When Pokémon Go debuted last summer, the mobile game spread across the world–as of April 2017, more than 65 million people were playing, according to Business Insider. The game got people to exercise outside as they pursued Pokémon, but there were also some safety issues because of its augmented reality style.

Milwaukee County enacted an ordinance in February to curb the presence of Pokémon Go-style games in the city. According to the ordinance, game developers would be required to apply for a permit for augmented reality games, like Pokémon Go, to be played in parks.

But last week, U.S. District Judge J.P. Stadtmueller halted the ordinance because he said it may violate the First Amendment. Stadtmueller issued a preliminary injunction that the county cannot enforce the measure until a lawsuit between the county and Candy Lab Inc., which develops augmented reality games, is finished.

Candy Lab Inc. filed the lawsuit in response to the county’s ordinance, according to a local Fox affiliate. Under the county’s order, companies must also obtain a “certificate of insurance” worth $1 million of “general liability coverage,” according to The Hollywood Reporter.

Milwaukee County board supervisor Sheldon Wasserman filed the ordinance because the county was struggling to police activity in parks that doubled as “Pokémon centers” or “Pokémon gyms” for the game. The main issues included “traffic congestion, parking issues, littering, damaged turf, risks to natural habitats, lack of restrooms, and noncompliance with park system operational hours,” according to a report by Milwaukee County Parks. 

Milwaukee County is by far the largest in Wisconsin, home to over 16 percent of the state’s population. Other areas of the country have also experienced safety issues stemming from the game, which can distract people as they walk at night. Last year, three University of Maryland students were robbed at gun point on campus in a one-hour span while playing the game, according to the Baltimore Sun.

The federal judge wasn’t swayed by the public safety issues, however. Instead, Stadtmueller recommends that the county allocate resources to remedying the issue instead of putting the pressure on the companies:

Rather than prohibit publication of the game itself, the County could address its concerns by directly regulating the objectionable downstream conduct. … This might include aggressively penalizing gamers who violate park rules or limiting gamers to certain areas of the park. Such measures would assuage the alleged evils visited upon the parks by gamers while stifling less expression than the Ordinance does.

One issue Stadtmueller brought up in his decision was how broad the restrictions were. For a law such as this to be constitutional, he said, it must be narrowly-tailored to the specific issue and content neutral. The judge didn’t feel that was the case. Stadtmueller believes the current restrictions are too “vague” and provide too much censorship power to government officials, according to The Hollywood Reporter.

The county claims that the games can’t be considered speech, according to a local Fox affiliate. But Stadtmueller said the plot, characters, and dialogue make the game an expression of free speech.

Despite the decision, Wasserman is still committed to fighting for the ordinance. He said he is particularly intrigued by the groundbreaking nature of the case and the potential ramifications.

“I’ve also been told by the lawyers that this case is getting so hot, and that it brings up so many constitutional questions, that this has the potential to go all the way up to the U.S. Supreme Court,” Wasserman said.

Only 10 years ago it would have seemed impossible that people would walk around with their phones catching virtual Pokémon and visiting parks or buildings to battle other gamers. But now that is a reality local governments are facing.

Whichever direction the court proceeds, it will have a ripple effect across the gaming and mobile application industry. Because of the initial injunction, though, Pokémon Go fans can rejoice and continue to enjoy the application wherever, and whenever, they want.

Josh Schmidt

Josh Schmidt is an editorial intern and is a native of the Washington D.C Metropolitan area. He is working towards a degree in multi-platform journalism with a minor in history at nearby University of Maryland. Contact Josh at staff@LawStreetMedia.com.

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The Wikipedia Zero project was launched in 2012, with the goal of sharing Wikipedia via mobile phones across the world without forcing users to burn up their data. The program is specifically designed for users in developing countries where mobile data is incredibly expensive. Operators “zero-rate” Wikipedia and its affiliate projects don’t register as websites that users need data to access. Wikipedia Zero is active in 59 countries, and made headlines this week after partnering with Asiacell to launch the program in Iraq.

Wikipedia’s mission is similar to initiatives like Mark Zuckerburg’s Internet.org and Facebook Free Basics. Internet access is rarely prioritized in communities where access to food, clean water, housing, and healthcare are all lacking–yet connection to the internet means greater opportunities for business, education, and political participation.

While the project has the best of intentions, it has been criticized for copyright infringement as users in Bangladesh and Angola have used Wikipedia Zero and Facebook’s Free Basics to share copyrighted files. Wikipedia editors have tried to monitor and block this file sharing but it’s a daunting task that may not be possible without completely shutting down the project. Wikipedia Zero’s copyright infringement issues came to be because users realized they could manipulate the system in place–but internet piracy happens around the world, and these countries are hardly breaking the mold. Does the project really deserve to be shut down just because a portion of its users are engaging in piracy?

The internet is inextricably linked with development, so shutting down projects like Wikipedia Zero can only be a step backwards.  Yet as projects like Facebook Free Basics and Wikipedia Zero expand, they have to grapple with the consequences of users manipulating the tools they are given.  Beyond that, these companies have to recognize what expanding their audience means, as an audience with limited internet access may rely on them as their only source of information. Think about how fake news on Facebook has a genuine impact on public opinion–that fake news can be accessed globally, not just within the U.S., and suddenly a story that has no grounding in reality has been publicized across the globe. Wikipedia faces a similar problem as virtually anyone can edit or add to a Wikipedia page, which is why fact checkers and researchers generally shudder at its use as a resource. False information is being disseminated at a far greater rate when it seems to have been vetted by a brand name and Wikipedia’s branding is global.

It would be ideal if a more credible site like Encyclopedia Britannica or a useful news site like Reuters could be granted the “zero-rate”–but those sites simply aren’t as easy to access and navigate as the straightforward Wikipedia page, nor do they have the same foundational interest in spreading their content without financial gain that Wikipedia has. There are valid arguments for condemning or rolling back Wikipedia Zero, but what should it be replaced with? Unless governments can take on the herculean task of funding mobile data for their citizens, this may be as good as it gets.

Jillian Sequeira

Jillian Sequeira was a member of the College of William and Mary Class of 2016, with a double major in Government and Italian. When she’s not blogging, she’s photographing graffiti around the world and worshiping at the altar of Elon Musk and all things Tesla. Contact Jillian at Staff@LawStreetMedia.com

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As the impact of technology on our lives expands, sometimes the law fails to do so accordingly, creating questionable legal gray areas. Many of us store our entire lives in our cell phones, usually just protected by a short four-digit password. The question of whether or not it’s legal for the government to ask for someone’s phone password was just decided by a Pennsylvania court, at least temporarily solving at least one of those legal gray areas.

The case, SEC vs. Huang, dealt with two former Capital One data analysts who were suspected of insider trading. They were using phones that were provided by Capitol One, but used passwords that the suspects had chosen themselves. They were not required to disclose these passwords to Capitol One. Although they returned the phones to Capitol One when they were fired, they did not turn over the passwords. When the investigators asked the two suspects (both with the last name Huang, although not related) they refused, arguing that the Fifth Amendment, which protects an individual from self-incrimination, allowed them to refuse to hand over that information.

On Wednesday a district court in Pennsylvania decided in favor of the Huangs, meaning that they don’t have to turn over their passwords.

There were a lot of questions particular to the case, including the application of a particular legal doctrine called “foregone conclusion.” Essentially, pieces of information aren’t protected under the Fifth Amendment when the government knows what they contain, and their location. In this particular case, Judge Kearney wrote that the government “has no evidence any documents it seeks are actually located on the work-issued smartphones, or that they exist at all.” However, some legal experts, including the Volokh Conspiracy writer Professor Orrin Kerr, argue that the doctrine was applied incorrectly, pointing out that there’s a difference between asking for records of insider trading and asking for the passwords. If this case is appealed, that may be one of the questions that ends up being dealt with.

But back to that legal gray area–while the court may have ruled that phone passwords can be protected under the Fifth Amendment, other aspects of our mobile security probably aren’t. For example, last year a Virginia Circuit Court ruled that while cops can’t require individuals to unlock their phones using passwords, they can make them unlock them using biometric data–like the TouchID feature popular on most recent iPhone models. While these are obviously very different cases, in different courts, these cases and many others highlight the fact that the conversations over privacy and Fifth Amendment issues in the digital age are far from over.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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In a unanimous decision, the Supreme Court ruled last Wednesday that law enforcement officials must obtain warrants in order to search the cell phones of those under arrest. Chief Justice John Roberts wrote in the majority opinion, “the fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely.” This is a definite departure from previous policies, which allowed police officers to collect evidence through warrantless cellphone searches.

The Chief Justice stated:

The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought, our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

In this decision, Roberts dismissed law enforcement officials’ claims that searching a cell phone is no different than searching a suspect’s pockets, which has never required a warrant. Roberts addressed this by saying, “that is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Modern cell phones, with their vast capabilities, bring about entirely new privacy concerns that transcend a simple pocket search.

Warrantless searches have been justified, and sometimes are necessary. They are often conducted in order to protect police officers from hidden weapons, and to prevent suspects from destroying evidence. However, the court found that neither of those rationales applied to searching through the data on someone’s cell phone.

Understandably, police officers are concerned with the impact that this ruling will have on fighting crime. If a police officer must take the time to obtain a warrant before they can search someone’s phone, then that person will have the opportunity to erase any incriminating data. Roberts wrote:

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

However, according to Roberts, “remote wiping can be fully prevented by disconnecting a phone from the network.” He says that police officers can also remove a phone’s battery or simply turn the phone off.

This ruling was built on several privacy rulings in recent years, particularly the cases of United States v. Wurie and Riley v. California.

Police in Boston arrested Birma Wurie on drug trafficking charges in 2007. Police went through the call log on Wurie’s flip phone without first obtaining a warrant, and found several calls from a number labeled as “my house”. They then used reverse trajectory to trace the address, obtained a warrant, and found illegal drugs and firearms. While they did have a warrant to search the home, they never obtained one to search the phone that led them there.

In 2009, San Diego police detained David Riley for driving with expired tags. In their search of his car, police discovered two concealed firearms and seized Riley’s smartphone without a warrant. Stored text messages, photos, and videos on the phone led the police to believe that Riley had gang connections and was involved in several prior gang-related crimes.

In both of these cases, the defendants sought to suppress the evidence that was obtained without a warrant, and neither succeeded. The evidence was let in and they were both convicted, leading to a series of appeals that eventually reached the Supreme Court. The court addressed the privacy issues in both cases, but seemed less worried about police officers searching limited-capacity flip phones than smart phones that can hold large quantities of personal data. Justice Elena Kagan commented that, “most people now do carry their lives on cell phones,” so it is important that peoples’ Fourth Amendment rights are protected when it comes to personal information on smartphones.

In the age of constantly changing technology, the protections set out by the Fourth Amendment are unwavering. These technological advances raise many questions about one’s right to privacy when information is becoming more accessible. This Supreme Court decision is an important step in assuring that peoples’ rights are protected, despite these rapid changes in technology.

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Brittany Alzfan (@BrittanyAlzfan) is a student at the George Washington University majoring in Criminal Justice. She was a member of Law Street’s founding Law School Rankings team during the summer of 2014. Contact Brittany at staff@LawStreetMedia.com.

Featured image courtesy of [dalioPhoto via Flickr]

Brittany Alzfan

Brittany Alzfan is a student at the George Washington University majoring in Criminal Justice. She was a member of Law Street’s founding Law School Rankings team during the summer of 2014. Contact Brittany at staff@LawStreetMedia.com.

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