On July 10, our Technology, Manufacturing and Transportation group blogged about the FAA approving a new UAS device for agricultural operations.

Agribusiness professionals are already proficient with a variety of federal regulations (USDA, EPA, etc.) but adding an unmanned aircraft system (“UAS”) into the business brings another agency into the mix – the Federal Aviation Administration – with its own set of regulations. In some scenarios this added regulatory burden may be worthwhile because UAS can be used to perform crop protection product (“CPP”) spraying operations (“spraying”) on crops more efficiently than manned aircraft, saving money for both farmers and consumers. Yamaha Motor Corporation, USA (“Yamaha”) recently announced it has been granted an FAA exemption for its FAZER unmanned aircraft system (“UAS”) to be used for agricultural spraying. To read the full blog post please click here.

The eighth annual Ag Innovation Showcase took place on September 12th through 14th and was organized by the Larta Institute, the Donald Danforth Plant Science Center, and the Bio Research & Development Grown (BRDG) Park.  The annual event brings together innovators, researchers, investors, and other thought leaders from across the globe to focus on the use of agricultural technology to further enhance productivity and sustainability and address other issues of significant interest to the agricultural community.

This year’s 20+ presenting companies offered innovative business platforms to address and assist with Precision Ag, Ag inputs, alternative food and feedstocks, and developing economies.

Husch Blackwell was proud to return as a sponsor for this event. Our firm sponsored the mid-day session on September 14th titled: Disruptive Dialogue: Zero Waste Across the Food Value Chain? The panel included Christine Moseley, Founder & CEO of Full Harvest, Dan Morash, Founder of California Safe Soil, and Joanie Taylor, Director of Consumer Affairs and Community Relations at Schnuck Markets, Inc., and Stephanie Potter, Vice President of Sustainable Business Development at Rabbobank North America Wholesale served as the panel moderator.  The panel explored the context and causes for food waste in the United States and highlighted innovations across the food value chain that enable more complete utilization of food production.  As with the other sessions at this annual event, attendance was significant and attendee participation was vast.

The dates for the 2017 showcase have already been announced as September 11-13, 2017.  For more information about the showcase, click here.

The tech industry (e.g., Apple, Google) has been grappling very publicly with the conflicting issues of collecting user data on the one hand and trying to protect the privacy of the source of that data on the other hand.  Think of a spectrum of less data/more privacy on one end moving toward more data/less privacy on the other end.  Apple tends to operate at the former end of that spectrum and Google at the latter end.  This “conflict” between data collection and source privacy is the same issue that is playing out in the precision agriculture industry.  Seed companies, agricultural consultants, and service providers all want, and need, a lot of ag data.  The farming community is, correctly, very concerned about privacy of that data which is, itself, often very proprietary.  That’s the same conundrum that the tech industry is facing.

Yesterday, at a public presentation of the new operating systems for Macintosh computers and iOS devices, Apple noted that it will be using a statistical tool known as “differential privacy” to collect user data (in order to enhance its services, improve search results, etc.) in a way that apparently has been computationally proven to protect user/customer privacy.  The use of a similar tool in the precision ag industry should provide comfort to farmers that their data and the identity of the source of the data is protected.  If such demonstrated techniques are used in a robust fashion, that will also substantially ease the contract issues between a farmer and a precision ag data user.

A description of the differential privacy approach was published last evening on Wired magazine’s web site.  The article includes a link to a more rigorous description of the system.  There may be some additional complexity in the ag industry because of the importance of fairly specific location of the data being analyzed, but it is certainly possible that a collection of important characteristics of a specific location (soil characteristics, some sort of classification of past performance in terms of yield, etc.) might be able to be identified that would provide the precision ag industry enough high quality data without having to know, or collect, identifiable information such as GPS coordinates.

For additional insights on legal issues related to technology and data privacy in precision agriculture, contact a member of Husch Blackwell’s Precision Agriculture team.

Husch Blackwell’s precision agriculture team continues to work with clients and industry representatives on important legal and risk management issues related to the collection, management, ownership, protection and use of agricultural data.  Joan Archer was recently quoted in an article on the use of farm data published by Country Guide, Canada’s oldest farm publication.

Additional information about Husch Blackwell’s precision agriculture team, including recent industry updates is available at Husch Blackwell’s Food and Agribusiness web page.

 

In Part 1 of this blog, I discussed the question of data ownership and data protection obligations in precision agriculture.  More specifically, I noted that all parties along the field to fork chain should give careful consideration to whether farm data likely will be generated at some point in the process and, if so, who is entitled to own or control the data and what data protection obligations exist as a result.  In Part 2, I look at the various types of disputes that can arise if parties fail to reach agreement on key issues before starting work.  Once agreement is reached, these points then need to be documented in a well-drafted contract.  The range of potential disputes that could break out if good contracting is not employed should convince anyone in business in this area to have well-prepared, thorough written agreements in place to govern precision ag-related business dealings.

There are several potential claims that could arise if key issues are not addressed within the precision ag contract.  Each of these claims carry with them varying degrees of legal risk.  Remedies imposed vary by claim but they include potential money damages, punitive damages, attorneys’ fees and/or injunctive relief.  Some potential claims include:

Intellectual Property Claims:

  • Copyright—depend on role in establishing and protecting data formats
  • Trademark—depends on nature of information taken
  • Patent—generally only available as between service providers
  • Trade Secret—in most states, must meet criteria under Uniform Trade Secrets Act

Contract Claims

Computer Fraud and Abuse Act, 18 U.S.C. § 1030

State law claims:

  • Example:  Illinois Biometric Information Privacy Act, 740 ILCS 14/
  • Example:  Multiple bills in various states regarding drones and privacy

Data Security/Data Breach Tort Claims:

  • Negligence
  • Unjust Enrichment
  • Bailment

Continue Reading Agree to Agree: Data Ownership, Protection and Precision Ag (Part 2)

Recently, many speakers at conferences and authors in blogs have focused on the seeming conundrum as to who owns the farm data collected and/or created using precision ag technologies, as well as the related question of who must protect the data and how. Many have proposed legislation as an (unlikely) solution, while others have attempted to gain industry agreement as to ownership rules (see e.g., PRIVACY AND SECURITY PRINCIPLES FOR FARM DATA, spearheaded by the American Farm Bureau Federation). And still some have thrown up their hands, almost in dismay, and said these disputes will simply have to be resolved in the courts.

Yet, if one starts with the assumption that farm-generated data is an asset and, therefore, a type of property, it becomes apparent that there is a third alternative: careful contracting. I’m not just referring to the agreements entered into by precision ag companies. Rather, all parties along the field to fork chain should give careful consideration to whether farm data likely will be generated at some point in the process and, if so, who is entitled to own the data and what data protection obligations exist by virtue of this control. The concerned parties include:

  • Farmers
  • Organic ingredients providers
  • Farm machinery companies
  • Telematics companies
  • Seed companies
  • Software developers and service providers
  • Other Farm Technology Innovators (the “internet of things”, such as Google Glasses)
  • Precision ag service companies/crop consultants
  • Retailers/co-ops
  • Data co-ops
  • Crop insurance providers
  • Lenders/land valuations
  • Food manufacturers
  • Food sales

Continue Reading Agree to Agree: Data Ownership, Protection and Precision Ag (Part 1)

Husch Blackwell attorneys Joan Archer and Robert Wilkinson, and special investigator Christopher Budke will present at next week’s InfoAg Conference in St. Louis, MO – the premier event in Precision Agriculture.  The conference will be held on July 28-30 at Union Station. The focus of their panel discussion will be The Top 3 Emerging Legal Issues That Will Impact the Precision Ag Business.  These issues are (1) Human Trafficking, (2) Drone Data Use and (3) Big Data Ownership and Protection. Husch Blackwell attorneys and a former FBI agent will provide legal highlights concerning these three issues so as to assist attendees in spotting issues of risk and take steps to minimize financial loss. For more information, please see panel details here.

On May 1, 2015, the FAA approved the first section 333 exemption request for approval to fly an unmanned aerial vehicle (UAV or drone) over crops for purposes of spraying a wide-array of material (watering, fertilizers, pesticides, and herbicides). The ruling can be found here. The exemption approval notes that vehicle at issue, the Yamaha RMAX Type II G, “can also be equipped with sensors and equipment to detect and monitor agricultural areas that require irrigation, fertilization, or other treatments.”

The RMAX is a rotorcraft (a small helicopter) and “it is 9 feet long and 3 feet 6 inches tall, has an empty weight of 141 lbs. and a load capacity of about 61 pounds for both liquid and granular applications. The main rotor is about 10 feet in diameter and extends 4 feet from either side of the RMAX and less than 3 feet from its front.” You can find information about the RMAX here.

Notably, it is powered by unleaded fuel as opposed to an electronic battery. Yamaha’s filing emphasized its “20 year history of use in Japan and its recent approved use in Australia and South Korea.”

The exemption details that the RMAX will be flown in visual line of sight in daylight hours, will utilize a FAA certified pilot trained to use the RMAX along with a spotter and will be limited to a maximum altitude of 400 feet.

The FAA ruling allows the RMAX to be operated for compensation or hire and is not limited to a particular parcel of land but requires the pilot to hold at least one type of several pilot certificates: sport, recreational, private, commercial, or airline transport. The ruling notes that all “agricultural related services would be under the direction, supervision, and control of Yamaha” so it does not appear that this ruling with open the door for custom applicators to simply purchase an RMAX and provide custom application services.

The FAA’s ruling seems to signal a more flexible approach to use of UAV in agriculture and it is likely that custom applicators with a necessary pilot certificate might further open the door for applications by entities beyond Yamaha.

Husch Blackwell’s UAV team will continue to monitor important developments in the UAV arena, including their expanded use in precision agriculture.

The use of unmanned aerial systems (“UAS,” or more commonly drones) to collect data is gaining considerable attention in the agricultural, manufacturing, real estate and other industries.  In addition to photographic data, infrared information and other remote sensing technologies are under development and testing.  The collected data will provide important and powerful information to provide significant efficiency and improvement of various operations in these industries.  Owners and operators of operating sites, including farms, manufacturing sites, raw material and fuel storage, and others should be aware that data collected by UAS may be subject to review by federal and most state environmental agencies and could be used in enforcement proceedings.  EPA could also utilize UAS directly, or hire contractors to use UAS, for enforcement investigation purposes.

EPA’s Authority to Access Information

The Clean Air Act (“CAA”), Clean Water Act (“CWA”), and the Resource Conservation and Recovery Act (“RCRA”) give EPA broad authority to mandate monitoring and reporting and collect information from regulated entities.

For the purpose of determining whether any person is in violation of the CAA, EPA may require an owner or operator of an emission source, or any person who EPA believes may have relevant information to maintain and submit various data, records, and reports.  EPA’s access to and inspection of documents and records is not limited to documents or records that EPA itself requires to be maintained.  EPA may access any records required pursuant to federal or other applicable regulation, or records directly related to purpose of inspection. Continue Reading Environmental Consequences of UAS Data Collection

As widely reported and as noted in our February 16th blog post, the Federal Aviation Administration (FAA) recently issued its long-awaited proposed rules on operation of Unmanned Aircraft Systems (UAS), also known of as “Drones” in the national airspace.

The proposed rules are open for a public comment for a period of 60 days, which closes on April 24, 2015. In the past, the FAA has considered public comments and incorporated suggestions into its revisions.

Husch Blackwell’s interdisciplinary team of UAS lawyers are gathering suggested comments from clients and others interested in providing comments to the FAA on the proposed rules. The firm anticipates submitting general or industry-focused comments, as well as comments specifically tailored to your company’s views. Parties with aligned interests may wish to make a joint submission, which we can also facilitate.

Please see our blog posts addressing the broader list of proposed rules. Potential areas that may be of particular interest to farmers, precision agriculture companies and others in agribusiness industries include proposed rules related to the following:

  • UAS and attachments must weigh less than 55 lbs.
  • Line-of-sight operation only (which limits the viability of use of drones in the field)
    • Live video feed not sufficient
    • Cannot pass off operation to chain of operators each in line of sight
  • Flight path cannot cross directly over any non-covered persons (which means farmhands cannot be in the flight path and which may make navigation difficult for non-contiguous farms since a neighbor’s farmhands would have to be avoided)
    • Express waiver and consent not sufficient
  • UAS must be operated at or below 500 feet
  • Operators must be at least 17 years old and pass an FAA-administered aeronautical knowledge test
  • UAS cannot have payloads or engage in towing (i.e., no fertilizers or herbicides)
  • MicroUAS category (4.4 pounds or less) is contemplated for future proposed rules and would potentially allow flight directly over non-covered persons

Feel free to contact any member of Husch Blackwell’s UAS team to explore the options available to have your voice heard on this interesting topic and emerging industry.