In the world of real estate, it is ubiquitous to find real estate agents skilled at assessing the price of a real estate asset in a locality, by combining data from past transactions of land occurring in that locality with the data about the size of the real estate asset and the nature of the building constructed on it. However, in the exercise of the realtor's formidable professional judgement also lies a threat to the privacy of the real estate asset's owner, who stands to have a very sensitive piece of information about him, viz., his financial worth compromised unwittingly by a real estate agent he doesn't even know, let alone trust. In the 21st century, by replacing the realtor with a drone operator or a satellite image processor combining remote sensing data with data analytics, artificial intelligence and machine learning techniques, privacy concerns have multiplied manifold due to the resulting computing power. As an unprecedented privacy problem statement, there is some ambiguity on how remote sensing data can be regulated. By stitching together international and domestic legal concepts, this article argues that raw remote sensing data (hereinafter referred to as "remote sensing data") of a land asset ought not to be subjected to stringent privacy regulations and must instead be treated as "publicly available data".
Regulating Privacy in Remote Sensing Data: Applying Precedented Concepts to an Unprecedented Question
International Law relevant to this privacy problem statement, can be broadly understood by referring to international human rights law and international space law. Under international human rights law, personal autonomy and inherent human dignity1 lies at the heart of both liberty2 and privacy3. The right of liberty sanctifies travel and therefore affirms, the right to derive and store the sensory experiences from such travel (although the wanderlust of some European explorers from history, is viewed with a justifiable degree of scepticism by Syphilis patients4, descendants of African slaves and many former African and Asian colonies). Conversely, Privacy guards against the integrity of the self against another's misuse of liberty. Thus, over extension of privacy to cloak the information of a land obviously visible, would defeat the freedom of travel inherent to liberty itself. On the other hand, unfettered liberty, renders privacy rights obsolete with a corresponding threat of damage to the integrity of the human mind and body. A balance between the two being inevitable, we must acknowledge that liberty and Privacy are both functions of dignity and autonomy and therefore, are neither mutually exclusive nor absolute or independent.
Specific to the position under international space law, a country is deprived of the right not to be observed, but enjoys the right of access to the data generated from being observed by remote sensing technology and that too, on non discriminatory terms5. If sovereign nations stand deprived of the right not to be observed, the subjects of such sovereign nations can expect no immunity from being observed from space6.
Under U.S. law, property rights remained the philosophical and intellectual foundation for the framework of privacy7. Judgements from the United States Supreme Court conclusively placed the right of privacy within the realm of the right to feel secure in a property against unreasonable intrusion of the state8. Though there is little or no precedent involving adjudication of privacy rights against space based remote sensing observation, arrest of accused in criminal cases on the basis of warrantless areal observation of activities on their land by the naked eye were upheld9, negating the defence of privacy rights under the 4th Amendment to the Constitution. Any expectation that one's address should remain private were also adjudicated to be unreasonable10. The U.S. economy though firmly in favour of liberal private ownership of land remains conservative while adjudicating claims asserting absolute spatial privacy, being mindful of its risks to state interests.
Contrary to the liberal approach to land ownership in the United States of America, The right of property under Indian law only enjoys the status of a constitutional right11 but not a fundamental human right. The massive exercise of consolidation of land by the states and its subsequent redistribution on the consideration of grounds of social equity12, operated on the legal principle of eminent domain13. Therefore, transactions involving land are compulsorily registered under the provisions of Section 17 of the Indian Registration Act, 1908 and remain matters of public record. Efforts to bypass the mandatory registration requirement and consequential transparency under Indian laws through innovative land transaction structures, were struck down by the Indian Supreme Court citing fiscal interests, prevention of title fraud and other public policy considerations14. In fact, Agricultural lands are subjected to greater informational transparency by several states in India15. These legal trends and patterns estimate (notwithstanding India's inclination towards a privacy law that reflects the more stringent General Data Protection Regulation of the European Union), that privacy regulations (a right restricted to balance state and individual interests on similar lines16) are logically likely to continue treating land data and therefore remote sensing data as publicly available resources.
Privacy Implications from treating remote sensing data as publicly available resources
Even if classified as publicly available resources, remote sensing data continues to attract privacy concerns and regulations. Firstly under the common law of torts, common to India and U.S.A., among other nations, painting someone in false light is actionable as a violation of civil right of privacy. Downstream remote sensing applications leverage such data to improve supply chain logistics17, aid disaster management18 and enable more meaningful assessment of credit worthiness of agricultural land by financial institutions19. Thus, remote sensing data can be used to assess financial worth of land parcels, influence key business decisions and therefore influence costs and profits. However, there are legal and business risks inherent to any statistical exercise and this is true for even remote sensing data analytics. As a crude example, if an application developer wrongly associates the satellite image of a flood affected land with the latitude and longitude co-ordinate of a land parcel that has enjoyed a bumper rice crop, the owner of the land having bumper rice crop could be wrongly classified as ineligible for a loan citing flood related losses he did not sustain. Addressing such concerns and risks requires a standard of care designed to ensure accuracy of data, optimum data security and best practices in data management and use20.
Publicly available data raises requirements of compliance, albeit less stringent under existing European Privacy Regulations21 as well as under the proposed Indian Privacy Regulations. Requirement of consent is explicitly waived under European regulations, for data manifestly made public by the data subject22 while proposed Indian regulations provide discretion to the Data Protection Authority to stipulate such waivers depending upon the nature of the publicly available data and the context of processing. Land information obviously visible coupled with the transparency of land data in public records could be construed as remote sensing data being manifestly made public. But even such information comes with encumbrances for purposes of processing and must remain sensitive to the individual's privacy expectations23. Consequently, even the publicly available data, inter alia, must be inevitable (without alternatives) to the intended processing activity and must be stored or used subject to legally defined limitations of time, context and purpose. However by resorting to data sufficiently anonymised and de-identified and by aligning data processing objectives with select purposes that regulations recognise as justifying restrictions of privacy (such as state interests), further waivers and exemptions from privacy compliances can be potentially availed24. Technology businesses ought to consider privacy encumbrances as incentives instead of a burden, to innovate by a) focusing on smarter algorithms that are less data dependent25, b) fostering trust with data subjects through privacy sensitive culture and c) develop smarter security systems for data privacy.
Remote Sensing data is thus most appropriate regulated as "publicly available data" as it avoids the perils of over-regulation, without forsaking vigilance or the duty to protect individual privacy rights. Optimum remote sensing privacy regulations serve dual goals- creating an economy from remote sensing technology and then leveraging it for welfare objectives without possibility of harm or abuse to individual privacy.
1 The preamble of the Universal Declaration of Human Rights acknowledges autonomy by referring to the inherent dignity of all members of the human family.
2 See Article 3 of the Universal Declaration of Human Rights
3 See Article 12 of the Universal Declaration of Human Rights
4 Syphilis is rumoured to have been carried from the Americas to Europe by the returning crewmen from Christopher Columbus's voyage to the Americas, or it may have existed in Europe previously but gone unrecognized until shortly after Columbus's return. Reference: Farhi, D; Dupin, N (September-October 2010) Origins of syphilis and management in the immunocompetent patient: facts and controversies".
5 See General Assembly Resolution 41/65
6 See "Geospatial Sciences and Space Law: Legal Aspects of Earth Observation, Remote Sensing and Geoscientific Ground Investigations in Africa", Gbenga Oduntan, Kent Law School, University of Kent, Geosciences 2019, 9, 149
7 "Right to Privacy" by Samuel Warren and Louis Brandeis
8 Katz v. United States, 389 U.S. 347 (1967)
9 California v. Ciraolo, 476 US 207
10 See the judgement of Mel M. Marin v. Secretary of the Commonwealth of Pennsylvania, Docket No. 375 M.D.2011
11 See Article 300A of the Constitution of India introduced by way of the 44th of Amendment.
13 Eminent Domain is a principle that justifies the exercise of supreme authority by the sovereign provided the exercise of that authority is guided by the following considerations (1) Salus populi suprema lex (Welfare of the People Is the Paramount Law) and (2) Necessitas publica major est quam (Public Necessity Is Greater Than Private Necessity). Source: Chandrachur, Y. V. 2009. Concise Law Dictionary. New Delhi: LexisNexis Butterworths Wadhwa Nagpur.
14 See judgement of the Supreme Court in the case of Suraj Lamp Industries Ltd. v. State of Haryana, Special Leave (C) Petition No. 13917 of 2009
15 The State of Karnataka in India maintains publicly available "Record of Rights" for agricultural lands indicating the size of the agricultural land, the classification of such agricultural land basis the local nomenclature and customs and the crops grown on such agricultural lands in order to give effect to ensuring agricultural lands are not purchased by non agriculturists, a transaction prohibited under Sections 79A and 79B of the Karnataka Land Reforms Act, 1963
16 "The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits", Page 264 and 265 of the Judgement of the Full Bench of the Hon'ble Supreme Court of India in the case of Justice Puttaswamy (Retd) v. Union of India, W.P. (Civil) 494/2012.
17 "Agri-startups can offer tech solutions to keep food supply chain rolling amid COVID-19 crisis: Study", Economic Times, 30th of April, 2020
18 "How GIS helped Kerala: Flood Response and Disaster Management", Geospoc, 13th of November, 2018
19 "How SatSure is doing interesting work in mapping farm output via satellite", Sunil Jain, Financial Express, 7th of August, 2017
20 "The Value of a Data Economy: A Legal and Ethical Perspective", Ashok G. V., Partner & Founder at Factum Law & Legal Adviser at SatSure and Prateep Basu, Co-founder & CEO at SatSure,
21 "Publicly available data under the GDPR: Main considerations", Pior Foitzk, 28th of May, 2019, iapp.org, accessed on 07th of May, 2020
22 Article 9 of the General Data Protection Regulation
23 See judgement of the United States Supreme Court in United States v. Jones, 565 U.S. 400, where the court concluded that while an individual has no right not to be observed on a public road, the individual does have a legitimate expectation to not have data pertaining to his movement, systematically recorded using GPS technology and archived for the purposes of long term surveillance.
24 See Section 14 of the proposed Personal Data Protection Bill, 2019
25 "Further to this point, in artificial intelligence and machine learning, there's a great deal of research on how to build algorithms using much less data than is currently required. This notion that he or she who has the most data wins is ultimately going to be a temporal phenomenon. I think what we'll discover is that he or she who has the smartest engineers developing the smartest algorithms is the one who will win.", "In disruptive times, the power comes from people: An interview with Eric Schmidt", Mckinsey Quarterly, March, 2020, Excerpts from the fireside chat with Kevin Sneader, Global Managing Partner of McKinsey & Company, at the McKinsey BLINK Conference on digital and social disruption, which took place in London in November 2019.
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