Gotta Catch 'Em All: Spotting the Issues Augmented Reality Games Raise for Public Agencies

Lozano Smith Client News Brief
September 2016
Number 59

Released in July 2016, Pokémon Go is a technological and gaming sensation that swept across the country, where players use their mobile devices to locate Pokémon (virtual creatures) in the real world. Pokémon can appear in any physical location, and as avid fans know, players "gotta catch 'em all." This may result in players entering or approaching public property to capture Pokémon, which means public agencies may have to address issues regarding disruption to operations, trespass, safety and privacy, among others. While the Pokémon Go phenomenon seems to be cooling, there may be an increase in the number of games utilizing Pokémon Go's gaming format, known as "augmented reality." Below, we highlight some issues that public agencies may need to consider as a result.

Augmented Reality Basics
Augmented reality games utilize a mobile device's GPS and camera capabilities to generate a virtual map based on real-life surroundings. Players create a virtual version of themselves, which appears on the map on the mobile device's screen. In the case of Pokémon Go, players are directed to nearby virtual Pokémon, PokéStops and Pokémon gyms, where players can buy in-game items like lure modules that help attract Pokémon to a trainer, meet up and battle one another.

Disruption to Operations and Trespassing
Local agencies may need to anticipate disruption to their operations and trespassing issues as a result of Pokémon Go and future augmented reality games. The game's popularity has seen increased pedestrian traffic in public areas as members of the public take to the streets to play the game. For Pokémon Go, PokéStops, Pokémon gyms and Pokémon may be located in any physical location, including in a public agency's restricted areas. For example, players found a Pikachu in an employee-only room of a county hospital. Additionally, as the game may be played at all hours, public agencies may need to guard public property after business hours. In one instance, trainers trespassed onto a zoo after climbing a fence at 1:30 a.m. to capture a Pokémon located within the zoo's grounds.

Augmented reality games raise safety concerns for local agencies. The increased potential for large crowds gathering on public property may lead to increased accidents or confrontations. Individuals have even used Pokémon Go to lure and rob players who were in search of a rare Pokémon.

School districts will need to be vigilant about the potential increase in unauthorized people trying to enter school sites while students are present. Likewise, school authorities will need to ensure that students do not leave campus in response to lure modules set off campus.

Augmented reality games raise privacy concerns for public agencies.

School districts need to be aware that they are responsible for protecting student data. As a mobile device's camera helps create the images on the device's screen, there may be an increased risk that players will use the game as a pretext to take pictures of employees, members of the public or, in the case of schools, students. In other words, a player may have his mobile device raised as if he is playing, but he may actually be taking pictures of a person.

Technology Use Policies/Agreements and Discipline
Pokémon Go's popularity may result in increased mobile device activity in the workplace during work hours or attempts to access the game using a public agency's Internet or wireless networks, in violation of technology use agreements, policies or professional standards governing the workplace. This may lead to discipline of employees who engage in non-related work activities during work hours or who create liability for the local agency by failing to comply with use agreements or policies.

School districts may face an increase in student disciplinary issues resulting from disruptions on campus, like playing the game during class; violations of behavior expectations, such as bringing mobile devices to campus if they are not allowed; and violations of technology use agreements, like using district-issued mobile devices to play or to try to download the game.

How to Prepare for a Future with Augmented Reality
For a public agency, one way to prepare is to use Pokémon Go to inspect areas of the public agency. This will help identify specific issues the public agency may face and to find out if any PokéStops, Pokémon gyms or Pokémon are located in any restricted areas.

Local agencies may wish to review and update their policies regarding access to their respective parks, buildings, schools and other maintained venues, as well as safety procedures, employees' and students' expectations and technology use.

Where access needs to be prohibited, public agencies may need to work toward removing Pokémon, PokéStops and Pokémon Gyms from public property. Working with Pokémon Go creator Niantic and other third-party cybersecurity companies, local businesses and companies have been able to prevent the game from drawing individuals to specific geographic locations that maybe sensitive.

Pokémon Go may be the tip of the iceberg for augmented reality games. Our Technology and Innovation Practice Group will continue to monitor this emerging field and analyze its impact on public agencies.

If you have any questions regarding how Pokémon Go and other augmented reality games and technology may impact your agency, or need assistance reviewing or revising your policies and technology use agreements, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.
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As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.