Poaching Pokémon in the virtual estate

For the uninitiated, “Pokémon” are fictional “pocket monsters”, which first appeared in video games 20 years ago. Now these virtual creatures are in our streets, parks and offices, thanks to a smartphone near you.

James Ting Edwards

The game “Pokémon Go” was released on 6 July 2016, initially in Australia, New Zealand, and the United States. It has been astonishingly popular, with more than 100 million downloads in less than a month. Through smartphone location and camera functions, Pokémon Go creates an “augmented reality” (AR), which combines real-world and virtual elements. Location functions support an “exploring” component, which relates real-world locations to in-game features – “Pokéstop” locations with free supplies, Pokémon which can be found and captured, and gyms which can be fought for and controlled.

Finding a nearby Pokémon triggers a “catching” mode, which presents the capturable creature on-screen, overlaid on a player’s real-world surroundings. In this way, the game creates a window onto a virtual world neighbouring our own. The combination of massive popularity with novel exploring behaviours results in potential social and legal issues. There are privacy implications – the game is free to play, but collects valuable data on players.

Those who logged in on Apple devices, using Google accounts, were initially asked for “full access”, implying an ability to read contact information, email, and everything else therein. Fortunately, in this case “full access” was not given – this inaccurate term survived from older versions of the log-in process. This is not very reassuring, given that many players accepted the asserted intrusion into personal data.

Perhaps most interesting are the interactions between the game’s virtual features, and the real-world locations to which they correspond. A player’s quest to “catch them all” may mean walking or driving through places which were previously neglected, private, or solemn. Some institutions (including the Courts of New South Wales) have asked players to “go away”, at least where phones are prohibited as recording devices. Absent contract, it seems doubtful that there is a legal basis for excluding players from these locations. Even in private places, the law of trespass provides an implied licence to enter for a lawful purpose. On the other hand, the consequences of individual behaviours depend on how common those behaviours are. Things which are benign when done by a few people may become harmful when done by thousands. Does the game’s maker, Niantic, create a nuisance by attracting distracted players where they are not wanted?

For good or for ill, popularity also leads to opportunistic behaviours. In-game, players can purchase items for real money, including “lures” to attract more Pokémon. Tech-aware bars and cafés have used these lures to attract players. Some promotions have gone further – an Auckland jeweller offered a free gemstone to any player who had captured the “Starmie” Pokémon. On the less positive side, eager and distracted players may be vulnerable to real-world crimes.

In O’Fallon, Missouri, a group of armed men used in-game “beacons” to lure players and rob them. In regions where official access to the app was delayed, similarly-named applications sprung up to take advantage of eager downloaders. By gathering user data, or simulating clicks on advertising links, these scam applications turn unpleasant experiences into unearned revenue.

Pokémon Go is the first massively popular augmented reality app. It demonstrates that smartphones and other technologies will find new uses, and create new patterns of behaviour, with new social and legal consequences. Pokémon Go offers a window into a neighbouring reality, but also a mirror on human behaviour, good and bad.

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