Legal Issues and Digital Twins
Multiple legal issues need to be considered when collecting and using data.
What IS a digital twin, anyway? On a panel I recently joined, we explained that a digital twin could range from a Star Wars-esque recreation of the Death Star, used to help plan an attack, to a more basic gathering of information that can be used to identify a pattern or process relied upon to improve a real-life situation. So, broadly, a digital twin could include using data gathered from license plate readers on your airport roadways to model how operational changes might impact dwell time at the curb, or average throughput by lane. As airports start to gather and use data in a digital twin environment, there are multiple legal issues that need to be considered, but three offer a good overview: data privacy, intellectual property rights, and issues unique to governmental entities.
Data privacy revolves around what kind of data you will be gathering, and how you will be using it – in other words, what does your digital twin need? You need to know whether someone else might own that data, and whether the data will be identifiable for a specific individual, or not. You need to know whether you need a person’s consent to gather and use the data, and you need to know whether the consent matches your intended digital twin use. This is critical because data privacy is very fact and location specific. In the United States, there is not one federal framework for privacy – instead, it is regulated based on type of data, and only some types, for example, health information or credit card information. The privacy laws that apply to data, then, depend upon the type of data, and whether your jurisdiction regulates that type of data, and how it can be collected and used – every airport will need to analyze this independently, and not rely on the analysis of another airport in another jurisdiction.
If an airport will rely upon a third party to develop a digital twin, intellectual property ownership of both the initial created work, as well as ownership of any resulting data or models developed, must be addressed. In the digital twin context, the purpose of gathering the data is to create models of varying complexity to try to make better decisions and assumptions in the future. The creation of a model can then raise the issue of who owns the model or secondary set of data and assumptions, and who has the right to let others use those things. This is generally referred to as intellectual property, and while there are federal and state copyright and trademark laws that can apply, this should also be addressed via contract to ensure clear understanding of ownership. Even a less complex digital twin can quickly become complicated as the various stakeholders work to identify who owns what, so don’t wait until the end of a project to start figuring out the intellectual property ownership.
Data collection and use by a governmental entity has different implications than the exact same data gathering and use by a non-governmental entity. For example, the Fourth Amendment to the United States Constitution prohibits unreasonable search and seizure by a government actor, which is a uniquely governmental concern. Depending upon the type of data being gathered, and how it is used, an airport could face a Fourth Amendment challenge – the initial intent of gathering data may not implicate the Fourth Amendment, but if that same data is used to identify and prosecute an individual for a crime, the Fourth Amendment suddenly becomes very relevant. Similarly, private entities don’t have to be concerned with public rights to access the information they collect, but governmental entities do. If the data your airport is gathering is accessible via open records request, how does this impact an individual if any of that information is personally identifiable? How would access to the data potentially de-value the ability to monetize the ownership and use of that data? How would public access to the data have a chilling effect on a business partner’s interest in sharing its data? These are the types of questions an airport should ask and answer as it moves into the digital twin universe.
Digital twin technology, whether complex or more elementary, will raise the above issues, among others. As your airport starts to identify data sources of interest, and discuss how you might use the data, put together an interdisciplinary team that includes your attorneys. Bring your legal team into the project early to avoid having to address these complex legal issues after the data has been collected, possibly without the required consent, which could render it unusable for the intended purpose. For a much more in-depth analysis of these and other related issues, I recommend reviewing the Legal Research Digest 42, Legal Implications of Data Collection at Airports from the Airport Cooperative Research Program.
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