Constitution Daily

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Pokemon Go shines new attention on trespass laws

July 13, 2016 by NCC Staff


The current mania over the mobile game Pokemon Go is leading to a broader discussion of legal issues such as trespassing on private property and the liability of property owners potentially invaded by game players.

Wartortle appears at the National Constitution Center

In the past few days, blog-writing lawyers have been offering various opinions about the problems caused by the game, which encourages players to “capture” game figures that pop up on their phone screens based on their phone’s GPS location.

To be sure, there hasn’t been a big constitutional debate related to Pokemon Go, such as a right to pursue Pikachu, the iconic game character. But there has been a lot of public concern about zealous game players who stray onto private property in a situation where the game automatically places a character in a non-public virtual space.

The Pokemon Go game is based on a prior product created by game maker Niantic called Ingress. The game puts a layer of Pokemon-related content on top of a Google Map program. Players use the GPS feature of their phone to “walk” through this Pokemon world to find characters and save them to the app.

The new Pokemon game reportedly uses the same database of real-world locations created for Ingress that put the virtual Pokemon characters in a public location, or in a spot that can be accessed from a public location. For example, at the National Constitution Center in Philadelphia, we have several Pokemon virtual game characters at a street corner near our front entrance, and a few inside our building that can be accessed from a public spot.

But what happens when a game character appears where it shouldn’t and a player feels the need to go onto private property, without permission, to “catch a character”?

For starters, the website Law Newz explains that the game player, when registering for the Pokemon Go app, relieves The Pokemon Company (a joint venture that includes Nintendo) of any responsibility for harm and legal issues incurred by the game player. The terms of service agreement, says Law Newz, states that user assumes liability “related to any property damage, personal injury or death that may occur during your use of our Services, including any claims based on the violation of any applicable, law, rule or, regulation on your alleged negligence or other tort liability.” And if there is a dispute, it is sent to arbitration unless the user sends proper notice to the company.

The primary public concern from law-enforcement officials is the possibility of a Pokemon-related trespass could result in physical harm to a game player or a rash of trespassing complaints. The concept of trespass prevents a person from entering a property without its owner’s permission. The legal concept here has its roots in English common law, and an offender can face criminal charges or a civil case, depending on the location of the act and the severity.

Attorney Keith Lee recently wrote an interesting explanation of the Pokemon trespass issue for the website Associate’s Mind that explains some case-law history and poses questions about the ability of Pokemon Go to virtually place its game characters on a physical location, such as a private house or business. For example, is Pokemon Go creating an “attractive nuisance” by placing a Pokemon character, even by accident, on a private property, causing a game player to be injured in that pursuit? Or what if that pursuit turns violent when the game player is mistaken for an intruder?

Brian D. Wasson, a Michigan attorney who has frequently written about augmented reality issues, said in the Hollywood Reporter that games like Ingress and Pokemon Go will present a new set of challenges related to the use of public space.

“We’ve also already seen run-ins between Ingress players and police officers understandably perplexed by what seems to non-players like odd behavior. At least one player gained notoriety after he was detained for loitering outside a police station to play the game. Other law enforcement agencies soon had similar Ingress-related experiences. At least one Pokemon GO player has likewise already been questioned by police, and law enforcement officers around the world are warning gamers not to play at police stations,” Wasson said.

He also pointed to at least one potential First Amendment issue when more companies release augmented reality products that use public spaces as game venues, and more digital objects draw crowds to government-owned lands.

“Could we soon see a First Amendment lawsuit challenging censorship of augmented activity on public land?” Wasson asked in 2014 blog post.


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