Jun 28, 2018

Can You Trespass Without Setting Foot on a Piece of Property?

AR Applications Are Changing the Ways We Think About Unlawful Entry
Jennifer Huddleston Skees Legal Research Associate, Trace Mitchell Frédéric Bastiat Fellowship Alumnus

What does it take to trespass on someone’s property? That’s the question courts are again starting to grapple with when considering the growth of augmented reality (AR) apps like “Pokémon Go.” These games can be a lot of fun, but they raise novel legal questions and may challenge centuries-old common law standards in some cases. The end goal should be a legal system that promotes new innovations without unnecessary legal burdens while also balancing the property rights of impacted individuals.

“Pokémon Go” is a mobile game created by Niantic that uses AR to superimpose Pokémon and Pokéstops at specified locations in the real world. A player tracks, views, and “catches” these Pokémon using their smartphone’s GPS and camera. Players can then go to one of the Pokéstops and battle other players with the Pokémon that they have previously caught. The game was exceptionally popular in the summer of 2016 and yet cases surrounding players’ actions are still making their way through courts. As a result, a “summer fad” has the potential to rewrite long-standing legal traditions.

“Pokémon Go” has become one of the most successful mobile games ever created, having been downloaded over 800 million times and grossing nearly 2 billion in revenue. But not everyone is happy about it.

Some claim that “Pokémon Go” encourages players to trespass on private property in order to catch the Pokémon. A community church in Renton, Washington says players come all day and night to catch the Pokémon, leading them to be more concerned about theft and other security risks. As one property owner stated, “We don’t have a way to discern whether or not the adults who are coming to play the game are just here to play or ‘casing’ our location.”

Others claim that using AR to place Pokémon “on” private property is a form of “virtual trespass.” A group of property owners has actually filed a class action lawsuit against the game’s parent company based, in part, on this concept.

Typically, in order to trespass, a party must physically enter property that belongs to another without the owner’s permission. What makes the “Pokémon Go” case unique is that, while players may enter the land of another without the owner’s permission, while the game’s creators choose where to place these virtual creatures and locations, no one from the development team actually enters the property in the real world.

A Ninth Circuit judge allowed the case to continue due to in large part to the novel nature of this issue. If the plaintiffs succeed, eliminating the physical element usually required for trespass could impact far more technology than just “Pokémon Go.”

Virtual trespass has been used in other contexts to express a different concept, but for the sake of this post, we will focus exclusively on the impact of amending the concept of trespass to include a non-physical entry onto private property by a party without permission of the owner by a technology.

Niantic may have led players to commit trespassing under the traditional concept, but the company never physically entered the property in development of the game. The locations were chosen based on crowd-sourcing of player data and GPS mapping. Clearly, other AR games could result in similar concerns; however, without the physical requirement, so could GPS directions, traffic apps, or drones. After all, who hasn’t ended up at the wrong place when using technology from time to time?

Even the Internet itself could be guilty of “virtual trespass” if the doctrine is construed too broadly. Due to some faulty mapping, after all, an old farm in Kansas has become a hot spot for all sorts of virtual misdirection and lost connections. Even analogue era traditions like geocaching and letterboxingmight find themselves subject to potentially crushing liability if such a broad concept of trespass becomes accepted. Some might argue that there is a distinction between these cases and “Pokémon Go” because these creators are specifically enticing entry onto others’ property, but it’s important to remember that Niantic never set foot on private property, players using its game did.

If the goal is to find some legal grounds to combat the harm caused to property owners by the disruption of having unknown individuals show up at all hours of the day (and night, then the real issue isn’t that Niantic has virtually trespassed. Rather, they may have created a nuisance to the owner of the property in encouraging others to trespass as a result of their product.

Nuisance violations are torts arising from the common law idea that possessors (not just owners) of real property are entitled to the quiet enjoyment of that property. Quiet enjoyment does not refer only to noise, but also includes a variety of activities that might be harmful or annoying to a reasonable owner of such property like dumping sewage into a shared water supply or burning materials that create a noxious odor. Unlike trespassing, these activities do not require the perpetrator of the nuisance to actually intrude into the property, but only that these harmful activities disturb the possessor of the property’s quiet enjoyment. Courts generally react to such claims by issuing an injunction to prevent further harm if the behavior is found to be a nuisance.

Courts are often far quicker to react to new technology than legislators, and generally this is good. The common law is law as understood by tradition and norms and is far more adaptable to new technology than a top-down legislative approach. However, as the saying goes, “Hard cases make bad law,” and courts to can be susceptible to the idea “something must be done” rather than relying on their traditional common law principles. In fact, we should be cautious of what might happen when courts start rewriting common law principles to include new technology as in the case of “virtual trespass.”

We’ve already seen what can happen when the courts attempt to make law fit a technology without carefully examining the elements of the law. In the early 1990s, in Stratton-Oakmont v. Prodigy, a New York court ruled that an Internet intermediary, like a message board or payment processor, could be held liable for defamation for claims made by users of the service since the comments on the message board were moderated. This decision had the potential to severely damage the fledgling technology by imposing catastrophic liability risks onto anyone who moderated a user-generated Internet service. Luckily, sensing the risk to a hugely beneficial technology, Congress intervened and established Section 230 immunity which allows intermediaries to engage in reasonable moderation and the establishment of community standards and retain liability protection. Without such a statutory intervention, the Internet would be a far different place than it is today.

Establishing a theory of “virtual trespass” runs the risk of doing the same thing to AR and artificial intelligence that Stratton-Oakmont would have done to the Internet. Virtual trespass could rewrite the common law and change what the average innovator could expect to be liable for. While far from an ideal solution, using a nuisance approach would be more aligned with the standards that currently exists.

Nuisance law requires the proof of damages or harmed suffered while trespass merely requires proof that the violation occurred. As a result, individuals harmed by AR games would have to show more than just players were showing up on their property to hold a company accountable. They would have to show that the company’s actions actually caused them harm such as requiring extra security and that such harm could be remedied if the behavior ceased.

Nuisance law also tends to be specific to the location involved making it necessary for the courts to consider the specific facts of the case rather than an overly-broad class as “virtual trespass” might allow. In either case, the question remains whether a Section 230-style intervention would be needed to allow innovation in AR technology to continue if the courts begin to file creators liable for their players’ violations.

There is no question that “Pokémon Go”, and other applications of AR technology, raise novel legal questions that will need to be addressed. However, courts should be wary of rewriting traditional common law principles without considering the effect that it might have on innovation.

Photo from Thomas Cytrynowicz/AP/Shutterstock 

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