When the President of the National Association of Criminal Defense Lawyers (NACDL) is forced to log in to her laptop at an airport and a customs official disappears for 30 minutes with the computer, it’s probably a safe bet that some form of litigation will emerge from the encounter.

This is exactly what happened to Lisa Wayne as she was traveling home from Mexico in August of 2008. The incident, according to the National Law Journal, took place at the Houston, Texas airport and eventually resulted in her organization joining a lawsuit against the U.S. Department of Homeland Security, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement officials.

While the Entertainment Software Association (ESA) won a partial victory (preliminary injunction) earlier this year against the Chicago Transit Authority (CTA) over an ordinance that attempted to prohibit Mature (M)-rated game advertisements, the trade group now has an even clearer win under its belt, as a Judge has permanently banned the CTA from “enforcing or directing” enforcement of the ordinance.

In a ruling (PDF) handed down on May 17 in the U.S. District Court for the Northern District of Illinois, Eastern Division, Judge Rebecca Pallmeyer—who granted the preliminary injunction as well—ordered judgment against the CTA and dictated that prompt notice of the judgment be given to CTA officers, and any agents, servants, employees and attorneys. The CTA also agreed not to “appeal or otherwise attack the validity or enforceability of the Consent Judgment and Permanent Injunction.”

A new game, designed to “explore the limits of pervasive gaming,” takes place in real airports and prompts players to plant drugs on other travelers in a bid to get the contraband through security.

Blowtooth is the work of the UK-based Lincoln Social Computer Research Center and relax, the drugs are virtual, though the airport security forces a user is trying to dupe are real. The game operates like this: once in an airport—and before passing through security—a user fires up the Blowtooth application on their smart phone. The application will scan the nearby vicinity for Bluetooth devices, allowing the player to “conceptually dump or retrieve contraband,” on other people’s devices.

The goal is to then retrieve the “contraband” on the other side of security, with points being awarded for how many “couriers” "drugs" can be retrieved from and how fast the roundup was. The “couriers” or “mules” remain blissfully unaware of their involvement in the game.

Sooner or later, most gamers will face the dreaded scenario of having to leave their desktop PC's and consoles behind and suffer through the misery of modern air travel.

Domestic travelers have become familiar with intrusions and searches at Transportation Security Administration security checkpoints. But as the ACLU has recently discovered, international travelers are not only having their laptops seized and searched by Customs and Border Protection, but agents are making copies of files and giving them to third-party agencies. The ACLU filed a Freedom of Information Act lawsuit against the government, which turned over hundreds of pages of documents revealing startling information about how much access—and how little oversight—agents have to your gaming laptops when you travel.

For instance, over a period of nine months, CBP agents searched over 1,500 devices, including laptops, thumb drives, cell phones, and DVDs. Last year, agents transferred 282 files from these devices to third-parties. Under current policy, CBP is not required to justify the searches. Interestingly, of those files, only four were justified under "national security" concerns, and apparently encrypted files were sent to unknown agencies for "translation/decryption".

Several spreadsheets containing summaries of the data (as well as detailed information on each incident, if you're so inclined) are available from the ACLU; a further list of documents and correspondence released from CBP can be found here.

Dan Rosenthal is a legal analyst for the games industry.

GP: Dan offers a unique vantage point to a lot of the topics we talk about here and it's our hope that he'll contribute more pieces going forward. Please welcome him aboard!

The Entertainment Software Association (ESA) has won a preliminary injunction in its lawsuit against the Chicago Transit Authority (CTA) over the banning of advertisements for adult-rated videogames.

An ordinance (008-147) that took effect in January of 2009 prohibited any advertisement that “markets or identifies a video or computer game rated ‘Mature 17+’ (M) or ‘Adults Only 18+’ (AO).”  The ESA argued that such a ban unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.”

The United States District Court for the Northern District of Illinois granted the ESA an injunction, with Judge Rebecca R. Pallmeyer stating:

…the advertisements the CTA wishes to ban promote expression that has constitutional value and implicates core First Amendment concerns.

The ESA further challenged that the CTA ordinance is redundant since videogame-related marketing is already regulated by the Entertainment Software Rating Board’s (ESRB) Advertising Review Council.

ESA President Michael Gallagher was obviously pleased:

This ruling is a win for Chicago's citizens, the video game industry and, above all, the First Amendment. It is our hope that the CTA sees the futility of pursuing this case further. To do so will waste taxpayer money and government resources.

As airports turn to new types of technology to use for screening air travelers, videogame technology may play a role.

An article on CNN details a new Homeland Security-backed project, dubbed Future Attribute Screening Technology (FAST), which measures physiological signs—heart rate, breathing, eye movement, body temperature and fidgeting—in an attempt to decipher whether or not the person being scanned intends to do harm.

The component currently used to monitor fidgeting? A Wii Fit Balance Board modified to show the weight shift of the subject in question. Unfortunately there doesn’t appear to be a concrete correlation between weight shifting and intent to terrorize, as a study is currently underway to determine what level of fidgeting would necessitate a secondary security screen.

Via Kotaku, thanks Mdo7! Image from CNN.

As GamePolitics and other news outlets have reported, the ESA is suing the Chicago Transit Authority over the agency's ban on M and AO-rated video ads.

Here are excerpts from the justification section of CTA Ordinace 008-147, the document at the heart of the ESA lawsuit:

WHEREAS... the Chicago Transit Board established advertising guidelines permitting certain advertising in or upon Chicago Transit Authority vehicles and facilities; and

 

WHEREAS, According to an August 2008 Chicago Sun Times article at least 36 Chicago public school students have been killed since September 2007; and

 

WHEREAS, There is a demonstrable correlation between intensely violent video or computer games and violent or aggressive behavior (see "Video Game Violence and Public Policy" by David Walsh, Ph.D. and "The Effects of Violent Video Game Habits on Adolescent Hostility, Aggressive Behaviors, and School Performance" by Gentile, Lynch, Linder and Walsh; and

 

WHEREAS, There is evidence that many of these violent video or computer games are marketed toward children under 17 years of age (see Federal Trade Commission study, September, 2000)...

The 2000 FTC report is, indeed, an indictment of video game industry marketing practices. On the other hand, the industry has made remarkable strides since then in restricting the access of minors to violent games.

In its May, 2008 report, the FTC found an 80% overall compliance rate in retail ratings enforcement, with top performer GameStop achieving a 94% compliance rate. Given that the CTA ordinance was passed in November, 2008, it's unclear why the 2000 data was used.

The full CTA ordinance may be found as "Exhibit 2" in the ESA's lawsuit. Click here for a copy of the 70-page PDF.

A spokeswoman for the Chicago Transit Authority has commented on the federal lawsuit filed against the agency's ban on M-rated video game ads yesterday by the Entertainment Software Association.

Kotaku reports:

Reached for comment... Wanda Taylor, a spokeswoman for the Chicago Transit Authority, told Kotaku that the authority has not yet been served with the suit but that they feels that the ordinance is defensible.

"The CTA does not allow advertising for alcohol or tobacco products and this ordinance is consistent with that long-standing policy," she said...

Taylor pointed out that they have a number of guidelines in place for determining if an advertisement can run on the CTA. The guidelines, she said, require ads to be truthful and not directed at inciting imminent lawless action. The ads cannot be legally obscene, sexually explicit, depict nudity or portray graphic violence nor can they incite lawless illegal action.

As GamePolitics reported yesterday, the Entertainment Software Association has filed suit against the Chicago Transit Authority. The video game publishers' lobbying group hopes to overturn the CTA's ban on ads for M and AO-rated games on its vehicles and facilities.

The Media Coalition, an association that defends the First Amendment rights of producers and consumers of First Amendment protected material, has issued a press release announcing its support for the ESA in the case. Executive Director David Horowitz commented on the situation:

Ex-[Illinois] Governor Blagojevich spent hundreds of thousands of dollars unsuccessfully to defend a law that barred minors from buy or renting similar video games before it was struck down as unconstitutional. The Chicago Transit Authority should repeal this ill-conceived ordinance rather than using scarce resources to fight this in court and get the same result.

The ESA, which represents U.S. video game publishers, is a Media Coalition member as is the Entertainment Merchants Association, which represents video game retailers.

The Entertainment Consumers Association, which represents the interests of gamers, is also a Media Coalition member.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

The Entertainment Software Association has filed a federal lawsuit against the Chicago Transit Authority, challenging a 2009 CTA ordinance which prohibits ads for games rated M (17+) or AO (18+) from appearing on its vehicles and facilities. 

GamePolitics readers may recall that in April, 2008 the CTA ordered ads for Grand Theft Auto IV removed from buses even before the game was released. The CTA action followed local news coverage of a rash of shootings in Chicago.

Shortly thereafter, GTA IV publisher Take-Two Interactive sued the CTA, charging that the agency had broken a $300,000 contract for the campaign. The parties settled the case later in 2008, with the CTA granting T2 a six-week GTA IV ad run. However, CTA officials moved to block future ads for M-rated games by passing the new ordinance, which took effect on January 1st and prompted today's legal action by the ESA.

ESA boss Mike Gallagher commented on the lawsuit in a press release: 

The CTA’s ordinance constitutes a clear violation of the constitutional rights of the entertainment software industry. Courts across the United States, including those in the CTA’s own backyard, have ruled consistently that video games are entitled to the same First Amendment protections as other forms of entertainment. The CTA appears unwilling to recognize this established fact, and has shown a remarkable ignorance of the dynamism, creativity and expressive nature of computer and video games. The ESA will not sit idly by when the creative freedoms of our industry are threatened.

The press release also explains some of the legal rationale behind the suit:

The ESA’s suit contends this new ordinance unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.” In addition, the Complaint argues that the ordinance impermissibly discriminates on the basis of viewpoint and ignores less restrictive means of achieving the supposed ends of the ordinance.  

The ESA also stated that the CTA’s ordinance is unnecessary because game-related marketing is already subject to the Entertainment Software Rating Board’s Advertising Review Council (ARC), which strictly regulates computer and video game advertisements that are seen by the general public.  The Entertainment Software Rating Board (ESRB) assigns content ratings to computer and video games, which, in turn, are displayed on the advertisements for those games.

As GamePolitics has reported, the Massachusetts Bay Transit Authority has a similar ban on M-rated game ads, likening them to X-rated movies. It is unclear at this time whether the ESA will pursue a similar action against the MBTA.

While the lawsuit also encompasses AO-rated games, as a practical matter, such titles are virtually non-existent in the U.S. market.

DOCUMENT DUMP: Grab a copy of the lawsuit here (70-page PDF)...

As GamePolitics reported earlier this week, Sony pulled ads for PlayStation 3 shooter Killzone 2 from bus kiosks in Toronto after an elementary school teacher complained that they might frighten children.

An adjoining regional transit company has now followed suit. As reported by YorkRegion.com, York Region Transit has taken down the Killzone 2 (left) from its bus shelters.

Although YRT received a complaint from the parent of a three-year-old boy, the agency opted not to act until it learned that Sony was voluntarily removing the ads in nearby Toronto.

The parent, John Rennie, reported that the ad upset his son:

Pulling into the parking lot, his son began cry, saying he saw a monster and didn’t want to go to school...

“He really thought what he saw [on the poster] was going to be inside the [school] complex...”

Mr. Rennie was not only upset the poster evoked such an emotional reaction from his young son, but that the violent advertisement for the mature-rated game was placed at a site frequented by youth.

YRT General Manager Don Gordon said that political ads as well as those for alcohol and tobacco products are banned from its bus shelters. A contractual clause also gives the agency the right to remove any ad judged to be in bad taste:

This has happened on a few other occasions. The one that comes to mind was a lingerie ad that was too revealing.

In pulling the Toronto ads, Sony said that it would look into the creation of an ad-free radius near schools, a spokesman said.
 

GP is an admitted sucker for simulation games, so it's no surprise that World of Subway caught our eye.

German developer TML Studios launched their first foray into subway sims in 2005 by adding the Berlin underground to Microsoft Train Simulator, a game which enjoys a following among hardcore rail enthusiasts. Top News has a report:

The game allows players to manoeuvre between New York City and New Jersey, picking up passengers along the way. Publisher Aerosoft says the program will win people over with its realism: slow motion is used to convey the sensation of movement. The three-dimensional cockpit starts vibrating at high speeds.

The program's creators do not intend stopping at New York. A series is planned focusing on the world's most interesting subway stretches.

GP: Here's hoping that the London Tube is TML's next sim project. Mind the gap, and all that...