Journal of Law, Information and Science
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INFORMATION: MAJOR RESEARCH PROJECT
GEORGE CHO & EUGENE CLARK[*]
This paper proposes a research agenda to examine the contours of the law in relation to the use, development and dissemination of GIS. The economic, political and social significance of GIS in an information age gives rise to emerging policy and legal issues including rights and responsibilities, intellectual property in information products, liability in tort and contract, access, privacy and the right to know. The results arising from the study of these issues may provide solutions to difficult legal and practical problems which policy-makers will face and can ill-afford to ignore. Such signposts may help define the contours of the law in an Information Age.
As the world’s maps are being digitized and satellites are used to capture images transmitted as pixels (picture elements) that are processed to produce maps, powerful interests have begun to jockey for electronic rights, ownership, sharing rights and access. Geographic Information systems (GIS) are important tools hastening the transformation of maps and spatial data into digital form. The widespread use of GIS in government and business has proceeded at great pace but without a clear understanding of the legal issues, of the relative rights and responsibilities of producers and users and the limits to consumer protection. To date, reliance has been placed on traditional notions of law that are increasingly unsuitable for addressing the new technology. The legal issues pertaining to the use of information technology have remained relatively unexplored.
This paper proposes a research agenda to examine the contours of the law in relation to the use of GIS. The research agenda will propose an examination of the neglected area of information technology law on spatial information. The object of the research is to yield the necessary data to help develop appropriate legislation in the use of information technology in general and to address the legal, political and institutional barriers that have hindered the development and use of a global spatial infrastructure for GIS. The research will attempt to resolve problematic legal issues in the use of GIS nationally and provide international leadership in this vital area.
GIS are well-established computer-based mapping and analysis systems that use spatial data and information. GIS employ simultaneously, data referenced to geographical locations and descriptive text relating to these data. The system gives procedures for the collection, integration and interrogation of vast quantities of data on locations, physical entities and events or activities (Aronoff 1989; Birkin et al. 1996). Nearly every major Australian government department, local government and public utility makes use of GIS of one kind or another properly to undertake their constitutional and administrative mandates (Australia 1991). There is also substantial use of GIS technology in the retail and business world. Excluding computer hardware, in Australia nearly $500 million was spent on spatial information related services in 1993, and this is projected to grow at a rate of about 25 per cent p.a. (Oosthuizen 1994: 4). Globally the GIS industry is estimated to be worth £5 billion (Rhind 1994) but the future is as exciting as it is uncertain. As GIS develop and mature, this new technology has and will spawn a new range of problems related to the legal relations between those who provide the data and those who rely on the data. These new legal relationships need to be defined, identified and the GIS roles clarified at an early stage before legal problems become insurmountable.
GIS and associated technology are an integral part of urban and regional planning as well as resource management and conservation. Planning and management are facilitated by the computerized integration of digital data and information through spatial links (Ralph & Hunter 1995). Typically GIS are responsible for the automated creation and production of maps, the systematic maintenance and management of electronic maps and spatial information, the processing and display of both graphic and non-graphic information and the analysis of location-based information. GIS have been employed in route planning, especially for emergency services but also for commuter transport services, and in sport and recreation such as yacht races (Longley & Clarke 1995). The technology has also been used for timber harvest planning as well as for demarcating habitat corridors and for estimating plant and animal diversity (Longley & Batty (1996); Goodchild et al. (1996)). Site selection for hazardous wastes, school locations and political re-districting of electoral wards have been subject to GIS analysis (Raper, Rhind & Shepherd 1992). Business applications of GIS include product distribution, market potentials, analysis of trade areas and retail site locational studies (Grimshaw 1996).
Geographic information is critical for promoting economic growth and development, improving the stewardship of human and natural resources, and for protecting the environment. Information technology now permits improved methods for collecting, distributing and using geographic data more easily and more quickly than was possible before (Antenucci et al. 1991).
However, while GIS have great economic significance for Australian governments and industry, this same technology brings with it hidden dangers. For example, the publication of ‘reverse directories’ where persons and home addresses are matched through a phone number has raised privacy concerns. Marketing and advertising companies undertaking ‘profiling’ studies may be engaging in illegal activities especially if done first (and without permission) by finding out about people’s likes and dislikes through illicit observation of shopping habits; and secondly, by matching credit card purchase details with other financial information (Clark 1996, Clark & Livermore 1994). Using such information, companies are able to match addresses and to target their advertising campaign at individuals. These examples are but a short step from covert electronic surveillance activities, sanctioned or otherwise. GIS are particularly useful in compiling and analyzing information about customers and people, in tracking debts and for strategic planning when positioning and competing against rivals. The core of all these possible applications centres on data bearing geographical (spatial) information, such as a home address. Armed with this single piece of information a GIS can be used to extrapolate, cross-match, aggregate and segment spatial attributes and produce results that may be exploited by the scrupulous and unscrupulous alike.
The beneficent uses of GIS technology must be weighed against its nefarious uses. However, the laws governing the protection, management and use of spatial data remain undeveloped, uncertain and unclear. These legal uncertainties impose additional burdens and place constraints on the wider adoption and use of the technology (Cho 1995e). There is a real danger that unless these legal uncertainties can be identified, analysed and overcome, Australia's ability fully and properly to utilise and exploit this important technology will be severely impaired (Cho 1997a).
The legal issues arising from the use of GIS may be stated as the substantive and critical questions of this research agenda. The core of this project revolves around the use of GIS and spatial information.
1. What are the respective rights and responsibilities of service providers, data suppliers and third party users of spatial information?
2. What intellectual property subsists in spatial data and spatial databases?
3. What form of liability arises from the use, sharing, distribution and misuse of geographical data and analysis?
4. What is the balance between the protection of privacy and the right to know?
These legal issues are part of the ‘fall-out’ that is emerging in the transition to an information society. That there are no ‘laws’ in cyberspace may yet prove to be a truism. But if modern society is to properly and safely negotiate the Information Super Highway, at the very least such users need a ‘Highway Code’ for without it there may be created more problems than solutions. The issues have economic, political and legal dimensions which governments can ill-afford to ignore The object of the research is to suggest solutions to the important but difficult legal problems that have arisen.
The primary aim of this study is to obtain a better understanding of the development of the law as it relates to information systems. In particular the objectives are to:
* contribute to legal theories relating to information dissemination, intellectual property, public liability and privacy rights;
* understand the legal rules as applied in an information technology context in general and GIS in particular;
* develop best practice guidelines for public and private sector use of GIS; and
* propose international protocols for formulating policy and the development of law relating to GIS use and development.
Figure 1. Legal issues and GIS: Some interrelationships
Australia pioneered the creation and implementation of a methodology for the mass dissemination and use of public domain spatial data. The joint venture between the Australian Bureau of Statistics (ABS) and Space-Time Research Pty made possible the dissemination of data from the Australian population census. This model is being implemented throughout the developed and developing worlds. However, after a decade or more of use, legal questions are beginning to emerge for which there is neither understanding nor knowledge, only intuition. For example, what constitutes ethical behaviour in the use of spatial data? Client databases built from data collected at supermarket and retail checkouts and volunteered information contain a rich vein of information that can be tapped for home addresses and linked to purchasing behaviour and credit information. But the opportunity for misuse of such information is apparent.
There is not one retail or financial institution in Australia which is not pursuing actively the creation of a spatially referenced client base. Such a database describes the demographics and transaction information which reflect client purchasing behaviour and other financially related information. This database is ripe for extracting information for use in ‘targeted’ marketing. In such a scheme, a specific product or service can be focused on an existing client or used to capture new clients for an institution. While such practices may variously be described as ‘sharp’ or wrong, what is required is guidance regarding the legality and ethics of such practices. The results of this research will provide such guidance. Since Australia pioneered the mass dissemination and use of spatially reference data, it is only appropriate that Australia also pioneer the legal and ethical framework of these activities.
The Australian Science and Technology Council (ASTEC) has been highly critical of government policies on data collection, maintenance and dissemination. While many government departments have accumulated an abundance of data, these are incomplete, incompatible and of unknown reliability. Each of these datasets lack focus or continuity (ASTEC 1990). Nationally the Inter-Governmental Agreement on the Environment (IGAE) had required the Australia New Zealand Land Information Council (ANZLIC) “to make data more accessible across all levels of government and the private sector” (ANZLIC 1993; ALIC 1990). ANZLIC, is the peak inter-governmental council responsible for the coordination of spatial data management. Among the immediate needs identified are:
* the reduction of impediments to the sharing and exchange of natural resource information;
* the encouragement of mutual exchange of information; and,
* the development of equitable cost sharing procedures.
In addition, a different government agency, the Commonwealth Spatial Data Committee (CDSC) has launched the Commonwealth Public Interest Spatial Data Transfer Policy in 1995 which aimed to provide equity of access to public spatial data.
Spatial data are inherently special and different from the more usual kinds of data. Thus, the legal issues associated with digital spatial data are fundamentally different. Intellectual property issues for spatial data can be enigmatic at best. A geographical coordinate is a fact and according to the Copyright Act 1968 (Cth.) it cannot be protected by copyright. The Act protects the expression of ideas. In a map the question may be asked as to how much more creative can one get when attempting to give exact locations (at a local scale) to those given at a broad regional scale. Some creativity and ingenuity will be involved. The conundrum is that at one scale a simple piece of spatial information is not copyrightable whereas at a different scale it may be protected by copyright. The Copyright Act offers little by way of illumination as to how to handle maps and spatial databases. S.10 declares these to be ‘drawings’ and ‘literary works’ and this dual categorization alone raises uncertainty in relation to claims of copyright (Ricketson 1984: 123). GIS databases may be mere factual representations of the real-world, yet ‘facts’ per se are not copyrightable. Intellectual property in spatial data and information therefore provides a rich vein of research possibilities (Karjala 1994).
In sum, digital spatial data, for technical and legal reasons, are very different from other kinds of data. The more specific the digital data, the less likelihood there is of copyright protection. A major source of such digital data is remotely sensed satellite data which may not enjoy copyright protection not only because the data may be considered as facts but also because there is a lack of originality and no ‘human’ author (Eldred 1995). Other map data problems include that of tracing ‘paternity’ of an original when published maps are transformed (digitized) into a digital database and further along when the database is used by third parties who value-add to the data. As well, accuracy and error in spatial data may attract legal liability for damage and loss (Cho 1995e).
“The legal and political liability inherent in the distribution of geographic information is potentially the most explosive issue to accompany the introduction of GIS technology” (Aronoff 1989: 284; Cho 1997a). This warning is timely because in using the results of a GIS the liability may rest not only with the data provider but also in the software vendor as well as the decision-maker. Determining who is responsible, what damage, injury or loss has been incurred and the apportionment of negligence are important issues needing resolution. While liability may never be eliminated, only minimized, users of GIS need guidance as to where the traps and pitfalls lie if litigation is to be avoided. Further study and analysis are required to help resolve uncertainties in the law as has been demonstrated by various studies (Onsrud & Reis 1995; Epstein et al. 1996; Cho 1997a).
The access to information and the potential threat to privacy are of increasing concern because GIS technology has the means not only to efficiently collect, store, retrieve and disseminate spatial data but also to match these with personal data (Epstein 1988, 1991). As information processing power increases, the issue of privacy has become more pronounced (Clark & Blay 1996). The technology’s ability to query large spatial databases to ‘mix and match’ different datasets permits the building of detailed demographic profiles. Such profiles relate not only to ‘life style’ categories but are vitally important in household classifications, customer markets and consumer profiling and cross-matching with geocoded street addresses. The emerging tension is how much personal information may be gathered by either government or private agencies and what are the limits to data aggregation. Geographic information may well become part of the social infrastructure (read it as info-structure) in the new millennium. How this information technology is used may well depend on government policy and regulation on access rights, personal privacy and the role of the state (Rhind 1994, Archer & Croswell 1989). Without an examination of these issues in a systematic manner and proposed alternative policies, it may be impossible to identify social benefits and to chart the path ahead (Chorley & Buxton 1991).
This project proposes a blend of geography and law which aims to yield an understanding of how people access, process and integrate information and make decisions. While GIS have been used in many environmental impact assessments and in environmental audits (Birtles et al. 1991, Taylor et al. 1993) there have been many unresolved legal problems not only in the use of data but also in establishing legal benchmarks (Cho 1994a, 1994b). There has been a lack of systematic approaches analysing litigation in Australia involving geographic information products (Cho 1993, 1992). The use of alternative dispute resolution as a means of overcoming differences has been attempted (Clark 1995b). In other instances, the provision of information has been incorporated as part of a guide to good management practice (Clark 1995c). In addition an analysis of issues in intellectual property in electronic circuit boards (Clark 1994) has provided the grist for the development of appropriate information technology law.
The research agenda is significant in that to date no serious research into the problems of the use of GIS and its attendant legal implications has been undertaken on a national scale. Indeed, internationally, bar researchers at the University of Maine at Orono and the GIS Law Institute at Harrisonburg, Va., jointly working under the aegis of Initiative 16 of the National Centre for Geographic Information and Analysis program on Law, Information Policy and Spatial Databases (Onsrud 1993) there has been no concerted effort to examine legal issues and GIS use despite the importance of information technology towards the beginning of the new millennium. There is a need for a comprehensive and structural analysis of the various legal issues identified above. The anxiety among the lawyers about the uncertainties in applying existing law to new technology cannot be allayed by depending on decisions on a case by case basis. An holistic approach is required to prepare the theoretical and practical background to new legal thinking in the use of modern technology.
This research agenda builds on substantial work by the research team. Work is being undertaken to compile a comprehensive bibliography and provide a critical review of selected aspects of research. A research team has been assembled to examine tort liability in so far as it related to the use of spatial data, intellectual property issues and spatial information, and a study of management and policy issues relating to GIS and in particular legal compliance.
A major impetus to this research agenda has been the many unresolved legal problems that have been identified in the literature. Cho’s Geographic Information Systems and the Law (1997a) being published by John Wiley has highlighted four key areas of geographic information that require intense research, namely, tort and contractual liabilities, intellectual property rights, law of evidence and privacy issues. However, we also seek feedback and support from the community at large — lawyers, government data providers, academics and users of GIS and spatial data to help build upon and validate a theoretical basis. We will need to conduct a survey of actual GIS users and seek input from government bodies, the legal profession, consumer groups and others regarding the legal problems and uncertainties they have encountered in the use of GIS.
We expect the products of this research agenda to be highly significant and deeply relevant to GIS service providers and the user community. The rapid and widespread diffusion of this new technology has raised much anxiety because of the attendant lack of understanding of the law and how it may be moulded to solve particular problems. As mentioned before some of the issues are already the subjects of research agendas overseas such as the international journal GIS Law and the NCGIA’s Initiative 16 on Law, Information Policy and Spatial Databases (Onsrud 1993). To date, however, no serious research into the problems to be addressed by this proposal has been undertaken within Australia. The only works of direct relevance are those of one of the chief investigators (Cho 1997a, 1995a, b, c, 1994a, 1993). As a result, there is a great deal of uncertainty which may lead to expensive and unnecessary litigation. (Knight & FitzSimons 1990: xii).
The expected outcomes of this research agenda thus include:
1. an identification of the legal issues inherent in the use of GIS, for example, intellectual property rights, public liability, and privacy rights;
2. formulation of policy guidelines which will assist in the development and management of GIS technology so as to maximize benefits and minimize risks such as privacy invasions and equal access;
3. provision of assistance to business, industry, insurance companies, the legal profession and other groups regarding best management practices in relation to GIS; and,
4. identification of the unethical uses of GIS such as violating privacy of individuals and sharp practice where information collected for one purpose is surreptitiously used for another.
We propose an ‘action research’ strategy to help develop and implement this agenda. Action research will be invaluable for articulating, developing and honing policy recommendations. This is ‘observation of law and policy’ in action research. The research agenda may be implemented in five stages.
Stage One involves a critical assessment of the literature part of which is found in Cho (1997a, b). Preliminary work has been done on this part of the project. In 1996/97 three collaborators have been researching specific topics of tort liability, intellectual property and management and legal compliance, resulting in articles published in this journal (Reid, Clark and Cho, 1996, Stewart, Clark and Cho 1997, and Hoyle, Cho and Clark 1997).
Stage Two addresses questions relating to the status of the law, law reform matters, public interest and key concerns in using GIS technology, academic debates and concerns and industry practices. This case analysis and review will provide critical issues to be addressed in a long term study. A questionnaire schedule will have to be developed that addresses the four core themes of this project: dissemination and access, intellectual property, public liability in contract and tort, and privacy and confidentiality. The questionnaire schedule will have to be pilot-tested before implementation in the field.
Stage Three. This stage involves a series of in-depth structured and unstructured interviews of three sets of people. This is because we believe that what law or policy does or does not do to comport with what is actually happening in society is more valuable than anything else. This may have to be acquired by observation in the field among legal practitioners, users of GIS and developers of GIS.
* The first set of people to be studied will be drawn from legal practitioners in the fields of intellectual property, copyright, computer and information science law, torts and administrative law especially in privacy and freedom of information. The interviews will produce data on current practices in the area of information technology, legal interpretation and trends in litigation concerning computer law and information systems. Because the practitioners in these areas of the law are highly specialized, a sampling methodology may not be appropriate because either a directory of practitioners in each area of specialization is not available or the number of practitioners in each is too small to sample statistically. Hence, a purposive sample of individuals will be used and they will be identified through personal contacts, the Law Society and the Bar Council. It is expected that about 250 legal practitioners — government, private and academic lawyers including judges from various courts and jurisdictions in Australia will be interviewed.
* A second set of people to be studied will be selected data providers to study current practices and policies on data dissemination and supply. Commonwealth and state government bodies including the ABS, the Australian Heritage Commission (AHC), The Australian Land Information Group (AUSLIG), Department of Conservation and Land Management (CaLM) (NSW), Environmental Resources Information Network (ERIN), Natural Resources Information Centre (NRIC) and the WA Land Information System (WALIS) will be studied.
* A third set of people to be interviewed will be major end-users and service providers such as private consultants, academics, GIS software vendors, major consumer groups and the general public. We should aim to interview the teachers of GIS to find out their concerns, what their fears and misgivings have been and might be and what suggested solutions they might have. We should also collect data from the citizen in the street’ to determine whether ordinary people believe that certain data handling by professional practitioners is ethical regardless of whether currently legal or not. What lawyers, data providers and commercial users of spatial data think is ethical and responsible use may be different from what the average citizen thinks is ethical.
Stage Four will analyze the data collated previously using a range of statistical tools for both quantitative and qualitative data.
Stage Five is the final stage of the research agenda which involves the writing up of findings from the study, the dissemination of such analyses in journal articles, seminar and conference presentations. Submissions to relevant legislative bodies including on-going law reform committees and relevant sub-committees of the Australian Parliament will be critical if the results of the studies arising from this research agenda are to have any impact on the legal landscape pertaining to GIS. The aim is to direct attention to the legal problems brought about by information technology and offer practical solutions and necessary legislative guidelines.
The research agenda suggested here should appeal to everyone with an interest and use for GIS. The issues raised may provide teachers of GIS with practical solutions to the technical issues raised by the technology in terms of ethical and legal behaviour while academic lawyers may find the material here highly relevant to their respective areas of information technology law. The knowledge here may flow on to practising lawyers helping to litigate matters in the courts. Business applications of GIS and commercial providers of GIS software and databases may find the results of the study yielding more certainty in the application of the law in so far as it pertains to liability, intellectual property, privacy and access. The proposed study should enable government bodies and policy makers to more clearly focus on the interaction between the use of technology, social change and the appropriate legal response in a rapidly changing world.
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Cho, G., (1997b) Copyright — copy wrong. The use of maps in GIS, paper presented to the RGS-IBG Annual Conference, Exeter’97, 7-10 Jan. 1997, University of Exeter, England.
Cho, G., Georges, A., & Stoutjesdijk, R. with Longmore, R. (eds.) (1995a) Jervis Bay: A Cultural, Scientific, and Educational Asset, Applied Ecology Research Group, University of Canberra and Australian National Parks and Wildlife Service, Canberra. 245 pp.
Cho, G., (1995b) 'The Jervis Bay Environment', in Cho, G., Georges, A., & Stoutjesdijk, R. with Longmore, R. (eds.) Jervis Bay: A Cultural, Scientific, and Educational Asset, Applied Ecology Research Group, University of Canberra and Australian National Parks and Wildlife Service, Canberra., pp. 3 - 8. [Use of GIS]
Cho, G., Georges, A., Worboys, G., Jacoby, C. & Stoutjesdijk, R. (1995c) 'Conservation Management and the Future’, in Cho, G., Georges, A., & Stoutjesdijk, R. with Longmore, R. (eds) Jervis Bay: A Cultural, Scientific, and Educational Asset, Applied Ecology Research Group, University of Canberra and Australian National Parks and Wildlife Service, Canberra. pp. 177 - 186. [Use of GIS]
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Taylor, G., Walker, P.H., Abel, N.O.J., Williams, D., & Cho, G. (1993) Natural Resource Survey and Land Suitability Assessment of the Guise's Creek Catchment within the Australian Capital Territory. Report prepared for the ACT Department of Environment, Land and Planning, Canberra (August), 89 pp. [Use of GIS].
[*] George Cho is Associate Professor in the Faculty of Applied Science, University of Canberra and Eugene Clark is Professor of Law and Head of School, University of Canberra. We acknowledge the input of researchers Kate Reid, Arthur Hoyle and Kerrin Stewart who, with the authors are part of the University of Canberra research team investigating geographic information systems. This article represents part of the research to be undertaken as part of a University of Canberra Research Committee Research Grant and a ARC Small Grant project on GIS and the law.
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