Legal Issues Relating to GIS
These materials were developed by Margaret Lynch and Kenneth E. Foote,
Department of Geography, University of Texas at Austin, 1995. These
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the authors, Margaret Lynch and Kenneth E. Foote, The Geographer's Craft
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Legal issues are becoming as important as any other in promoting or
limiting the development of GIS technology. Certainly legal considerations
must now be kept in mind during the creation and implementation of large
public and private GIS projects. Debate focuses on a number of key issues
1. Public Access
Public agencies use GIS extensively to fulfill their own mandates and to
make themselves more efficient. However, their use of the technology has
also brought new problems because it creates an unprecedented demand for
information from public agencies. Both federal and state laws govern access
to government records.
The U.S. Freedom of Information Act was passed in 1966 and has enjoyed
considerable public support. Under the long established principle that
a democratic society requires an informed citizenry, and in order to promote
the federal government's accountability to its citizens, the FOIA requires
public agencies to open their records to private citizens. Such considerations
as national security and privacy rights create some exceptions to the law,
but federal agencies must allow private citizens to see most of the information
held in their extensive files.
The Freedom of Information Act (FOIA)
At the state level, Open Records Acts form the counterpart of the FOIA.
Each state has its own law, however, which adds some confusion to legal
issues at state and local levels.
The intentions of these laws are clear: they are
meant to lessen the possibility that the government will abuse its power.
But the issue of accountability has become clouded with the rapid growth
of information technology--and with the rapid rise in the value of public
information. Two fundamental questions have arisen:
Open Records Act
While many public agencies find GIS essential for coping with large amounts
of information and for fulfilling their public roles, they also discover
enormous costs in establishing information systems. Many see the solution
to such costs in selling data services, but this solution conflicts with
accountability standards. Citizens have a theoretical right of free access
to information from public agencies. Requirements that they pay for information
because it has become part of an expensive information system could subvert
that right. At the same time, the information that agencies hold and create
with GIS has become increasingly valuable to certain private individuals
and companies who are able to generate great economic benefit from it.
They are able to pay, if necessary, for data, but more to the point, their
demand for information can burden public agencies. People interested in
the economic benefits of GIS data make more requests for information, and
they request entire--sometimes enormous--electronic datasets formed out
of public records.
How much public information do private citizens have the right to demand,
Can government agencies recover costs by selling public data?
Agencies have three basic choices:
The first choice preserves the principle of open access, but leaves agencies
with burdensome costs and without any way of lessening the amount of resources
they must devote in simply distributing information. The second choice
might represent a reasonable compromise, but what happens to citizens with
no financial resources. They may have legitimate grievances against agencies
but if an agency buries information in a massive database it can effectively
bar access to the information that could be used to hold it accountable
for wrongful actions The third choice finds some support among people who
see government GIS as a valuable source of public revenue, but its legality
is debated. Public information is theoretically already owned by the people
who demand to see it. The federal government has offered a partial solution
to the tension between rights of access and agencies' need to somehow control
the costs of information distribution:
They can bear the full cost of information generation and distribution;
They can recover distribution costs;
They can attempt to generate income by charging more for information than
the entire GIS has cost the agency.
In 1986, the federal government amended the FOIA in an attempt to address
problems created by electronic information. The Federal Information Reform
Act provides guidelines for agencies wishing to charge fees for information.
The law (1) sets limits on reasonable information requests and (2) allows
distinctions based on the purpose of an information request.
For searches requiring less than two hours and for information requiring
less than 100 duplicated pages no fee may be charged. Fee schedules for
information beyond these limits may create a distinction based on the purpose
for which information is requested. If the information from a public agency
is used for commercial purposes, then the fees are higher than for information
intended for non-commercial uses. Prices cannot be assigned to the requested
data itself, no matter what the purpose, but agencies may charge different
amounts for processing and duplication costs. Educators, non-commercial
researchers, members of the press, and requesters who ask for information
for public interest reasons are charged minimal fees. Commercial users
must pay higher fees, and so are prevented from exploiting public agencies.
The Federal Information Reform Act (FIRA)
These days, GIS professionals have become aware that they may be held legally
accountable for the accuracy and reliability of the information stored
in their databases, sold, or issued to the public. If harm is caused or
economic loss sustained by a mistake made in a GIS dataset, or by a mistake
not corrected once discovered, then those in charge of the GIS may end
up in court. Or, if public policy is decided on the basis of a faulty GIS
analysis--policy that causes harm or economic loss--then, again, those
in charge may be held accountable, in this case not only for a simple mistake,
but for the manner in which decisions were reached. Finally, data providers
may be held accountable if the information they distribute leads to damage
or loss even if that information was used for purposes for which it was
Relatively simple mistakes can have disastrous consequences when people
depend on a map or chart for accurate representations of the real world.
In Reminga vs. United States, the government was held responsible
for an airplane crash when prosecutors proved that federal maps had inaccurately
depicted the location of a broadcasting tower. In Indian Towing Co.
vs. United States the federal government was found negligent for not
maintaining a lighthouse marked on federal charts. In this case the lighthouse's
location was marked correctly, but the government neglected to inform navigators
that it was no longer operating.
Errors or uncorrected mistakes
Sometimes errors in geographic data arise in unanticipated ways, giving
the impression of error-free data, but still inadvertently misrepresenting
reality. In Aetna Casualty and Surety Co. vs. Jeppeson and Co. the
court found that an aeronautical chart published by Jeppeson and Co. had
misled the flight crew in a fatal plane crash. The chart in question mapped
out the instrument approach to an airfield using correct data from the
Federal Aviation Agency, but in a way that obscured a simple--and fatal--error.
Two views--from the side and from above--were drawn. The two charts were
depicted together so that they appeared to be in the same scale, but in
fact they were drawn in two different scales. The company was found liable.
Representations of error-free data
Faulty GIS data or analysis can lead to poorly designed regulations. Incorrect
data entered into a GIS model for instance, might skew results of an analysis.
A GIS analysis might also use correct data, but through poor reasoning
or design lead agencies to establish flawed regulations. Questionable regulations
have been successfully challenged in recent court cases . In Nollan
vs. California Coastal Commission (1987) the court found that the CCC
could not justify a requirement that land owners always provide a public
easement to the beach when building on coastal property. The need for a
public way to the beach was acknowledged in the case, but the necessity
of an easement was not proved to have been created through the building
of a single house on the coast. This case centers on an area of land use
regulation that has become particularly contentious in the last decade,
an area that may threaten some of the conservation policies established
by local, state, and federal agencies. Regulations that effectively restrict
an owner's use of his land increasingly are considered a "taking" of private
property by government. While governments may regulate land use for the
common good, they may not, under the Fifth Amendment, create an undue burden
on individual owners--may not take from them the value of their property
disproportionately. The case discussed here demonstrates that GIS users
must be careful in how they analyze even accurate data; successful challenges
of entire policies along with the analyses that such policies are based
on will have wider implications than cases in which simple errors have
Maps are designed for specific uses. Projections, scales, even different
expectations of accuracy make individual maps appropriate for only particular
uses. Sometimes, however, maps are used in ways never intended by their
creators. For instance, in Zinn vs. State a USGS map was used by
a state agency for defining property lines along a lake. Land below the
Ordinary High Water Mark of all lakes in the state were designated public
property. But in using a USGS map, the state incorrectly claimed private
land, because their USGS map was not designed for determining such fine
details as property lines. The state was held liable because it had used
an inappropriate map to incorrectly take private property.
Public and private suppliers face different situations in questions of
Unintended and inappropriate use
Even when government agencies have caused harm to individuals through errors
or neglect, they may not always be sued or assessed for damages. The doctrine
of sovereign immunity applied in the United States allows people
to seek claims against the government only if the government itself agrees
to be sued. However, most states have limited or abolished this doctrine
so that governments at state and local levels may be held accountable for
their actions. This does not mean that individuals will be able to sue
government agencies in all instances. Existing legal doctrines may hold
agencies accountable to the public, but not equally to individuals. It
is understood, for instance, that actions undertaken by the government
the public good may occasionally harm individuals. Moreover, government
agencies often cannot be held responsible for errors in public records
that they are forced to provide under Open Records and Freedom of Information
rules. If they were held accountable, many believe, public agencies would
be overwhelmed by litigation based on data they could not restrict or control.
The changing application of sovereign immunity has not, as yet, greatly
influenced the activities of government agencies providing geographic data
to the public. However, in the face of uncertainty, some agencies are becoming
cautious about how they distribute and share information.
Private suppliers of data have always been liable for harm resulting from
the information they distribute. Digital systems, however, are leading
these providers into situations that expose them to new liabilities. Suppliers
find it difficult to anticipate risks associated with new uses of data.
Private firms now routinely consult lawyers in bidding on contracts, particularly
for infrastructure projects such as 911 mapping, automobile navigation
systems, placement of cables or pipes underground, and so on. For all these
examples, the accuracy of maps and data are vitally important. An address
incorrectly linked to a phone number could leave a heart attack patient
without an ambulance, a gas pipe left off a map of underground utilities
could lead to an explosion when workers cut into it. Problems in such instances
are not always caused by inherently wrong data, but by users choosing to
adopt data already in digital form but not designed for their particular
Not so long ago, much attention was devoted to the possibility of data
sharing among government agencies (and private users). The idea, of course,
was to share the costs of developing GIS datasets. One reason this receives
less attention now is that people worry about being held accountable for
data they have passed to others who may not use it correctly or in the
Many datasets are now issued with disclaimers, although it is unclear whether
such disclaimers would clear the providers of all liability.
Is there a "right" to check and appeal information
held in GIS databases?
GIS databases hold all kinds of geographic information relevant to specific
individuals. They may include tax and land records, property titles, data
on construction or occupancy permits, data on residency or on water use.
Sometimes that data might be incorrect and so may cause economic or social
harm. How are the creators or keepers of the information to be held responsible
for the accuracy of their information? At present, credit bureaus must
provide reports to individuals in order to allow people the opportunity
to rectify incorrect information. But other kinds of databases are not
held to similar standards. This problem has not yet been resolved and it
is becoming increasingly troubling as more and more data on private citizens
is collected and stored on computers. The possibility of inaccuracies has
always existed with paper documentation, but as information is distributed,
and redistributed, and stored in ever greater quantities, the ability of
individuals to know who may be holding and distributing incorrect data
on them becomes a more complex problem. The solution will probably come
in some form of legal safeguards.
Can the government set limits on encryption?
Communications over electronic systems are so easily intercepted that businesses
and individuals have had to find powerful new ways to preserve the privacy
of computer transmissions. They have found nearly inviolable privacy through
encryption. This inviolability has in turn become a problem. The federal
government views the proliferation of encryption devices with some trepidation.
It fears that police and federal investigative agencies would not be able
to decode computer transmissions, as they now wiretap telephone systems,
in cases of suspected criminal activity. The government predicts that international
organized crime or terrorists, for instance, will switch all communications
to computer networks, and the government would thereby lose a valuable
tool in crime detection. Its solution has been to attempt to restrict the
use of encryption to the "Clipper chip." The Clipper chip is a standard
encryption device developed by the federal government. The government holds
keys to unlock any message encrypted with a Clipper chip and could use
these keys under court order, just as it may wiretap a phone line after
obtaining a search warrant.
Objections to Governmental Restriction of
Objections to the Clipper chip have been many and vociferous. The opposition
points out that no criminal would choose the Clipper over other encryption
devices. They wonder how the Clipper requirement could be enforced. Common
carriers, for instance, do not distinguish between encrypted and non-encrypted
data, let alone between different encryption codes. The opposition to the
chip further suggest that requiring the Clipper chip in all U.S.-made computers,
rather than encryption devices without keys available to the government,
would harm the export industry in computers: why would governments or individuals
outside of the U.S. care to have the Clipper in their systems? Others claim
that Clipper encryption is flawed, does not in other words offer reliable
protection whereas other encryption devices do.
The Clipper Chip vs. Constitutional Rights
Claims of practical difficulties go on and on. But while these difficulties
might find practical solutions, another--and more fundamental--legal obstacle
stands in the way of requiring the Clipper chip. Some people claim that
any requirement to use the chip violates the most basic of American rights.
By regulating how Americans transmit data or ideas, they say, the government
may a priori suppress the First Amendment right to free speech.
In addition, they demand to know why people who have committed no crime
are required to give the government the keys to their privacy. The government
meanwhile claims that these are minor, and may be necessary, restrictions
of American rights in the face of increasingly sophisticated crime. The
debate rages on.
4. GIS Data as Evidence*
*This section of the discussion is distilled from Harlan J. Onsrud. "Evidence
Generated from GIS." GIS Law 1(3) (1993): 1-8.
Geographic Information Systems are used to make decisions. GIS may, for
instance, be used to place new roads or power lines, to build subway systems
while avoiding existing underground utilities, to create a school or voting
district, or to justify a conservation policy by forecasting environmental
harm from planned land uses. Occasionally, legal conflicts develop over
these decisions. Parents question school district boundaries; land owners
dispute environmental policies; subway system builders might break utility
lines marked incorrectly on a map generated with GIS. One or all parties
in the conflict might then wish to bring data or analysis from a GIS into
court as evidence in support of a case.
Can GIS data be used as evidence?
GIS data may sometimes be necessary to a legal case, but it does not always
meet the legal standards of acceptable evidence. Information held or created
in digital form encounters more problems when used as evidence in the courts
than paper documents do. Computer systems introduce the possibilities of
input errors, hidden inaccuracies caused by hardware or software problems,
and flawed modeling concepts. In addition, digital information can be altered
more easily and with less trace than information held on paper documents.
These characteristics bring into question the reliability of information
from GIS as evidence, and by extension the reliability of decisions based
Problems Faced by GIS Data in the Courts
If GIS cannot be used to prove legal cases, then it loses much of its value.
Agencies and companies that use GIS must be aware of the special problems
encountered by digital information in the courts. For instance, unless
it falls under certain business record or public record exclusions, computer-generated
files are treated as hearsay (as statements made outside of sworn testimony).
Hearsay cannot be submitted as evidence. Legal contestants whose GIS records
are admitted as evidence, usually through some exception to hearsay rules,
still must overcome the sense that their records may be unreliable. The
may have to prove, for example, the security of a hardware system or careful
supervision of data input. They may also need to prove that data has not
been altered after incorrect data was distributed. If they cannot, their
case is significantly weakened.
Technological Solutions to Legal Problems
These problems have not prevented GIS from being used as evidence, but
they have created sometimes unanticipated difficulties. Solutions to the
problem have so far been through legal means. Now, however, some authorities
suggest that solutions may more properly lie in technology. Technical markers
automatically placed on alterations made to a dataset, for instance, could
improve the reliability of digital data.
Copyrights and the Value of Public Information
Copyrights were created to protect the commercial value of creative work.
Unlike other countries, the U.S. does not allow public information--information
created and held by the government--to be copyrighted. Since the government
is also required to allow access to its information, it retains no control
over the value of information--value that has grown immensely with GIS
and other information technologies. In Great Britain, in contrast, the
government is able to sell information and thereby recover the costs of
creating and maintaining it. In the U.S., the government's lack of contol
has positive as well as negative consequences. While, for example, government
accountability is promoted with freely available information, some of the
nation's potential economic benefit from public information is lost. The
government must bear the full cost of maintaining its datasets even while
commercial firms may gain free access to public information, repackage
it, and sell it.
6. Required Readings
Antenucci, John C. and others. 1991. Legal issues. Chap. 11 in Geographic
Information Systems: A Guide to the Technology. New York: Van Nostrand
Epstein, E. F. and H. Roitman. 1990. Liability for information. In Introductory
Readings in Geographic Information Systems, ed. D.J. Peuquet and D.F.
Marble, 364-371. London: Taylor and Francis.
Epstein, E. F. 1988. Litigation over information: The use and misuse
of maps. Proceedings, IGIS: The Research Agenda 1: 177-184. Washington,
Epstein, E. F. 1988. Legal and institutional aspects of global databases.
In Building Databases for Global Science, ed. H. Mounsey and R.
F. Tomlinson. Basingstoke: Taylor and Francis.
GIS Law 1- (1992- ). This newsletter has been a significant source
for the discussion here on legal issues in GIS. It includes articles on
GIS policy, on federal, state and local laws that apply to GIS, and on
related laws that may influence the development of GIS. For more information,
write to: Editors, GIS Law, 250 E. Market St., Suite 100, Harrisonburg,
VA 22801. 703/434-3307.
Levy, Steven. 1994. Battle of the Clipper chip. The New York Times
Magazine. June 12: 44-51, 60, 70. This article summarizes the case
from the two perspectives of Clipper chip advocates and critics. The Clipper
chip debate, however, has continued beyond the time of this publication.
Some Internet Starting Points
The Internet has innumerable sources on legal issues in information technology.
The Clipper chip controversy is especially well covered. See some basic
starting points for further information:
of Representatives Internet Law Library - Privacy and information access
This link includes numerous links dealing with privacy issues, court cases,
and a good general internet privacy resource list.
PGP, and Your Privacy
Last revised 2000.3.27. LNC.