22 July 2015. The collection of data by Earth observation satellites represents an increasingly important application of space technology, both in the US and in Europe. The US has already for a long time applied the principle of free access and free re-use of information. Yet, the protection of privacy, civil rights and liberties, and national security interests plays also an important role, in particular in view of the improving resolution capabilities of Earth observation satellites and the increasing use of military satellite data in the fight against terrorism. Similarly, an important characteristic of the EU data policy is that it adheres to the concept of an ‘open data-policy’ and is also committed to the protection of several other rights and principles, such as the right of privacy, the protection of personal data and of intellectual property, the freedom of arts and science, entrepreneurial freedom as well as national security interests. This evening event contrasted different regulatory approaches in light of the awakening challenges of open geospatial data policies.
The evening event was kicked off by guest moderator Dr. David Kendall – a veteran of the Canadian Space Agency and UNCOPUOS Chair for 2016-17. Following some welcoming words, Dr. Kendall set the scene by remarking on the potential of geospatial data for prosperity but also for abuse, and raising the question of how one can balance the rights of governments, commercial companies and individuals in light of data policy.
Prof. Joanne Irene Gabrynowicz – Editor-in-Chief Emerita of the Journal of Space Law, former Director of the National Center for Remote Sensing, Air, and Space Law at the University of Mississippi School of Law, and Visiting Professor at the Beijing Institute of Technology, School of Law – provided an American perspective on the use of geospatial data, in respect to Landsat and other US systems. Highlighting that there were many perspectives in the US, Professor Gabrynowicz went on to define the term geospatial data to include anything that can identify a location on earth, extending beyond geographic data used in mapping. Geospatial data was then discussed from a US cultural and legal context, marking a preference for open access to data when funded by tax dollars. However, as the number of location aware technologies continue to grow at a rapid pace, regulated mainly by complex or antiquated laws to protect the public, there is a need to balance the collection of geospatial data for security purposes with reasonable expectations of privacy of citizens. From there, she expanded on the evolving interpretation of the Fourth Amendment to the US Constitution, elaborating on cases and new technologies such as UAV’s and the use of GPS trackers that require courts to draw a line between where privacy can and cannot be expected. She also discussed privacy statutes that apply to government collected geospatial data, and some commercial geospatial data as well. In looking ahead, she remarked that following the Snowden public disclosure of domestic and international government surveillance, there is increased political pressure to dial back the amount of information collected by the US government; meanwhile, citizens remain at the mercy of commercial companies that are collecting data unrestrained.
Prof. Irmgard Marboe – Professor of international law at the University of Vienna, and Director of the National Point of Contact for Space Law Austria – completed the picture with the European perspectives on geospatial data policy, in regard to international organizations such as ESA, the EU, Council of Europe, and some of the European states. While a similar approach to free and open data is shared, each body has its own data policy. And in providing open access to Copernicus data worldwide, deference tends to be made to the security interests of the EU or of its Member States. A notable distinction from the US policy is the protection of personal data afforded to EU citizens which restricts the open dissemination of geospatial data where it would infringe on the rights and principles of the Charter of Fundamental Rights and Freedoms, protecting private life, personal data, intellectual property, etc. And specific challenges to open data policy also remain in respect to international agreements (including defense), and to EU and member state security concerns; especially in determining who has the competence in deciding on open data in Europe.
The event then proceeded to a discussion with the audience, moderated by Dr. Kendall. The speakers fielded questions ranging from whether there was a specific procedure to follow in enforcing the protection of an individual’s private data in Europe; to legal jurisdictional questions for incorporated businesses operating in foreign countries; to trying to regulate what cannot be anticipated in big data collection. It was noted how the concept of security has changed in degree, but not in kind. Some questions cannot not be answered without further development in policy, and perhaps potential convergence in cultural and legal priorities.