Where Did You Get That Picture of Me?

The case of Chang v. Virgin Mobile, filed in a Dallas, Texas court last week may have important implications for companies that collect images of individuals. The case concerns a picture that an adult took of Allison Chang, a minor - apparently with her permission - and posted on Flickr under a Creative Commons -Attribution license. Neither Allison nor her parents knew the picture had been posted on Flickr. The CC-Attribution license grants the licensee a number of rights with respect to the photo, including the right to create and reproduce derivative products, and to display such derivative products. Virgin Mobile subsequently used the photograph in an extensive advertising campaign across Australia. However, when Allison and her parents found out how the picture was being used, it sued Virgin Mobile and Creative Commons for, among other things, invasion of privacy.

The suit alleges that a license "dictates the manner in which third parties may use the protected work", but it does not "eviscerate or supplant a person's independent right of privacy." The suit further states that as a direct result of Virgin Mobile's actions, Ms. Chang lost the exclusive control over her likeness and image and suffered humiliation, embarrassment and mental anguish as well as damage to her reputation.

This case, and others that are sure to follow, are important for a number of reason. First, it will help to define an individual's right to privacy in a digital world. As discussed on Lessig 2.0, a court probably would not have found the photographer had violated Ms. Chang's privacy simply by posting the image. http://lessig.org/blog/2007/09/on_the_texas_suit_against_virg.html#comments. However, extensive commercial use of the imagery might result in the court reaching a different decision.

The case is also important because it helps show the legal challenges associated with a "sharing economy". The spatial community is increasingly seeing the value in collecting and sharing open spatial data. Open data can take many forms. However, as this case shows, not everyone may want data associated with them "shared", particularly when the data can so quickly be altered and use for other purposes.

WorldView-1

Congratulations to DigitalGlobe for the successful launch of WorldView-1 on September 18. Let's hope that checkout goes smoothly and that it is fully operational soon.

Some questions arose in connection with the launch regarding what restrictions the US government puts on the operations of commercial imaging satellites and under what authority. The following is a brief description:

Commercial satellite imaging companies in the United States are subject to number of restrictions. Under SubChapter II of the 1992 Land Remote Sensing Policy Act, companies in the United States must obtain a license from the Department of Commerce to operate a commercial satellite imaging system. The Department of Commerce has the responsibility and the authority to determine the parameters of such licenses. Many of these parameters are set forth in 15 CFR Part 960 - Licensing of Private Land Remote-Sensing Space Systems; Final Rule. However the 1992 Act also granted the Secretaries of Defense and State authority to determine conditions necessary to protect international obligations, foreign policy concerns and national security concerns. As a result, a Memorandum of Understanding was agreed to in 2000 between the Departments of State, Defense, Interior and Commerce and the Director of Central Intelligence which gave the Departments of State and Defense and the Intelligence Community the right to review license applications, provide comments and propose additional restrictions to be included in license agreements. This process continues today.

Very Spatial Law

For a number of reasons (busy with work, vacation, etc.) I did not make any posts in the month of August. However, I was interviewed by the folks at VerySpatial for a podcast. I thought they asked some very good questions, and I look forward to talking with them again on legal issues associated with the industry. Here is a link to the podcast if you are interested: http://veryspatial.com/?p=1720

National Applications Office - Potential Impact on Spatial Technology Companies

The establishment of the National Applications Office (NAO) within the Department of Homeland Security (DHS) is intended to increase the access of law enforcement officials to satellite and aerial imagery. However, it may lead to unintended consequences for spatial technology companies.

Law enforcement has already begun to appreciate the value of spatial data. However, the increased access of law enforcement to satellite imagery will result in further recognition of the value of spatial data in investigations. As a result, law enforcement will begin to search for other types of spatial data - to be used on a stand-alone basis or incorporated with other types of data and displayed on maps or images. More and more they will approach spatial technology companies for data associated with individuals or events, as is currently done with financial institutions and telecommunication companies.

Companies will need to carefully consider their legal obligations to provide such information as well their duty to protect customer information. Unfortunately, because of the number of sensitive issues and conflicting interests that arise in such situations, it can be difficult to decipher a company's legal obligations in such situations. For example, before it was recently amended, the Patriot Act prohibited companies that turned over customer records pursuant to F.B.I. national security letters from disclosing these actions to affected customers. However, a number of courts have ruled that such a prohibition violates the Constitution. Partly in response to such concerns, Congress amended this portion of the Patriot Act when it was renewed; in the future the F.B.I. will need to certify that such prohibitions of disclosure is required to protect national security, criminal investigations, diplomacy or state secrets.


With respect to their duties to customers, spatial technology companies should also closely monitor the case of Hepting v. AT&T in the District Court in the Northern District of California. The case involves a class action lawsuit alleging that AT&T assisted the U.S. government in the unlawful monitoring of communications and providing the government access to an extensive database of sensitive customer information. The plaintiffs allege that AT&T acted as an agent for the government in violating their Constitutional rights as well as certain statutes that regulate the collection and disclosure of electronic transmissions. They are seeking both statutory and punitive damages.

It is hard to imagine that AT&T will have to pay damages for its part in this program as long as it sought and was provided proper authorization. However, even if AT&T ultimately prevails in the lawsuit, it will have spent a good deal of time and money defending itself. Sometimes there are no easy answers.

Use of Google Earth in legal documents

I recently saw an example of Google Earth imagery being used in a land lease. Although there are probably other such cases, this is the first time that it has come to my attention of it being used in a legal document.

The lease gave the tenant the right to lease additional property from the landlord in the future. The landlord and the tenant decided to "describe" the additional property using Google Earth rather than a legal description because it was simpler and much less expensive. The lawyers were comfortable with its use as well, since in this agreement the property description did not require the specificity found in a legal description.

The use of satellite imagery is becoming more prevalent in the courtroom. It will be interesting to see if it becomes more common in legal documents as well. I can see a number of potential uses. However, I expect that it will take a while for lawyers to become comfortable in using the technology.