Your single source for new lessons on legal technology, e-discovery, and the people innovating behind the scenes.

Pokémon, Privacy, and the Police: California Appellate Court Rejects Data Privacy Challenge

David Horrigan

Editor's Note: This article was first published by Legaltech News.

If a robbery were in progress, and a police radio call requesting backup came, you might expect officers in a nearby cruiser to rush to the scene of the alleged crime. What if the officers in question failed to respond?

Better than that—what if they failed to respond because they were busy trying to capture Snorlax in the riveting augmented reality of Pokémon GO?

In today’s case law edition of You Can’t Make Up This Stuff, California’s Court of Appeal for the Second District rejected an appeal by two police officers who were fired when a recording device in their police cruiser indicated they were playing Pokémon GO instead of responding to a robbery at Macy’s.

A California state appellate court’s January 7 decision in Lozano v. City of Los Angeles may have a somewhat unusual fact pattern, but the case raises interesting issues of data privacy law and how California—a state friendly to data privacy protections—defines “intentional eavesdropping,” especially when it comes to digital video systems used by police.

Pokémon in Society and the Law

Pokémon, short for “Pocket Monsters,” is a Japanese entertainment franchise developed in the 1990s by Satoshi Tajiri for Nintendo’s Game Boy handheld video game system, and distributed by The Pokémon Company—a venture founded by Nintendo, Game Freak, and Creatures.

Pokémon is more than a mere handheld video game. It has become a giant, worldwide entertainment conglomerate, including the video games, a television series, and trading cards. The television series is the most successful TV adaptation of a video game in history, having appeared in 183 countries, and—with over 34 billion cards sold—the Pokémon Trading Card Game is the top-selling trading card of all time.

The Pokémon craze reached new levels of fan insanity in 2016 with the introduction of Pokémon GO. Developed by Niantic, Nintendo, and The Pokémon Company, Pokémon GO is an “augmented reality” game for Apple iOS and Android, where players use the GPS capabilities of their phones to battle and capture the Pokémon with other players.

By the end of 2016, Pokémon GO had over 500 million downloads, and it became an international cultural phenomenon. However, there was a dark side to the Pokémon GO craze. As the real and virtual worlds collided, people collided with various objects and got injured.

In 2019, Purdue University professors Mara Faccio and John McConnell published a paper, Death by Pokémon GO: The Economic and Human Cost of Using Apps While Driving. In the report, the Purdue professors estimated that—in addition to the tragedy of actual human deaths from players mindlessly playing the game and walking into oncoming traffic and other fatal incidents—the cost in one Indiana county of players playing Pokémon GO while driving was in the range of $5.2 to $25.5 million over the 148 days following the release of the game. The professors extrapolated those results to losses of $2.0 to $7.3 billion nationwide—in 148 days.

In addition, data privacy advocates expressed alarm over the veritable cornucopia of data the game collects on its players, including geolocation data, name and address, metadata, and the metadata from anything players upload.

In the middle of the Pokémon GO craze, the 2016 Relativity Fest Judicial Panel discussed the data privacy implications—including how the Honorable Andrew Peck might feel if Pokémon players invaded his property in search of victory. Readers can see the discussion beginning at the 56:55 mark of the Judicial Panel video.

These data privacy issues would become big concerns for two Los Angeles Police officers.

Mayhem at Macy’s

April 15, 2017, was a rough day at the Macy’s at Crenshaw Mall in the Baldwin Hills area of Los Angeles. It was a busy day at the Los Angeles Police Department (LAPD) precinct near the mall. There was a homicide in the area, and the police had more requests for help than they had cars to respond.

Captain Darnell Davenport was the patrol commanding officer that day, and he was en route to the homicide when a call came through for a robbery in progress with multiple suspects at the Macy’s at Crenshaw Mall.

When he received the call, Captain Davenport was near the Macy’s, and he could see a police cruiser in an alley next to the store. However, the cruiser in the alley did not respond to the call. In fact, the police car backed out of the alley and left the area.

In what LAPD described as a “chaotic” scene developing at the Macy’s, the watch commander discovered that the police cruiser located at Crenshaw Mall was that of LAPD officers Louis Lozano and Eric Mitchell. The watch commander, Sergeant Jose Gomez, tried to radio Officers Lozano and Mitchell to no avail.

Later that day, Sergeant Gomez asked the officers what happened. Officer Mitchell said he had not heard the call requesting backup because of loud music, and Officer Lozano said he heard it, but thought Captain Davenport was responding. Sergeant Gomez counseled the officers to be more diligent about monitoring their police radio.

Things were about to get much worse for the officers.

Pokémon and the Police

Still uneasy about the events at the mall, Sergeant Gomez realized he could check the police cruiser’s digital in-car video system (DICVS). Not only did the DICVS system reveal the officers had, in fact, heard the radio calls, it indicated they were playing Pokémon GO in their cruiser that day.

The DICVS system revealed that—instead of responding the robbery at Macy’s—Officer Mitchell was alerting Officer Lozano that “Snorlax” had “just popped up at 46th and Leimert.”

Was Snorlax involved in the robbery at Macy’s?

No. Snorlax is a character in Pokémon GO.

The DICVS revealed also that, for the next 20 minutes, the officers discussed Pokémon GO while they drove to different locations where the virtual Pokémon GO creatures appeared on their mobile phones, noting that a “Togetic” character had just popped up in the game.

The video system indicated the officers captured both Snorlax and the Togetic, but their Pokémon GO success would come at a high price.

Although the officers claimed they were merely discussing Pokémon, the LAPD charged both officers with on-duty misconduct.

However, in an administrative hearing, the officers sought to exclude all evidence from the DICVS, arguing they their conversations were private because they did not know the DICVS was operating, and that—under Board of Police Commissioner’s Special Order No. 45—the DICVS was not to be used to “monitor private conversations between Department employees.”

The LAPD countered that, under Professional Standards Bureau Notice 13.5, unintentionally recorded personal communications could be used in disciplinary matters if there were “evidence of criminal or egregious misconduct.”

The administrative board recommended firing the officers, and LAPD’s chief issued orders for their termination. The officers challenged their dismissal in a petition for administrative mandamus against the city of Los Angeles, but a trial court entered a judgment denying the officers’ petition, and they appealed to the California Second District Court of Appeal.

The Law of Intentional Eavesdropping

In affirming the trial court, the appellate court held the LAPD’s use of the DICVS recording system in the officers’ disciplinary proceeding was proper.

The appellate court rejected the officers’ argument that the use of the DICVS recording violated Special Order No. 45 and that the city was bound by the special order—even if there were a conflicting provision in Notice 13.5. In addition, the officers argued that California Penal Code section 632 precluded the use of “confidential communications” at the board hearing.

In rejecting the Special Order No. 45 argument, the court conceded that Notice 13.5 reaffirmed Special Order No. 45’s provision that DICVS was not to be deployed to monitor private conversations between department employees—however, the court affirmed the trial court in relying on 13.5’s exclusion for “evidence of criminal or egregious misconduct.”

In addition, the appellate court said there was no conflict because the special order does not provide instructions on when DICVS records a private conversation through unintentional conduct.

Likewise, although California Penal Code section 632 prohibits the intentional electronic eavesdropping without consent of all parties—including its use in any “judicial, administrative, legislative, or other proceeding”—the court held there was no violation here because the statute clearly requires intentional conduct to establish a statutory violation—doing so “with the purpose or desire of recording a confidential conversation.”

Why Lozano Matters

California is one of 11 states—along with Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington State—that require consent of all parties to record a telephone call.

Maryland’s law was the one that famously tripped up Linda Tripp in the Clinton-Lewinsky imbroglio. Ms. Tripp got into legal trouble because—although Monica Lewinsky was in Washington, DC, when Ms. Tripp recording their phone calls, Ms. Tripp was in Maryland.

Does Lozano v. City of Los Angeles gut an important part of California data privacy law?

Granted, the LAPD did not install the DICVS system to hear Officers Lozano and Mitchell playing Pokémon. Nevertheless, they did install intentionally an eavesdropping system in the vehicle.

What if Linda Tripp had a system that recorded every call for her own record-keeping purposes? If her system just happened to pick-up Monica Lewinsky sharing salacious stories about President Clinton, should it be allowed into evidence just because the system was not installed for the purpose of eavesdropping on Ms. Lewinsky?

What about the situation where someone accidentally records a conversation on voicemail? Should that make it into evidence?

On the other hand, the general rule in the United States is that your boss is free to inspect what you do on your boss’s computer. Should your boss’s police cruiser be treated the same way? In Europe, that argument falls flat, and California is trying to be more like Europe vis-à-vis data privacy.

California is a leader in protecting its citizens data privacy, but the “intentional” aspect of this decision reinforces a major exception to those protections. If it can happen in California, it can happen anywhere.

2021 Data Discovery Legal Year in Review

David Horrigan is Relativity’s discovery counsel and legal education director. An attorney, award-winning journalist, law school guest lecturer, and former e-discovery industry analyst, David has served as counsel at the Entertainment Software Association, reporter and assistant editor at The National Law Journal, and analyst and counsel at 451 Research. The author and co-author of law review articles as well as the annual Data Discovery Legal Year in Review, David is a frequent contributor to Legaltech News, and he was First Runner-Up for Best Legal Analysis in the LexBlog Excellence Awards. His articles have appeared also in The American Lawyer, Corporate Counsel, The New York Law Journal, Texas Lawyer, The Washington Examiner, and others, and he has been cited by media, including American Public Media’s Marketplace, TechRepublic, and The Wall Street Journal. David serves on the Global Advisory Board of ACEDS, the Planning Committee of the University of Florida E-Discovery Conference, and the Resource Board of the National Association of Women Judges. David is licensed to practice law in the District of Columbia, and he is an IAPP Certified Information Privacy Professional/US.