Pokémon Stop! As the Popular Game Grows, So Do Law Suits and Cyber Threats

Pokemon GoIt’s no secret that Pokémon GO has taken the world by storm. Just a few weeks after the launch of the latest version of the game, one designed to be played using iPhone and Android smartphones, authorities in New York City reported that there were 400,000 more people in Central Park on the weekend than normal, and the increase in numbers were all tied to the game. But, with the game come new problems, law suits, and cyber threats. We at GARCIA LEGAL recommend that our clients screen their clients to see if they have the game on their phones before engaging in transactions using email accounts that may be accessed on the phones for reasons that we will explain. But first, to the law suits.

A New Jersey man is suing the makers of Pokémon GO in Federal Court in California for putting one of the digital creatures in his backyard. Shortly after the hit game launched, Jeffrey Marder started having players knock on the door of his West Orange, New Jersey home, asking if they could “catch” the Pokémon that was in his backyard. Marder has now filed a class action lawsuit seeking to enjoin the defendants from continuing to place Pokémon on private property without permission. He also wants the defendants to pay damages and to disgorge any unjust profits.

Pokémon GO is the latest addition to a long running Japanese franchise, which includes trading cards, cartoons, movies, and video games. The premise is that fantasy creatures called Pokémon, or “Pocket Monsters,” can be caught, collected, battled, and traded. The latest iteration uses functions on players’ mobile phones, including GPS, camera, and gyroscope, to put players in an “augmented reality” wherein they hunt for and “catch” Pokémon in real world settings, like public art displays, businesses, monuments, landmarks, etc. There are also gyms where players can battle, and “Pokéstops” where players collect in-game items which help them “catch ‘em all.” Using an algorithm developed by Niantic, a company owned by Google, these Pokémon, Pokéstops, and gyms, are placed at different GPS coordinates. When a player gets close enough to a GPS coordinate for a Pokémon, it appears on screen, and when tapped on, the creature appears through the phone’s camera, superimposed on the real world surrounding.

As one might imagine, a business trying to attract customers would likely find that having a Pokémon at its location to be a good thing. Some businesses, such as coffee and donut shops and fast food stands, have even posted signs to alert players that they can find a Pokémon there in the hope of attracting customers. Having one in your back yard is a different story, however, and Marder is suing the makers of the game for Nuisance and Unjust Enrichment. In essence, Marder contends that by placing the Pokéstops or Pokémon gyms on private property, the makers of the game were inviting players to trespass without authorization.

Marder is by no means alone in either his frustration or his law suit. Just in his complaint by itself, he retells the story of gamers traipsing through a Mobile, Alabama cemetery, and approximately five Pokéstops being placed at the U.S. Holocaust Memorial Museum! According to the complaint, both places have sought to have the GPS coordinates removed. A Michigan couple has filed a lawsuit of their own to remove Pokémon from a neighborhood park, also claiming that Nintendo has created a nuisance and safety threat. They cite occasions of visiting gamers parking in front of driveways, trespassing on lawns, and even peeping in windows.

In addition to the nuisance lawsuits, a Florida patron of the game is suing to have the Pokémon GO Terms of Use agreement declared unenforceable. The claim is that the agreement grants far too much access to players’ private information. Under the terms of use the company is allegedly granted a “perpetual” and “irrevocable” license to players’ information, giving the company the right to share the information, which continues even if the user stops playing the game, and terminates only at the choice of Niantic. This wide ranging access to private information has drawn scrutiny in Germany from the Federation of German Consumer Organization, and from at least one United States Senator.

Beyond just lawsuits, issues abound concerning the Pokémon GO game. One lawyer posted a Craigslist Ad attempting to attract negligence claims from people injured while playing the game. Some concerns have been expressed over the mandatory binding arbitration clause contained in the user agreement. Moreover, given the number of incidents that have happened to people while playing the game more suits are bound to arise. The dangers of the game have become such a common refrain that TheRinger.com even has a regularly updated map tracking the incidents of mayhem occurring while people are playing. People have been robbed and assaulted; fist fights and shoot outs have broken out; and more than a few car wrecks have occurred. (Also, more than a few dead bodies have been found by people out on Pokémon hunts.) The incidents range from the tragic, to the heroic, and from the humorous, to the morbid. Four men actually used lures [an in-game feature players can set at Pokéstops to attract nearby Pokémon] to draw in players to the Pokéstops, and then rob them; two Marines took a trip to a park to play the game, and while there heroically stepped in to stop a man who was harassing a woman, and inadvertently assisted in the capture of an attempted murder suspect; a 15-year-old girl was distracted and hit by a car; a group playing the game was locked in a Pennsylvania cemetery; two players in Encinitas, CA walked off a cliff while playing (and survived); a player was arrested in Toledo for breaking into a Zoo to capture a Pokémon; and a distracted driver in Baltimore bumped into a police car.

For all its troubles, the game does not seem to be going anywhere. As of July 23, 2016, the game has been downloaded 30 million times, and has brought in $35 million in revenue. According to Apple, Inc., the game was reportedly downloaded more in its first week than any other app in history. It has crushed Candy Crush as the most popular mobile game. According to some counts, people are spending more time on Pokémon GO than Facebook, Snapchat, Twitter, and Instagram. Plus, Pokémon GO seems to be having positive economic effects for local businesses.

As with any app, cyber security experts have pointed out that the Pokémon GO app has vulnerabilities that lead to cyber security concerns. For example, giving the game’s originator access to your email accounts and the ability to, in effect, take over your iPhone, is never a good idea. And, the Android version has been identified as vulnerable to RATs, or Remote Access Trojans, programs that allow others to take over your phone remotely and without the owner’s knowledge. In light of this, GARCIA LEGAL recommends that users screen their clients to determine if they have the app on their phone, and if so, to alert them not to use the phone for communications relating to the transaction in question in order to prevent remote users from invading their lives and financial transactions.