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 materials may be used for study, research, and education in not-for-profit applications.  If you link to or cite these materials, please credit the authors, Margaret Lynch and Kenneth E. Foote, The Geographer's Craft Project, Department of Geography, The University of Colorado at Boulder.  These materials may not be copied to or issued from another Web server without the authors' express permission.  Copyright © 2000 All commercial rights are reserved.  If you have comments or suggestions, please contact the author or Kenneth E. Foote at k.foote@colorado.edu.

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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 and questions.

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 Freedom of Information Act (FOIA)
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.
 
Open Records Act
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:

 
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.

 

 

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:

 
The Federal Information Reform Act (FIRA)
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.

2. Liability

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 never intended.

 
Errors or uncorrected mistakes
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.
Representations of error-free data
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.
Flawed Policy
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 been proved.
Unintended and inappropriate use
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 financial accountability.

 

 

Government Perspective
 

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 in 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 Perspective
 

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. For instance,

 
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 intended use.

 
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 intended way.
Many datasets are now issued with disclaimers, although it is unclear whether such disclaimers would clear the providers of all liability.

3. Privacy

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 Encryption
 
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 on GIS.

 

 

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.
 

5. Copyrights

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 Reinhold.

Supplemental Readings

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, D.C.: NASA.

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:

 U.S. House 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.

 Cryptography, PGP, and Your Privacy

7. Examination and Study Questions


Last revised 2000.3.27. LNC.