I had a hard time finding anything unethical about Pokémon Go, the smartphone GPS scavenger hunt game that sends players all over the landscape to find and trap those adorable Japanese monsters that caused a trading card craze and more a decade ago. (I assume that anything that seems really dumb is likely to have ethics problems. You’d be amazed how often I’m right.) It seems benign. The game can be good exercise, it’s engaging for people who have no more productive avocation, and best of all, it gives American something to obsess about not named Bill or Hillary. There are some troubling signs: administrators at the National Holocaust Museum and Arlington National Cemetery felt that they needed to ask visitors not to play the game while contemplating the murder of six million Jews and the fallen heroes of foreign ways—what is these spoilsports’ problem?—and some people are letting the game endanger themselves and others, leading to these morons falling off a cliff, causing this idiot to drive his car into a tree, and prompting this in Arizona…
Still, what is mostly wrong with Pokémon Go is that it requires signing one of those long terms of service agreement that all apps and online services make us sign, and the company’s lawyers (Pokémon Go is owned by Niantic Labs) have buried various ethically dubious items in the small print. Prime among them—why isn’t there a “find your threatened rights in the small print” game app?—is waiver of the right to sue for liability, and an agreement to submit to binding arbitration, precluding a jury trial and class action lawsuits.
My position is that lawyers should not help companies slip restrictive and harmful terms by customers they know will neither read nor understand a Terms of Service agreement. I think it’s unethical. It is legal however, and the courts have upheld the enforceability of the waivers once you click away your rights.
I’m going to write this now out of ethical obligation, knowing full well that it will do little good because even I sign the damn things sometimes: Never agree to a service agreement without reading it thoroughly, and asking a lawyer about anything in it that you don’t find clear and fair.
Back to Pokémon: the Pokémon Go Terms of Service include a restrictive forced arbitration clause that eliminates a player’s right to file a lawsuit against Niantic, and also bars the user from joining others in a class action against the company. What kind of class action? Well, this is a data based app, and if the company isn’t sufficiently careful—pretend it hires Hillary Clinton as head of Data Security—there’s always the chance of a data breach resulting in the misappropriation of personal information for millions of Pokémon Go users. Mandatory arbitration would allow the company to avoid a devastating class action lawsuit, and instead only have to deal with the few users with the time and the resources to bring a case to arbitration.
Consumerist, the indispensable website that covers all the ways consumers get screwed in the marketplace, notes that the Pokémon Go terms include an opt-out provision for people who signed away their rights without thinking about it. The opt-out must be exercised within 30 days of agreeing to the Terms of Service.
Since Pokémon Go has only recently caused everyone to lose their minds, most users have just downloaded and activated the app in the last week or so. If you are one of the people chasing imaginary animated monsters using your cell phone, you are still probably within the limit. Unfortunately, the intersection of Pokémon Go enthusiasts and people who have the sense to come in out of a meteor shower may be depressingly small.
I guess we shall see.
To opt out, Consumerist tells us…
Send an email ASAP (before the 30 days have passed) to firstname.lastname@example.org with “Arbitration Opt-out Notice” in the subject line and a clear declaration that you are opting out of the arbitration clause in the Pokémon Go terms of service.
Of course, if you do that, you won’t be able to play the game at Arlington National Cemetery.
Pointer and Facts: Consumerist