The Legal Implications of VR and AR Usage

01 August 2019 Construction Executive Publication
Authors: Kimberly Ashby

This article was originally published by Construction Executive, and appears here with permission.

There is no escaping the proliferation of VR/AR applications in all types of construction, particularly in the large commercial and industrial sectors. Given that these technologies are not only here to stay, but also could soon find their place on nearly every job, the question becomes: Is this always a good thing, or are there pitfalls when examining the implications for VR/AR use on a project that ends up in arbitration or court?

The terms virtual reality and augmented reality have some commonality in their respective definitions. VR is generally a depiction of the site or construction application, which is created entirely by a computer. AR interlaces the actual human observation of a site and overlays plans or other data to give a more refined context to the viewer of something that is not otherwise observable in reality. 

VR is best known for giving the owner or end user the most depth and a 360-degree view of the finished structure and interior. This technology has been uniformly exalted as cutting down on decision-making time in the design phase because it provides the design team and owner better access to the project’s vision. 

AR finds optimum use when the viewer needs to examine the real scene but needs to add, or augment, that real scene with a computer-assisted data set. A good example is using an AR app to locate as-built underground utilities—a quicker augmented identification over pre-AI methods.

With all the benefits that come from AR and VR, it bears examining whether challenges are looming from the use of these efficiency apps. When the construction industry jumped from paper to paperless software to build and track progress, at least two challenges came to light. 

First, the application should have a traceable path so that it may be documented later what changes were made when, and by whom—confirming approvals and ensuring the chain of communication not only happened, but was captured. Should a claim arise, it may become essential to determine the extent to which VR and AR systems were used to document decisions made in design or during construction.

The second challenge, and perhaps the larger one, is the scale of the AR or VR data that may later constitute proof of what was actually viewed, communicated and decided at critical points of the construction process. The legal system sustained the biggest expense spike with the introduction of emails as evidence. It is now accepted to have a dispute encompass millions of emails that must be retrieved, sorted, reviewed and produced.

When VR and AR are used in the decision-making process, influencing choices made by the owner based on a VR presentation, or placement of underground utilities based on an AR application, that data must be verified to accurately depict the same iteration of the VR and AR that was conveyed at the time of the decision.

Also, if VR/AR project use is to be called into question before an arbitration panel, a judge or jury, the application will need to be made accessible to the arbiters. Most evidence codes and arbitration codes require that the evidence be independently verifiable.

If VR or AR is relied on with metadata or similar annotations, that will constitute the necessary verification to qualify the decision-assisting AR or VR to become evidence upon which to base whether a party should win or lose in litigation. Otherwise, companies will possess world-class technology with disputes relegated to the memories of the witnesses in a classic he said/she said situation.

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