Recently I wrote about Pokémon Go, the new augmented-reality offering from Niantic, Incorporated. While the game offers a slew of incentives to exercise and make new friends in a time when children and adults are increasingly withdrawn thanks to technology, it also poses a variety of safety hazards due to the nature of its gameplay. I encourage you to give it a glance if you play the game or are interested in starting.
There's a new wrinkle in the narrative, though: In the beginning of August, New York governor Andrew Cuomo directed the NY State Department of Corrections and Community Supervision to ban registered sex offenders from playing Pokémon Go or other similar "augmented reality"-type games. Moreover, he has reached out to the game's creators Niantic, Inc. in an effort to have them stop placing in-game assets at or near offenders' homes.
Origins of the Directive
These administrative measures from New York's executive office stem from a report commissioned by NY Senators Diane Savino and Jeffrey Klein.
The July report, appropriately titled "How Pokémon Go and Augmented Reality Games Expose Children to Sex Offenders," canvassed the addresses of 100 sex offenders out of the thousands registered in New York. Of those homes, an unsettling 73% were found to be within half a block of a catchable Pokémon, a Pokéstop (a location that offers supplies to aid in the capture of the creatures), or a Pokémon gym (a place to pit your Pokémon against those of other players).
Niantic's geographic metadata does not take into account the real-world locations beneath their Pokémon overlay. While this can lead to some uncomfortable or distasteful issues, like Pokémon frolicking around the Holocaust Museum or the Vietnam Memorial, it also has dangerous implications such as the one suggested by the senators. Thanks to the mechanics of the game, sex offenders have an effective method of bringing potential prey near their homes. On this topic the governor was quoted as saying:
"Protecting New York's children is priority number one and, as technology evolves, we must ensure these advances don't become new avenues for dangerous predators to prey on new victims."
This New York initiative is an ambitious attempt to keep predators from making use of the system, and by combining New York's up-to-date sex offender registry with Niantic's geolocation coding, Cuomo may have found a way to at least partially remove a threat to Pokémon players.
What Are the Directive's Planned Steps?
The report outlined legislative initiatives the senators considered vital for the continued safety of New York's Pokémon players:
- Active Sex Offenders Are to Be Banned from Augmented Reality Games.
Currently, "active" sex offenders are banned from using social media like Facebook or Twitter, but the statute is not clear on whether this kind of game falls into that broad category. This legislation would use the International Data Corporation (IDC)'s new definition of "augmented reality games" to ban sex offenders on probation pursuant to §65.10 of the New York Penal Law from downloading or playing any augmented reality game. This bill would keep the game away from known sex offenders with a recent history of offenses against children.
- In-Game Sex Offender Residence Restriction
The proposed legislation would place in-game restrictions that would prevent children from playing the game near a sex offender's primary residence. The provisions include the following:
- In-game objectives cannot be located within a 100-foot radius of a sex offender's home.
- The game developer must obtain information regarding all publicly-listed sex offender addresses from the Department of Criminal Justice Services (DCJS) website, and must update this information on a monthly basis.
- The attorney general will have the power to enforce the provisions of the act, including issuing cease and desist orders against the game developer in the event that they are not complying with the act.
- Penalties include a maximum $100 per day fine for each location in the game that does not comply with the exclusion requirements in the act. These fines could be substantial given the number of offender residences around the state.
Did New York's Legislature Play a Part in the Ban?
While certain members of the New York legislature (particularly notable Democrat Felix Ortiz) are paying close attention to the Pokémon Go phenomenon as a whole, the order came straight from the governor as an injunction to the state DOC.
The directive is meant to serve as a temporary measure until legislation to this effect can be passed. Klein, Savino, and several other legislators are working to put the new proposed measures into action as soon as possible.
Potential Objections to the Ban
While the aspirations of this idea are laudable--one would be hard pressed to find parents comfortable with their children playing near predators--its execution is a little myopic. People against these controls raise some major objections:
- It is difficult to say that an offender dedicated to the idea of playing the game will be genuinely stymied by these measures. Should a sex offender already be comfortable with flouting established state laws about registry of personal information, they will have no qualms about submitting false information and a "throwaway" email address in the interest of establishing a presence in-game.
- As of yet, sexual offenses do not appear to have joined the list of crimes perpetrated against Pokémon players. Documented in the senators' report are instances including a man on Indiana's sex registry who was using Pokémon Go near a 16-year-old boy who was also playing, but no trangression was committed. In an Arizona case, a PokéStop was placed at a hotel that had been converted into a halfway house for 43 men on the state sex-offender registry. While these incidents did not result in any perpetrated crimes, it is argued that such near-misses should still be eliminated as much as possible.
There are certainly deficiencies in the game's programming, but we have thus far been spared any such heinous crimes. Critics suggest that the senators are "inventing a problem to solve" by targeting sex offenders when no objective data exists to suggest this is an issue.
- Pursuant to the above, opponents of the directive further allege that the vast majority of sexual crimes are perpetrated by first-time offenders. It is their opinion that the bill would be mostly aimed at recidivists, while registered offenders demonstrate exceptionally low rates of repeated sexual offense. The legislation may well not make any significant impact in protecting children, since the registrants are not their greatest statistical threat.
- State governments have in several cases tried to stick additional punishments to sex offenders even after they are considered rehabilitated by the system. This punishment is ex post facto, suggesting that once an offender, always an offender. Registrants' boundaries shrink, they are subject to more scrutiny, and their required check-ins grow more frequent and more complicated.
For those offenders who have ostensibly paid their debt to society and are obeying the rules of their release, further punishing them in accordance with changing state rules is effectively convicting them all over again. New punishments are not part of the terms upon which they were paroled, and it could be argued that doing so is tantamount to cruel and unusual punishment, which is prohibited by the Eighth Amendment.
- Looked at from another angle, removing their ability to play Pokémon Go without demonstrable evidence of any recidivism on the parts of players is effectively punishing them for crimes they have not committed. While I can appreciate the enthusiasm for pre-emptive action in this area, to punish people before they transgress violates their right to Due Process, guaranteed by the Fifth Amendment.
The actions that many of these men and women performed to get placed on the sex offender registry are abhorrent; I wouldn't claim otherwise. However, the rights guaranteed by the Constitution apply to all citizens. They're absolute, and can't be stripped without fundamentally altering the protections granted to everyone else. It's a cornerstone of the justice system that criminals are granted the right to due process, and they are only to be punished within the limits of the legal system.
Inalienable rights cannot be maintained a la carte. If the Supreme Court takes a microscope to the Constitution and finds some way to apply its laws to impose harsh new rules against sex offenders, then so be it. Then it's the law, per the way our country creates and applies it. A New York governor stirring up panic and tossing around ordinances without legislative backup, though--that's not the kind of law we want to let happen.
Courts have become increasingly sympathetic to these arguments. Just last month the 6th Circuit Court of Appeals invalidated a Michigan sex registry law on the grounds that it amounts to an ex post facto law. In the case of Michigan's statute, it at least has the imprimatur of the state's legislature. What Governor Cuomo has done in New York is strictly an executive action, at least thus far.
I understand that this may come across as standing up for sex offenders; in this case, it's a distasteful necessity. These restrictions on sex offenders have grown since the introduction of sex offender registries 20 years ago, because any legislature who stands up to this increasingly unconstitutional encroachment on civil liberties is likely to face re-election ads claiming that they support child sex abuse. This demagoguery distorts and perverts our system of representative government.
Living in a free society sometimes means standing up for monsters. In defending the 1st Amendment, you are occasionally forced to defend the speech of neo-Nazis, the ability to practice of truly bizarre religious cults, and the actions of irresponsible journalists. Invariably, standing up for the 4th, 5th, and 8th Amendments means that you're throwing your lot in with criminals, because in that lot of criminals are some innocent people.
I have no soft spot in my heart for those who commit sex crimes. In fact, if the legislature were to propose locking them up for life, I would consider supporting such a measure. While standing up for their rights might seem bizarre or detached, the very mechanisms New York is using to potentially violate the rights of sex offenders, if left unchecked, could serve as a template for violating the rights of ordinary citizens like you and me.
Just taking a look at the overlay of sex offenders in New York City, one can see how protecting children from sex offenders in this manner proposed by the legislature has the effect of "protecting" the general public out of access to the game. Nothing could more clearly illustrate how one can have serious reservations about what New York is trying to do without being the least bit sympathetic to sex offenders.
Further Economic Implications
These initiatives mean that the state of New York would be imposing commercial regulation on Niantic, Inc. Per the stipulations of the proposed bill, the company would be responsible for a large geolocation sweep every month to flag and remove Pokémon-related spots within 100 feet of offenders' houses. After the first initial removal of several thousand monsters, stops, and gyms, it would be the company's responsibility to cooperate with the state registry and keep the system up-to-date on a monthly basis. Thanks to the 2008 Electronic Security and Targeting of Online Predators Act (proposed by Cuomo when he himself was a senator), 40 other tech companies are in similar compliance with the state, purging sex offenders from their online membership registries.
If New York's legislation passes, Niantic will be forced to comply at the risk of thousands of potential dollars in fines (100 dollars per un-removed location, multiplied by thousands of offender residences, means a considerable punitive sum every month). Should reported sexual offenses dip perceptibly, it will likely be considered a success of the program. Other states might well follow suit, mandating the removal of Pokémon-related artifacts in their cities. Niantic's urge to innovate or expand could be seriously inhibited by the mandate to "solve" a problem that arguably does not exist at this time. The game's creators may determine that the best option is actually just to de-activate their program in the states that pass this kind of legislation, depriving millions of game players and costing themselves potential billions in revenue. While bigger social networks like Facebook have virtually limitless economic resources to cope with these shifts, Niantic is a comparatively small company and in its present state cannot really afford them.
This kind of bureaucratic interference could also prevent other companies from investing in the "augmented-reality" area for fear of censure and legal complications. While this is not a crippling blow when viewed independent of other factors, widening our gaze shows that the real issue is the discouragement of innovation and expansion of a potentially-useful technological market.
Pokémon Go and Personal Injury Law
Whatever the financial impositions created by the legislation, these new rules would be helpful to anyone unfortunate enough to be a victim in such circumstances. While the first-party offender would obviously be tried under criminal allegations, there would remain the issue of how the offender and the victim came together in the first place. There is a conceivable case to be made against Niantic, Inc. for their negligence in brokering that interaction.
Key to pursuing damages in a personal injury claim is establishing that the defendant acted in a negligent manner, which is typically defined as "action that fails to exercise the care that a reasonably prudent person would exercise in like circumstances." In situations like these, the main liability of the defendant is not based on a direct harmful action, but in their failure to safeguard their users from suffering after using their product. To put that another way: They didn't swing the fist, but they put someone in the way of it.
To effectively present a negligence claim, a plaintiff's attorney would need to demonstrate certain elements that are integral to a successful case. These elements are usually labeled in four broad categories: Duty, Breach, Causation, and Damages. Let's take a look at those elements and see if the bones of a claim can be verified:
- Duty: It can easily be argued that Niantic, Inc. has a responsibility to its user base to provide as safe an experience as possible. The program itself comes with a comprehensive disclaimer and End-User License Agreement (EULA) as well as several in-game alerts about being mindful of one's surroundings. One could easily interpret that as Niantic's acknowledgment of their duty to players, though it is a fairly clear attempt to shift the onus of self-preservation entirely onto the users themselves.
- Breach: Niantic can create all the helpful screens it likes about mindfulness, but if the company itself does not practice what it preaches, it can be argued that they have failed to observe their duty to their player base.
It's one thing to tell players simply to "watch out," and it's another to send them into areas that endanger them because of a lack of curated content. To reference the map from before, the senators' fears do appear to be grounded--Niantic's location data includes game content located a stone's throw from potentially-dangerous situations. God willing, nothing would ever come from those correlations. If they did, though, and Niantic's attention had been directed to that possibility by, say, a governor's directive, their continued placement of assets in dangerous locales would seem to constitute a breach of responsibility.
- Causation: Looking at these theoretical circumstances (a Pokémon Go player being sexually assaulted by a registered offender due to the proximity of in-game assets), it seems as though a causal link could be traced back to Niantic. After all, in this scenario a player was in the area deliberately to engage with the game. But for Niantic placing a monster or gym in a risky location, the player likely would have avoided the problem. Unlike obvious and visible hazards like construction areas or busy intersections, it would likely be difficult for players to identify an offender's home by sight. Thusly ignorant of their peril, they couldn't reasonably be expected to avoid the danger.
The governor's directive would cripple one of Niantic's main defenses should a child be injured by a sex offender; clearly, this would be a positive thing, and would validate the need for the new rules. While I'm sure we all fervently hope no such thing ever happens, the company will not be able to claim there was no realistic way they could have foreseen such a danger. The legislation and their subsequent cooperation mean they can't pretend "no reasonable person could have predicted such a thing could happen," which is the cornerstone of a foreseeability defense.
Another defense typically employed when accusations of negligence are leveled against a defendant is "assumption of risk." This generally means that people should know when they begin that there is potential for certain kinds of danger. It likely goes without saying, but I'm going to say it anyway--nobody would pick up a cell-phone game about catching cartoon animals if they believed there was a danger of suffering sexual assault. This may be a typical defense in other negligence cases, but I'd frankly be stunned if it were attempted in a case like this.
I'll be interested to see if Governor Cuomo's injunction makes any decisive headway. The protection of our nation's youth is of course very important, but such protection is historically done in the name of allowing children to grow up and enjoy the liberty that all citizens have a right to. When the means of protecting children become so intrusive that they deprive everyone else of their rights, the initial justification for protecting children is undermined and everyone loses.