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 email@example.com 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
14 thoughts on “Pokémon Go Ethics: Beware The Terms Of Service Agreement!”
And if you do that, you probably won’t get your $1.99 refunded. Seriously, I find that to be more troubling, that I have to pay $1.99 to find out what the terms of service are. What if I read the terms and declined them and was already out of the $2?
Sue the hell out of ’em, Tim!
Where are you getting your 1.99 figure from? Pokemon go is free to play.
Also further on that note, paid items in the Google play store have a refund window where you can cancel the purchase. I do not know about on iPhone.
It seems the planning was hasty, or lazy…they used the map data from a previous game, Ingress, which was a geo-cache type game which involved tagging interesting or historical places in one’s neighborhood, which is why monsters are showing up at cemeteries and museums. The places most often tagged as interesting in Ingress have been turned into Pokestops with no review of the data. They really should have reviewed it and tailored it to the new game.
I think they were just unprepared for the mass influx of players. Ingress was a success (IMO), but didn’t have a gigantic playerbase.
When they were developing GO and made the call to use portal locations as pokestops and gyms, they probably thought something along the lines of
>Well portals are areas that people congregate in Ingress and it wasn’t a problem, so if we make them areas where people congregate in Pokemon GO it wont be a problem then either.
The catch they didn’t prepare for? 20x the players in a given location. 2-3 people checking out a cemetery at night capturing portals is not a big deal to the local populous and will slip through undetected. 20 people in that same location hunting for pokemon on the other hand will be noticed.
They are currently working on “Sponsored locations for PokeStops and Gyms”, which is exactly what it sounds like. I’m excited for this, and think it will solve a lot of problems as well as generate a good revenue stream (not that the game doesn’t already make money, being the top grossing game on the play store right now). Once they move to this platform they can start more aggressively removing the user generated Pokestops from Ingress Data without sacrificing having a good spread of pokestops in general
The binding arbitration thing is a problem, as it’s increasingly showing up everywhere. It’s on the verge of becoming standard boilerplate on all kinds of consumer products. Hell, we bought a new gas grill earlier this summer, and only when I was halfway through putting it together did I notice the binding arbitration clause that I’d already implicitly agreed to. There’s going to be little escape beyond withdrawing from society.
Ignorant of the workings of the law as I am, it seems that I should not have to look for loopholes or lawyers to protect myself from barriers to “redress of grievances” at every point. Is my only option, as Null suggested, not purchasing any item that could later be identified, uniquely, with its manufacturer?
‘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.’
Could you imagine if people actually did this? Every time a piece of software was installed or updates, and aa TOS box popped up, the owner took a step back and either printed the TOS or took their laptop to a lawyer, who read the 20 page TOS and gave a legal opinion, charging hourly rates.
Firms would have a new TOS department. These agreements are HUGE sometimes, and that might be a problem all on its own.
You gotta sign the TOS and buy the app to find out what’s in it.
(I hope that wasn’t too vague of a jab)
That’s probably good until Obama leaves office.
I didn’t think it was.
And yet—they really should do this. My ethics position is that lawyers who help companies draft such waivers are assisting in deception.