications evolve. “For lawyers, the task remains the same – take new facts and apply them to established law, and sometimes nudge the development of the law in a certain direction,” she said.

However, there are two key areas in the legal industry that Culp thinks will be interesting to watch with respect to AR, MR, or VR. First, is in the courtroom – how will courts respond to requests to present demonstratives to juries using this technology?

“The power to persuade in undeniable. I expect proponents to face challenges of undue prejudice in part because the technology allows the proponent to present facts in such a powerful way,” she explained.

In addition, there will be some foundational challenges – how do you know that the representation is accurate? And, she thinks will be interesting to watch if AR technology accelerates the growth of remote and virtual law firms. In all industries, the ability to collaborate across geographies is compelling, and it isn't any less compelling in the legal market, but will lawyers and law firms be adopters of AR in their practices? Culp hopes so.

What privacy and security best practices for companies to follow when it comes to AR and MR? It is wise to work with outside counsel to develop robust policies and controls on the use of data, and with cybersecurity professionals to test the security of your systems, per Culp.

She added, “I think it will take some time, but I do expect judges to allow trial lawyers to use AR, MR, and eventually VR, in the courtroom. I will be a useful tool for complicated motions – such as patent summary judgment motions – and, ultimately, trial.”