Pokémon Go Gamer Files Lawsuit Over Developer’s Terms of Service

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A Florida gamer is suing the developer of the intensely popular app Pokémon Go, claiming the game’s terms of service contract is deceptive and forces players to surrender their personal and private information.

Plaintiff David B. says that when he downloaded Pokémon Go, he unwittingly granted Niantic “perpetual” and “irrevocable” expansive rights to, amongst other things, collect his user data.

Niantic is the software company that developed and published the augmented reality game Pokémon Go.

According to Niantic, the game is “the next evolution of Real World Gaming” and, along with other games developed by the company, is made possible by “exploiting the capabilities of smartphones and location technology.”

The app directs players to interact with creatures from the Pokémon world in real-life locations, as the creatures pop up on users’ phones or mobile devices.

Though estimates vary between analysts, it has been speculated that Pokémon Go has been downloaded more than 7 million times in the United States since its recent release.

By using Pokémon Go, users agree to the Terms of Service and Niantic creates a user’s Pokémon Go account by allegedly extracting data from the gamer’s Google, Facebook, or other pre-existing third-party account certain personal information.

On July 17, 2016, David claims he downloaded Pokémon Go onto his phone and says he unwittingly handed over his private information to the game’s developer, Niantic, under an irrevocable license.

The license gives Niantic the right to retain and share the data — including players’ location, recent web history, search terms and user messages — in perpetuity, according to the lawsuit.

As a result, David says, “unsuspecting individuals, including [David], have downloaded and used ‘Pokémon Go’ … and [have] and will provide Niantic with information.”

“The terms of service provide that [David] has granted to Niantic a perpetual and irrevocable license, which will survive cancelation, discontinuation or termination of [David’s] access to or use of Niantic’s services,” David said, adding that “such cancelation, discontinuation or termination may occur upon Niantic’s option, at its sole discretion, and at any time and without notice to plaintiff,” the lawsuit further states.

According to the Pokémon Go lawsuit, Niantic reserves the right to unilaterally alter or terminate any or all of the separate parts of the Terms of Service and Privacy Policy. Because of this, David alleges that Niantic “is not bound by the Pokémon GO Terms of Service or the Pokémon GO Privacy Policy, and may perform if it wants to.”

Additionally, David claims Niantic unfairly asserts the right to terminate a player’s account at the company’s sole discretion and refuses to refund virtual goods which the player uses in the game.

David is asking for relief under the Florida Deceptive and Unfair Trade Practices Act. He is seeking a declaratory judgment that the Niantic Pokémon Go Terms of Service and the Pokémon Go Privacy Policy are illusory and therefore the contract is unenforceable.

David’s lawsuit, filed July 26, follows German consumer advocates Federation of German Consumer Organizations (VZBV) recent assertion that the game violates the country’s consumer and privacy laws.

One of the key concerns the VZBV has is that the terms of service contract affords Niantic the right to share user data with third parties. With Pokémon Go linking into Google accounts, the alleged concern is that a huge amount of personal and sensitive data could be changing hands.

The consumer advocacy group sent an official warning threatening legal action against Niantic if it doesn’t make the mobile app’s terms more privacy-friendly.

Last week, U.S. Senator Al Franken also asked Niantic to better explain how it collects and uses players’ data, and with whom it might share that data. Like the VZBV, Franken said he was worried that Niantic was not getting “appropriate consent” from its users.

“I am concerned about the extent to which Niantic may be unnecessarily collecting, using, and sharing a wide range of users’ personal information without their appropriate consent,” Sen. Franken wrote.

David B. is represented by Morgan L. Weinstein of Van Ness Law Firm PLC.

The Pokémon Go Terms of Service Lawsuit is Case No. 50-2016-CA-008330, in the Fifteenth Judicial Circuit for Palm Beach County, Florida.