Article of Interest

Pokémon Go and Your Privacy
By:  Andrew Gardner

Pokémon Go has recently taken the world by storm. A location-based “augmented reality” game, Pokémon Go allows users to explore the real world, while a digital avatar follows on a digital map, catching digital monsters to grow, battle, and trade. To function, the app uses a smart phone’s GPS to track the user’s real-world location.

Location data, like what is used in Pokémon Go, can seriously undermine a person’s privacy. As pointed out by the Sixth Circuit in People v. Weaver, 909 N.E.2d 1195, 1199-200 (Ct. App. N.Y. 2009), included in location history:

will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations—political, religious, amicable and amorous, to name only a few—and of the pattern of our professional and avocational pursuits.

In the past, this intimate picture of our lives was protected partly by the Fourth Amendment, but mostly by the prohibitive cost of following a person 24 hours a day, for weeks on end. Doing so would have required multiple officers working in shifts to track a person’s every movement. Now, accessing a map of our locations is a matter of a request to a cell provider or a GPS device. This reduction in the cost of surveillance places a much greater importance on the legal standard by which this surveillance is allowed.

Currently, that legal standard is whether a person has an expectation of privacy that society is willing to accept as reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). If a person has a reasonable expectation of privacy, then the Fourth Amendment requires a warrant to conduct a search. The Supreme Court has held that a person does not have a reasonable expectation of privacy over information disclosed to a third party, because the third party may not keep the information private. United States v. Miller, 425 U.S. 435, 443 (1976). All Courts of Appeals to address the issue, including the Fifth Circuit, have concluded that accessing location data does not require a warrant. See In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013); In re Application of the United States for Historical Cell Site Data, 620 F.3d 304 (3d Cir. 2010; U.S. v. Graham, 824 F.3d 421 (4th Cir. 2016)(en banc).

Many are aware that apps such as Pokémon Go need location data to function, but are not aware that by using the app they are waiving their Fourth Amendment right to privacy over their location. By using convenient or fun technology, many may be making unconscious and uninformed decisions about the role of privacy and government in our lives.

U.S. Supreme Court Justice Samuel Alito, in United States v. Jones, 132 S.Ct. 945, 962 (2012), pointed out in his concurring opinion that “even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.” There needs to be a serious examination of how the Fourth Amendment should operate in today’s technological landscape. With Pokémon Go surging the use of location-sharing apps, it is a perfect time to examine what society’s expectations of digital privacy are. It is not unreasonable for a person to expect that digital information is frequently shared for a limited purpose without giving up our desire for general privacy against surveillance. Even if we do not expect more privacy, we should all be aware of what we give up when we go out to catch Pikachu.