Geospatial Data Act Includes Contracting and Privacy Issues
Congress passed H.R. 302, the FAA Reauthorization Act of 2018, and President Trump signed it into law on October 5, 2018, as Public Law 115-254. Included was Subtitle F of Title VII, a compromise version of the Geospatial Data Act, revised from earlier bills S. 1253 and S. 2128, introduced by Senator Orrin Hatch (R-UT) and H.R. 3522 and H.R. 4395, introduced by Representative Bruce Westerman (R-AR).
The Geospatial Data Act, as enacted, seeks to improve the coordination and use of geospatial data by the federal government. The need for this legislation was evidenced by a litany of reports, over more than 45 years, on the need for better organization and coordination of the mapping, charting, geodesy and surveying activities of the Federal government. The span of more than 20 such government studies and reports range from the “Report of the Federal Mapping Task Force on Mapping, Charting, Geodesy and Surveying,” published by the Office of Management and Budget (OMB) in July 1973, to the Government Accountability Office (GAO) report, “Geospatial Data: Progress Needed on Identifying Expenditures, Building and Utilizing a Data Infrastructure, and Reducing Duplicative Efforts,” GAO-15-193, published February 12, 2015. In between, studies on this topic were conducted by the National Research Council and the Marine Science Committee of the National Academy of Sciences, the National Academy of Public Administration, the Transportation Research Board, Inspectors General and individual agencies, as well as numerous congressional hearings and studies.
One issue that prompted the legislation is the depth and extent to which such surveying, mapping and geospatial activities in federal agencies duplicate and compete with the very capable and qualified private sector firms in the United States, including many small businesses. The law-included compromise contains language that puts a premium on utilization of the private sector for these services.
The bill also places an emphasis on “proven practices,” meaning “methods and activities that advance the use of geospatial data for the benefit of society.” One of those proven practices is the qualifications-based selection process for the procurement of firms for the performance of surveying, mapping and related services, including data collection and acquisition, that are defined as geospatial services in this legislation. The “QBS” process as codified in federal law in 40 U.S. C. 1101 et. seq., is contained in the laws of almost every state and is recommended in the Model Procurement Code for State and Local Government of the American Bar Association (ABA). It is the common, time-tested and proven method of contracting with firms for these services, and this process is clarified and carried forward in the bill, as Congress has done on numerous previous occasions.
Section 759B is a “savings” provision that assures there is no pre-emption of current law, such as the aforementioned QBS law, known as the “Brooks Act,” as well as applicable state law, particularly those governing the licensing of surveyors. This is important inasmuch as, for example, the definition in South Dakota, home state of Senator John Thune (R-SD), then-chairman of the Senate Committee on Commerce, Science, and Transportation, which had jurisdiction over both the FAA bill and GDA, (36-18A-4of the Codified Laws of South Dakota), is:
Practice of land surveying defined. For the purposes of this chapter, the term, practice of land surveying, means the practice or offering to practice professional services such as consultation, investigation, testimony evaluation, land-use studies, planning, mapping, assembling, interpreting reliable scientific measurements and information relative to the location, size, shape, or physical features of the earth, improvements on the earth, the space above the earth, or any part of the earth, and utilization and development of these facts and interpretation into an orderly survey map, plan, report, description, or project.
The practice of land surveying includes any of the following:
- Locates, relocates, establishes, reestablishes, lays out, or retraces any property line or boundary of any tract of land or any road, right-of-way, easement, alignment, or elevation of any of the fixed works embraced within the practice of land surveying;
- Makes any survey for the subdivision of any tract of land;
- Determines, by the use of principles of land surveying, the position for any survey monument or reference point; or sets, resets, or replaces any such monument or reference point;
- Determines the configuration or contour of the earth’s surface or the position of fixed objects on the earth’s surface by measuring lines and angles and applying the principles of mathematics;
- Geodetic surveying which includes surveying for determination of the size and shape of the earth utilizing angular and linear measurements through spatially oriented spherical geometry; or
- Creates, prepares, or modifies electronic or computerized data, including land formation systems and geographic information systems, relative to the performance of the activities in subdivisions (1) to (5), inclusive, of this section.
Finally, the legislation seeks to protect geospatial data that is personally identifiable information. This is a matter Senator Thune raised in a 2014 hearing of the Commerce Committee with then-Acting Federal Trade Commission Chairwoman Edith Ramirez. Certain geospatial data, such as parcel data and address data, is commonly in the public domain and does not fall within personally identifiable information. As Chairman Ramirez stated in that hearing’s record, “When members of the geospatial industry collect addresses, parcel information, or other geolocation or survey data that is tied to public land records, this practice would generally fall within the ‘context of the interaction’ standard. As any consumer who has purchased a house knows, public land record data is collected, used, and linked to specific consumers as a matter of course in connection with real estate transactions as well as property tax assessments and similar purposes. Accordingly, companies that collect and use this data for these purposes would generally not need to provide a consumer choice mechanism.”
This is consistent with OMB policy in Circular A-130 that “‘Personally identifiable information’ means information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other information that is linked or linkable to a specific individual.”
These and other issues will be implemented by federal agencies, led by the Federal Geographic Data Committee, to provide a policy framework and administrative process for the use of surveying, mapping and geospatial information by the federal government, as well as stakeholders in state and local agencies and the private sector.