Consultation

Signs of the Times: How Pokémon Poses Municipal Regulation Questions

Signs of the Times: How Pokémon Poses Municipal Regulation Questions

Pokémon GO has descended upon the masses, and this newest iteration of Nintendo’s classic video game from the 1990s brings the monster catching hysteria to the real world—or at least to the screen of your GPS enabled smartphone. Having been out for only a little over a week, Pokémon GO has players everywhere seeking out real world locations, including historical markers and other landmarks, where their proximity to certain pre-designated coordinates allows them to collect in-game items or to battle each other in pursuit of the game’s ultimate goal: to find and catch a menagerie of curious creatures known as “Pokémon.”

The game is supposedly meant to be played while traveling on foot; however, the sparseness of the geo-tagged locations where the game’s action takes place has the rather predictable effect of encouraging players who are licensed drivers to drive around looking for them, especially due to the fact that many such locations are conveniently located along streets and highways. Also, a player must look at and interact with their smartphone in order to find and utilize these locations, which appear on-screen as a sort of virtual billboard adorned with an attention arresting feature, which brings us to the legal issues.Pokémon GO unleashed digital zombies roaming city streets or the pedestrian equivalent of distracted driving.

Many cities already prohibit texting while driving, and the prohibited act is usually described broadly enough to also encompass playing games while driving. Therefore, the novelty of Pokémon GO does not necessarily add anything new to this type of regulation. Instead, it poses new questions about a much older subject of municipal regulation—signs.

A long-recognized justification for the regulation of signs, and especially billboards, is their inherently distracting effect on motorists. However, the First Amendment to the United States Constitution has significantly limited the types of regulations that can be enacted, and so cities may generally regulate the time, place, and manner of signs, but not their content. Of course, today’s sign regulations regulate the time, place, and manner of physical signs, and likely do not address signs of a virtual nature.

Sign technology has evolved so rapidly that even the advent of LED signs has caused many cities to revisit their sign regulations to address things like animated transitions and scrolling text—but at least LED signs physically exist. So the question for the new technological era is this: does the authority to regulate the time, place, and manner of signs include the authority to regulate virtual signs? The rationale is essentially the same because virtual billboards could be just as distracting to drivers as physical billboards. In fact, they could be even more distracting because, while physical billboards display the same message to all passing drivers, a virtual billboard could appear differently to each driver who views it, and advertisers could use cookies or similar data tracking methods to tailor each billboard to the interests of each driver, maximizing the distractive effect.

Fortunately, the current state of technologies such as virtual reality and augmented reality require the use of some sort of device which could be regulated, such as the smartphone required to play Pokémon GO. However, soon those technologies could be integrated into the windshields of vehicles, much like how GPS has been integrated into the dashboards of most new vehicles. Even some vehicles on the road today display information such as the speedometer as a hologram on the windshield, making the integration of virtual reality or augmented reality even more foreseeable.

Perhaps autonomous vehicles will be ubiquitous by the time virtual billboards begin making their appearance on the highways of the world, and thus the rationale of regulating signs to prevent drivers from being distracted would be a moot point—but for now, please don’t Pokémon GO and drive.

Byron L. Brown is an attorney with the Randle Law Office in Houston, Texas, where his practice areas include municipal economic development, municipal franchises and commercial lease litigation. He graduated from the University of Texas at San Antonio with a B.A. in Criminal Justice, and earned his J.D. from the University of Houston Law Center.

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