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Pokémon Go: Trespass, Privacy and the Law

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Pokémon Go, the augmented reality smartphone game from Nintendo and Niantic Labs launched last week. Despite a controlled release in Australia, New Zealand, the United States and Japan, the game’s highly anticipated launch has caused company servers to crash from a surge in traffic. The success of the game has been welcomed by investors, who have benefited from Nintendo shares surging 10 per cent, following poor console sales in the past few years.

The success of the game has been founded upon a popular franchise coupled with an innovative augmented reality and real world adventure gaming experience. The game sets players on a treasure hunt for Pokémon that they can catch via their phone’s camera. It uses the phone’s GPS to locate landmarks from which players can pick up inventory such as Pokéballs and potions.

Players can seek Pokémon in locations around them and take over virtual Pokémon gyms located in landmarks around the real world, which have included police stations, cemeteries and even The White House. When augmented reality experiences crossover with reality, it’s inevitable that legal issues may arise. This article explores the issue of trespass and privacy in light of Pokémon Go’s rising popularity.

Yo! Champ in the Making! Don’t Trespass!

The real world integration gaming experience with Pokémon Go has led players to explore far and wide to find rare Pokémon or grab items from PokéStops. In the Northern Territory, Darwin Police advised that while their police station may feature as a PokéStop, players did not have to step inside to gain the Pokéballs. In the United States, the Ohio Nationwide Children’s Hospital had to warn staff about players attempting to enter restricted areas.

In Australia, trespass to land is the direct and intentional interference by someone without the consent of the person who owns the property. Trespass does not require proof of substantial physical or economic loss or damage. Under trespass law, if someone enters the property without permission, they can be asked them to leave. Players should not trespass any private or public property and be cautious about entering land that may not be public property. However, there is no prohibition on taking photos of private property from public land, such as from a public footpath, unless the intent is to ‘peep or pry’ on or stalk an individual.

Gotta Catch ‘Em All

Pokémon Go uses GPS to encourage players to explore in the real world to discover Pokémon. In some aspects of the game, players are also required to walk a distance of two to five kilometres to incubate the Pokémon they catch. The game uses both the phone’s pedometer as well as the GPS to calculate how far players have walked. Players should be aware that this data is collected by Nintendo and Niantic Labs every time the game is played.

Pokémon Go’s Privacy Policy states that the game’s creator, Niantic Labs, collects and stores information about player’s location through “cell/mobile tower triangulation, wifi triangulation, and/or GPS”. This information may be shared with The Pokémon Company and third party service providers. Aggregated data and non-identifying information may also be shared with third parties for research and analysis and “demographic profiling”. While Niantic Labs takes appropriate security steps to protect the information, they do not “guarantee the absolute security” of the data.

If players are uncomfortable with this data being collected and stored, they should consider their privacy settings or uninstall the game. Indeed, many smartphone apps collect information on your location. If you have an iPhone, audit your privacy settings by tapping Settings > Privacy > Location Services to see what apps share and use your location.

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Key Takeaways

The hype of Pokémon Go continues to grow as it rolls out across more countries around the world. The game highlights the potential for augmented reality to be intertwined with more entertainment products. Businesses are now also benefiting from the game with increased foot traffic arising from being designated as a PokéStop or Pokémon Gym. In addition to a spare battery pack and an upgraded data plan, players should remember not to breach any trespass laws and be aware of the collection of their data. 

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