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

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

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


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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


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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.
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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,