National Geospatial Advisory Council December

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National Geospatial Advisory Council December Powered By Docstoc
					     The Impact of Spatial Law on SDI’s
National Geospatial Advisory Committee
                     December 2, 2009

                          Kevin D. Pomfret

   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 PHONES
            ATM MACHINES

  CCTV                           MAPPING SERVICES

As Data Types and Data Sources Grow . . .
As Applications For Spatial Data Evolve . . .

               Government              Business

As the Numbers and Types of Relationships Multiply

     Government Entities                                         Private Business
                                                                         • Developers
                                                                         • Investors
                                                                         • Other
                                                                 • Browse, Search, Discover
      • Search and Discover                                      • Download data
                                     Geospatial Data Portal
      • Download data
      • Upload data                        User Interface             e-Gov
                                      Role-based Functionality       • Services

                                        Data     Web Services
    Portal Management

      •   Manage Metadata
      •   Process data
      •   Administer Access Policy                                 NGO’s and
      •   Add Content                                              Global Initiatives
         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

                                                       It Can Be Difficult
  Spatial Data Products Are                               To Determine
Frequently Comprised of Data          Other           Ownership Rights in
From a Variety of Data Sources                           Final Products
                                 Crowd Sourced
                             Commercial Proprietary

                                 Government Data
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
     • “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
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

                                What is “Reasonable”?

            Does Privacy Mean
                   In A
            Location Context?
“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
Fourth 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
   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

 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,
       – 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
   •   Commercial Purposes
   •   Homeland Security
   •   Transportation/Logistics
   •   Academic and Scientific
   •   Leisure and Entertainment
 Attempts to limit in one area likely will impact other
   • 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

 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
 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

 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