Pokemon Go Legal K-12 Schools Data Privacy CETPA F3Law


 Legal Implications of Use of Pokemon Go

We were asked by the California Educational Technology Professionals Association ("CETPA")
whether the use of Pokemon Go by students in a school setting would be considered a violation
of the Student Online Personal Information Protection Act ("SOPIPA"). In short, and as
discussed in more detail below, the use of Pokemon Go does not violate SOPIPA. We have also
addressed below additional legal and policy implications school districts should consider prior to
allowing use of PokOmon Go or other augmented-reality programs on campus for either
recreational or instructional purposes.

SOPIPA

As you may be aware, SOPIPA went into effect on January 1, 2016 and places several
requirements on operators of an Internet website, online service, online application, or mobile
application with actual knowledge that the site, service, or application is used primarily for K-12
school purposes. (Cal. Bus. & Prof. Code § 22584.) Since Pokemon Go is not used primarily
for K-12 school purposes (or Niantic would have no reason to believe it would be used primarily
for K-12 school purposes), then the SOPIPA requirements would not extend to Pokemon Go or
its developer, Niantic.

The potential applications of augmented reality are infinite, and there are or will be software
providers who are likely to offer augmented-reality software primarily for K-12 educational
purposes. Prior to downloading such a program for educational use, school districts should
review the terms and conditions to ensure that the program is SOPIPA compliant. Since
SOPIPA is California-specific, the software's general terms and conditions may not include all
elements required under SOPIPA. (For more information on SOPIPA's required elements,
please feel free to contact our office, download our Data Privacy Guide, or see California
Business and Professions Code section 22584.)

AB 1584 / FERPA

Similarly, the nine elements outlined in Education Code section 49073.1 (established by
Assembly Bill ("AB") 1584) only apply when digital educational software uses pupil records,
with pupil records being defined as any information directly related to a pupil that is maintained
by the local educational agency, or any information acquired directly from the pupil through the
use of instructional software or applications assigned to the pupil by a teacher or other local
educational agency employee.

It is our understanding that when Pokemon Go was first released, it allowed for full access to
Gmail accounts including Google Docs and the contents of Gmail. Under this scenario, to the
extent a student was permitted or directed to use a student Gmail account to download Pokemon
Go, the requirements under Education Code section 49073.1 and the Family Educational Rights
and Privacy Act ("FERPA") may apply since the software provider would have been given
access to pupil records within Gmail and Google Docs. However, we understand that a software
update has been issued for Pokemon Go so it now purports to collect only the user name and
Gmail address. Anytime a district is permitting or directing students to download software using
their district-issued Gmail accounts, staff should carefully read all terms and conditions to ensure
that the software does not require "full access" to students' Gmail accounts.

To operate, augmented-reality software such as Pokemon Go utilizes the global positioning
system ("GPS") in a device to track the device's location. We are not aware of any legal
authority that specifically prohibits tracking the location of a student-operated device. However,
it is foreseeable that parents may be uncomfortable with the notion that a school district or
software provider is able to track the location of a student-operated device (and therefore, the
student) due to the software allowing access to such information. Accordingly, before utilizing
any augmented reality off campus for curriculum and instruction purposes, school districts may
want to inform parents about this feature.

Policy 

Many have expressed concerns about the so-called dangers of augmented reality cited in the
media (e.g., dangers associated with mobs of people, failure to pay attention to surroundings,
being lured into dangerous environments, etc.). To the extent a school district wishes to prohibit
the use of Pokemon Go on a school campus or the downloading of Pokemon Go to a district
device, it may do so through issuance of an Acceptable Use Policy or school site rules. As you
know, there are also mechanisms to block Pokemon Go from a device or network. (I will defer
guidance on the logistics of blocking software programs to the IT professionals.)

We have also seen a number of ways Pokemon Go can be used for innovative curriculum and
instruction and anticipate there are (or will be soon) augmented-reality programs specifically
geared toward the educational setting. Any application of augmented reality should take into
consideration the issues reviewed above. In addition, IT professionals should be prepared to
address related questions from administrators and parents. We are currently working on
guidance to assist in responding to such questions.

We hope this information is helpful to CETPA members. We recognize this is a rapidly
evolving field, so the legal implications are likely to evolve as well. We will keep you apprised
of any legal developments in this arena.


Submit a Form to Remove PokeStops or Gym from Pokemon Go