The Impact of Spatial Law on SDI’sNational Geospatial Advisory Committee

December 2, 2009

Kevin D. Pomfret

Overview

What is Spatial Law? Critical Issues Impact On Data Sharing Conclusion/Recommendations

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 Data Types and Data Sources Grow . . .

As Applications For Spatial Data Evolve . . .

Business

Consumer

Government

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?

Spatial Data Sets Are Versatile

Urban Planning

SatNav Devices

Location Based Services

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

National Security and Spatial Data

Military-Related Installations

Critical Infrastructure

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

Where We Are Today

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

Thank You