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The Impact of Spatial Law on SDI’sNational Geospatial Advisory Committee
December 2, 2009
Kevin D. Pomfret
Tremendous Strides Have Been Made In Spatial Technology
Collecting Spatial Data• Satellites• Handheld devices
Using Spatial Data • Software• Computing Power
Sharing Spatial Data• Interoperability• Standards• Broadband
As Spatial Data Becomes More Common . . .
GPS MOBILE PHONESATM MACHINES
SATELLITE NAVIGATION DEVICES
RFID TECHNOLOGY
WEB-BASED
CCTVCCTV MAPPING SERVICES
COMMERCIAL REMOTE SENSINGCOMMERCIAL REMOTE SENSING
As the Numbers and Types of Relationships MultiplyAs the Numbers and Types of Relationships Multiply
e-Gov
Geospatial Data Portal
Government EntitiesGovernment Entities Private BusinessPrivate Business• DevelopersDevelopers• InvestorsInvestors• OtherOther
PublicPublic
User Interface Role-based
Functionality
DataData Web ServicesWeb Services
NGO’s and NGO’s and Global InitiativesGlobal Initiatives
Portal ManagementPortal Management
• Browse, Search, DiscoverBrowse, Search, Discover• Download dataDownload data• Search and DiscoverSearch and Discover
• Download dataDownload data• Upload dataUpload data
• Manage MetadataManage Metadata• Process dataProcess data• Administer Access PolicyAdminister Access Policy• Add ContentAdd Content
• Services
The Legal Issues Become More Complex
Spatial Law is the set of legal issues associated with collection and use of spatial data and spatial technology
Issues include:– Privacy– Data Ownership– National Security– Data Quality/Liability Complexity impacts
ability/willingness to share Complexity impacts ability/willingness to share
Intellectual Property Rights
Other
Crowd Sourced
Data
Commercial Proprietary
Data
Government Data
Spatial Data Products Are
Frequently Comprised of Data
From a Variety of Data Sources
It Can Be Difficult
To Determine
Ownership Rights in
Final Products
Legal Framework Is Confusing
Wide Variety of Data Sources• Federal Government
– No copyright• State and local governments
– Variety of laws regarding use• (copying, commercial use, derivative products, etc.)
• Proprietary Sources• “Crowd-sourcing”
Spatial products/services frequently include a mixture• Have to abide by all terms and restrictions • Terms and restrictions are not always clear or evident
Data Ownership Issues
Data is very different from software Copyright Protection
• Data bases (limited)– Feist v. United States 111 S.Ct. 1281 (1991)
• protects “expressions not facts”• “modicum of creativity”• distinction between “creating” and “discovering”
• Maps (uncertain)– Mason v. Montgomery 967 F.2d 135 (5th Cir. 1992)
• Action was brought for infringement of copyright in land ownership maps based on United States
geological survey maps. Addressed “merger doctrine”– Darden v. Peters No. 06-1177 (4th Cir. 2007)
• US Copyright office refused to grant copyright to on-line maps
Other Considerations
Derivative products• What constitutes a derivative product?
Meta Data• Great importance to Spatial Data
– Data Quality• What is spatial meta data from a legal standpoint?
– Part of product/service?– Documentation?
• How is it accounted for in legal documents?– In description of what is being licensed?– In representations and warranties?– In indemnification language?
But Data Set May Not Be Suitable For All Purposes
O The quality of data required for a particular application varies:• Accuracy• Completeness• Timeliness• Currency
O How to allocate risk between parties?- Contract - Legislation
Liability - Contract
Product vs. Service?• Uniform Commercial Code
Express warranties• Are there industry standards?
Implied warranties• Merchantability – “goods must be at least of average
quality, properly packaged and labeled, and fit for the ordinary purposes they are intended to serve”
• Fitness for a particular purpose – “if the seller knows the purpose for which the goods are to be used, the seller impliedly warrants that the goods being sold are suitable for that specific purpose”
Liability - Negligence
Causes of Action• Duty of care – ordinary prudent person• Breach of duty• Causation• Damages
Reminga v. U.S.,448 F. Supp 45 (W.D. Mich. 1978) - inaccurate depiction of the location of a broadcasting tower on an aeronautical chart.• “The United States has a duty, when publishing and disseminating
aeronautical charts, to accurately represent those features it attempts to portray. Where such information is inaccurately and negligently indicated, and such negligence is a proximate cause of plaintiff's injuries, the government is liable for such damages as caused”
Liability - Product Liability
Aetna Casualty and Surety Co. v. Jeppesen & Co., 642 F.2d 339 (9th Cir. 1981) • “The ‘defect’ in the chart was that the graphic depiction of the profile, which covers a
distance of three miles from the airport, appears to be drawn to the same scale as the graphic depiction of the plan, which covers a distance of 15 miles".
Saloomey v. Jeppesen & Co., 707 F.2d 671 (2nd Cir. 1983) • “By publishing and selling the charts, Jeppesen undertook a special responsibility, as
seller, to insure that the consumers will not be injured by the use of the charts; Jeppesen is entitled – and encouraged – to treat the burden of accidental injury as a cost of production to be covered by liability insurance”
Brocklesby v. U.S.,767 F.2d 1288 (9th Cir. 1985)• “Jeppesen's charts are more than just a republication of the text of the government's
procedures. Jeppesen converts a government procedure from text into graphic form and represents that the chart contains all necessary information. . . [a]s the manufacturer and marketer of those products, Jeppesen assumed the responsibility for insuring that the charts are not unreasonably dangerous in their intended use.”
Who is responsible for deciding?
• Legislature?– Texas legislation regarding disclaimer on maps
• Courts?– Georgia contractor destroys wrong house using GPS
coordinates rather than street address
– UK driver can not use GPS device as excuse for poor driving
• Industry?– Sweden and Denmark - Garmin recall of maps due to
inaccurate indications of water depth
What Is A “Reasonable Expectation of Privacy”?
What is “Reasonable”?
What
Does Privacy Mean
In A
Location Context?
Businesses“Personally Identifiable Information”
What is it from a location standpoint? At what point does an aggregation of public data
become “personally identifiable” information?• “public” vs. “readily accessible”
Non-spatial data that becomes Spatial Data remains subject to other privacy regimes• HIPPA• Gramm-Leach-Bliley• Fair Credit Reporting Act
GovernmentFourth Amendment Concerns
What is a reasonable expectation of privacy in a Google Earth?• Dow Chemical v. US ,476 U.S. 227 (1986)• California v. Ciraolo, 476 U.S. 207 (1986)• Florida v. Riley,488 U.S. 445 (1989)• Kyllo v. US, 533 U.S. 27 (1991)
– cf R. v. Tessing, 2004 SCC 67 (2004) – Canadian Supreme Court
Use of tracking devices by law enforcement• U.S. v. Knotts,460 U.S. 276 (1983)• U.S. v. Karo ,468 U.S. 705 (1984))• State of Washington v. Jackson, 46 P.3d 257 (Wash Ct. App. 2002)
Obtaining Information From Business• Stored Communications Act cases
– Standard of review
Privacy
More questions than answers Answers are being given by those who don’t understand
geospatial technology• Chang v. Virgin Mobile, No. 3:2007cv01767 (Tx North Dist
(2007) – authorized use of photo for commercial purposes• Multi Ag Media v. USDA, No. 06-5231, D.C. Dist. Feb 15,
2008 – Court finds “substantial privacy interest” in spatial data
• Stored Communication Act cases• Immunity for Telcoms under FISA
What will be the role of the Federal Trade Commission?• BJ’s Wholesale
Impact of Government Regulation
Spatial Data can be used for a variety of purposes: • Commercial Purposes• Homeland Security• Transportation/Logistics• Academic and Scientific• Leisure and Entertainment
Attempts to limit in one area likely will impact other areas.• Privacy legislation• State legislation
Today’s Environment
Spatial data is increasingly being licensed• No longer sold
Most organizations require legal review of licenses• Generally less so with sales
Less risk for a lawyer to say “no” than to say “yes” Uncertainty/Complexity increases risk for lawyer
• Spatial technology/spatial data• Laws and policies
Conclusions
Rapid growth in applications using geospatial technology and spatial data is raising a number of challenging legal issues
Legal and policy community have been unable to keep pace
As a result, there is a great deal of uncertainty – and risk – associated with sharing of spatial data.
In order to facilitate sharing, community needs to help identify and find solutions to issues
Otherwise, uncertainty impede data sharing
Recommendations
Education• Lawyers/policy makers on technology/applications• Technical experts on legal and policy issues
Dialogue• National Forums• Across technologies
– OGC/GITA Summit
“Best Practices”• Privacy• Data Quality
Legislation