Even in 2016, it is tempting to treat the Internet as separate from the bricks-and-mortar world. As much as we might like to keep them apart, Augmented Reality apps like Pokémon Go will force the interaction between technology and more traditional areas of law.
Capitalizing on massive public interest in the app, the University of Ottawa’s Centre for Law, Technology and Society drew a large crowd for a series of short lectures titled “Pokémon Go and Legal Considerations in the Application Economy”. Each panel member discussed Pokémon Go through a lens of their own research and interests, and raised legal issues arising from such a novel and popular app—and similar apps sure to follow.
The event began with Sean Grassie, a University of Ottawa JD Candidate, explaining how Pokémon Go works from a technical perspective. He outlined the communication chain, from the app on your phone through cell towers, GPS satellites and layers of servers. He also explained the app’s gameplay. Users catch small characters—the Pokémon—as they move around the real world. Players then train their caught Pokémon to increase their skills and use them to battle other players in virtual gyms that are tied to real world places.
Marina Pavlović followed Grassie, and focused on the first link in his technological chain: the one between the player’s cell phone and their service provider. Pokémon Go, she pointed out, has the potential to transmit large amounts of data. She drew attention to the Wireless Code of Conduct and encouraged the audience to familiarize themselves with their rights under the code. She added that the code allows users to authorize data overages, noting the potential for children receiving those notices and authorizing the overage.
Next up was David Fewer, representing the Canadian Internet Policy & Public Interest Clinic (CIPPIC). He also took a consumer protection approach, but focused on the privacy issues that Adam Reeve discovered after the app was released. Pokémon Go initially required full, unfettered access to your Google account to operate. A media storm resulted and the problem was quickly fixed. As Fewer explained, though, the problem is not exclusive to Pokémon Go and other apps may not be so quick to fix these issues.
Michael Geist also discussed Pokémon Go from a privacy perspective. He noted that the Privacy Policy grants different rights to residents of the European Union than to players elsewhere. He also pointed out that the policies on the Pokémon Company website and the website of the app’s developer, Niantic, are different, raising the question of which of these policies even apply.
Elisabeth Judge and PhD Candidate Tennille Brown took a property law approach to Pokémon. They discussed an Alberta invasion of privacy suit based on the presence of a Pokémon Go gym on private property. They compared it to the case against MaxMind—a geolocation and online fraud prevention company—stemming from the mapping of a vast array of IP addresses to a Kansas couple’s home. They asked whether placing a Pokémon Go gym on a property could be considered a form of trespass, despite the fact that it is merely a virtual construct rather than a real world intrusion onto the physical space. They also looked at the potential upside of being near Pokémon Go gyms, sharing real estate ads that touted nearby gyms as a selling point.
Ian Kerr closed the lineup by further considering Pokémon Go and trespass. He considered the principle of attractive nuisance in tort law. A property owner is not normally responsible for injuries to trespassers. However, where their property presents an attractive nuisance like an unfenced swimming pool, they can be held responsible for injuries even for uninvited visitors. Could Pokémon Go gyms on private property be a virtual attractive nuisance? Could Niantic be liable for injuries to Pokémon-hunting trespassers? In response to a question I asked during the seminar, he also considered whether a lure—an in-game option to attract more Pokémon to a specific location—set by a property owner might constitute an attractive nuisance, and felt that would be an easier legal leap to make than transferring liability to Niantic.
During the question period, the panel also addressed the issue of public gathering spots and events for Pokémon Go. Members of the audience asked about the Sudbury Pokémon meetup that was cancelled because the organizers did not have a permit and about the problems at the Toronto Ferry Terminal. Incidents like those create conflict between the right to congregate and use public spaces and the rights of cities to effectively manage the use of those public spaces.
The panel offered few answers to the questions posed, but providing answers was not really the point of the discussion. Simply raising the questions allowed the audience to see both Internet apps and traditional laws in a new light.
Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.
