Could 'Pokemon Go' break election laws?

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Pokemon Go Craze Raises Privacy and Safety Concerns

"Pokemon Go," the augmented reality app that recently became the biggest mobile game in U.S. history, has businesses and advertisers working feverishly to capitalize on its enormous popularity.

And while election campaigns are already taking advantage of the game's mechanics to incentivize players to visit political rallies and registration drives, the possible use of "lures" to attract gamers to polling places – and even to influence their vote – is proving to be an unimagined area of election law.

Hillary Clinton's Democratic presidential campaign, for example, has organized a "Pokemon Go" event in Lakewood, Ohio, where people can play the game and register to vote. Organizers held the event at what the game calls a "Poke Stop," a public place at which the game's programmers put items useful in the digital scavenger hunt. Organizers also promised what's called a "Lure Module" – a facet of the game designed to attract the wild Pokemon whose capture is the object, and thereby avid "Pokemon Go" players, to a particular location.

See images of people playing the popular game:

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People playing Pokemon Go
Nintendo Co.'s Pokemon Go is displayed on a smartphone in Tokyo, Japan, on Tuesday, July 12, 2016. Pokemon Go debuted last week on iPhones and Android devices in the U.S., Australia, and New Zealand, letting players track down virtual characters in real locations using their smartphones. Nintendo is an investor in Niantic Inc., the games developer. Photographer: Akio Kon/Bloomberg via Getty Images
PORTLAND, ME - JULY 11: Monument Square, Portland, was a hotspot of activity for the Pokemon Go 'augmented reality' game Monday evening. From left, Shellbe Flynn, Jordan Regios (mostly hidden) and Elizabeth Hook. (Photo by Michele McDonald/Portland Press Herald via Getty Images)
BOSTON, MA - JULY 11: Mary Baker, 18, plays the mobile game Pokemon Go as she walks through the Public Garden in Boston, Mass., July 11, 2016. (Photo by Keith Bedford/The Boston Globe via Getty Images)
PORTLAND, ME - JULY 11: Kaelyn Kespert, 10, of Scarborough, plays Pokemon Go at Deering Oaks Park. (Photo by Brianna Soukup/Portland Press Herald via Getty Images)
NEW YORK, NY - JULY 11: Medical student Jag Chilana plays Pokemon Go on his smartphone at Union Square, July 11, 2016 in New York City. The success of Nintendo's new smartphone game, Pokemon Go, has sent shares of Nintendo soaring. (Photo by Drew Angerer/Getty Images)
David Melendez (C) uses three phones as he plays the augmented reality mobile game "Pokemon Go" by Nintendo in New York City, U.S. July 11, 2016. REUTERS/Mark Kauzlarich
Theodore Belizaire plays the augmented reality mobile game "Pokemon Go" by Nintendo in Times Square, New York City, U.S. July 11, 2016. REUTERS/Mark Kauzlarich
Jerimie Nason (C) plays the augmented reality mobile game "Pokemon Go" by Nintendo as people pass him on the street outside Grand Central Terminal in New York City, U.S. July 11, 2016. REUTERS/Mark Kauzlarich
A virtual map of Bryant Park is displayed on the screen as a man plays the augmented reality mobile game "Pokemon Go" by Nintendo in New York City, U.S. July 11, 2016. REUTERS/Mark Kauzlarich
Theodore Belizaire plays the augmented reality mobile game "Pokemon Go" by Nintendo in Times Square, New York City, U.S. July 11, 2016. REUTERS/Mark Kauzlarich
The augmented reality mobile game "Pokemon Go" by Nintendo is shown on a smartphone screen in this photo illustration taken in Palm Springs, California U.S. July 11, 2016. REUTERS/Sam Mircovich/Illustration
Leo Mesquita (R) and Jean Suplicy (2nd R) play the augmented reality mobile game "Pokemon Go" by Nintendo as they walk away from the Chrysler Building in New York City, U.S. July 11, 2016. REUTERS/Mark Kauzlarich
Theodore Belizaire pumps his fist after catching a Pokemon in the augmented reality mobile game "Pokemon Go" by Nintendo in Times Square, New York City, U.S. July 11, 2016. REUTERS/Mark Kauzlarich
Pokemon Go is displayed on a cell phone in Los Angeles on Friday, July 8, 2016. Just days after being made available in the U.S., the mobile game Pokemon Go has jumped to become the top-grossing app in the App Store. And players have reported wiping out in a variety of ways as they wander the real world, eyes glued to their smartphone screens, in search of digital monsters. (AP Photo/Richard Vogel)
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Nothing wrong so far. In fact, the event follows the example of businesses, which reportedly are seeing sales increase by drawing game players. The Financial Times recently reported on a restaurant that experienced a 75 percent increase in customers by simply placing a lure.

But the game's developer, Niantic, is also said to be researching advertising opportunities within the digital asset – meaning that in addition to seeing Charizard and Lapras projected atop real-world surroundings, the game player could also see signs and slogans for products and services not physically present. In fact, Niantic will soon allow companies to have "sponsored locations" at Poke Stops.

And that's where things get dicey. If commercial ads are on the horizon, could political ads be far behind?

Say Hillary Clinton or Donald Trump bought an advertisement at a Poke Stop and put a Lure Module at a polling place to bolster voter turnout. Nearby players would be inclined to go to that location, where they would see an advertisement for a particular candidate. They might even drop in to pull a lever.

In the real world, campaign ads at polling places must conform to strict regulations in certain states. But would it be legal in the digital world? It's not immediately clear.

"If a campaign tries to lure people into the polling place where they would see a campaign advertisement, that could be considered electioneering," says Richard Hasen of the University of California, Irvine School of Law.

Former FEC Chairman Michael Toner of Wiley Rein LLP disagreed, saying that personal devices are considered private space, and therefore not subject to electioneering laws. He explains that though "Pokemon Go" lures are mapped to a physical location, the technological world is still considered private space as it is a choice to access the application.

Toner adds that campaigns can theoretically use lures as an incentive to get out the vote and reach people who would have otherwise not gone out to the polling place. Campaigns, he says, can use this argument as a societal benefit that outweighs the burden of seeing a paid advertisement in favor of one candidate.

But both Hasen and Toner stress that the laws governing elections are antiquated and the judicial system is behind modern technology.

Hasen says the question "could ultimately end up in the courts" if election administrators issue a directive to Niantic and other augmented reality companies not to use their mechanics in this manner. He theorizes that Niantic could then file a lawsuit claiming that directive infringes on the company's First Amendment rights.

"I don't know how it will play out," Hasen says. "It's an interesting question."

Copyright 2016 U.S. News & World Report


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