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The Centre for Spatial Law and Policy: A Legal Advocate for Geospatial Technology

Tuesday, December 11th 2012
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Summary:

The Centre for Spatial Law and Policy works to show the potential impact of specific laws and policies on the broad use of geospatial technology.  Editor in Chief Joe Francica interviewed the Centre’s director, Kevin Pomfret. The topics discussed included how the Centre is working to alert both companies and users of geospatial information about key issues such as privacy and intellectual property.

Directions Magazine (DM): Explain how you believe the Centre for Spatial Law and Policy can make a significant contribution to the geospatial technology profession.

Kevin Pomfret (KP): The Centre is making a contribution to the geospatial industry in a number of ways. One way is by educating its members on how various laws and policies have or will impact the collection/use/distribution of geospatial data. Since these laws/policies/regulations cut across legal disciplines and technology platforms, it is not always easy for companies or government agencies to see the connection. For example, all three branches of the U.S. government - the courts, the executive branch (the Federal Trade Commission and the Department of Commerce) and Congress - are looking at ways to protect an individual's location privacy.  The final rulings/regulations/legislation will have a dramatic impact on the ability of a wide range of geospatial companies to collect/process/use/distribute geospatial data. However, it is very difficult to follow these developments because most reports/bills/rulings do not directly refer to geospatial data. In fact, in many instances "location information" is barely mentioned (or defined) but is still seen as very sensitive and subject to greater protection.

Another role of the Centre is to educate policymakers and legislatures on the current and future benefits of geospatial technology. In many instances public policy involves trade-offs, whether it be for budget issues, protecting privacy or even issues concerning national security. Unfortunately, many policymakers (in fact, most individuals) do not understand how geospatial technology works, its value in their lives or the numerous connections between location and decisions they make in their lives. As a result, there is a tendency for geospatial technology to be under-appreciated in the policy world - other than the traditional users such as the defense and intelligence communities. The Centre is working to show the potential impact - often unintended - of specific laws and policies on the broader use of geospatial technology.   

Finally, the Centre can create a forum that brings together stakeholders from government, industry, academia and NGOs to address the issues that impact their respective ability to collect/use/distribute geospatial data for a particular purpose. As you know, geospatial data is unique in that products and services often require data from government, industry, private citizens, NGOs and academia. Therefore each segment is both a provider and consumer of data.  However, each is subject to different laws/policies/regulations and has different risks (and risk tolerances). This raises a number of challenges that can make it difficult to aggregate data in the most effective and cost efficient manner. The Centre is hosting events like its upcoming “Licensing of Geospatial Data” seminar to bring stakeholders together to discuss their concerns and issues with the goal of developing solutions.

DM: What are the key issues that companies are missing with respect to geospatial law?

KP: I don't think that there are necessarily any key issues that are being missed. Instead, I am concerned that a general lack of appreciation exists as to how a number of different areas of law impact the ability to collect, use or distribute geospatial data in ways that maximize the value of the technology. For example, as a lawyer I see a license/data sharing agreement as much more than a transfer of intellectual property rights in geospatial data. I also see it as an allocation of risk on such matters as whether the data was collected properly (and in compliance with applicable law), is suitable for the use for which it is being licensed/shared, and will be used for proper purposes.  Therefore, my legal analysis may include such diverse areas of law as privacy, product liability, export laws, contract law, international law and tort law. My viewpoint on these issues will vary depending upon (i) whether I am representing the data provider or the data user, (ii) what the compensation model is, and (iii) what type of datasets are being used. However they will all influence my analysis of the benefits of entering into an agreement.  To make matters more complex, unlike with software, for example, in many instances it will not always be clear as to how the law applies to geospatial data.

Similarly, when governments wish to create a national spatial data infrastructure, they will often issue a directive (or something similar under local law) calling for government agencies to share data. However, these directives often will not address practical issues that impede sharing, such as privacy, intellectual property rights, sovereign immunity or freedom of information acts.  My concern is that a great deal of money will be spent on the technology to collect and use the data, but ultimately geospatial technology will not reach its full potential because of the underlying policy/legal issue
s.

DM: What pending legislation before the U.S. Congress should our profession be following?

KP: I think that the most immediate issue before Congress with regards to the geospatial industry is the budget issue. If we wish to develop a "location-enabled" society, we will need the government to continue to fund (directly and indirectly) the collection of important types of geospatial information.  One of the biggest challenges the industry faces in this area is that most legislators don't see the connections, for example, between funding remote sensing satellites and the many downstream uses that arise due to such funding. As a result, the budget for geospatial technologies is often at risk.

The other major legislative issue with regards to geospatial concern is privacy. There are over 15 bills currently before Congress that would regulate the collection/use/distribution of geolocation information in some way. Although I don't expect any will pass this year, that is a marked increase from last year, and I think you can expect the number of bills to continue to grow. It is time for the geospatial industry to begin to weigh in on these issues so that the full benefits of geospatial technology can be weighed against the privacy concerns.

DM: Privacy has been an issue in past years for LBS applications. Are privacy concerns diminishing because there are so many apps now and people are just assuming their privacy is protected?

KP: As you might expect, there are a number of conflicting polls as to whether individuals' privacy concerns impact their use of LBS applications. Anecdotally, I find from talking to people that the privacy concerns associated with their mobile devices are a major concern. What is interesting, though, is that they often have different concerns - some are worried about government's use of the data, others worry about commercial use, and others are concerned about strangers (or others) following their movements using this information. This divergence of concerns is one of the problems with privacy from a location standpoint, as addressing them requires different policy/legal solutions.

DM: Give an example of typical “terms and conditions” that people are perhaps missing and should be more concerned about in LBS apps.

KP: I think the term LBS app is overly broad from a policy/legal standpoint. Apps that provide services/products based upon location are being developed by a variety of organizations (businesses, government agencies, schools, etc.) for a wide range of uses. The type and amount of information that is being collected varies greatly, as does how the information is used and transferred. As a result, I am not sure there is a "typical.” I do believe that consumers need to understand what information is being collected and how it is being used. But I do not think people appreciate how difficult this is for an app developer to do in a mobile environment (small screen) with business models developing and changing so rapidly (the industry is still in its infancy) and with such differences of opinion on matters such as what constitutes privacy from a location standpoint (which is influenced by age, gender, culture, community, etc.).

DM: Unmanned aerial vehicles are about to be introduced on a larger scale in the U.S. What do you see as the potential legal problems when UAVs start flying?

KP: As you know, the FAA is developing regulations for UAVs to fly more broadly in the U.S. for civilian use. Once this occurs, you can look at UAVs as simply another sensor device, with the same set of legal/policy issues as any other technology that collects geospatial information. However, I think that UAVs will become what I call the "elephant in the sky" with respect to location privacy. First, because the use of UAVs both abroad and in the U.S. has received so much attention in the media that a number of people (and policymakers) are already concerned about their use before they have been deployed. Second, the deal is simply that drones are more conspicuous from a human nature standpoint. It is easy to forget that satellites are flying overhead because you don't see them, and it is difficult to distinguish between a manned aircraft that is flying from Point A to Point B and one that is collecting aerial imagery. However, my sense is that the general population will become quite concerned when they see UAVs in the sky, particularly when they won't know who is operating them, what they are collecting, and how the information is being used. This will require lawmakers to react. And the problem is from a regulatory/legislative standpoint, can you regulate UAV collection without also regulating aerial and/or satellite collection?


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