Protect Surveyors' Intellectual Property Rights
Wednesday, February 27, 2019
Posted by: Perry Trunkick
Jeff Lucas, who writes the Traversing the Law column for POB, shared some information on a potential class action where surveys dutifully filed with a state authority were then provided to a technology company, apparently in their entirety.
As consumers, we are constantly being made aware of the amount of personal data that is being collected on us (or could be accessed) as a consequence of the highly connected world we live in. There is often pushback, or even a loud outcry, when we feel our privacy has been violated. Researchers regularly promise that the detailed personal data they want us to share will only be released in an aggregated form. If we are providing our income, for instance, it will be aggregated to show trends and no individual incomes will be distributed. But, if that information leaves the control of the researcher that made the promise, are we still protected?
Not being a lawyer, I can only speak generally, but is there a potential privacy issue for clients when a state agency turns over survey data to a private company? They hired a surveyor to conduct a survey for their express use, and when the surveyor complies with a statutory requirement to file the survey and the government agency fails to protect the confidentiality of that data, has the client’s privacy been violated? The principle is similar to the pollster sharing your salary where an expectation of privacy exists.
There’s also a question of the intellectual property rights of both the surveyor and the client. The survey is proprietary and, depending on the terms of the contract the surveyor has with the client, the surveyor may retain rights to the product of the survey. Or, if the contract does not preserve any rights for the surveyor, the survey is the property of the client. Either way, this proprietary report (survey) belongs to someone. Release of the detailed information could affect future revenues. And, even it it doesn’t, the release would seem to violate some intellectual property rights.
Then there is liability. Affixing a seal to a survey puts the surveyor at some risk. It is an acknowledgment the survey is full and correct to the best of the ability of surveyor. Again, I’m sure the lawyers will be happy to weigh in on what liabilities the surveyor assumes. Once more, how does liability apply if the information in that “sealed” document passes outside the control of the surveyor? Aggregated data in tax maps have been shown to be wrong in spite of the fact some of the data is based on surveys. What happens when an entity introduces errors that appear to be part of a signed-and-sealed survey?
This column doesn’t adequately address the multitude of issues and concerns raised by this alleged incident, but it can provide a warning to watch and listen… and to support your state and national survey associations if they are called upon to fight for your rights.