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As we all know Pokémon Go is all the rage. There have been reports that police stations are common hot spots for gyms and collections. Churches have also been a common hot spot. I think there is also a story where a man bought an old church and now that is his residence. Regardless of whether that story is true it made me think:

What is the legality of someone putting a virtual hot spot on your property without permission? I know we are in uncharted territory, but how would this compare to setting up a contest that would require going on your property without permission? Is it currently legal to say, "Go to person X's house and touch a tree"? If not, does the current law extend to augmented reality?

To me both are attractions which cause a gathering of people.

psmears
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Mike
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    Putting a physical attraction doesn't really seem like a fair comparison, because that actually infringes on the owner's to right to physical control of their property (e.g., maybe the property owner wanted to put a nice birdbath on that spot of her lawn, but some jerk has set up a ferris wheel instead). It might be a bit closer comparison to think of a person who says, "Okay, the first person to run on to Josie's lawn and touch her birdbath wins a fee lunch!" or some similar enticement to trespass (or to enter the property lawfully, if it is not private). – apsillers Jul 12 '16 at 14:23
  • Well it is only activated by entering the property. I think @apsillers analogy is better, can I set up a contest with my friends to say the first one to enter your property and do something wins a prize? – Mike Jul 12 '16 at 14:39
  • "Further, niantic gives property owners mechanisms for removing stops" I did not know this, I don't play only know what I heard from the news. To sum it up in one question, 2 parts, is the hypothetical contest legal? if not, would the current law on the books extend to augmented reality contest? – Mike Jul 12 '16 at 15:06
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    Furthermore, could a property owner be sued under "Attractive Nuisance" doctrine if they do nothing to stop trespassers and one gets injured? – Chris Cudmore Jul 12 '16 at 18:25
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    My brothers both play it and they seem to be able to get them from the adjacent street most of the time. The building seems to be more used as a reference point than actually intended that you have to enter it to get the thing. – Random832 Jul 12 '16 at 18:28
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    Here's a blog post on that subject: Is PokemonGo Illegal? – ChrisW Jul 12 '16 at 20:44
  • @chrisc Best to ask a further question... – jimsug Jul 12 '16 at 22:44
  • You don't seem to have to get THAT close to activate it. I live next door to a church which is identified as a hot spot and can activate it from inside my house. – tallpaul Jul 13 '16 at 09:40
  • The claim that police stations are POIs in Pokémon Go is interesting. From what I've seen so far, and from this article it seems that all Pokestops and Gyms in Go are based on Ingress portals. [The Ingress help clearly says] that police stations (and other places like fire brigade houses or schools) are not allowed as portals. Thus, those should not be POIs in Go either. Do you have a source for that bit about the police station? Churches on the other hand are of historic significance. – simbabque Jul 13 '16 at 11:38
  • Not a written source I just hear it on NPR like 2 days ago on my way to work. – Mike Jul 13 '16 at 12:44
  • But just googling Pokemon gym police station brought this up-- In Pelham, a Pokemon gym is located at the police station.

    "Please keep in mind you do not actually have to come into the station to participate in your battles," Pelham police said in a statement.--http://patch.com/new-hampshire/nashua/pokemon-go-gym-nh-police-station-leads-safety-warning

     – Mike Jul 13 '16 at 12:46
  • Even better - https://dailyhive.com/vancouver/pokemon-go-police-station – Mike Jul 13 '16 at 12:49
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    @simbabque As an old Ingress player, I can add a bit to that. Ingress allows players to submit new portals to the database, and police and fire stations et al are explicitly identified as invalid candidates for the player submission process, but the Ingress portal database used data from the Historical Marker Database for its initial seed, which data included some existing police stations, fire stations, and post offices, and those portals remain in the game. – Dan Henderson Jul 14 '16 at 19:59
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    This is a really interesting question. I never considered placing a Pokestop or gym to be a form of enticement to "go here!!", but maybe it is. At university in the early 2000's, I played a (by modern standards) primitive augmented reality game where we had to locate a payphone and place a call from it to the game office (which had Caller ID). I think the phone was on public property, but what if it wasn't? – Robert Columbia Oct 17 '17 at 16:54

1 Answers1

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What is the legality of someone putting a virtual hot spot on your property without permission? I know we are in uncharted territory but how would this compare to setting up a contest that would require going on your property without permission?

The existence of a game does not authorise entrance to private property, barring some agreement with the owner.

That is - if it is trespassing without Pokemon Go (or, for that matter Ingress), then it is trespassing while playing them.

That being said, the creators of the game are free to place their in-game targets anywhere they please, and it is hard to imagine a scenario where they would be liable for their users' actions, unless they have not taken reasonable steps to prevent their users from doing so - Niantic clearly instruct their users to respect the law and also, only require that their users be within a certain distance of these points, not actually be at them.

Is it currently legal to say Go to person X house and touch a tree? If not, does the current law extend to augmented reality?

Nope, unless it can be done without entering private property (which includes the airspace above the property, to some extent). And there are no special cases for augmented reality.

Now, there is some possibility that if they create a private nuisance - by being too loud, or by otherwise interfering with the use of the property - owners of a property could bring a claim in tort against players for doing so - or charges for a public nuisance, when done in a public area.

jimsug
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    They could bring a claim against the players for being a nuisance but could they not doing anything about the game? You'd think it'd count as some sort of harassment if they kept spawning things on/around your property drawing a crowd. – DasBeasto Jul 12 '16 at 16:31
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    @DasBeasto it's not like the game itself is illegal - consider eggs and toilet-paper - sure, it can be a nuisance if used to egg or TP a house, but that doesn't meant that eggs or toilet-paper themselves should be banned – user2813274 Jul 12 '16 at 16:45
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    @user2813274 True, but I'm referring more to the game developers putting a static attraction on/by someones house. So in that example it'd be like the egg company printing "Go egg 12 South Main Street for rewards" on all the cartons. (perhaps a bit hyperbolic but the point is they are in a way "inciting" this behavior) – DasBeasto Jul 12 '16 at 16:49
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    @DasBeasto Depending on the jurisdiction, there may be a criminal offence like incitement, encouraging crime, or similar, and a judge may very well decide that the game studio (or its CEO) has committed that offence. – Alexander Jul 12 '16 at 18:29
  • @Alexander I haven't found an incitement statute that doesn't include an element that the inducer know that the property owner has prohibited the trespasser from entering. –  Jul 12 '16 at 19:04
  • @Alexander it would almost certainly be a defence if the company had told them not to commit illegal acts in the course of playing their game. – jimsug Jul 12 '16 at 21:56
  • @DasBeasto well, in that example, the company might have some liability if they specifically told their customers to do this for a reward (not that it would be enforceable). In the case of Pokemon Go, since Niantic specifically ask users to respect the law, trespass being specifically mentioned), it isn't really analogous to your example at all. – jimsug Jul 12 '16 at 21:59
  • Wouldn't it be an easy and legally straightforward matter to request the user data of the players who A) created the spot (Ingress) and B) were near the spot (Ingress + Go) when somebody can prove that such a point is on their private property? – SBoss Jul 13 '16 at 07:49
  • A point that is now on private property does not necessarily had to be on private property when the point was created. Retroactive trespassing is not possible. As for "proofing" that someone was somewhere based on a "check-in"; Well, they were near. As in a radius of 30 meters near, possibly more. That is not counting the theoretical maximum accuracy, or the actual accuracy based on suboptimal conditions or suboptimal hardware. Plus emulators are a thing. – Sumurai8 Jul 13 '16 at 09:19
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    @user2813274 Eggs and toilet paper are not sold for the specific, intended purpose of vandalism. The specific, intended purpose of this game, however, is to encourage players to visit specific real-world locations. And if this set of locations includes a place where visitors are not welcome... – Mason Wheeler Jul 13 '16 at 21:16
  • @MasonWheeler That's a tenuous argument at best - eggs and toilet paper are not sold for the purpose of vandalism, but can be used in the course of it; this game is to encourage people to visit specific real-world locations (without breaking the law, if you read the terms and guidelines, as you are deemed to have), but you can play the game while also trespassing. As has been mentioned multiple times, there is a radius you can be in where you can interact with these points of about 40m, you don't need to be physically at them in most cases. – jimsug Jul 13 '16 at 22:16
  • @jimsug I have heard the 30m-40m but in talking with a co-worker he mentioned that does not work if there is a physical wall between the spot and your location... do you know enough toconfirm or deny this claim? – Mike Jul 14 '16 at 14:33
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    @Mike I can tell you that, at least in Ingress, physical barriers do not programmatically prevent interacting with a portal; it's doubtful they do so in GO. However, they can feasibly prevent it in practice if their composition is such that they cause reflective interference with GPS positioning. There's a portal in my hometown near the base of a 15-story dormitory (outside it, in fact) that I cannot access because when I approach the maximum range of the portal, I start getting reflected GPS signals that make my phone think I'm moving away from the building even as I get closer. – Dan Henderson Jul 14 '16 at 20:09
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    If the property is hazardous, a pokestop could easily be considered an attractive nuisance. Normally, just warning people to be careful is not sufficient to avoid liability for creating an attractive nuisance. – David Schwartz Jul 15 '16 at 17:18
  • @david My understanding is that for an attractive nuisance claim to succeed, the owner must have actual or constructive knowledge of the nuisance and that it may result in harm or death. – jimsug Jul 16 '16 at 01:22
  • @DavidSchwartz additionally, the property owner would not be the one who created the nuisance (nor do they have the ability, directly, to remove it). Besides which, the Pokéstop isn't actually there, it's just associated with the location. It's like, if a phone book has a listing for a circus but lists the address of a construction site for a new high-rise, there's no attractive nuisance, there's an inaccurate piece of information in a database. GO players' phones just accept the database and show the Pokéstop them. – Dan Henderson Jul 16 '16 at 18:50
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    @DanHenderson This is a pretty complex question and I haven't been able to find any precedent. Here, the attractive nuisance is created by someone who is neither authorized to come onto the property nor comes onto the property without authorization to create the nuisance. I believe, though it's hard to be sure, that Niantic would be likely to be found liable if a pokestop brought a child onto someone's property and that child either did, or came to, harm. This would be particularly true if Niantic had actual notice from the landowner that the pokestop created a risk or was unwanted. – David Schwartz Jul 16 '16 at 22:54