The establishment of the National Applications Office (NAO) within the Department of Homeland Security (DHS) is intended to increase the access of law enforcement officials to satellite and aerial imagery. However, it may lead to unintended consequences for spatial technology companies.
Law enforcement has already begun to appreciate the value of spatial data. However, the increased access of law enforcement to satellite imagery will result in further recognition of the value of spatial data in investigations. As a result, law enforcement will begin to search for other types of spatial data - to be used on a stand-alone basis or incorporated with other types of data and displayed on maps or images. More and more they will approach spatial technology companies for data associated with individuals or events, as is currently done with financial institutions and telecommunication companies.
Companies will need to carefully consider their legal obligations to provide such information as well their duty to protect customer information. Unfortunately, because of the number of sensitive issues and conflicting interests that arise in such situations, it can be difficult to decipher a company's legal obligations in such situations. For example, before it was recently amended, the Patriot Act prohibited companies that turned over customer records pursuant to F.B.I. national security letters from disclosing these actions to affected customers. However, a number of courts have ruled that such a prohibition violates the Constitution. Partly in response to such concerns, Congress amended this portion of the Patriot Act when it was renewed; in the future the F.B.I. will need to certify that such prohibitions of disclosure is required to protect national security, criminal investigations, diplomacy or state secrets.
With respect to their duties to customers, spatial technology companies should also closely monitor the case of Hepting v. AT&T in the District Court in the Northern District of California. The case involves a class action lawsuit alleging that AT&T assisted the U.S. government in the unlawful monitoring of communications and providing the government access to an extensive database of sensitive customer information. The plaintiffs allege that AT&T acted as an agent for the government in violating their Constitutional rights as well as certain statutes that regulate the collection and disclosure of electronic transmissions. They are seeking both statutory and punitive damages.
It is hard to imagine that AT&T will have to pay damages for its part in this program as long as it sought and was provided proper authorization. However, even if AT&T ultimately prevails in the lawsuit, it will have spent a good deal of time and money defending itself. Sometimes there are no easy answers.