Pokemon Go legislation puts ESA in a tight spot

Will the industry side with sex offenders or risk legislators hobbling a new market just as it gets going?

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."

Kate Edwards

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 "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..."

Kate Edwards

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.

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Latest comments (7)

Aleksi Ranta Category Management Project Manager A year ago
"Will the industry side with sex offenders...." Just about stopped reading there as the answer should be pretty obvious to everyone.
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Klaus Preisinger Freelance Writing A year ago
With the war on drugs and the war on terrorism not performing as strong, sex offenders are the last bogeymen that have not declared a war against them. We are off to a good start, this article did not bother with the nuance of sexual offenses that get you registered in the U.S., it skipped right to the worst imaginable sex offenses to make the proposed legislation seem more justified and the odds of fighting it hopeless.

It is worth remembering, that for the most part we are not talking about raping people up the nose to death, but about unsolicited hugs between kindergartners, indecent exposure (e.g. breastfeeding), peeing in public, having consensual sex as a teenagers, and more. Never forget that in Britain, you can be sentenced to having to register all your sexual encounters including name, address and age with the police 24h in advance. A regulation restricted only to be used after having found NOT guilty in a sex offender trail.

Pick a side now. Reasonable adult behavior, or childlike fear-mongering for personal gains?
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Aleksi Ranta Category Management Project Manager A year ago
I didnt know you can get registered as a sex offender for breastfeeding in the states. Care to back that up Klaus?

Those Tiers seem pretty clear and not to be taken lightly.

Edited 1 times. Last edit by Aleksi Ranta on 9th August 2016 8:43am

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Show all comments (7)
Even if it passes, which it won't, this legislation is dumb as rocks. The potential crimes it may help avoid are so infinitesimally small in number, the law is clearly a strawman whipped up by politicians to make themselves look busy and relevant.
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Klaus Preisinger Freelance Writing A year ago
This woman was famously charged:
most states have special exemptions, which says a lot in its own right. Definitely sends the message of not pushing your luck in some parts of the U.S. That and the judge's quote.

The three tiers consist almost exclusively of offenses which cannot be argued with. But take a close look at the first item of each tier. This is the part of the system you can basically weaponize to enforce much harder social norms due to the vagueness of terms and their local interpretation. Think of basically any spring break party ever. The setup is eerily similar to how non-violent marijuana offenders were bunched together with far worse things. It is all about the entry level.
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Jordan Lund Columnist A year ago
If there were a way to specifically exclude sex offenders homes from applications like this, it would be equally possible to create an app that would TARGET sex offenders as well. There's your scary invasion of privacy moment of the day.
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Camden Studying Computer Science, University of PhoenixA year ago
Klaus, the individual you state was "famously charged" was not in fact arrested nor charged at all. In no way has someone who has been breastfeeding been placed on a sex offender registry. That article (and others) clearly state that breastfeeding in public is protected almost universally in the USA.

Brendan wrote this article clearly detailing the issue that the ESA faces in challenging the law: public perception of the defense of sexual predators. The ESA must balance defending developers from an unreasonable burden while avoiding the appearance of defending sexual predators (which, yes, also accompanies other offenders which are not violent).It's a question of can this argument be made without muddying the waters regarding the registry effectiveness.
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