Big Data on the Farm: Legal Issues Surrounding Farm Data Ownership, Transfer, and Control

This Thursday, March 19, 2015 at 12:30 EDT, I'll be hosting a webinar titled "Big Data on the Farm: Legal Issues Surrounding Farm Data Ownership, Transfer, and Control."  The webinar is hosted by ThompsonReuters and geared towards a legal audience. Continuing Legal Education (CLE) credit is available for most states. More information below.

Don't Forget the Little Guy: FAA's Proposed Rules for "Micro" UAVs

Many articles have been written about the Federal Aviation Administration's (FAA) proposed rules for "small" unmanned aircraft systems ("small UAS" or "small UAVs"). But most authors have overlooked that the FAA is also considering special, less stringent rules for "micro" UAVs.  Micro UAVs weigh less than 4.4 lbs (small drones are less than 55 lbs.) and travel less than 35 mph (small drones are restricted to 100 mph).  This article takes a closer look at the FAA's proposal for micro-UAVs and its promise for agriculture.

FAA Approves Ag Drone Flights for One Company: Is Decision a Road Map for Others?

The Federal Aviation Administration has granted a Washington company (Advanced Aviation Solutions LLC) an exemption to fly unmanned aerial vehicles ("UAVs" or "drones") commercially for "precision agriculture" and "crop scouting" purposes.  In general, FAA regulations prohibit any person from flying a UAV in national airspace without an airworthiness certification (except for model aircraft flow under the "hobby" aircraft guidance document).  A person may seek to avoid airworthiness certification by seeking an exemption under Section 333 of the FAA Modernization and Reform Act of 2012 (“FMRA”).  To date, these exemptions have been issued sparingly.  This latest exemption, however, may provide other ag drone operators with a road map for obtaining their own exemption from current FAA regulations.  

The Year in Reverse: A Look Back at 2014

Each year I take a look back at the big legal stories in agriculture. This year, the usual wrangling over environmental and livestock issues took a back seat to drones and “big data.” These precision ag stories were everywhere.  But there was also a big fight over future environmental regulations, and that made my list too.  So here it is, my complete list of the top 5 legal ag issues from 2014.

The Council for Agricultural Science and Technology (CAST) - Becoming a Part of Dr. Borlaug's Legacy

In November I was elected to serve on the Board of Representatives for the Council for Agricultural Science and Technology ("CAST").  CAST is a nonprofit organization composed of  representatives of the scientific societies, commercial companies, and nonprofit or trade organizations. CAST was established in 1972 as a result of a meeting sponsored by the National Academy of Sciences, National Research Council. Its members today come from universities (like Purdue, Iowa State, Kansas State), food and agricultural companies (like Elanco, Dow Agrosciences, Monsanto), scientific societies, and industry trade organizations (like National Pork Board).  I am the representative for the American Bar Association's Agricultural Management Committee.

Ag Industry Releases Core Principles for Farm Data Privacy

This past year some of America’s leaders in agricultural technology products worked together with American Farm Bureau Federation and industry trade organizations to come up with a set of core principles for data privacy. The principles identified should help these agriculture technology providers (ATPs) develop new privacy policies and ensure existing policies protect farmers’ privacy. Here is an abbreviated version of the of the core principles.

What Agriculture Can Learn from Medical Data Privacy Laws

Earlier this year, I suffered sudden hearing loss in my left ear. The condition caused me to visit a number of different doctors and medical providers. These visits made me realize, although we live in the digital age, doctors' offices still treat data like they did 100 years ago. Each time I visited a new physician or medical center, I filled out a similar stack of paper forms asking for the same information I had already given other providers--health history, prescriptions used, insurance, date of birth, SSN, symptoms, acknowledgments, etc. There was no data sharing between providers.

I can’t help but compare how the medical industry treats data to the discussion the agricultural industry is having right now about sharing big data and privacy.

It's Time for Real Property Law to Join the 21st Century

A farmer uses GPS to plant this field,
but his deed uses old metes and
bounds to describe it.  

I handle a number real estate transactions each year.  It is not uncommon to find an error in the property description located in a deed.  Often somewhere in the chain of title, someone made a typo which was then passed on from deed to deed to deed.  Attorneys call such mistakes "scrivener's errors."   These errors still occur today because the way property is described in deeds and other real estate documents has not changed much in past two centuries. Witnessing how much technology has improved farming in the past decade has made me wonder--why isn't the same technology being used to improve how we describe property boundaries?

Before You Click "Accept," Read Your Farm Data Privacy Policy

If you are like most people, when computer programs ask you to accept their latest privacy policy, you probably just hit "I accept these terms" and get on with using the software.  But recent concern over who controls agriculture's "big data" might have made you pause and think about whether you should just accept the terms provided--or decline and look for something else.  As agribusinesses roll out their farm data collection and analysis programs, take some time to read the data privacy policy that will accompany the program.  Here are some questions to ask as you do:

The European Union's Common Agricultural Policy

Our Indiana Ag Leadership trip to northern Europe included a visit to the European Commission in Brussels, Belgium. The European Commission is the executive branch of the European Union (EU). One of the main topics of discussion was the Common Agricultural Policy, or "CAP," the EU's version of the US Farm Bill.  The CAP has been an essential part of EU policy for decades and, like the Farm Bill, periodically undergoes reform.  The post explains some of the differences and similarities between the CAP and most recent Farm Bill.

The European Union's Reluctance to Embrace GMOs

One of the questions that was frequently asked by our Indiana Ag Leadership class in Europe was why the European Union (EU) has not embraced genetically modified organisms (GMOs) like farmers in the US.  The answers were very interesting.

A fact I did not know prior to our recent trip is that many EU countries do allow importation of GMO corn and soybeans from the US.  Such products are used as animal feed, even though the same products could not be sold on the shelves for direct human consumption (unless the proper labeling was attached). Thus, milk on the grocery store shelves in EU member states may have come from cows fed GMO corn.

Five Legal Issues to Watch in 2014

What will be the hot topics in ag law for 2014? Here are some predictions for the coming year:

1. Clean Air Act Targets Farmers. Congress passed the Clean Air Act in 1970 to clean up the nation’s air. The low hanging fruit of air pollution—power plants, industrial factories, trucks and automobiles-- have been under scrutiny ever since. The EPA is looking for ways to further reduce air pollution in the US, and farms will be next. Large grain dryers (producing particulate matter) and anaerobic digesters (producing carbon dioxide, carbon monoxide, and methane) will be part of this new frontier for the Clean Air Act.

Is Ethanol Policy Causing Pollution of Our Streams?

This morning while watching CNBC during my usual workout routine, I heard a story about how President Obama's "Green Energy" policies had a dark side.  The story specifically referred to the renewable fuels standard (or "RFS") requiring that gasoline sold in the US contain a minimum percentage of ethanol.  The "secret, dirty cost" supposedly caused by this policy is that acres of prairie and marginal farmland have been tilled up and planted to corn, allegedly increasing water pollution from chemicals and fertilizer.

Further digging pointed to the source of this story.  The Associated Press ran an article about the hidden costs of the United States' ethanol policy, stating:

State GMO Labeling Laws Present Unanswered Legal Questions

At least 20 states have considered bills requiring labeling for genetically modified (GMO) foods in the past few years.  California's Prop 37 was the most notorious of these proposed laws, but it was defeated by referendum in November 2012.  This hasn't stopped GMO opponents in other states from seeking to pass laws requiring the labeling of GMO containing food.  This raises two questions: First, why doesn't the Food and Drug Administration (FDA) require GMO labels?  Second, is it even legal for states to create their own GMO labels?

Modern Agriculture's Big Five Issues (and How the Law is Reacting to Them)

For this next year, I’m serving as the chair of the American Bar Association’s (ABA) Agricultural Management Committee. The Committee is part of the wider ABA Section on the Environment, Energy and Resources and focuses on cutting-edge issues involving agriculture and the environment, including biotechnology, livestock, sustainability, and food safety. One of the chair’s duties is to create an Action Plan, identifying the five top issues related to agriculture and the environment. Here’s my list and brief explanation of the laws that these issues affect.

The Economist is Right: Farming as Rocket Science.

Like many farm kids, I grew up learning how to build rockets.  Though miniature in size, the same components that made NASA rockets fly worked with our model rockets too.  The rockets contained real engines, cargo bays, and parachutes that would deploy (if everything went right) on descent.  I never thought that building rockets had anything to do with farming, but a recent article The Economist has changed my mind: 

Genetically engineered wheat arrives. Lawsuits follow.

A farmer in Oregon discovered glyphosate resistant wheat recently in one of his fields. Though such genetic engineering (GE) has been common in corn and soybeans for more than a decade, wheat markets have never accepted GE products—and from what I can tell, no biotech company has really pushed to change that. According to the USDA, Monsanto was authorized to test GE wheat from 1998-2005. But such wheat was never approved for sale or commercially sold.

Why patent law favors Monsanto.

It is rare that the United States Supreme Court takes a case that directly affects Midwestern corn and soybean farmers. That happened recently in Bowman v. Monsanto, where the Supreme Court held that Indiana soybean farmer, Vernon Bowman, infringed upon Monsanto’s Roundup Ready patent when he planted “commodity” soybeans he purchased from his local elevator that contained the Roundup Ready technology. Although many billed this case as David versus Goliath, in reality, this 9-0 decision suggests the law was pretty well settled in favor of Monsanto. There are good reasons why Monsanto won.

Bowman v. Monsanto: Farmer Cannot Endlessly Replicate RR Soybeans

The United States Supreme Court has held that an Indiana farmer cannot plant Roundup Ready (RR) soybeans purchased from a grain elevator (or "commodity soybeans") without violating Monsanto's RR patent. (Read prior post: Indiana Farmer Takes Monsanto to Supreme Court).  Justice Kagan wrote the opinion, which the Court summarized as follows:

Atrazine Settlement Provides Millions to Water Utilities

A class action lawsuit alleging that the herbicide Atrazine contaminated various Midwestern water supplies has been settled. As part of the settlement, Syngenta Crop Protection, Inc. (Syngenta), the maker of Atrazine, has agreed to pay $105 million to over 1100 class members, consisting of water utilities across the Midwest.  (Indianapolis will reportedly receive $1 million).