Teresa Scassa - Blog

A decision of the U.S. Court of Appeals for the 10^th Circuit highlights the power dynamics around rights to collect and share data. It marks an important victory for environmental activists, and should also be of interest to all those who engage in citizen science, as well as community-based environmental monitoring.

The case arose after the Wyoming legislature passed a law titled Trespassing to Unlawfully Collect Resource Data that imposed civil and criminal liability on any person who crossed over private land in order to “access adjacent or proximate land where he collects resource data.” The statutory definitions of resource data included all kinds of data gathering activity from taking notes to photographing wildlife or taking samples of soil or water.

The backstory to the legislation involved efforts by environmental activists with the Western Watersheds Project to document the impact of cattle grazing on water quality, and to push for limits on grazing on public lands. These efforts were opposed by cattle ranchers, who apparently carry enough clout to push the legislature to enact such a law. A predecessor statute in 2015, titled Trespassing to Collect Data, created civil and criminal liability for collecting data on “open lands”. After the constitutionality of the 2015 law was challenged, it was amended to prohibit crossing private land without permission in order to collect data on “adjacent or proximate land” (which might be public land). It was this amended version that was considered by the appellate court.

The issue before the Court was not whether there was a broad right to collect resource data on either public or private land. Rather, it was whether the state, by creating new civil and criminal trespass penalties for those who crossed private land without permission in order to collect data on public land, violated the free speech rights of the data collectors. The plaintiffs’ argument was essentially that although there were already penalties for trespass on private land, the statute created additional penalties for those who trespassed on private land for the purpose of collecting data on public land. Thus, the court framed the issue as “not whether trespassing is protected conduct, but whether the act of collecting resource data on public lands qualifies as protected speech.” The court noted that the prohibited acts under the law involved “collecting water samples, taking handwritten notes about habitat conditions, making an audio recording of one’s observation of vegetation, or photographing animals”, so long as location data was also included.

The Court noted that a number of federal and state environmental statutes and regulations provided for public submission of environmental data as part of assessment and decision-making processes. The plaintiffs argued that a law restricting their ability to gather environmental data inhibited their ability to participate in such processes, thus limiting their freedom of speech. The Court agreed, noting that the First Amendment extends to the “creation” of speech. The Court observed that “An individual who photographs animals or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter”. The Court also found that the taking of samples, though “somewhat further afield of pure speech”, was protected. In this case, the samples were characterized by the Court as “information plaintiffs need to engage in environmental advocacy”. The Court also observed that the plaintiffs used the data they collected in advocacy activities, and that this type of political engagement was at the core of the First Amendment protection.

The Court does caution that there is no general “unrestrained right to gather information”. As a result, laws that, by banning activities incidentally prevent the ability to gather information about those activities would not run afoul of the First Amendment. In this way, a general prohibition on trespass does not offend the First Amendment, even if it means that someone would be equally barred from trespassing to gather information. What was problematic here was that the laws created new penalties that specifically applied to trespass for data gathering activities.

Although the legislation in this case might seem to be an outlier product of an aggressive stakeholder lobby of government, the issues it raises have a broader significance. Control over data, access to data and even the ability to create data are all crucially important in our data-driven society. My ongoing research explores issues of ownership, control and access to data – expect to see more posts on these topics over the course of the year.

A recent incident raises important issues about excessive control over data and information. Open data activists, who have long battled to liberate government data will recognize the principles at play here. The difference in this case, is that the data over which control is being asserted are in private sector hands. Yet while the law necessarily provides means for private sector organizations to exercise control over data and information in appropriate circumstances, this control is not without its limits. In this case, the limits may have been seriously overstepped.

A Toronto-area man who posted his own data-visualization based on Toronto real estate data hasreceived a blunt cease and desist notice from counsel for the Toronto Real Estate Board (TREB). The story, which was reported by David Hains in Metro News, explains that the 26 year old data analyst named Shafquat Arefeen created the visualization as a personal project and posted it on his non-commercial website. The visualization, which is no longer available as a result of the letter, provided an overview of housing sales activity in Toronto and contained data that, among other things, showed the differences between listing and selling prices, including data for specific house sales.

The cease and desist letter makes it clear that the TREB believes that the data were taken from its proprietary website. There are some interesting issues around accessing and using data hosted on a web platform, including whether any terms of use associated with the site are binding on the user. The letter, however, does not raise any contractual claims. Instead, it asserts copyright – apparently in the data. Mr. Arefeen denies that he obtained the data from the TREB site. Whether he did or not, the copyright claims are independently worth considering.

It is a basic and fundamental principle of copyright law that facts and information are in the public domain. The Federal Court of Canada has clearly stated: “there can be no copyright in information.”( Nautical Data International Inc v. C-Map USA Inc. at para 11), as has the Supreme Court of Canada: “copyright protection does not extend to facts or ideas but is limited to the expression of ideas.” (CCH Canadian Ltd. v. Law Society of Upper Canada, at para 22).

Copyright law does protect compilations, including compilations of data. Yet, where data are part of a compilation, all that is protected is the original selection or arrangement of the data. In a 2016 decision of the Competition Tribunal regarding the TREB’s data, the Tribunal stated that it was: “not persuaded that TREB owns copyright in the MLS Database, including the Disputed Data. In brief, the Tribunal has concluded that TREB has not led sufficient evidence to establish the level of skill, judgment and labour required for the MLS Database to benefit from copyright protection.” (at para 731)

Let’s assume for the sake of argument that there is a copyright claim to be made. Even in those cases where copyright in a compilation of data is found to exist, a second user who does not take a substantial part of the selection or arrangement of the data does not infringe copyright. If Mr. Arefeen’s visualization was his own original expression of the data that he used, then it would be very difficult to sustain an argument that there was a substantial taking of the arrangement of the TREB’s data. It is not clear whether it constituted substantial taking of any original selection of the data – this is far from an open and shut issue. Yet even if a court were to find substantial taking of a selection, Mr. Arefeen would be entitled to rely upon the fair dealing exceptions in the Copyright Act. The Supreme Court of Canada has mandated a generous approach to fair dealing, and there is every possibility that this non-commercial use might be considered fair – in other words, not infringing. The bottom line is that any claim to either copyright in the data or infringement of any such copyright would appear to be very weak.

The cease and desist letter also contains strong language alleging that Mr. Arefeen’s use of the data was a violation of the Personal Information Protection and Electronic Documents Act (PIPEDA). PIPEDA applies only to personal information that is collected, used or disclosed in the course of commercial activity. Mr. Arefeen’s website appears to be non-commercial – it does not even contain advertising. If this is the case, PIPEDA does not apply. There are also exceptions to the application of PIPEDA where information is collected, used or disclosed for journalistic or artistic purposes. Frankly, it’s hard to see how PIPEDA would apply in this instance.

The cease and desist letter achieved its objective in that Mr. Arefeen took down his data visualization, and it is no longer available to a public according to the newspaper coverage found it useful and interesting. This allows the TREB to maintain control over its closely controlled data about the real estate market in Ontario. It also enables it to restrict public engagement with data that are relevant, interesting and important to Toronto residents. The outcome highlights the imbalance between well-resourced data ‘owners’ and data users – particularly those who act in the public interest. Such users often have limited resources either to pay for data licences or to hire lawyers to push back against excessive claims. The result is far from being in the public interest.