Spatial Law and Policy Update (December 27, 2015)

SPATIAL LAW AND POLICY UPDATE

"Where Geospatial Technology Is Taking the Law"

LEGAL DISCIPLINES

Privacy

CDT Proposes Privacy Best Practices for Drones  (Center for Democracy and Technology)  Imagine trying to apply these to other platforms . . . That is where we are headed.

Hyde Park visitors covertly tracked via mobile phone data  (The Guardian)

Agreement on Commission's EU data protection reform will boost Digital Single Market  

What happens when facial recognition tools are available to everyone  (Washington Post)

Data Quality

Licensing

Judge, siding with Google, refuses to shut down Waze in wake of alleged theft  (ars technica) This is an important case involving the copyrightability of geospatial data. 

Government

    Spatial Data Infrastructure/Open Data

The negative effects of open government data - investigating the dark side of open data  (ACM)

NYC’s Open Data Law Lacks Teeth, Lags Deadlines  (CityLimits)

    

    Public Safety/Law Enforcement/National Security

     Cartographers beware! Starting next year 'wrong' maps of China will be subject to 200,000 RMB fines  (Shangaiist)

    Stolen laptop cannot be recovered, GPS not exact  (KRMG)

TECHNOLOGY PLATFORMS

GNSS

U.S., Norwegian Paths to Encrypted Galileo Service Open in 2016 (SpaceNews)

Stolen laptop cannot be recovered, GPS not exact  (KRMG)

UAVs

Drone battle's next front: Your local government  (CNBC) 

State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet  (Federal Aviation Administration)

Ski resorts discuss drone policies  (9 News)

Where does private land end and public airspace begin?  (DIY Drones)

Congressman Predicts Congressional Action On Drones  (CBS Pittsburgh)

Internet of Things/Smart Grid/Intelligent Transportation Systems

Smartwatches set to shake up life insurance  (The Australian)

Here's why lawyers are 'salivating' over self-driving cars  (Business Insider) “You're going to get a whole host of new defendants,” Kevin Dean, an attorney suing General Motors over its faulty ignition switches,told Bloomberg. “Computer programmers, computer companies, designers of algorithms, Google, mapping companies, even states. It's going to be very fertile ground for lawyers.” [emphasis added].

Remote Sensing

Omnibus Fully Funds Major NOAA Satellite Programs  (SpaceNews)

Crowdsourcing

AI Machine Learns to Drive Using Crowdteaching  (Technology Review)

MISCELLANEOUS

Future Trends in Geospatial Information Management: Five to Ten Year Vision  (UN-GGIM) The Centre was a significant contributor to the Legal and Policy Section of this report. 

Spatial Law and Policy UAV Update (December 4, 2014)

Each week the Centre for Spatial Law and Policy prepares an update for its members. The following are UAV-related links from the past week.

Spy balloons give police new view of Jerusalem  (AP)

Source: FAA will require Commercial Drone Operators to Have a License, Fly in Daylight  (Directions)

Privacy, data protection and ethical risks in civil RPAS operations - Final Report  

Legal framework for UAV operations in Canada  (Dronologista)

Rules For Drones  (TechCrunch)

Senators Demanding Action On Drones Is Too Little Too Late  (Forbes)

State registry for commercial drones on hold  (Daily Astorian)

Use of UAVs for Commercial Purposes in U.S.: Privacy Measures

Now that the Federal Aviation Administration (FAA) has begun to allow UAVs to be used for commercial purposes in the U.S. (albeit for limited purposes) one should expect there to be increased attention paid to the potential privacy concerns. That is why I found reports of a recent Government Accountability Office’s (GAO) audit of the U.S. Customs and Border Protection’s (CBP) privacy practice with respect to its use of UAVs to be of value.  In its presentation, the GAO reported that the CBP had developed appropriate procedures to protect civil liberties and privacy. While commercial operators are subject to different laws and policies than U.S. government agencies, the GAO audit is instructive as to some of the measures operators should consider as they begin to use UAVs for commercial purposes. 

The GAO noted that the CBP primarily operated UAVs only within the designated areas to help ensure that sensors “only capture images and information necessary for the authorized mission” The limited deviations outside of the designated areas were primarily due to weather and pilot error.

The GAO also found that the CBP took a number of measures to ensure that the imagery and radar data that was collected was properly secured, stored and disseminated. These measures included: (i) encrypting the transmission of UAV video; (ii)  restricting access to real-time video to authorized users; (iii) restricting disclosure of analytical products that contain UAV-obtained images; (iv) identifying sensitive information prior to disclosure; (v)  maintaining a log to track the dissemination of all analytical products that contain UAV-obtained images; and (vi)  handling UAV-obtained images that are to be used as evidence in accordance with rules of evidence.

The GAO noted that all CBP employees are required to complete annual training in privacy awareness, civil rights and civil liberties, ethics and the CBP Code of Conduct. In addition, law enforcement officers must take additional training focused on privacy, civil rights, and civil liberties issues related to the collection, processing and safeguarding of evidence.

UAVs are increasingly being seen as disruptive technology, causing lawmakers and regulators at both the federal and state level to take a hard look at means to protect privacy from overhead sensors. As a result, operators of UAVs should keep the measures cited above in mind as they begin commercial operations, particularly if they are working on behalf of government clients. (It is interesting to note that CBP apparently takes these measures even though its UAVs fly “primarily at an altitude between 19,000 and 28,000 feet, where the video images do not permit identification of individuals or license plates.”)  

UAVs in the US: My Perspective

A number of people have been asking me  for my thoughts on the legal issues associated with the use of UAVs in the United States in light of a couple of recent articles. (See e.g , FAA Says Commercial Drone Operations are Illegal . . Public Says So What? and Busting the FAA's "Myth Busting Document".) Clearly, there are a number of what I would deem technical/safety issues associated with integrating UAVs into the existing legal and policy framework surrounding aircraft. These include issues such as licensing, spectrum, training, etc. I don't mean do downgrade the importance of these issues in order to facilitate the broad adoption of UAV use in the U.S., however my sense is that the Federal Aviation Administration (FAA) is quite capable of coming up with regulations and policies that although not perfect, will be something that will satisfy many - if not most - stakeholders.  Moreover, it will almost certainly be a national standard that will provide for predictability and uniformity, which are important to most stakeholders (businesses and government agencies that wish for greater use of UAVs in the U.S.)

I believe the more troublesome issues are, and will be for some time, associated with UAVs that are used to collect information (of any kind).  First, because it is unclear whether the FAA has the authority or the internal capability to develop regulations around such issues as privacy, data ownership and data protection. Second, because the existing laws and policies on these issues in the U.S.are outdated, in a state of flux and/or often misunderstood. Third, because the issue is a  sensitive topic across the political spectrum; the left and the right are both concerned about who will collect the information and how it will be used. Finally, because there are so many other government authorities that have, or hope to have a say on these issues, including the Federal Trade Commission, state authorities and the courts (federal and state).

The result in the near term is likely to be a patchwork of inconsistent and in some cases conflicting laws and regulations as to what is required in order to begin collecting information, what information can be collected and how it can be used. The challenge for organizations that wish to collect such information will be to work through this legal and regulatory minefield in a manner that maximizes the benefits while minimizing the legal risks. Unfortunately for the FAA, it will sit in the middle of that likely mess and will continue to take much of the blame. 

I am not surprised to hear that there are those who question the FAA's ability (or willingness) to restrict some commercial use of UAVs. I imagine that the FAA is unlikely to challenge the use of very small UAV's, flown at low altitudes, over private property, for limited purposes, with the informed consent of the owner, even for "commercial purposes".  However, I do believe that in the near term the further one moves away from those set of conditions, the more likely you are to run up against some legal or regulatory authority.