Know your rights in ‘Big Data’ ownership

Staff Writer

PRINCESS ANNE, Md. (Aug. 25, 2015) — Who owns all that data being collected about your farm and your farming practices, and do you have any control at all over how it is used?
Ashley Newhall, Extension legal specialist at University of Maryland’s Agriculture Law Education Initiative, preceded her discussion of “Big Data” with a disclaimer: She is a lawyer, but what farmers gathered for the Mid-Atlantic Precision Agriculture Equipment Day on Aug. 5 were about to hear was for information only, not legal advice.
“Big Data” consists of aggregated data gathered from numerous farming operations, including what is shared with agriculture technology providers through cloud-based systems. The data is useful in developing prescriptive planting programs such as customized fertilizer, seed selection or population and pesticide application.
Who owns it? First, define “own.” To “own” something, Newhall said, means the right to possess, use, enjoy, transfer and exclude others from, as well as the right to consume or destroy.
“A better question might be: ‘What are the rights and responsibilities of the parties with respect to the data?’” she said.
Big Data is intellectual property, as are trademarks, patents, copyrights and trade secrets. Most likely, Big Data fits under trade secrets, but there is no definitive answer yet. Newhall noted that trade secrets are a function of state law.
There are risks to having your data “out there,” she said. Those risks include data breaches, since part of that information contains geospatial data that can identify farms; sales to third parties, which might increase competition for leased acres and profit for someone else, but not you; and market manipulation.
A coalition of major farm organizations and ATPs announced an agreement on data privacy and security principles last year. Facilitated by the American Farm Bureau, this agreement “will encourage the use and development of a full range of innovative, technology-driven tools and services to boost the productivity, efficiency and profitability of American agriculture,” Newhall said. The principles provide a measure of needed certainty to farmers regarding the protection of their data.
The agreement, signed by such organizations as the AFBF, national soybean, wheat and corn grower groups, National Farmers Union and major ag corporations, is not a contract but “goodwill,” Newhall said.
Newhall outlined some privacy and security principles for farm data. Farmers should have choices. ATPs should explain the effects and abilities of a farmer's decision to opt in, opt out or disable ATP services. A farmer is not bound to use an ATP's product in order to use his own information.
The data is portable. Farmers should be able to retrieve that data for storage or use in other systems.
ATPs should clearly explain substantive terms of their contracts.
They should agree not to sell data to third-parties unless the third-party is bound to the same limitations as the ATP. Farmers must be notified prior to data sales and be able to opt out.
Each ATP should provide for removal, secure destruction and return of the original farm data upon the farmer's request or at a pre-agreed upon period of time.
Procedures for contract termination should be clearly stated to growers.
Data should not be used for unlawful activity or antitrust violations.
ATPs should clearly define the terms of liability. Farm data should be protected with reasonable security safeguards, and growers should be notified if there is a data breach.
These policies are a good idea, Newhall said, but most are unenforceable by law. They are not contracts.
“You can do a contract,” Newhall said. She suggested questions to ask: What data will be collected? How will it be used? What control will the farmer have over the data? Is it portable? Is it accessible at all times? Can it be deleted or destroyed?
“You need to know where it’s going and how it's going to be used,” she asserted.
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