—by Will Kilgore
Sources: S.B. 8174, 238th S. Sess., 2015–2016 Reg. Sess. (N.Y. 2016); N.Y. Penal Law § 65.10 (McKinney 2016).
Abstract: New York Senator Jeffrey Klein introduced Senate Bill 8174 to prohibit sex offenders from accessing augmented reality games, so as to prevent such offenders from congregating in the same real world locations as children engaged in virtual play.
***
On August 3, 2016, New York State Senator Jeffrey Klein introduced Senate Bill 8174 that would amend New York Penal Law Section 65.10 by adding the words “or augmented reality game” into subsection (b) of paragraph 4-a. The justification for Senate Bill 8174 is to prevent unsupervised children and sex offenders from congregating in the same real world locations that the augmented reality game incentivizes players to visit. This proposed legislation came largely in response to the immediate popularity of the augmented reality game Pokémon GO. Senate Bill 8174 is the first proposed legislation, either state or federal, that both recognizes the potential impact of augmented reality games on our culture and attempts to minimize the harm that can occur from playing these types of games.
Augmented Reality Games
Augmented reality games, like Pokémon GO, allow players to interact with their real world environment while simultaneously playing the game. For example, in Pokémon GO, the game uses a player’s mobile device camera, GPS, and clock to generate a version of the real world on that device. The purpose of this particular game is to collect creatures that pop up in random real world locations. There are also certain in-game objectives at real world locations, where players can stock up on supplies that are needed for the game or battle their creatures against those of other players. With both children and adults able to play the game, there can be significant risks in allowing unsupervised children to frequent these locations.
Current Status of the Law in New York
The subsection that Senate Bill 8174 proposes to amend sets forth mandatory conditions when imposing a sentence of probation or conditional discharge for certain classifications of sex offenders. Those classifications are: sex offenders that perpetrate an offense on victims under age 18, sex offenders that are classified as level three, or sex offenders that used the internet to facilitate the crime. Section 65.10 of New York Penal Law currently prohibits these classifications of sex offenders from: “1) using the internet to access pornographic material; 2) access[ing] a commercial social networking website; or 3) communicat[ing] with other individuals or groups for the purpose of promoting sexual relations with a person under the age of eighteen.” Subsection (b) goes on to define social networking website as:
any business, organization or other entity operating a website that permits persons under eighteen years of age to be registered users for the purpose of establishing personal relationships with other users, where such persons under eighteen years of age may: (i) create web pages or profiles that provide information about themselves where such web pages or profiles are available to the public or to other users; (ii) engage in direct or real time communication with other users, such as a chat room or instant messenger; and (iii) communicate with persons over eighteen years of age.
While Section 65.10 prohibits sex offenders from participating in three distinct activities, and social networking website has a broad definition, augmented reality games are not included in the prohibition.
Legislative Pipeline
Currently, Senate Bill 8174 is still in committee. In other words, the proposed legislation still has some distance to go before actually becoming law. The reviewing committee has to decide whether the bill should be sent to the Senate floor for a vote. If the bill passes by a majority in the Senate, then it has to also pass by a majority of the Assembly, and ultimately be signed into law by the Governor.
Implications of Senate Bill 8174
If Senate Bill 8174 becomes law, judges will be required to impose this additional condition on the probation or conditional discharge of all of the above-mentioned classifications of sex offenders. Prosecutors and investigators will presumably need to discover new methods to track and prove that a suspect did indeed access an augmented reality game. If a sex offender does access an augmented reality game, it will be the duty of the prosecutor to prove that the individual violated his probation or conditional discharge.
Even though this proposed legislation is still in committee, at the very least it brings awareness to the legislature that augmented reality games are on the market and could have potential negative consequences for consumers. At the very most, it could become law and potentially protect children by prohibiting sex offenders from accessing augmented reality games.