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With world as its playground, Pokémon Go pushes legal, ethical bounds

Pokemon Go players are glued to their phones as they walk  the shore at Ballast Point Park. The city of Tampa is still waiting for a reply to its request that the maker of the game cut back on the virtual creatures that draw players to the park. [ZACK WITTMAN  |  Times]
Pokemon Go players are glued to their phones as they walk the shore at Ballast Point Park. The city of Tampa is still waiting for a reply to its request that the maker of the game cut back on the virtual creatures that draw players to the park. [ZACK WITTMAN | Times]
Published Aug. 6, 2016

TAMPA — They've descended on cemeteries, veterans memorials and the National Holocaust Museum in Washington, D.C.

In their zeal to catch digital creatures that pop up on their smartphone screens, Pokémon Go players are flocking to places where they're not always welcome.

Niantic, the game's developer, is fielding requests from exasperated property owners who want the company to remove virtual markers that draw crowds to real-world places. The city of Tampa, for example, has asked the company to take the "PokéStops" out of Ballast Point Park ( tbtim.es/14ru) because so many players are showing up when the park is closed.

The friction raises questions about the technology that makes the augmented reality game possible. How much responsibility does Niantic bear for the actions of people using its product? And what obligation, if any, does the company have to respond to requests like Tampa's?

Experts say the company may have the law on its side, at least for now, but the popularity of Pokémon Go has pushed Niantic into uncharted legal and ethical waters.

"The question is, how far does a third party like Niantic have to go before it becomes responsible for encouraging players to trespass or create a nuisance," said Brian Wassom, a media attorney and author of Augmented Reality Law, Privacy, and Ethics. "That's an untested legal question."

•••

You might not care about the difference between a Charmander and a Jigglypuff, but to understand why players are mobbing a waterfront park in tony South Tampa, you need a primer on Pokémon Go.

The goal of the game, which is based on the original Nintendo game of the 1990s and downloaded as a mobile app, is to capture Pokémon creatures that pop up on the screen. The game uses the phone's camera so the characters appear to surface in the real world. In map view, the player's avatar, Pokémon characters and game markers appear on a digital map.

At PokéStops, players can replenish their avatar's supplies and drop "lures" that cause Pokémon creatures to appear. At PokéGyms, players pit their captured critters against each other in on-screen battles.

The app uses the phone's GPS function with Niantic's proprietary mapping software. Niantic developed the software for its first augmented reality game, Ingress, which launched in 2011. That game didn't catch on like Pokémon Go.

"The technology has been around for several years, but it's been the enthusiasts using it, not the masses," said Mark Skwarek, director of New York University's Augmented Reality Lab. Skwarek has worked on augmented reality for more than a decade and has worked on GPS-based games like Pokémon Go.

Niantic was formed in 2010 by John Hanke as Niantic Labs, an internal startup within the Internet and technology giant Google, before it was spun out as an independent entity last fall. Hanke was one of the founders of Keyhole, the company Google bought to start Google Earth. Hanke was involved with Google Maps before forming Niantic.

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As it developed Ingress, Niantic built a huge database of real-world landmarks that later became the starting point for Pokémon Go, according to the technology magazine Mashable. The company uses another set of data based on geographic markers, such as bodies of water, to decide where certain Pokémon characters will appear.

After the game launched in the United States last month, word spread quickly on social media that Ballast Point Park was one of the best places in the area to play. The 7.5-acre park has several PokéStops — players have reported as many as nine — and at least one PokéGym.

But the attraction transcends the plentiful Pokémon. Players say rare characters that can't be found anywhere else in the city appear regularly at Ballast Point. This has proved an irresistible draw for players who disregard the sign noting the park is open only from dawn to dusk. Neighbors call to complain and police show up to disperse crowds that reached 150 one night last month.

Public parks, with their easy access and open spaces, are a natural playground for augmented reality games, Skwarek said. So Niantic puts an extra focus on parks, dropping virtual goodies there to draw players.

"They see these as places to really hype up the game," he said.

But how do places less appropriate for game playing, like the National Holocaust Museum and cemeteries, wind up with PokéStops?

An algorithm that automatically pulled landmarks from maps is probably to blame, Skwarek said. Niantic can easily intervene to make manual changes, he said. It's usually as simple as highlighting the features on a digital map and clicking "delete" or removing the coordinates from a spreadsheet.

Niantic has an electronic form on its website for property owners who want the company to remove stops and gyms. The company declined to answer emailed questions from the Times about what criteria the company uses to evaluate the requests and how long it takes to respond.

Instead, a spokesman referred a reporter to a previously issued statement that Niantic is "moving quickly to review all such requests."

Published reports show the forms are being submitted from all over the world.

Niantic honored a request from the Holocaust Museum in Washington, D.C. In a Web post last week, officials in Provo, Utah, said they were surprised at how quickly the company granted their request to remove stops from the public library. But a cathedral in Germany has threatened legal action because the company has not responded to its requests.

Tampa officials have said they don't want people to stop playing the game at Ballast Point Park, but made the request to Niantic as a "proactive" way to try to make the park less of draw and reduce crowds.

As of Friday, the problems there hadn't abated and the city was still waiting for a response, police spokesman Steve Hegarty said.

•••

There is no law against placing virtual markers in a physical space, even private property, said Wassom, the attorney. The U.S. Supreme Court has ruled that online expression is a form of speech protected by the First Amendment.

"If someone were placing physical signs saying, 'Come here and play,' that would be a pretty clear violation of property rights," he said. "But when you're putting virtual markers on a digital map, you're engaging in speech, and that's protected."

But just as there limitations on free speech, the right to place virtual markers is not absolute, Wassom said. He said there will be some instances where a virtual marker is viewed as a "clear and present danger," similar to yelling fire in a crowed theater, but in most cases, that's going to be "an awfully uphill battle to fight," he said.

"Whenever you're talking about physical trespassing, the responsibility is always going to be on the person committing the act," he said, noting that the Pokémon Go app tells players not to trespass or enter dangerous areas.

A New Jersey man fed up with players coming onto his property filed a class action lawsuit against Niantic last week that claims the game entices people to trespass. More lawsuits are sure to follow, and while they won't set binding precedent, they'll be watched very closely, Wassom said.

Some cities already are considering new laws and at least one has passed. The City Council in Newnan, Ga., adopted an ordinance July 21 — just two weeks after the game launched — prohibiting people from playing Internet or cellphone games in the city's three cemeteries.

Wassom expects similar ordinances to follow. Some will be well thought out but many will face court challenges, he said.

Legal or not, companies like Niantic have a duty to be good corporate citizens, said Dan Verreault, director of the Center for Ethics in the University of Tampa's Sykes School of Business.

"The company has to be responsible and careful in the design, and responsive and accepting of feedback from affected communities," Verreault said. "I also think at least 50 percent of the responsibility has to be taken by the user who knows that catching a little dinosaur doesn't justify trespassing or disturbing what ought not be disturbed."

For cases like Ballast Point Park, Niantic could craft a compromise, such as adjusting the game so its features better align with park hours, said NYU's Skwarek. He said the popularity of the game probably caught the company by surprise and it's probably adding staff to make these kinds of changes.

"You have to work with the public on these issues," Skwarek said, "or it's going to backfire when something bad happens."

Times senior news researcher John Martin contributed to this report. Contact Tony Marrero at tmarrero@tampabay.com or (813) 226-3374.

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