By Marcus Kuhs

Many parents are already apprehensive about letting their children play online video games. The oftentimes toxic environment rife with abusive language, “trash talk,” and bullying can be extremely damaging for developing children’s confidence and mental health. But there is yet another danger– to parents’ wallets – more alluring to online gamers lurking behind flamboyant character costumes, colorful weapon skins, and ultra-rare player packs: loot boxes. While the term “loot box” may be cumbersome to define, this has not stopped lawmakers in the United States from following legislatures in Europe, Australia, China, and South Korea in considering bans and regulations on loot boxes.

In the United States, Senator Josh Hawley (R. MO.) has introduced senate bill S1629 proposing the Protecting Children from Abusive Games Act (S1629). The bill intends to prevent games oriented towards minors from selling content that makes completion-based and online-based games easier to beat or compete in. It also aims to prohibit probability-based content drops, which exchange money for a chance to receive rare in-game items. The bill excludes downloadable content (DLC), purely non-randomized cosmetic alterations, and new difficulty modes.

The bill has bipartisan support, but industry analysts are mixed on the necessity of such a law, as well as its odds of passing. Co-founder of research firm SuperData, Joost van Dreunen, believes that such a law is a “necessary step” but is also “cautiously optimistic” on its chances of passing into law. With the United States’ history of self-regulation and laissez-faire capitalism, van Dreunen is not banking on the bill passing. Webbush Securities analyst, Michael Pachter, says the bill is “too dumb to comment on” and is akin to banning faster cars or nicer fashion accessories. Paul Tassi wrote for Forbes Magazine that he does not trust the federal government to appropriately tailor its mission in order to conform with the gaming industry without placing undue hardship on it.

On one hand, the necessity for regulation is apparent. If regulations were in place, it could prevent more stories like that of u/Kensgold, a 19-year-old Reddit user who admitted to spending over $17,000 in microtransactions from the time he was only 13 years old. What started as a seemingly harmless $30 purchase in the popular mobile game Clash of Clans evolved into spending 90% of his paychecks on in-game purchases. At the height of his addiction, u/Kensgold would spend $100 per cosmetic skin. While u/Kensgold’s addiction is an extreme example, a survey from TheGamera popular gaming magazine, found that 23.1% of survey participants bought an in-game item in Fortnite: Battle Royale averaging at $63 spent per participant with League of Legends players averaging at $96 per player.

However, there are legitimate concerns for gaming enthusiasts about legislative efforts to restrict in-game purchases. Entire game models are based around what S1629 defines as a loot-box. For example, online versions of the immensely popular card game Magic: The Gathering are what one may define as a quintessential loot box. Players spend money for packs of cards that are totally randomized and differ in rarity, popularity, and strength. What is different about this transaction as opposed to going to a comic book store and buying a physical pack of cards? Children globally survived the Pokemon and Yu-Gi-Oh crazes in the late 1990s and early 2000s without becoming gambling addicts, after all. Furthermore, S1629 takes aim at games that are minor-oriented, but what does this term even mean? How many adult gamers playing mature rated games, such as Rainbow Six: Siegeor Grand Theft Auto,have been trash-talked by a gamer who barely sounds old enough to see a PG-13 movie? Ultimately, many parents consent to letting their children buy whatever game they want and generally ignore game ratings when buying games for their kids.

It is clear that action must be taken to prevent children from sinking money into loot box mechanics in video games, but S1629 is not what American gamers need. There is a legitimate disconnect between Congress and gamers in general. Perhaps Congress’ lack of expertise is why, paradoxically, S1629 is ultimately far too narrow and far too broad. By focusing entirely on pay-to-win mechanics and probability-based loot drops, the bill does not prevent people from spending obscene amounts of money on in-game items that are not randomized and are merely cosmetic. Character and weapon skins, which can cost over $100 each, can still be bought at one’s leisure.

By banning loot mechanics in what it considers minor-oriented games, Congress underscores its lack in understanding of what games minors actually play. The bill defines “minor-oriented” based on the subject matter of the game, the game’s visual and audio characteristics, the game’s characters and their age, subject matter of in-game advertising, and the content of the game itself. Would EA’s FIFAbe an adult oriented game because true-to-life jersey or stadium advertisements for certain teams advertise gambling websites? Would the indie game Don’t Starve, a cartoonish Tim Burton-esque survival-horror game in which characters are subjected to being eaten alive by mythical beats, starving to death in the winter, or perishing from insanity, be a child-oriented game because of the whimsical tone and lack of blood and cursing?

Perhaps the point still stands that for decades, children have been able to purchase downloadable or cosmetic content for card games and video games alike without parental fear of overspending. Online, instantly gratifying purchases are a product of modern gaming that children in eras past did not have. Instead, gaming companies such as Steam, Sony, Microsoft, and Blizzard often sold, and still do sell, gift cards in popular retailers such as Gamestop, which were used to buy DLC, skins, loot boxes, etc. A bill that more effectively defines which games will be subjected to regulation coupled with a broader ban on all in-game purchases for gamers under the age of 18 would not solve the issue, but perhaps it could force some gamers to resort to physically traveling to a store to buy a gift card with a finite transactional limit in order to make in-game purchases.

Whether S1629 passes or not remains to be seen. Regardless, it is at least the beginning of a conversation in America on how to effectively regulate the videogame industry’s actions of capitalizing on susceptible consumers who yearn for instant gratification from in-game cosmetics. If Congress does not expand the scope of its efforts to include all in-game purchases, the House will continue to win.

Student Bio: Marcus Kuhs is a current second-year law student at Suffolk University Law School and a staff member on The Journal of High Technology Law. He is pursuing a career in labor and employment law. Marcus holds a B.A. in History and Peace and Conflict Studies and a minor in Italian Studies from the University of Massachusetts Lowell.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.


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