Federal Judge Blocks Wisconsin County’s ‘Pokémon Go’ Park Ordinance

Published September 6, 2017

A Milwaukee County, Wisconsin ordinance requiring software developers to pay permit fees and security costs to allow people to play cell phone games in government parks is on hold after a federal judge blocked its enforcement.

On July 20, United States District Court for the Eastern District of Wisconsin Judge Joseph Peter Stadtmueller granted the plaintiff’s request for a temporary injunction blocking enforcement of the ordinance until the jury reaches a verdict.

The ordinance, approved by the Milwaukee County Board of Supervisors in February, requires developers of augmented-reality (AR) mobile phone games, such as Niantic’s “Pokémon Go,” to pay a $1,000 permit fee and apply for government permission to allow their apps to function in county parks during certain hours.

Candy Lab AR, a game developer, is suing the county, alleging the ordinance infringes the company’s First Amendment rights.  

The lawsuit is scheduled to begin on April 16, 2018.

Pokémon Hunting Licenses

Anne Hobson, an associate fellow in technology policy with the R Street Institute, says the ordinance is too restrictive and costly.

“Milwaukee County’s ordinance requires app companies such as Niantic or Candy Lab AR to pay as much as $1,000 for a special-use permit to allow their users to play the game in local parks,” Hobson said. “The application called for companies to predict the dates, times, and sizes of crowds who may use the app in public parks, and included a permit review process. For location-based mobile apps with millions of physical checkpoints, this is prohibitively costly.”

Cites Better Options

Lawmakers can mitigate wear and tear on government parks without creating huge regulatory burdens, Hobson says.

“If regulators are concerned with consistent overcrowding or littering in public parks, there are policies to consider in lieu of a permitting process,” Hobson said. “The county can charge a small park entrance fee, expand the number of parks, or ask for donations from gamers who enter parks to cover any added cleaning or security costs.

“Or, better yet, regulators can refrain from expanding the regulatory burden and instead celebrate innovative apps and a renewed interest in public lands and exercise,” Hobson said.

Squeaky Wheels

Chris Rochester, communications director for the John K. MacIver Institute for Public Policy, says the ordinance appears to be a favor for powerful people.

“In this case, it looks like kids trying to have fun using a new kind of technology were annoying certain well-connected people who lived near this public park,” Rochester said. “Their solution was to turn to local officials to make it harder for the public to use a park that taxpayer dollars pay for.”

The county’s “Pokémon Go” park permit requirement is an example of regulatory capture, Rochester says.

“The parks are for everyone to use,” Rochester said. “They’re not a taxpayer-funded playground for certain people in the neighborhood. It’s difficult to believe that bands of marauding kids were destroying the parks and ruining the public peace. It’s more likely that certain individuals living in this area wanted to use government to keep the ‘unwashed masses’ out of what they view as their park.”