Do you really need a permit to place virtual objects in a real park? This and other odd dilemmas are emerging with augmented reality (AR), where virtual worlds are colliding with our actual world.
Earlier this year, an augmented-reality appmaker, Candy Lab, sued the County of Milwaukee, Wisconsin, over its permit requirement for AR apps that cause people to converge on its parks. This new law was a reaction to the Pokémon Go craze last summer, when thousands of players swarmed the county’s public parks to “catch” Pokémon that were placed there by the game developer.
While it’s great to get people walking out and about—visiting parks and other sites they might otherwise have not visited—it’s a problem if the sheer number of visitors suddenly overwhelm the capacity of those sites. This is something like a distributed denial of service (DDoS) cyberattack but in real life. The county had complained about “daily traffic congestion, parking issues, littering, compacted and damaged turf, risks to sensitive flora and fauna habitats, and noncompliance with park system operation hours.”
When a political protest or music festival is organized at a public park, it’s not unreasonable to require organizers to obtain a special event permit to ensure there’s enough security personnel, traffic control, toilets on site, and so on. First Amendment freedoms of speech and assembly may be reasonably balanced by public safety and other urgent considerations.
Is placing virtual objects in a real park anything like organizing a protest or festival? Candy Lab alleges that the county violated its First Amendment rights in requiring a permit before publishing its AR software, but the company didn’t consider this relevant question (yet), which we can do here.
A key disanalogy immediately comes to mind that might support Candy Lab’s position: Unlike an organized protest, neither Pokémon Go nor Candy Lab’s poker app directs people to a specific location at a specific date and time, and this makes predicting crowd-management needs very difficult and possibly overkill if the game might be a dud.
In Candy Lab’s app, virtual poker cards are distributed across many physical locations; and, if they like, players can pick up those cards for their poker hand by visiting those locations. As with Pokémon Go, players don’t need to converge on any particular place or at any particular time. In contrast, an organized event with a particular location and time can more easily predict turnout and related effects, making a permit requirement more reasonable.
A better analogy may be that location-based AR games (so far) are more like a publisher that merely lists a park and other notable spots in a guidebook. There’s no coordinated effort to get people to visit specific places at specific times and, anyway, we’re already free to visit them when we want.
It would seem silly to require guidebooks and listicles to get an event permit or help pay to accommodate extra people, just because that publicity could lead to more visitors to the spots they pick out. Even if the publisher created a game around their tourist suggestions—“visit them all and win stuff!”—a permit requirement still appears inappropriate.
If park permits were required for a guidebook publisher, where would it end? Yelp, for instance, may be responsible for more traffic and crowds around certain businesses than Pokémon Go has created; should Yelp be required to have a permit every time it lists something that could possibly affect traffic and dining patterns? Probably not; that would be unduly burdensome for businesses and hinder innovation.
Other companies and services could be affected, too. By simply pinpointing a park on its map, Google Maps also could be responsible for increased traffic to the park. If we follow the broad logic of “if you’re responsible for increased traffic to x, then you must seek a permit or otherwise contribute to managing crowds at x”, then Google Maps probably wouldn’t survive, nor would paper-map companies, such as Road Atlas or Thomas Guide.
And it doesn’t end with businesses. If I post on Facebook that a park that I am visiting is great, and that you all should go visit this park or whatever park is close to you, then it’d seem that I would need a permit, too. The special event permit rule doesn’t single out commercial ventures; it applies equally to noncommercial gatherings, from political protests to large family cookouts.
If talking up a park or town (or just mentioning it in this article) causes more people to move to the area and drives up local real-estate prices—as it has for my town of San Luis Obispo, when it was named the “happiest town in America”—well, that’s just the price and meaning of liberty. Individual actions can have large-scale effects, and that’s ok.
A delicate balance between liberty and public interest
Now, this isn’t to say that all AR apps should be free to do as they like, just as other businesses and private citizens have moral and legal responsibilities to uphold, too. Some speech and messaging could be unethical as well as illegal, such as encouraging an emotionally vulnerable person to commit suicide.
Likewise, there may be odd cases where a publisher or AR developer needs to pay special attention to risks and take extra precautions that it ordinarily might not. For instance, if an AR game directed you to a janky rope-bridge or to an ecologically fragile area, we don’t need to see a crowd appear at a particular time to worry about public safety and environmental harm. Any significant increase in overall visitors could create special risks.
Most public parks don’t fit in these categories, but some might. Not just parks and towns, but even entire nations could be legitimately concerned about an overload of visitors, such as Iceland. So, the above discussion is only a general case for exempting current AR games from obtaining special event permits. The details matter, and a different balance might need to be struck between civil liberties and public interests in different cases.
Beyond this issue about public spaces, there’s growing awareness that virtual and augmented reality could upend many other areas of law and ethics, some of that caused by Pokémon Gospecifically. And since most VR/AR apps today are games, they can benefit from many ongoing conversations on the ethics of video gaming as well as cyberspace more broadly. After the aborted FBI attempt to make Apple create a backdoor into encrypted user communications, Candy Lab’s lawsuit is picking up the unfinished legal debate of whether and when software codecan be protected as speech.
In the next article in this two-part series, I’ll look at similar conflicts between liberty and public interest that are arising in robotics. Augmented reality is just one of many disruptive technologies to come. The objects it creates might only be virtual, but the challenges it raises are all too real.
Acknowledgements: This work is supported by the US National Science Foundation, Stanford CARS, and California Polytechnic State University, San Luis Obispo. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author and do not necessarily reflect the views of the aforementioned organizations.