By Ashley Ellixson
You see it all over the Internet, local and national news stations, but what actually is “big data” and what do you need to know about it as pertains to agriculture? In short, “big data” is aggregated data (a bunch of information) gathered from numerous farming operations. For example, if you are growing corn, this could be data of how many seeds you planted per acre, how many acres, when, and where, and then combined with all other corn growers in your geographic region. This data is then shared with an agriculture technology provider (ATP), such as Monsanto or John Deere, through a cloud-based system.
The benefits of “big data” can be vast. For example, it has the potential to assist in developing prescriptive planting programs, customized fertilizer if data has to do with soil, pesticide application, hybrid seed selection, and so on. With that said, there are also concerns when working with an ATP and the use of “big data.” Today, I will briefly cover some of the areas that you need to be aware of when considering entering into a contract with an ATP and the use of your farm’s individual data.
Who Owns “Big Data”?
One of the major questions that arise when discussing “big data” is: Who owns the data the ATP gathers from my farm? Is it the farmer’s? Does the ATP now own it? First, let us look at what it means to “own” something. Legally speaking, when you own something you have the following rights:
Right to POSSESS
Right to USE
Right to ENJOY
Right to EXCLUDE OTHERS FROM
Right to TRANSFER
Right to CONSUME or DESTROY
When considering the ownership of “big data,” and any item for that matter, it might be better to ask: What are the rights and responsibilities of the parties with respect to the data? To determine the rights and responsibilities, it is important to classify the type of property in question. Currently, “big data” has not been legally classified, but a strong argument may be made that it falls under intellectual property and more specifically, trade secret.
The Uniform Trade Secrets Act (“UTSA”) defines a trade secret as:
Information, including a formula, pattern, compilation, program, device, method, technique, or process,
Which derives independent economic value, actual or potential, from not being generally known to or readily ascertainable through appropriate means by other persons who might obtain economic value from its disclosure or use; and
Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
The important portions of the definition which relate to “big data” are that data arguably demonstrates a pattern which derives independent economic value, actual or potential, from not being generally known and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Under the definition of trade secret, the farmer has the rights and ownership to his/her farm’s data. However, when that data is combined with other farmers’ data, the question of ownership gets foggy. This is where the law has yet to catch up with technology, and others are taking steps in order to protect themselves.
Privacy and Security Principles for Farm Data
To deal with some of the concerns of ownership and security, the American Farm Bureau facilitated an agreement on November 13, 2014 between a coalition of major farm organizations and ATPs regarding data privacy and security principles. The 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.
The agreement states “[a]s technology continues to evolve, the undersigned organizations and companies believe the following data principles should be adopted by each Agriculture Technology Provider (ATP).” The principles provide a measure of needed certainty to farmers regarding the protection of their data. Some of the important topics covered in this agreement are:
Education: Growers should understand their rights and responsibilities
Ownership: Farmers own the data, control how they share data with others, and are responsible for ensuring only data they own is provided to ATP
Consent Prior to Data Collection: Affirmative consent should be required
Notice: Growers should have notice when data is collected and how it is used
Transparency and Consistency: ATPs shall notify farmers about purposes of data collection; farmers should have options to limit uses of data
Choices: ATPs should explain effects and abilities of a farmer’s decision to opt in, opt out, disable ATP services
Portability: Farmers should be able to retrieve that data for storage or use in other systems
Terms and Definitions: ATPs should clearly explain substantive terms of their contracts
Disclosure, Use and Sale Limitation: ATPs will not sell data to third-parties unless third-party is bound to same limitations as ATP. Farmers must be notified prior to data sales and be able to opt out.
Unlawful or Anti-Competitive Activities: Data should not be used for unlawful activity, antitrust violations, or market manipulation
Liability & Security Safeguards: ATP should clearly define terms of liability, farm data should be protected with reasonable security safeguards, and growers should be notified if there is a data breach.
The policy agreement is a good idea in theory, but unfortunately this agreement will be mostly unenforceable by law. What will be enforceable by law and held up in court are contracts.
What to Look for in a Contract
Since a contract between you and your ATP will be enforceable, you need to make certain a number of items are included your contract to protect yourself and your data. Some of these issues include communicating with your ATP about:
What data will be collected? Limited to data useful for prescriptive planning?
How will that data be used? Shared with third parties? Can farmer opt out? Used beyond purposes of prescriptive planting?
What control will the farmer have over the data?
Is the data portable? Can the farmer share the data if switching to another ATP?
How will it be aggregated, anonymized (privacy concern)? Can it later be deleted?
Does contract require affirmative consent before data is shared with ATP?
Will farmer be notified of changes to ATP’s privacy policies?
Does agreement prohibit ATP from using data for speculation in commodities markets?
By becoming more aware of the questions raised with ownership, privacy, and the like surrounding big data, the more prepared you will be when forming a contract with your ATP. Currently, there are no laws in place defining what big data is or court rulings on how to deal with problems that arise with the lack of legal structure. The future policy directions are unknown but eventually the law will catch up with technology. Maybe there will be statutory rules for ownership, data storage, and disclosures? Maybe there will be standardized contracts between farmers and ATPs? Only time will tell.
This article is not intended to convey legal advice but merely educate on the concerns raised with “big data.”