When it comes to fighting attempts at video game legislation, the ESA has traditionally chosen pragmatism over principles.
It went tooth-and-nail against California all the way to the Supreme Court to prevent the state from curtailing sales of violent games to children, because the industry makes violent games and people buy them. But when Louisiana passed a law in 2006 banning the sale or distribution of sexually explicit games to minors, the ESA let it pass uncontested; it's not like any of its members were making sexually explicit games anyway.
And in 2008, when the state of New York passed a law requiring consoles to support parental lockout features and establishing an advisory council to examine connections between games and real-life violence in minors, the ESA called it wasteful and unconstitutional, but didn't challenge it in court. After all, the big hardware makers at the time already had parental controls in place, so it wasn't going to ruin anyone's bottom line. (To give an idea of how much of a non-issue it was, when someone finally broke the law, almost nobody noticed or cared. The Ouya originally launched in New York without parental controls.)
In short, if a law doesn't affect business, the ESA won't raise much of a fuss. But once politicians start messing with its members' bread and butter, the ESA will get as litigious as it needs to.
"As is typical for legislation targeting games, these bills were clearly drafted by people who don't quite get the nuances of the field."
That's what makes this week's news about a pair of Pokemon Go-inspired bills in the New York State Senate so interesting. One of them would ban registered sex offenders from playing augmented reality games. The other would require companies that operate AR games to ensure they aren't placing in-game objectives around registered sex offenders' residences.
As is typical for legislation targeting games, these bills were clearly drafted by people who don't quite get the nuances of the field. For one thing, they purport to limit AR games, but the legal definition they give for what constitutes an AR game actually describes location-based gaming: "a digital application or game, typically accessed on mobile devices, including but not limited to: smartphones; tablets; or augmented reality glasses; which causes users to physically move to and/or personally interact with locations outside the user's place of residence for the purpose of achieving goals or moving from place to place within the game."
So the things we've generally thought of as AR--HoloLens, CastAR, that 3DS Face Invaders game that came with the system--don't count. But depending on how liberally you parse that definition, using Google Maps to achieve the goal of getting to the grocery store could conceivably make it an AR application.
But even if the ESA can poke holes in the legislators' choice of terminology, fighting the bills would be a PR nightmare for the industry. Taking the side of child molesters and rapists against concerned parents is pretty much a non-starter. But letting the bills go through unchallenged could have more significant drawbacks because in both the games industry and politics, success breeds imitators. (Even when it shouldn't.) Just as other developers will see the potential in augmented reality/geolocation games and ready their own knock-offs, so too will politicians in other states and countries see that protecting kids from sexual predators is a slam dunk issue and draft their own equivalent bills. The 2005 California law that went to the Supreme Court was part of one such wave of legislation, with Louisiana, Oklahoma, Minnesota, Illinois, Utah, Maryland, Indiana, Washington, and Missouri all attempting to pass their own restrictions on the sales of violent games to children.
"It's one thing to culturalize game content for an entire country/culture, but it's another to manage expectations at a very local level."
In the case of New York's Pokemon Go bills, the developer of an augmented reality game would be required to make sure no in-game items or objectives are placed within 100 feet of a registered sex offender's residence. They would also have to update their list of forbidden addresses every month to ensure it's using the most current information, or face fines of $100 per day per sex offender residence with an in-game item. It may sound like a reasonable burden to place on Niantic, but that burden becomes significantly heavier when every locality with its own registry adopts its own laws that may require different sized safe zones around each address, different requirements on how frequently the list must be updated, and different methods for the developer to access the addresses in question, which could be stored in a variety of different formats.
Back when she worked at Microsoft, Kate Edwards was the company's senior geopolitical strategist, responsible for ensuring that the company's products were altered on a region-by-region basis to ensure they wouldn't inadvertently run afoul of local norms. Now executive director of the International Game Developers Association, Edwards compared her previous work to the challenge of complying with a multitude of laws like the one proposed in New York.
"On a global scale, it's potentially daunting for game developers to manage geopolitical and cultural restrictions and policies," she told GamesIndustry.biz. "But in reality, we've already been doing that for decades via the culturalization process, ensuring that the content of games is culturally compatible with certain locales. But the extra burden imposed by AR is the severe locality of the experience and having to account for many specific potential issues. It's one thing to culturalize game content for an entire country/culture, but it's another to manage expectations at a very local level."
"The legislation that is being proposed by New York has the potential to severely curtail or even kill off a vast, emerging industry..."
And this is what could put the ESA in a pinch. As if making something like Pokemon Go weren't expensive and logistically challenging enough already, if the New York bill spawns imitators--and again, there's little reason to think it wouldn't--the entire field could be hamstrung. Location-based AR games, particularly free-to-play ones like Pokemon Go, are almost inherently global propositions. New York is one state of 50 in one country. Pokemon Go is already available in more than 50 countries. And sex offenders are just one possible reason a government would want spawn-free zones in those games.
"The legislation that is being proposed by New York has the potential to severely curtail or even kill off a vast, emerging industry, especially for smaller AR developers who may not have the legal and/or financial resources of Niantic," Edwards said. "While the concerns of the state of New York are understandable and valid, the reality is that current legal regimes are not equipped to appropriately account for how virtual spaces interact with real spaces.
"We don't even have effective laws that manage the difference between online harassment and in-person harassment, and this is just one example of an issue that should take precedence over AR. Thus, before making a knee-jerk response to a single AR game experience, we'd strongly prefer that governments work together with the game industry and affected organizations to make a much broader examination of this issue and its long-term implications."
One idea Edwards wanted considered was a centralized data portal through which organizations--be they the New York Department of Corrections, churches, or caretakers for memorials--could submit locations for location-based AR games to avoid, and from which developers could pull the most up-to-date information for wherever they run their games.
We reached out to the Entertainment Software Association to find out its position on the New York bills last week. They have yet to provide a comment. Niantic also has yet to respond to a request for comment.