Tuesday, December 16, 2014

Spatial Law and Policy 2014 - The Year of the Drone

Each December, I have listed the top Spatial Law and Policy stories from the past year. (For those of you who have the time, it is interesting to go back over the past several years to see how the issues - and the technology - have evolved: 2013, 2012, 2011, 2010). This year I have decided to focus on the legal and policy developments around the globe concerning UAVs. The reason, as those of you who subscribe to the Centre for Spatial Law and Policy's weekly update know, is that I believe that the issues surrounding UAVs are representative of the larger issues facing the geospatial community. Moreover, issues such as location privacy are being driven due to concerns over  UAVs.  After all, it is all about the data:

1. Regulatory uncertainty 
Lawmakers and regulators around the world are struggling to apply existing laws, policies and regulations to the expected proliferation of UAVs.  In the U.S., commercial use of UAVs had for all practical purposes been prohibited. Thankfully, this began to change in 2014, as the Federal Aviation Administration (FAA) began to grant Section 333 exemptions under the FAA Modernization and Reform Act of 2012. The FAA is expected to release proposed rules regarding the use of small UAVs for commercial purposes very soon.  Unfortunately, early reports suggest that the FAA continues to view regulating UAVs through an outdated prism:
Other countries also re-examined their approach to UAVs in 2014. In some cases, this has resulted in more restrictions and prohibitions. Fortunately, in some countries it has resulted in simpler and more transparent laws and policies.

Geopatial technology and applications that use geospatial information in new and innovative ways are proving to be equally disruptive. For example, in 2014 regulators in the U.S. finally reduced the resolution restrictions on commercial remote sensing satellites. Similarly, lawmakers and regulators around the world delayed or restricted the popular ride-sharing service Uber (which leverages the location of drivers and potential customers using geospatial technology) for failing to comply with applicable taxicab regulations. Ironically, some in France have suggested that Uber drop using maps in its apps as a solution.

2. Importance of Courts
In the U.S., the FAA's inability to keep pace with the rapid technological advancements and proliferation of UAVs has resulted in litigation.  In perhaps the most important decision, the National Transportation Safety Board ruled that the FAA had the authority to fine a UAV operator for reckless actions.

Courts played a critical role in other spatial law issues in 2014. For example, there were a number of decisions in the U.S. that could have a significant impact on law enforcement's use of geospatial information. The New Mexico Supreme Court agreed to review a lower court's decision that law enforcement's use of a manned aircraft to fly over a defendant's backyard without a warrant to see if there were any marijuana plants violated the defendant's privacy rights under New Mexico's state constitution. Moreover,  a federal judge reportedly ruled recently that law enforcement could not use information collected by placing a video camera on public property:
Similarly, in Europe, commentators believe that due to a recent decision by the Court of Justice in the EU concerning security cameras, private citizens operating UAVs will have to comply with data protection laws.

3. Privacy

There were a number of legal and policy developments in 2014 involving privacy concerns associated with the proliferation of UAVs. For example, in the U.S. several more states passed laws restricting both the collection of data by UAVs and the subsequent use of such data by both government agencies and private individuals. (We can expect more such legislation in 2015). In addition, a bill was introduced in Congress that would have a similar effect - although it is  unlikely to pass. There have also been a number of reports that the White House will issue an executive order directing the National Telecommunications and Information Administration (NTIA) to make recommendations on drone privacy. Many other countries examined their existing privacy/data protection laws in anticipation of the proliferation of UAVs.

Concerns over other types of geolocation privacy were also a big issue in 2014. In May, the White House issued two reports on Big Data and privacy, one of which - Big Data and Privacy - A Technology Perspective  - specifically cited privacy concerns associated with geospatial technologies such as radar and LiDAR. In addition, there were numerous media reports over privacy concerns associated with how businesses and government agencies were using location information. In some instances these reports were more speculative in nature. Other reports, if true, were quite troubling - and showed a general insensitivity to the nature of the information. In some instances, businesses decided to withdraw products and services due to privacy concerns associated with location information, even though no laws had been violated.

4  Potential Liability Concerns
The potential for UAVs to cause damage to property and individuals were well documented in 2014. There were similar examples concerning other geospatial technology. Over time we can expect that the legal system will sort out the responsibilities (and associated liabilities) of the various actors. In many instances this will simply mean applying existing laws to the facts. In other instances, it may require new laws to address specific concerns. In either case, it will take some time for these issues to be sorted out. In the meantime, we can expect a great deal of uncertainty, and some unusual court cases.

5. Intellectual Property Rights in the Data

One area that did not receive much attention in 2014 in connection with UAVs was who will own the vast amount of data that will be collected. This issue will become more important as commercial uses for UAVs become more commonplace. People generally do not give much thought as to how companies use images (and other remote sensing data) that is collected about them from satellites or manned aircraft. However, we should expect that some will have a very different view when they see a neighbor profiting from images of their property.

Such concerns are becoming more common with regard to other types of geospatial information. In fact, some have suggested that uncertainty over ownership rights in personal data could hinder the development of the Internet of Things. The issue will become even more critical (and complex) as companies such as Terbine and Farmobile emerge.

The link between spatial law and UAVs became apparent in 2014. I expect we will see more of a convergence in 2015.  

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