7
The Public Interest

7.1 INTRODUCTION

The reasons for choosing a particular model for acquiring or distributing geographic data are not limited to legal rules and economic analysis. There are additional considerations that spring from collective values that fall outside legal mandates, regardless of economic efficiency. Some of these considerations were introduced in Chapter 2. They include, but are not limited to, fairness, fostering creativity, promoting democratic processes, personal security and freedom, and privacy.

This chapter discusses a sampling of public interest considerations that affect governmental policy for obtaining and sharing geographic data. Some factors suggest reasons to acquire geographic data outright, whereas others suggest that licensing data with use or dissemination restrictions is acceptable or even preferred. The discussion in this chapter is not intended to set forth an exhaustive list of issues that might be termed public interest.

7.2 PRESERVING AND ENHANCING THE PUBLIC DOMAIN

Historically, society has set limits on intellectual property to preserve a common “space” of ideas and information. The policy justifications for



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Licensing Geographic Data and Services 7 The Public Interest 7.1 INTRODUCTION The reasons for choosing a particular model for acquiring or distributing geographic data are not limited to legal rules and economic analysis. There are additional considerations that spring from collective values that fall outside legal mandates, regardless of economic efficiency. Some of these considerations were introduced in Chapter 2. They include, but are not limited to, fairness, fostering creativity, promoting democratic processes, personal security and freedom, and privacy. This chapter discusses a sampling of public interest considerations that affect governmental policy for obtaining and sharing geographic data. Some factors suggest reasons to acquire geographic data outright, whereas others suggest that licensing data with use or dissemination restrictions is acceptable or even preferred. The discussion in this chapter is not intended to set forth an exhaustive list of issues that might be termed public interest. 7.2 PRESERVING AND ENHANCING THE PUBLIC DOMAIN Historically, society has set limits on intellectual property to preserve a common “space” of ideas and information. The policy justifications for

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Licensing Geographic Data and Services this public domain or “intellectual commons” include fostering public discourse, innovation, and equality.1 7.2.1 Public Discourse Culture and politics depend on citizens’ ability to obtain, display, and manipulate information. During the 1960s, for example, artists and activists used National Aeronautics and Space Administration (NASA) images of Earth to transform popular culture and advance the modern environmental movement.2 Government acquisition seldom reflects the entire value of publicly shared goods because the beneficiaries—members of the public and other tertiary users—do not sit at the bargaining table. Those who do—government agencies and vendors—can be expected to prioritize their own interests. In this environment, the benefits to the public generally may not seem worth the additional cost to an agency of acquiring full rights in data. This does not make the value of information for public discourse any less real or any less valuable. Basic geographic data and works may be essential to modern political and cultural debates. 7.2.2 Innovation3 Fostering creativity, whether scientific, artistic, or otherwise, requires the right balance between proprietary rights and free or open access to information. The ability of data providers to control and receive compensation has encouraged large numbers of vendors to enter the market. On the other hand, the availability at low cost of the U.S. Geological 1   These goals are not entirely inconsistent with intellectual property and contract rights; the problem of striking the correct balance is covered in Chapter 6, Section 6.2. Our purpose here is to make explicit the benefits of a robust public domain. 2   For example, the “earthrise” photographs from Apollo 8 gave a new global perspective of the planet (see <http://www.hq.nasa.gov/office/pao/History/Apollomon/apollo.html>). 3   Chapter 6 discusses the role of public domain information in fostering further development of geographic data products (see in particular Section 6.2). Our purpose here is to make more explicit the benefits of public domain information, recognizing that the ultimate determination of when public domain information is desirable requires a balancing of costs and benefits.

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Licensing Geographic Data and Services Survey’s (USGS’s) topographic maps, without restrictions on reuse, has resulted in countless beneficial commercial and noncommercial uses.4 The benefits of a robust public domain for commercial and noncommercial innovation, like the benefits of informed public discourse, may be difficult to measure. Agencies also may lack sufficient incentives to fully account for them. Interest group politics5 and agency capture,6 although they should not be overrated, tend to divert attention from the concerns of unrepresented constituencies. The benefits of a robust public domain thus are likely to be undervalued, even though they are real and significant.7 Market forces are unlikely to capture the benefits of a robust public domain for basic research. Many research scientists, especially in universities and other nonprofit institutions, follow a fundamentally different mode based on open publication and shared discoveries.8 Recent experiments with open source have extended this basic model to various nonprofit and commercial environments.9 Although these developments are relatively new, they suggest that in some areas public domain innovations contribute significant benefits to society in both commercial and noncommercial contexts. Even if licensing and proprietary claims could accelerate commercial science, the negative impact on sharing within open communities still could reduce the total rate of discovery.10 4   See National Research Council (NRC), 2002, Research Opportunities in Geography at the U.S. Geological Survey, Washington, D.C., National Academies Press, p. 62. 5   See D.A. Farber and P. P. Frickey, 1987, The jurisprudence of public choice, Texas Law Review 65:873. 6   D. B. Spence and L. Gopalakrishnan, 2000, Bargaining theory and regulatory reform: The political logic of inefficient regulation, Vanderbilt Law Review 53:599. 7   As illustrated in a comparison of weather-related businesses in the United States and Europe—Chapter 4, footnote 95. 8   Many institutions employing the same scientists assert intellectual property rights and licensing regimes to protect the fruits of basic research, however. 9   See, for example, < http://www.opensource.org/> and < http://www.opengis.org/>. The open source community promotes open access to the program code that underlies software, free redistribution of the code, and allowance under some open source license arrangements of modifications of, and works derived from, the code. 10   This problem is likely to be ameliorated where licensing regimes offer academic and nonprofit pricing that is at or near marginal costs, which is often the case. In addition to price discrimination, licensors have a range of licenses to reflect different user communities (e.g., Broward County, Florida, Property Appraiser’s Office).

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Licensing Geographic Data and Services Discerning the appropriate balance is difficult because the impacts are not easily quantifiable. Even a small risk may be unacceptable.11 7.2.3 Equality and Equity Government provides services and regulatory schemes that may give advantage to some citizens relative to others. In some instances, the rationale for such services and schemes is to correct inequities among citizens. Principles underpinning notions of equality and equity have some bearing on public geographic data. The purposes of these principles are several: they include creating equality of opportunity and providing access to information so that individuals can make informed decisions. A shift to more licensing, with concomitant restrictions on data access and use, is likely to elicit more concern about inequality and inequity, particularly when differential pricing is employed. Strategies that may reduce claims of unequal treatment or unfairness12 include designing decision-making procedures that make explicit the criteria on which decisions are based and that are nonarbitrary, and maintaining sensitivity to what stakeholders may perceive as rights to the status quo of freely available data. Historical agency practices regarding particular types of data, for example, might serve as a useful starting point for analyzing the significance of new data acquisition practices. Conclusion: The federal government is one of the primary sources of and repositories for freely available or nominal-cost geographic data. Widespread acquisition of licensed data with use and dissemination restrictions opens the door to a shift in the balance of proprietary rights and free use and could have unforeseen and potentially harmful consequences. Careful consideration of data acquisition strategies can go far in preserving and enhancing the public domain in geographic data. When establishing data acquisition policies, agency mandates and missions may require agency policy makers to take into account the role of the federal government in maintaining and enhancing the public domain in geographic data. 11   In the long run, a decreased public domain could depress commercial discovery. Many companies depend on universities for a steady supply of basic research. 12   See E. Zajac, 2003, On fairness and self-serving biases in the privatization of environmental data, in NRC, 2003, Fair Weather: Effective Partnerships in Weather and Climate Services, Washington, D.C., National Academies Press, Appendix E at 209–212.

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Licensing Geographic Data and Services 7.3 GOVERNMENT ACCOUNTABILITY AND TRANSPARENCY Government accountability and transparency require agencies to ensure that the ability to control scarce geographic data never becomes “outcome determinative” for any political or judicial process. Minimizing use restrictions on geographic data facilitates citizens’ ability to monitor government operations, a consideration that includes but is not limited to the legal requirements of the Freedom of Information Act (FOIA) and other legally mandated disclosure requirements.13 Transparency is important to agency adjudications and rulemaking, to petitions to Congress for new legislation, and to mount court challenges to illegal government acts. Society has an affirmative interest in demonstrating procedural fairness to every citizen. In some cases, this means putting basic data—census data, for example—into the public domain. In other cases, reasonable restrictions on access may be appropriate. For example, some states that use proprietary geographic software for redistricting limit access to the software and bundled data to a small number of physical locations.14 Licenses can be a useful tool for ensuring citizen access when geographic data are relevant to government action or policies. As a license condition, vendors might agree to keep products on the market to maintain citizen access, although this could become problematic when firms go out of business or produce multiple updates of the same product. In many cases, it may be more practical for government to acquire sufficient redistribution rights for individuals who seek access for political purposes, in which case rights can be narrowly defined in a license to contain costs. In other cases, it may make more sense to purchase unlimited rights. Conclusion: Access to geographic data used by government is important for government accountability and transparency. Generally, agencies’ acquisition of full rights will serve this goal. Licensing and more limited rights may suffice, as long as any restrictions on access to government data do not result in political or judicial outcomes that favor those with access over those precluded from access by the restrictions. When establishing data acquisition policies, agency mandates and missions may require that agency policy makers take into account the need for 13   See Chapter 5, Section 5.4.2. 14   Tim Storey, National Conference of State Legislatures, personal communication, January 2004.

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Licensing Geographic Data and Services accountability and transparency, obtaining full rights in geographic data that are needed for such purposes. 7.4 NATIONAL SECURITY The goals of U.S. national security include enhancing American military capabilities and diplomatic influence while denying similar capabilities to hostile governments and terrorists. Among the options for satisfying these goals are preserving access to essential remote-sensing assets, denying satellite data to potential adversaries, and restricting access to other geographic data.15 National security priorities change over time, and data declassification also has potential benefits.16 7.4.1 Preserving Access to Essential Assets17 National militaries have always drawn strength from their respective economies. This interdependence seldom raises national security concerns as long as goods and services are available from multiple sources, or can be duplicated in a reasonable length of time. However, some civilian assets are so expensive and complex that governments have no hope of replacing them in an emergency. Governments traditionally have reserved the right to commandeer such assets.18 Prior to the mid-1990s, however, few, if any geographic data collection assets fit this description. The rise of commercial satellite remote sensing over the past decade has blurred the line between civilian and military geospatial assets. The typical imaging satellite costs well over $100 million and takes up to five years to design, fund, build, and launch. This means that the nation’s satellite imaging capabilities are essentially fixed in the short run. Additionally, the Department of Defense (DoD) has become more dependent on com- 15   We also recognize that not all strategies for achieving these goals are acceptable. We examine privacy constraints later in this chapter. 16   Approximately 880,000 photographic images that were taken between 1959 and 1972, primarily collected by the CORONA satellite series, have been declassified and are publicly available. See <http://edc.usgs.gov/products/satellite/declass1.html>. 17   Arguments for policies that ensure the availability of geographic data for national security could apply as well to data needed for other purposes. 18   Recent examples include the U.S. military’s use of commercial airliners to ferry troops to the Persian Gulf and Britain’s use of the QE2 as a troopship during the Falklands conflict.

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Licensing Geographic Data and Services mercial images to supplement and extend its own in-house capabilities.19 This trend is likely to accelerate. The military’s demand for satellite images is also likely to grow during wartime and national emergencies, and commercial satellite imagery is likely to become more important in meeting homeland security needs, especially at the state and local level.20 Guaranteed access to commercial assets is important for obtaining the needed capability. The government can no longer afford to let civilian assets “go dark.” Some military requirements are met by statute. For example, all U.S. commercial satellite operators must receive government operating licenses21 and commit to various national security goals. Although operating licenses have been an important mechanism for achieving national security goals, the system is inherently limited because there are practical limits to what the government can demand; if authorities impose too many requirements, firms will go out of business or leave the industry. Data acquisition agreements—including, but not limited to, licenses—add flexibility that may not be possible through operating licenses. They provide formal, contractual guarantees that government will be able to purchase images. The prospect of future acquisitions provides a “carrot” that military planners can trade on to extract special treatment during an emergency.22 Furthermore, such agreements provide a vehicle for subsidizing an industry that might not survive on its own. Although the practice cannot be justified on purely economic grounds,23 subsidies serve national 19   DoD has discussed various strategies for “piggybacking” its needs on the commercial sector. These include increased purchasing of commercial images and leasing commercial satellites so that they can be redirected to military objectives. J. Singer, 2002, Changes ordered in classified security program, Space News (Nov. 25), available at <http://www.space.com/spacenews/>; J. Singer, 2002, NRO faces potential gap in satellite coverage, Space News (July 15), available at <http://www.space.com/spacenews/>. 20   See S. D. Kuo, 2003, Homeland issues in the use of space assets for homeland security, Air and Space Power Journal (Spring), available at <http://www.airpower.maxwell.af.mil/airchronicles/apj/apj03/spr03/spr03.html>. 21   Not to be confused with the licenses that are the subject of this study. 22   Such as the option to “commandeer” a satellite. 23   Most economists reject so-called “infant industry” arguments that favor government protection or subsidies for private ventures. Such arguments uniformly assume that government can “pick winners,” that is, make investments that consistently outperform private venture capital markets.

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Licensing Geographic Data and Services security interests by mitigating some of the risk that DoD’s Future Imagery Architecture program may not succeed.24 7.4.2 Denying Satellite Data to Potential Adversaries The ability to restrict access to commercial satellite imagery becomes particularly valuable during wartime and national emergencies. Restricting access using contractual vehicles has been preferred over implementing regulatory control as allowed in the satellite operating licenses. In the long run, such formal restrictions may be less important—and certainly less flexible—than judicious exercise of government purchasing power. For the foreseeable future, U.S. commercial satellite companies need massive federal government acquisitions to survive.25 This provides a powerful incentive to agree to withhold images from hostile powers. During the war in Afghanistan, Space Imaging, Inc., entered into a contract with DoD that assured DoD of access to all images from the war zone, thus restricting access by adversaries (and the Media) to intelligence that could have been used to track U.S. forces. Conclusion: Government geographic data acquisition practices play an important role in ensuring that data products supporting national security, particularly satellite imagery, remain available to U.S. intelligence agencies and the military, but unavailable to adversaries. When establishing data acquisition policies, agency mandates and missions may require agency policy makers to take into account the need to ensure that geographic data resources needed for national security remain available to the government and unavailable to adversaries. 7.4.3 Restricting Other Geographic Data When restricting access to geographic data, governments must balance legitimate uses against the possibility of abuse.26 The former Soviet 24   J. Singer, 2002, NRO faces potential gap in satellite coverage, Space News (July 15), available at <http://www.space.com/spacenews/>. See also discussion of the 2003 Commercial Remote Sensing Policy in Section 5.4.1.4 of Chapter 5. 25   Clearview and Nextview are two recent examples of National Geospatial-intelligence Agency contracts with industry (see Appendix D, Section D.3). 26   See J. C. Baker, B.E. Lachman, D.R. Frelinger, K.M. O’Connell, A.C. Hou, M.S. Tseng, D. Orletsky, and C. Yost, 2004, Mapping the Risks: Assessing

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Licensing Geographic Data and Services Union routinely suppressed geographic data showing roads, factories, and entire towns. By contrast, U.S. military strength rests on a market economy, decentralized decision making, and individual initiative. In these circumstances, it is counterproductive to restrict geographic data dissemination unless the potential harm substantially outweighs legitimate uses. Additionally, classification conflicts with the public’s “right to know.” This leads to a presumption against classification in ambiguous cases. In practice, few publicly available geographic data products raise national security concerns. For example, 6 percent of 629 federal datasets were judged by Baker et al. (2004)27 to be potentially useful to attackers and 1 percent was both useful and unique. Nonetheless, the events of September 11, 2001, placed new emphasis on low-technology threats. Today, sensitive geographic information includes building designs, secure locations, utilities and power lines, hazardous materials facilities, and other pieces of “critical infrastructure.”28 Many of these facilities are privately owned, and government often must share information with or acquire information from private entities. Consequently, agencies need mechanisms for controlling distribution to large (but select) groups of individuals and entities within and outside the government. The principal reaction has been to accelerate the development of a so-called “sensitive but unclassified” category for government data.29 In 2004, the Department of Homeland Security initiated a “Protected Critical Infrastructure Information Program”30 that solicits potentially sensitive information from private and other sources and, if the information qualifies for “protection,” restricts its distribution through such means as providing immunity from FOIA requests.     the Homeland Security Implications of Publicly Available Geospatial Information, Santa Monica, CA, Rand Corp. 27   See footnote 26. 28   See Executive Order 13010 on Critical Infrastructure Protection, 61 FR 37347, July 17, 1996. 29   Congressional Research Service, 2003, “‘Sensitive but Unclassified’ and other federal security controls on scientific and technical information: History and current controversy,” available at <http://www.ieeeusa.org/forum/REPORTS/RL31845.pdf>. Information is classified on the basis of well-established criteria and procedures. “Sensitive” information, on the other hand, is information that does not meet the criteria for classification but that arguably might be useful to terrorists. It is a discretionary category, the application of which has been broadened since the September 11, 2001, terrorist attacks. Id. 30   See < http://www.dhs.gov/dhspublic/display?theme=92>.

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Licensing Geographic Data and Services Licensing restrictions provide a natural mechanism for controlling data after they leave government. In principle, agencies could use licenses to delegate authority. They could, for example, let private entities decide how to redistribute sensitive data affecting their installations, although this strategy might let private entities restrict access for improper reasons, such as avoiding public scrutiny. Licenses also could be used to allow academic researchers, journalists, and other prescreened individuals to have access.31 Conclusion: When deciding whether to restrict geographic data access on national security grounds, policy makers must carefully weigh the need for restricted access against the public’s interest in being informed and having access to important information about their communities and environment. When restrictions are appropriate, licenses can be vehicles for structuring data access. 7.4.4 Declassification Policy Since the 1960s, the U.S. military has invested enormous resources in imaging, acoustic, seismographic, and electromagnetic surveillance of Earth’s land surface and oceans. The resulting datasets have substantial value for academic research and certain political issues (e.g., global climate change).32 Declassification has accelerated since 1995 when 31   See Congressional Research Service, 2003, at p. 43. 32   See, for example, NRC, 2001, Resolving Conflicts Arising from the Privatization of Environmental Data, Washington, D.C., National Academies Press, p. 66. This report describes the societal value of such declassified data as (1) geodetic data that the civilian community can now use in ocean floor studies, (2) submarine data on Arctic Ocean ice-cover thickness changes over time, and (3) high-resolution Cold War spy satellite data from CORONA satellites. For a discussion of the value of declassified data in land surface change studies, see NRC, 2002, Down to Earth: Geographic Information for Sustainable Development in Africa, Washington, D.C., National Academies Press, p. 87. Declassified geographic data, like any recovered geographic data, are only useful if the accompanying supporting information (e.g., metadata) provides sufficient context and the data are not disrupted (e.g., by cloud cover). As of June, 2004, roughly 2 percent of declassified images in the “Declass 1” holdings of EROS Data Center were missing coordinates and roughly 40 to 50 percent of the images contained significant amounts of clouds obscuring the view of the land surface or had inherent contrast problems (John Faundeen, USGS, personal communication, June 2004).

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Licensing Geographic Data and Services President Clinton signed two related Executive Orders.33 Potentially, such data also could boost the commercial satellite industry by demonstrating the value of satellite images to possible customers, and providing a high-resolution baseline against which current images can be compared to detect changes. We have argued that the existence of significant national security concerns can override the economic efficiency arguments that favor widespread distribution of government data. The reverse is also true: Once national security concerns fade, government must act decisively to resume widespread distribution. Conclusion: When establishing data acquisition policies, agency mandates and missions may require agency policy makers to take into account the need to declassify classified geographic data to make them widely available when protection is no longer warranted. 7.5 FOREIGN POLICY Geographic data have important value in establishing and maintaining foreign good will, improving trade, enhancing intergovernmental relationships, and assisting in the democratization of foreign institutions through making data that have economic, political, and environmental value available to other nations.34 For example, the foreign policy value of remote-sensing data was recognized as “a very sensitive matter involving agreements which have been reached over the years between the State Department and other nations.”35 In some important cases, geographic data and services are subject to U.S. obligations under international law and nondefense foreign policy obligations.36 33   See <http://www.fas.org/sgp/clinton/eo12958.html>, <http://www.fas.org/irp/offdocs/eo12951.htm>. See also NRC, 2001, Resolving Conflicts Arising from the Privatization of Environmental Data, Washington, D.C., National Academies Press, p. 66. 34   See also the 2003 Commercial Remote Sensing Policy, discussed Chapter 5, Section 5.4.1.4. 35   See The Land Remote Sensing Policy Act of 1991, 102d Congress, 2d Session, at 210 (1992). 36   See, for example, Canadian Space Agency, 1994, Radarsat Data Policy, RCA—PR0004, § 10.1.b., at p. 11.

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Licensing Geographic Data and Services Conclusion: Geographic data access may serve important foreign policy goals that should be taken into account by agency policy makers in establishing frameworks for data acquisition agreements. 7.6 LAW ENFORCEMENT Law enforcement uses geographic data and GIS in applications such as tracking patrol cars, locating “911” callers, searching for illegal drug production, and profiling the likely locations of snipers. As with national security, most of these law enforcement applications take advantage of information goods developed for civilian markets. Unlike national security, law enforcement seldom needs access to unique and expensive assets such as satellites, and can usually be thought of as one of many end users. Law enforcement has an interest in restricting access to “sensitive” geographic information. In at least one instance, burglars have tried to access tax assessor files to find high-value homes that lack security systems, and poachers have used environmental data to locate rare and endangered species.37 As with national security, government must weigh potential dangers against legitimate use. The public’s right to know implies a presumption against restrictions, absent clear evidence of need. When restrictions are needed, blanket restrictions should be the exception rather than the rule. In many cases, modest restrictions on anonymity and convenience are sufficient; for example, would-be users can be required to present identification or undergo a formal background check. When geographic data are made available outside government agencies, licenses can support such procedures by imposing redistribution restrictions that range from “no distribution without express government permission” to “distribution at recipient’s discretion.” The latter option may be particularly useful when government relies on the recipient to help protect privately owned assets. On the other hand, it is also important for law enforcement agencies to keep in mind that government use of licensed data and services must be consistent with Fourth Amendment protections against unreasonable search and seizure and that license terms cannot be used to circumvent them.38 Depending on the license terms and the relationship between the 37   Testimony of Randy Johnson, Hennepin County, Minnesota. 38   We do not attempt to discuss in any depth the legal constraints on obtaining and using information gained from aerial photographs and satellite imagery. Such methods may implicate Fourth Amendment or other concerns. In Dow Chemical Co. v. United States, 106 S. Ct. 1819 (1986), the Supreme Court

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Licensing Geographic Data and Services government and the private entity, the private entity’s activities might constitute state action, subjecting it to unintended liabilities. Contracting parties should consider these facets of the Fourth Amendment when law enforcement is involved and seek counsel when a license is being negotiated. Conclusion: Law enforcement agencies have an interest in restricting access to data that may be of interest to potential lawbreakers. Nonetheless, the public’s right to know implies a presumption against restrictions—particularly blanket restrictions—absent clear evidence of need. And law enforcement agencies should not impose restrictions on public access to geographic data except when there is clear evidence of such need. 7.7 PRIVACY Aerial photography and satellite imagery reach into backyards and businesses.39 Government agencies, commercial firms, and individuals routinely use these data to conduct surveillance. When government agencies or their agents, which may include contractors, engage in such activities, it may implicate the Fourth Amendment, as discussed earlier, or it may implicate privacy concerns.40 Private parties who engage in such surveillance may also incur tort liability for invasion of privacy.41     held that aerial photography of Dow’s chemical plant for an environmental inspection did not constitute a search for the purposes of the Fourth Amendment and that no search warrant was required. The Fifth Circuit took a different view of the use of aerial photography in industrial espionage in E. I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012 (5th Cir. 1970), cert. denied, 400 U.S. 1024 (1971), holding that obtaining information on trade secret chemical processes through aerial photography of a plant under construction was improper. 39   For a discussion of improved sensing capabilities and privacy concerns, see E. T. Slonecker, D. M. Shaw, and T. M. Lillesand, 1998, Emerging legal and ethical issues in advanced remote sensing technology, Photogrammetric Engineering and Remote Sensing, 64(6): 589–595. 40   Many federal statutes, for example, provide for protection of citizens’ privacy. See, for example, 12 U.S.C. § 2803 (requiring deletion of personal identifiers from public repositories of home mortgage information). 41   Actress Barbara Streisand sued a photographer who posted an aerial photograph of her Malibu, California, home on a Web site along with 12,000 other pictures of the California coast, claiming invasion of privacy. The court rejected her claim, however, indicating that the California coast is a matter of

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Licensing Geographic Data and Services Marketing firms use geographic attribute data to infer religion, ethnicity, buying habits, and political preferences. Using geographic data for such purposes entails both costs and benefits. For example, marketing data intrude on privacy by revealing attributes that consumers might prefer to keep anonymous, but also deliver goods and services to people who want them. The balance is not obvious and differs from person to person. In principle, consumers should strike this balance for themselves. In practice, consumers rarely have enough time, energy, or information to give meaningful consent. Government fills this vacuum by imposing limits based on assumptions about what a reasonable consumer would have asked for. In the case of geographic data, government may protect privacy by publishing data with degraded spatial resolution that obscures individual households. Examples include census returns, farm statistics, and soil surveys. The system is not perfect, however. Commercial and academic users have become adept at teasing individualized data from government figures.42 This activity represents the worst of all worlds: breached privacy and a social investment in bypassing government safeguards. Degraded resolution imagery and aggregated statistical data may be the only viable options when any use of household-level data would violate privacy. However, some uses may not violate privacy. For example, academic researchers often seek to establish statistical regularities from household-level data in which the identity of individual households remains anonymous.43 In this case, licenses granting researchers access to undegraded data in return for contractually defined limits on reuse and redistribution could suffice. In some cases, formal license restrictions may provide a more effective barrier against misuse than technical protections based on blurred or aggregated data. Conclusion: When establishing data acquisition policies, agency mandates and missions may require agency policy makers to take into account the need to ensure the protection of privacy.     public interest and that the photography was not sufficiently intrusive to be actionable (K. R. Weiss, 2003, Judge rejects Streisand privacy suit, Los Angeles Times [Dec. 4], p. B1). 42   M. Monmonier, 2002, Spying with Maps: Surveillance Technologies and the Future of Privacy, Chicago, University of Chicago Press. 43   Researchers sometimes need the householder’s identity to match government information with other databases. The resulting breach of privacy may or may not be acceptable, depending on the facts of each case.

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Licensing Geographic Data and Services 7.8 PROMOTING WIDESPREAD USE OF GOVERNMENT DATA Effective access to readily found archived data supports the public interest in many ways, including reducing redundant data collection at taxpayer expense, enabling unanticipated uses of data, and allowing detection of changes on Earth’s surface in support of land management, global environmental change research, and other applications. There are several “infrastructure” systems and functions underlying these capabilities. These include systems that ensure long-term preservation and access to data (including licensed data) and functions relating to standards setting, data discovery, and data sharing. Licensing terms to or from government can influence whether and to what extent government data are reused. 7.8.1 Finding and Sharing Data Data that cannot be located might just as well not exist. For this reason, spatial data infrastructures (1) encourage the use of “metadata” that provide a standardized, shorthand description for each geographic data file,44 and (2) strive to ensure that there are sufficient venues such as catalogs, clearinghouses, Internet portals, and institutions such as libraries where would-be users can search for and acquire existing data. Because of the public interest in geographic data use, government has a responsibility to promote metadata and clearinghouse activities in the broader society. To some extent, government cannot help influencing the rest of society; government data purchases and licensing agreements are often so large that private and nonprofit providers have a built-in incentive to make their own institutions and standards conform. In other cases, government may consciously intervene to foster communitywide strategies for locating and exchanging data.45 Although government agencies have primary responsibility for government data, they also rely on commercial firms to perform metadata or 44   Metadata is information about data; for example, it might record such details as the collector, the sensor used, and when the data were collected (see Federal Geographic Data Committee, 1998, Data Content Standard for Digital Geospatial Metadata, available at <http://www.fgdc.gov/standards/documents/standards/metadata/v2_0698.pdf>. 45   For example, the Federal Geographic Data Committee’s work on metadata standards, or the Geospatial One-Stop initiative to develop an Internet portal (see < http://www.geodata.gov/>).

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Licensing Geographic Data and Services clearinghouse functions that facilitate sharing among agencies. To date, this strategy has been mostly ad hoc. Agencies should consider making metadata and the disposition of the data an explicit part of future licenses when it is cost-effective to do so. 7.8.2 Standards Compatible standards increase the likelihood that geographic data will be effectively reused. Since no single standard is best for all purposes, some fragmentation is almost always efficient. Nonetheless, network effects imply that most new standards must attract a “critical mass” of users before they are useful. In these circumstances, change may require a coordinated, near-simultaneous migration by large numbers of users. Strong leadership and institutions can facilitate this process. Some government intervention is unavoidable, and government decisions can and do influence users throughout the economy. Government may also choose to intervene by leading communitywide efforts to design and adopt new standards. Such initiatives may be necessary where cultural, political, and network effects have blocked adoption of technically superior standards. In such cases, agencies should foster consensus, not create it. 7.8.3 Archives Agencies frequently must decide whether and how to archive data. In some cases, long-term data access supports the agency mission. Most government archives house data originally collected by or for government,46 but commercial satellite licenses blur this distinction of government-only data by requiring vendors to inform agencies before privately owned data are deleted—in which case government may take over data archiving responsibilities to support ongoing missions or the public interest.47 For example, USGS’s Sioux Falls archive houses satellite data collected by the French company Systeme Probatoire Pour l’Observation 46   For example, NASA’s Distributed Active Archive Centers archive data from NASA and partner agency missions. For details of their holdings, see, NRC, 1998, Review of NASA’s Distributed Active Archive Centers, Washington, D.C., National Academies Press. 47   See <http://edc.usgs.gov/archive/ceos//data_purge_alert.html> for a list of datasets that USGS’s EROS Data Center is aware of potentially being “purged.”

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Licensing Geographic Data and Services de la Terre.48 In principle, there is no reason why government archiving should be limited to data that agencies have previously owned or licensed. And government may intervene as the “archiver of last resort” for data that otherwise would be lost—as is the case with some data at the National Satellite Land Remote Sensing Data Archive.49 Conclusion: Government serves a critical public interest role by encouraging geographic data reuse through archiving and sharing, facilitating consensus formation on standards, and working with commercial vendors to preserve potentially valuable data. Licenses that enable government to support this role serve the public interest. Conclusion: In principle, government can promote reuse of geographic data by negotiating licenses that limit commercial firms’ ability to discard data prematurely,50 promote uniform and high-quality metadata, and encourage standards that make geographic data interoperable with a wide range of hardware, software, and data products. Alternatively, government can promote widespread data reuse through actions that support marketplace innovation. By acquiring full ownership rights in the geographic data it acquires, government can provide unfettered access to all users. The ability of anyone to fully scrutinize and freely experiment with the data, along with the lack of need to pay royalties, enhances its reuse as raw material for value-added activities by commercial firms, government agencies, and academic researchers. Conclusion: When establishing data acquisition policies, agency mandates and missions may require policy makers to take into account the need to promote data sharing and reuse, development of consensus standards, and archiving of data. 7.9 SUMMARY Public discourse, equality, and innovation are benefits that are not easily assessed but accrue to society as a whole. These benefits have been well served by public domain data, which have been the norm 48   See <http://edc.usgs.gov/archive/nslrsda/>. 49   See <http://landsat7.usgs.gov/datatrans.php> for archiving policy for Landsat 7. 50   This is currently achieved through operating licenses, but government could, in principle, negotiate similar provisions in data licenses.

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Licensing Geographic Data and Services under a legal regime in which geographic data, once published, were free for anyone to use. Such data also serve government accountability and transparency, although some license restrictions may also support these public interests in some cases. National security, foreign policy, law enforcement, and privacy issues present common challenges to policy makers considering geographic data access issues: how to weigh potentially harmful or intrusive uses against legitimate uses. Blanket restricttions and classification on national security or law enforcement grounds are inadvisable except in unambiguous cases. Furthermore, because of the potential benefits of classified data beyond the national security arena, timely declassification is important. When classification is necessary, licenses can be used to limit access to specified users. Government also can use licenses to promote reuse of geographic data by negotiating terms that limit commercial firms’ ability to discard data prematurely, promoting uniform and high-quality metadata, and encouraging standards that make geographic data interoperable across a wide range of hardware, software, and data products. In the next chapter, we integrate public interest, legal, and economic considerations into a process for deciding when licensing to or from government may be appropriate. We also discuss how license-based approaches may best serve stakeholders.

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Licensing Geographic Data and Services VIGNETTE G. A GLOBAL INFORMATION COMMONS DREAM Betty is a town engineer. For the past 15 years she has compiled detailed maps and affiliated digital records on the locations, sizes, materials, and conditions of all storm and sanitary sewers, waterlines, powerlines, waterways, buildings, and streets in her community. Jack is a local college professor. For the past 30 years his hobby has been to visit urban and rural environments throughout his state to find lichens that he then precisely locates, identifies, and documents. Betty and Jack meet in the local coffee shop and discover that they have much in common. Betty and Jack are regularly asked for copies of the geographic and affiliated datasets they have compiled. Both remark that they are tired of responding to requests and would be more than willing to make their files widely available but only under certain conditions. Both would like to be able to reliably retain credit and recognition for their contributions to the public commons. It is fine if others use their work but they would like to be acknowledged. Further, for their data files to be useful to others, metadata needs to be provided. However, creating meaningful metadata for geographic data files is burdensome and needs to be made much easier. Since the town’s datasets are often used for making decisions, Betty would like to see a means for limiting the town’s liability for any files that are made widely and openly available on the Web. Both like the prospect of many others benefiting from their data files. They are also attracted by the prospect of others reviewing their work and suggesting additions or improvements. Both believe that their files might be of value many years into the future, but whether their works will still be available is an open question. While they act locally, Betty and Jack contemplate a “global commons” consisting of a broad and continually growing set of freely usable and accessible geographic datasets. They believe the dream could be made real by providing the ability for geographic data contributors to quickly and easily create metadata and open access licenses. The system would allow delivery of files to a permanent online environment where the files could be readily found and retrieved. The basic purpose of the license would be to provide an easy, affirmative legal mechanism by which they could make known to the world that their data files are available for use without the law assuming that the user must first acquire permission. The license would ensure that the originator and all value-adders have a legally enforceable right to credit for their work, liability exposure would be substantially reduced through the license provisions, and the license could prevent, if desired, the efforts of the originator and value-adders

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Licensing Geographic Data and Services from being captured as the intellectual property of others. Perhaps the system might also embed technological identifiers or protections in the files. As they get up to leave, Jack remarks that if such a system could be developed, there are probably tens of thousands of individuals similar to themselves already creating valuable geographic data who would now have sufficient means and incentives to make their files available to the rest of the world. Betty agrees.