New Gadgets Invite Legal Concerns

November 4, 2015 12:00 PM

Consider limiting data collection and reviewing contracts for new ag tech

Movies about superheroes frequently claim that with great power comes great responsibility. What does that have to do with the agriculture industry? Maybe more than you think. 

That’s because as farmers find themselves with new super-powered technologies, they face unchartered legal considerations that require them to rapidly learn the rules to prevent possible lawsuits.

Take the drone, for example. This technology has proven it can collect gigabytes of valuable farm and field data. Might some farmers be collecting too much information, though? That’s a question Joan Archer, an attorney at Husch Blackwell, has been asking lately. Her law firm specializes in food and agribusiness, and her reasoning has to do with the Environmental Protection Agency (EPA).

“From an environmental standpoint, you may be gathering information that isn’t important to your field but would be of interest to EPA,” Archer says.

Farmers need to ask themselves if they are inadvertently creating records they wouldn’t want EPA to access, especially in the wake of the agency’s embattled “Waters of the U.S.” policy. “Only gather what you need,” she recommends.

Financial Penalties Possible. As Indiana attorney Todd Janzen points out, drones still soar in a legal gray area. Operators are subject to hefty fines when the machines are misused, regardless of their industry. 

A case in point: In October, the Federal Aviation Administration (FAA) levied a $1.9 million civil penalty for unlawful flying of unmanned aerial vehicles against SkyPan International, Inc. The company specializes in aerial and panoramic photography.

To be fair, the flights occurred near an airport without SkyPan requesting air traffic control clearance, Janzen says. Although this scenario is less likely to occur in farm country, that doesn’t mean farmers should abandon discretion.

“This should be a reminder to persons flying drones that just because everybody is doing it does not make flying [unmanned aerial vehicles, or UAVs] legal,” says Janzen, who writes the “Janzen Ag Law Blog” at “We are still waiting on FAA’s final rule authorizing small UAV flights in the National Airspace System. Until then, commercial flights remain illegal unless the operator has obtained permission from FAA.”

Secure Data Profitability. As Big Data continues to integrate itself into agriculture, Archer says agreements with technology providers are as important as ever. 

“Farmers should be asking their attorneys if they have proper protections in the agreements they’ve entered into,” she says. “Farming is a complex business with issues that require affirmative steps on the front end. You’ll be happy at the end of the day when you take those steps.”

Farmers need to think of their data as a commodity that can create new business opportunities, says Sid Gorham, CEO and co-founder of ag software platform Granular. It’s no secret companies along the farm value chain will vie for a piece of potential profits, he says, so farmers should retain the right to license their data but not give it up entirely.

“Farmers have the new responsibility of choosing technology partners they trust to help them navigate this new landscape,” Gorham says. “What is the company’s business model? If they’re offering the product for free now, will they have to sell your data in the future to make money? Do you agree with the company’s data policies?”

The answers to those questions could dramatically impact the amount of money a farm will be able to make off its own data.  

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