Legal Issues in GIS
Geographic information systems is a technology that is useful in a wide variety of applications. Therefore, that technology exists in a social context that in contemporary society raises legal issues.
Legal issues surrounding GIS are complex, evolving, and highly dependent upon the jurisdiction. This information is provided as a general introduction to some notable issues, and you should consult with a lawyer if you need current, definitive information on anything mentioned in this document.
Intellectual property is "property (such as an idea, invention, or process) that derives from the work of the mind or intellect (Merriam-Webster 2020). Because GIS operates in the abstract world of ideas and processes, legal questions involving intellectual property permeate all aspects of professional GIS work.
Patents and Copyrights
Ideally, copyrights and patents exist to encourage creative activity by allowing inventors and author to profit from their creative activity. In commercial practice, they also create a complex legal and economic environment that requires vigilance on the part of secondary creators (like GIS professionals) that use copyrighted and patented intellectual property.
A patent is a government-granted monopoly "securing for a term of years the right to exclude others from making, using, or selling an invention" (Merriam-Webster 2020).
In GIS, patents protect intellectual property associated with hardware and software. Spatial analysis algorithms can also be patented (Longhorn et al. 2002, 21).
Copyright is "a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression." Copyright is like a patent in that it protects intellectual property. However, "copyright protects original works of authorship, while a patent protects ideas or discoveries" (US Copyright Office 2020).
In the United States, copyright protects original, creative activity. Copyright does not protect facts (Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 1991). This means that if you create a collection of data (such as a mappable directory of specific types of business with street addresses), that would probably not be infringement on the copyright of a company that sells a similar commercial product based on the same factual data.
However, companies can place trap data, such as non-existent trap streets on maps (Field 2016, 296), that can identify if someone has copied data from a copyrighted source and, therefore, infringed on copyright. Therefore, you should always verify the copyright status of any data you use in a commercial product, and get an appropriate licence where necessary.
Copyright is, perhaps, most relevant to GIS users because geospatial data is copyrighted an original work fixed in a tangible medium of expression. Maps and imagery used in maps, both paper and online, are also copyrighted.
Copyright gives the copyright holder six exclusive rights, the first three of which are directly relevant in GIS (17 U.S. Code § 106):
- to reproduce the copyrighted work in copies or phonorecords;
- to prepare derivative works based upon the copyrighted work;
- to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
It is usually of benefit to a copyright holder to grant another person or entity the authority to exercise one or more of the six rights, often in exchange for some kind of royalty payment.
A license is "a grant by the holder of a copyright or patent to another of any of the rights embodied in the copyright or patent short of an assignment of all rights (Merriam-Webster 2020).
When you pay for software or access to geospatial data in a database, you are usually paying for a license to use that intellectual property. If you violate the terms of that license, you are subject to penalties spelled out in that license, which can be as simple as denial of further access, or as complex as expensive legal action. Copyrighted data placed on websites without appropriate licensing can result in a take-down notice sent to the hosting provider.
While proprietary licenses often require formal documentation that is completed on the web or on paper, with most other licenses you implicitly agree to adhere to that license you download and/or use the software or data.
Licenses are complex legal documents that are often custom written for specific situations. However there are categories of licenses that can be a guide to planning on what kind of intellectual property you wish to use in your GIS projects:
- Proprietary: This is the most restrictive type of license, usually associated with a commercial business model that requires payment for access. ESRI uses this type of license.
- Noncommercial: Usage has limited restrictions if you are not making any money off that use. Examples include the Java Research License (JRL) and Aladdin Free Public License (AFPL) for software, and the CC-BY-NC Creative Commons license for copyrighted material.
- Copyleft: Usage has limited restrictions as long as you are not using the intellectual property to create a proprietary derived work. Examples include the GNU General Public License for software, and the CC-BY-SA Creative Commons license for copyrighted material. Wikipedia uses a CC-BY-SA license.
- Permissive: These licenses permit almost any use as long as you credit the initial creator. Examples include the MIT license for software and the CC BY Creative Commons license for copyrighted material.
- Public Domain: Property rights that "belong to the community at large, are unprotected by copyright or patent, and are subject to appropriation by anyone" (Merriam-Webster 2020). Copyrighted material generally falls into the public domain after a period of years based on the type of work, date of original creation, and national jurisdiction. In the US, most data created by the federal government is public domain.
In an academic setting, copyrighted materials can often be used without a license by teachers and students for educational projects or classroom instruction under the fair use doctrine. However, the boundary between fair use and copyright violation is fuzzy and should be observed with caution (Aufderheide 2011).
A good general test for fair use is whether the usage would deprive the copyright holder of enough revenue to justify legal action, such as freely distributing a PDF of an unlicensed textbook. Stock photo companies are especially litigious, and you should generally avoid using any imagery that has a watermark. Fair use rarely applies to proprietary software (like ESRI software), which is automatically disabled unless you or your organization has paid to use the software.
Note that just because something is freely accessible on the internet does not mean that it does not have licensing restrictions.
When in doubt and when possible, use of public domain materials (like data directly from US federal government websites) or content released under non-proprietary licenses (such as imagery from Wikimedia Commons) is preferable to proprietary sources.
Geospatial data often contains information about individuals and there are laws and institutional policies that govern the handling of personally-identifiable data.
For people working with health information, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) established national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge.
For people working with information about students, the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) defines clear rights that students and parents have regarding education records, and also strictly constrains how educational educations should secure and limit disclosure of student information.
When performing research outside a class setting that involves capturing data from human subjects, most organizations (like universities) have procedures to ensure that research complies with the ethical guidelines of the institution. Researchers submit proposals to an institutional review board (IRB) that reviews the work for compliance. The IRB will suggest any needed changes and confirm that those changes are made before signing off on the proposal and permitting the research to proceed. Failure to comply with institutional research review protocols can result in termination of employment.
Liability is "a legally enforceable claim on the assets of a business or property of an individual" that "results from a breach of duty or obligation by act or failure to act" (Legal Information Institute 2020).
Negligence is "a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help victims of one's previous conduct)" (Legal Information Institute 2021).
Because GIS professionals commonly provide geospatial information that can have life-and-death importance in the community, GIS professionals need to be concerned about legal liability for decisions that can be considered to be negligent.
Liability For Inaccurate Presentation of Data
There are a number of classic liability cases involving geospatial information.
In Reminga v. United States 632 F. 2d 449, 457 (6th Cir. 1980), the government was held liable for the deaths of the passengers on a small private airplane that struck a television tower guy wire that was inaccurately depicted on government aeronautical charts. However, in Alnutt v. United States 498 F. Supp. 832 (W.D. Mo. 1980), the government was not negligent for failing to depict a power line on a aeronautical chart. The fundamental point is that when an object is depicted on a map you create, you can be considered negligent if an inaccurate depiction results in injury or an accident.
In Aetna Cas. & Sur. Co. v. Jeppesen & Co., 642 F.2d 339, 341-42 (9th Cir.1981) Jeppesen was held liable for for a 1964 Bonanza Airlines crash in Las Vegas, NV because the plan (overhead view) and profile (side view) maps in the Jeppesen approach chart, while factually correct, were printed at dramatically different scales, which resulted in a fatal misinterpretation of the charts by the pilots.
Somewhat more recently, In 2009, two Southeast Texas surveyors were sued by homeowners recovering from Hurricane Ike flooding, when they discovered their homes had been surveyed three feet lower than they actually were. The homeowners were attempting to recover 25% of the lost value not covered by FEMA. The error was attributed to a surveying benchmark monument being 3.1 feet lower than the published value from the National Geodetic Survey when the homes were surveyed in 1996. Ordinary surveying practice should have included verifying the current height of the benchmark. (Holloway 2009; Peveto 2009).
Death by GPS
In more contemporary scenarios, there are a number of cases involving Death by GPS (Milner 2016) where users of GPS navigation devices made fatal choices based on the information from their devices.
On 19 June 2010, a biker was riding down the South Park Drive descent in Tilden Park (California), racing against a time recorded by another biker in the Strava GPS app. While speeding at 10 mph above the posted 30 mph limit, the biker braked to avoid a car, flipping his bike and sustaining fatal injuries. His family subsequently sued Strava, although Strava ultimately won the lawsuit after a three-year ordeal (Lindsey 2012; Rosenfield 2013).
In 2013, the driver of an 11-foot-tall charter bus followed navigation instructions from his Garmin and TomTom navigation units onto a road outside Boston, and struck a 10-foot-high overpass, shearing the top off the bus and injuring 11 passengers. The victims subsequently sued TomTom and Garmin (GPS World 2014).
In a similar incident, On 7 March 2017, a charter bus driver following GPS navigation instructions from a Garmin GPS device en route to a casino in Biloxi, MS got stuck on a railroad grade crossing. The bus was struck by a train, killing four and injuring over three dozen passengers. Survivors sued Garmin, although Garmin defended itself by showing that the device had different modes for automobiles and trucks, and the driver had set the device to automobile mode. (Phillips 2020).
Chrisman (1991) has suggested that "error (in spatial data) is inescapable, it should be recognized as a fundamental dimension of data." The legal issue becomes how you address and communicate that error in your work.
Duncan (2003) follows Onsrud (1999) in suggesting that courts may ask questions like the following in cases involving data errors. These questions may also be useful guides for effectively addressing error in a way that avoids negligence.
- Are the data collected and assembled in a competent manner, reflecting best practices of the profession?
- Is a good faith effort made to characterize the data quality in terms of accuracy and completeness?
- Are data quality information presented in such a way that a reasonable person could be expected to gauge the appropriateness of the data for a particular purpose?
- Are nationally accepted data formats for metadata standards followed?
- Are the standards implemented in a reasonable and competent manner?
GIS is a major component of government operations around the world at the local, provincial, and national levels. Accordingly, GIS professionals can get caught up in political struggles where the legal system gets involved.
In the first three months of 2009, a sequence of small- and medium-sized earthquakes shook L'Aquila, an earthquake-prone city in central Italy. A group of four scientists, two engineers, and a government official met on 30 March 2009, and released public statements indicating that there was a low likelihood of an impending large earthquake, reportedly under pressure from the government official. After a major earthquake struck a few days later and killed 309 people, the scientists were tried and sentenced to six years in prison for manslaughter. While the sentences were ultimately overturned, the seven-year legal battle and the unnecessary deaths certainly caused major financial and emotional hardship for the scientists and engineers (Cartlidge 2016).
Rebekah Jones, a geographic information systems manager at the Florida Department of Health, was fired in May of 2020 during the COVID epidemic after she refused to change the tabulating methodology behind the state's Covid web dashboard to artificially deflate the county testing positivity rates so the counties would meet the criteria for a reopening that was being planned by the state's governor. (Wamsley 2020). She created her own website to display the data, but her home was subsequently raided by state police during an investigation into (possibly unrelated) unauthorized access to the department servers (Melendez 2020).