Tuesday, June 26, 2007

But Do You Have A Reasonable Expectation Of Privacy With Your Cell Phone?

The recent decision by the Sixth Circuit US Court of Appeals (Warshak v. United States) that individuals have a reasonable expectation of privacy with respect to the contents of their emails may impact the spatial technology industry.

Warshak Case

Warshak concerned what steps the US government must take in order to compel a provider of electronic communication services (such as an ISP) to turn over emails and email-related information in connection with a criminal investigation under the 1986 Stored Communications Act. Sections 2703(b) and 2705 of the Act state in part that the government can compel such information, without notice to the customer, if "there were specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records of other information sought, are relevant and material to an ongoing criminal investigation."

The "specific and articulable facts" standard is considered lower than the probable cause (what to be seized is evidence of a crime) standard we all know from television shows. And it was this standard that the Sixth Circuit felt violated the reasonable expectation of privacy that individuals have in the content of their emails. In effect, the court found that in order for the government to compel disclosure of the contents of the email it must have probable cause.

Spatial Data and the Stored Communications Act

There have been a number of recent cases involving the attempted use by the government to use the specific and articulable facts standard in the Stored Communications Act to collect spatial data associated with electronic transmissions. (See e.g. In the Matter of the Application of the United States of America For An Order Authorizing the Release Of Prospective Cell Site Information, (407 F.Supp.2d 134); In the Matter Of An Application Of the United States For A Order Authorizing Pen Register And A Trap And Trace Device And Release Of Subscriber Information And/Or Cell Site Information; (384 F. Supp. 2d 562) In Re Application for Pen Register and Trap/Device with Cell Site Location Authority, 396 F.Supp. 2d 747 ) Specifically, the government has tried to use Section 2703(c) to collect "a record or other information pertaining to a subscriber to or a customer of such service". In all three instances the government was attempting to use the reasonable grounds standard under Section 2703(d) of the Act in order to obtain cell site data to track a customer's location in real or near real time rather than the higher probable cause standard that would be required to obtain approval to use a more standard tracking device to monitor a suspect's movements. However, in each case the court found that the government needed to have probable cause in order to compel disclosure of the cell tower data.


Each of the decisions regarding spatial data under the Stored Communications Act focused on the intent and history of the Act as well as other laws limiting the government's use of tracking devices. None spoke to whether individuals have a reasonable expectation of privacy with regards to their location. However, the Sixth Circuit's analysis of the Act, in conjunction with the other decisions of the Act regarding spatial data, suggests that such an expectation may not be unreasonable . . . at least in the Sixth Circuit. It will be very interesting to see whether other Circuit Courts follow the Sixth Circuit in this analysis and what impact it will have on location data and companies that collect and store such data.

Thursday, June 21, 2007

What Is Spatial Law?

I am periodically asked to define Spatial Law. In my opinion, it is an emerging area of law focusing on the wide range of legal issues associated with spatial technology and the collection, distribution and use of spatial data. Spatial technology includes remote sensing, web-mapping services (WMS), geographic information systems (GIS), location-based technologies and Global Position System (GPS). Spatial data is any data set that can be linked to a geographic location.

Legal Issues

Increasingly, companies are using spatial data for business, either by developing business models around spatial data or by including spatial data in their metrics. As a result companies are beginning to face a number of legal issues unique to spatial technology and spatial data. These issues include:

1. Intellectual property rights – It can be a challenge to determine a company’s intellectual property rights (IPR) in spatial data. There are a number of factors that must be considered, including where the data was collected, the type of party (e.g. private company or public entity) that is exercising the rights and how the data was collected and stored. These factors are critical in determining what protection a company has with respect to its data and what rights another company may have in using such data.

2 Liability – The growing commercial use of spatial data will result in more legal disputes over the use and the quality of the data. Companies can reduce the risk of litigation by understanding the legal claims that may arise and by allocating risk through their agreements with vendors and customers.

3. Privacy – As spatial technology applications increase, so has the general public’s concerns with respect to privacy. Companies that collect, distribute or use spatial data should expect lawmakers to begin reacting to these concerns by asking companies how they intend to safeguard the personally identifiable information of their constituents.

4. National Security – Government officials at all levels are concerned that the broad availability of spatial data will be a risk to national security, both to US forces abroad as well as to homeland security. Spatial technology companies will face continued scrutiny both to their collection and use of spatial data as well as that of their customers.

Business Transactions

These, and other legal issues, arise in all types of business transactions involving spatial technology companies and spatial data:

1. License Agreements and Contracts – by identifying each party’s rights with respect to spatial data, clearly defining permitted and restricted uses, and allocating risk through representations, warranties and indemnifications.

2. Intellectual Property Rights – by helping to identify and protect IPR through filings, agreements with developers, customers and contractors, and best practice.

3. Mergers, Acquisitions and Financings – by conducting due diligence on IPR, potential liability and regulatory issues (privacy and national security) and preparing and/or reviewing purchase agreements and financing documents for spatial law issues.

4. Government Policy and Regulation – complying with laws and regulations related to national security and export controls; developing corporate policy for personally identifiable spatial data; coordinating policy positions for government affairs.

Wednesday, June 20, 2007

MAPPS Lawsuit - a lawyer's perspective

As a lawyer with an interest in geospatial technology, I have felt for a while that I should comment on the MAPPS lawsuit. I have been reluctant to do so for a number of reasons, the main one being that it was an Administrative Law case (involving implementation of laws and rulemaking). Administrative Law cases can be rather dry, which much emphasis on procedure and legislative intent, and the whole case can turn on the court's interpretation of a word or a phrase. Important, no doubt, to the spatial community. But difficult to comment on from a legal standpoint without a lengthy analysis of all relevant documents.

However, Judge Ellis' recent granting of summary judgment in favor of the government did raise some interesting legal questions. Notwithstanding that both sides claimed to have achieved a victory in the case, the opinion does little other than to find that the plaintiffs did not have standing to bring the case. Since standing is an important element in these type of cases, it is not surprising that it was an issue here. It was surprising, however, at how relatively easily Judge Ellis was able to dismiss the plaintiffs for lack of standing, and on what grounds. Particularly, since MAPPS claims to expected the challenge.

One question that comes to mind is whether there are parties that can satisfy the requirements for standing as set forth by Judge Ellis in his opinion? If so, one wonders why they were not included in the suit initially? In any event, it will be interesting to see what step MAPPS takes next.

Friday, June 15, 2007

Privacy and Google Earth (cont'd)

Out-Law.com has a useful post on the potential privacy implications for Google Earth Street View in Europe. http://www.out-law.com/page-8116 It is a good read for any company that collects or uses spatial data from European citizens because it helps explain just how broadly European law can be interpreted to protect citizens with respect to personally identifiable information.

Although US laws generally are not as protective, as previously mentioned, there are state laws that need to be considered, such as Section 8.01-40 of the Code of Virginia: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-40.

Thursday, June 14, 2007

Patenting of Location Based Technology

Wired reports that Verizon is being sued for patent infringement by a company that claims to have a patent issued in 1999 for location-based searches. http://www.wired.com/politics/law/news/2007/06/location_patent
The patent is further described here: http://www.google.com/patents?id=mWcpAAAAEBAJ&dq=5,930,474

There have been a growing number of patent infringement claims related to spatial technology in the past few years. Although many in the industry believe these claims have little value, a company runs a significant financial risk if it runs afoul of a valid patent claim. As a result, companies should provide for adequate due diligence before entering into a transaction (licensing agreement, joint venture or a merger or acquisition, etc.) with another spatial technology company.