Regulating Digital Mapping Technology

To what extent will gamers go to “catch ‘em all”? To the dismay of residential homeowners and property owners, mobile gaming applications are encouraging gamers to explore uncharted territory. Increased traffic, noise, and pollution caused by augmented reality applications have affected individual property owners, neighborhoods, and municipalities alike. In a recent paper, two researchers at the University of Ottawa propose that cities adopt new regulations to combat the scourges of augmented reality technology. The basic problem, writes Elizabeth F. Judge, a professor at the University of Ottawa, and Tenille E. Brown, a Ph.D. candidate there, is that gamers are intruding upon private property without consent from property owners. The developers of these games use digital maps to superimpose content on the real world as seen through a gamer’s camera lens. For example, the Pokémon Go application uses real-world positioning to create digital scavenger hunts in various locations, including residential properties. Homeowners have unsuccessfully sued Pokémon Go’s developers for encouraging gamer traffic on their properties and into their neighborhoods. They have complained that Pokémon Go players have blocked their driveways, wrecked their landscaping, and peered into their homes. Although the lawsuits claiming virtual reality trespass failed, digital mapping technologies continue to fuel controversy. Moreover, courts have not yet definitively decided whether property owners have the right to control whether virtual content appears on their property through an augmented reality application. In Boring v. Google, homeowners sued Google for entering their property to take photographs for the Google Maps database. The court dismissed the invasion of privacy claim and did not hold Google liable for including the plaintiff’s property on the map. But it did find Google liable for a claim of trespass because Google personnel physically entered the property. According to Judge and Brown’s recent paper, since tort claims do not adequately address the effects of digital technology—as opposed to physical intrusions—on property owners’ rights, the government should regulate how developers implement the digital maps into applications. Judge and Brown acknowledge the privacy and security-related reasons to exclude properties like women’s shelters, memorials, and spiritual sites from mainstream digital maps. But they also recognize the utility and efficiency of digital maps and applications. Although Judge and Brown conclude that the public interest in having accurate spatial data outweighs privacy concerns, they argue that digital maps must be regulated to protect especially vulnerable localities. Judge and Brown endorse augmented reality regulation. They caution against over-regulation, however, because they recognize the benefits associated with bringing gamers outdoors and the public interest in digital mapping generally. They realize that granting homeowners the right to opt out of digital maps would decrease the accuracy and usefulness of digital maps to consumers. Permitting property owners to opt out of virtual maps could also expose applications like Google Maps, Four-Square, Waze, and MapQuest to virtual trespass litigation for providing consumers with basic location information. Judge and Brown’s regulatory scheme would allow different municipalities to have different standards based on their unique concerns. For example, some cities might apply existing advertising regulations to augmented reality advertising, while other cities might choose to create regulations specific to augmented reality advertisements. Since there is no “right” way to regulate augmented reality, say Judge and Brown, regulations may differ based on the technology’s impact on each city. One way to tailor regulations to each unique region, Judge and Brown note, would be to create zones within cities in which the augmented reality rules would differ. In addition to creating geographic boundaries, regulators could require developers to obtain permits allowing them to use augmented reality technology in certain public spaces. A permit system would allow property owners and regulators to filter applications based on their content. For example, regulators could filter applications with adult content from operating within school zones. Judge and Brown observe that the Canadian federal government catalogs trademark and copyright information in a national database. Similarly, they recommend that the federal government create a repository for augmented reality applications, requiring developers to identify the geographic scope and properties featured in the application. Property owners could then search the repository for their address to identify which applications cover their respective area. Judge and Brown argue that requiring application developers to submit information to a centralized database would relieve property owners from the burden of downloading and searching each application to locate their property. Property owners could also charge application developers or individual players for using their property, Judge and Brown say. One company already charges Pokémon Go for each person that visits its property using the application. Judge and Brown encourage city officials to use the funds collected from the use of public property to support municipal projects, such as restoring public resources like waterways, historic sites, or public parks. Alternatively, Judge and Brown advise regulators to implement a compulsory licensing scheme allowing property owners to license out their land and select what types of content may be shown there. Judge and Brown would caution property owners to ensure that their licensing schemes comply with existing content-based municipal zoning rules. Ultimately, a combination of Judge and Brown’s recommended zoning mechanism, digital catalog system, and market-based licensing scheme would address property owners’ grievances about augmented reality applications.

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