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August 02, 2016 Practice Points

More Than Hunting Pikachu

Legal issues arising out of Pokémon Go.

By Lesli D. Harris and Bryant S. York

While political headlines have been thoroughly dominating the news cycles this month, a decidedly apolitical phenomenon has also been making waves around the world: Pokémon Go. Pokémon Go is an augmented reality game that uses a player's smartphone camera and GPS to allow them to hunt for virtual creatures, called Pokémon, as though they exist in the real world. As players walk around looking at their real surroundings through their smartphones, animated Pokémon characters will sporadically appear as overlays to the live video stream. Players can take still photos of that video stream and post pictures of virtual Pokémon appearing in the real world on social media sites.  

Within two weeks of its initial release on July 7, 2016, the Pokémon Go app had been downloaded more than 30 million times. With its runaway popularity around the globe, Pokémon Go poses a number of legal issues. For example, with respect to property law, a steady chorus of homeowners and private businesses has emerged complaining about Pokémon Go players trespassing on their properties in search of virtual creatures to capture. In the field of tort law, commentators have openly wondered about the possibility that Pokémon Go users might cause accidents, such as someone distractedly driving a car while playing the game. In fact, numerous police departments and safety agencies have issued public warnings against such conduct. Beyond these traditional areas of law, the rapid rise of Pokémon Go also raises some legal issues peculiar to the Information Age.  

Personal privacy is easily the most frequently voiced concern about the Pokémon Go rollout. As with most apps, the user must accept the distributor's terms and conditions at the outset before the app can be accessed or utilized. These terms and conditions typically contain a privacy policy, which governs how and to what extent the distributor may utilize any data collected from the user's operation of the app.  

Pokémon Go's broad terms and conditions came under immediate fire from the public. Most significantly, the agreement granted Niantic full access permission to each user's Google account, including all the contents of their Google-based email. In response to the outcry, Niantic quickly issued a fix, which removed its ability to access any Google account information of the users beyond their basic profile, such as user ID and email address.  

Still, a number of critics continue to express alarm over the scope of digital data generated by Pokémon Go players that may be collected, used and shared by Niantic. Senator Al Franken of Minnesota issued a letter to Niantic on July 12, 2016, enumerating his privacy concerns regarding the game. He wrote: "From among a user's general profile information to their precise location data and device identifiers, Niantic has access to a significant amount of information, unless users—many of whom are children—opt-out of this collection." He further took issue with the terms and conditions that permit Niantic to share the aggregated data of its users with other third parties for a non-exhaustive list of purposes.  

Beyond the players' privacy rights, Pokémon Go implicates third-party privacy rights. For instance, a recent bulletin issued by a hospital in New Orleans warned healthcare providers that "Pokémon hunters" were invading the hospital in search of Pokémon. It cautioned staff that these "Pokémon hunters" could take photographs of sensitive areas of the hospital, as well as patients receiving treatment. The hospital directed staff to "kindly interact" with the players and steer them away from any places in the hospital where privacy is a concern. An interesting legal question arises as to an organization's liability if sensitive third-party information, such patient information, is disclosed by a Pokémon Go player.  

Pokémon Go's full rollout is still underway. As the app's popularity continues to grow and many more millions of users download it, privacy law practitioners will be interested in monitoring whether Niantic responds to the public pressure to address these personal privacy issues that now typify such smartphone-based products.  

Lesli D. Harris and Bryant S. York are with Stone Pigman Walther Wittmann LLC in New Orleans, Louisiana.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

Lesli D. Harris and Bryant S. York – August 2, 2016