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Interview: Kevin Pomfret

Kevin works with a broad-range of businesses, ranging from early-stage companies to public companies, in a variety of industries. He regularly counsels clients on significant business issues, including transactions, equity and debt financings, licensing agreements, joint ventures and employment agreements. He has negotiated numerous mergers and acquisitions involving both private and public companies. Kevin also assists private equity funds and venture capital funds in making investments and acquisitions.

Kevin represents a number of spatial technology companies, and works closely with leaders in the spatial community to identify solutions to the industry’s unique legal issues. Prior to law school he worked on developing the U.S. intelligence community’s imagery collection and exploitation requirements. Kevin also served as a satellite imagery analyst and a Soviet analyst for the U.S. government. He regularly writes and speaks on spatial law.

Kevin is a graduate of Washington & Lee School of Law and has served on a number of community boards since moving to Richmond in 1994. In 1996, Kevin was selected by “Inside Business” as one of Richmond’s “Top Forty Under Forty.” Kevin has been recognized as a Virginia “Super Lawyer” and a member of Virginia’s “Legal Elite.”

Res Communis: Tell us a little bit about your law practice.

Pomfret: We are a twenty person law firm based in Richmond, VA. My practice is twofold. I represent a wide variety of businesses in what I would consider general corporate law, matters such as mergers and acquisitions, contracts, license agreements, employment agreements; the whole range of things a business might find comes up on a day-to-day basis from the legal side. Then the other side of my practice is focusing on spatial law issues. I define these as unique issues associated with spatial data. That might include licensing agreements, privacy issues, and liability issues. There is a good deal of overlap between the two because spatial technology businesses will also have a number of business concerns that may or may not have a spatial law component to them.

Res Communis: How did you find your way into what you call spatial law?

Pomfret: I was a satellite imagery analyst for 6 years with National Photographic Interpretation Center, which was a predecessor of the National Imagery and Mapping Agency, which later became the National Geospatial-Intelligence Agency. Then I went to law school and have been practicing law since 1994. I continued to maintain my interest in geospatial technologies and the intelligence community. I actually spent some time working at EarthWatch, which was predecessor to DigitalGlobe. I saw an emergence of legal issues in this area so I began writing, speaking, and representing companies in this area of law.

Res Communis: What kinds of clients come to you for these issues? Tell us a few issues that you deal with.

Pomfret: The types of clients will vary. They will include satellite imaging companies, data acquisition companies that collect spatial data; and, software companies that process, analyze, and distribute spatial products. They are both on the commercial side and on the defense side. The issues will vary. On the acquisitions of data at the county level, for instance, I might review license agreements to be sure that the data that is being collected can be used the way the customer wants to use it. These license agreements can be restrictive in terms of derivative products, in terms of commercial use, etc. Some are subject to copyright at the county level. In the United States there is a great deal of disparity in terms of how much copyright protection a county can place on its data. On the software side, it would be either drafting or viewing license agreements for data or the software product, in making sure representations and warranties that are being made in respect of the data are accurate. In my mind, one of the issues out there right now is how does metadata fit into this; whether it is part of the product; whether it is part of the documentation; and, how it is included in legal agreements such as contracts or license agreements. There is also a good deal of litigation involved as you might imagine. Some of it is strict commercial litigation; but it will have a spatial component if it involves spatial technology, or a dispute involving the use of technology.

Res Communis: Do you see inherently different or similar issues for private sector client versus government clients?

Pomfret: I think there are three sets of issues that are unique to the private sector client. First is liability. I think that once private sector clients begin developing applications at a consumer level or to be used by a consumer, then the liability issue is much different than it would be if the product was being developed for the government, for a couple of reasons. One of the reasons is the concept of sovereign immunity, it can be difficult to sue a government. Another issue is simply that the government for the most part is probably an educated consumer for the technology. Individuals, as consumers, can’t be assumed to be educated. So, disclaimers, warranties, foreseeable use issues are probably more important for them. There is another set of issues that I think private sector companies need to consider: data ownership. Spatial technology products can be developed with data sets from the private sector and/or the public sector. Generally, private companies are a lot more concerned about how their data is being used than public entities, how it is being represented. This is an important issue that as a product is being developed must be looked at more closely. When developing private sector data bases, a client must be sure that it is abiding by the terms and restrictions of any license agreement. The third issue is privacy. Obviously the government is subject to protect its citizen’s privacy. In the commercial sector right now it is somewhat unclear as to what a spatial technology company has to do to; or how “privacy” is defined in a spatial context; and, what the obligations of a spatial technology company are. I think you can analogize based on other types of laws such as The Health Insurance Portability and Accountability Act (HIPAA) of 1996 which protects certain health information. The Federal Trade Commission (FTC) is also looking at and enforcing privacy actions against various companies and in these privacy rulings may be applicable for spatial data. These are some of the issues that are unique to commercial companies doing business in the commercial market rather than doing business with the public sector.

Res Communis: That sounds like a lot more than just spatial data. These sound like data issues, in general.

Pomfret: These are data issues, yes. That is one of the points. If a piece of data is tied to a geographical location and it becomes spatial data, it still may be subject to the legal regimes that it might not otherwise be subject to, for example HIPAA or FTC regulations. There is also a question of what level of spatial privacy is protected when data is aggregated. If enough data is put together a particular individual can be identified with a certain amount of clarity and that is the level that people are ultimately concerned about. Now with digitized data and powerful software, hardware, and telecommunications it makes it relatively easy and inexpensive to do that level of processing. That is where the real privacy concerns come from on the spatial side.

Res Communis: How about privacy as it relates to the U.S. Fourth Amendment? Does that ever come across your desk?

Pomfret: I certainly follow it. I think there are some interesting cases working their way through the court system with respect to using spatial data for tracking purposes; whether it be by cell phones or by GPS devices. Laws have been developed such as the Stored Communications Act that addresses the Government’s ability to collect spatial data from telecommunications companies. A lot of companies that are collecting spatial data now, or private location data, are not necessarily subject to this kind of law. So when the government comes to a company without a warrant and asks for particular information on a particular individual, or to collect a bunch of data to figure out what the company might have, there is going to be a question as to whether this is proper. The U.S. telecommunications companies are struggling with this now whether they are trying to get immunity for data they collected and gave the government after 2001. These will certainly become an issue for spatial technology companies.

Res Communis: Do the legal issues change depending on the source of the data, that is, the platform from which the data is gathered? Does it make a difference if it comes from a county, a handwritten database, an airplane, a satellite, or an imaging device at an airport? Do the issues change based on the platform?

Pomfret: I think it can, depending on how the data is being used or how it is being collected. Certainly for instance if you are collecting satellite data there is the international regime related to the ability to collect data as compared to going to a local GIS department and trying to collect parcel data or tax data. There has been some question about the use of imagery to collect data on companies or individuals. The U.S. Supreme Court has considered cases along these lines and has held that, generally, there is no reasonable expectation of privacy for open areas; for instance, in your backyard even if you have a fence up. That question becomes even more important regarding other technologies. What is a reasonable expectation of privacy in a Google Earth when people now know that there is fairly high quality satellite imagery of their house available on the Internet? Does that mean there is less expectation for other types of satellites or sensors? There are also some local laws that apply to collecting data or using data. For instance, use of photographs of individuals for commercial purposes can be subject to state law. So what might be the case in Virginia might not be allowed in another U.S. state. I do think there are local laws that need to be considered in collecting data.

Res Communis: Your practice includes mergers, acquisitions, and business law as well as geospatial data law. How much of your practice is one or the other? Is one more dominant than the other?

Pomfret: My practice is approximately two-thirds of business, mergers and acquisitions, and finance work and one-third on the geospatial law side. It depends on a number of factors. There’s a lot of ebb and flow that goes on depending on what the clients are doing and what the financial market looks like.

Res Communis: Is there a part of your practice that relates to space?

Pomfret: Issues are coming together in the sense that data from satellite sensors from a variety of different countries are subject to both national and international regimes. So, if those data sets are being used, for instance, in a Google Earth, it has to be determined what regime is associated with that. Because of all the other data sets that are added I think there is also a sense from the industry standpoint that solutions need to be resolved as much internationally as locally because satellites are collecting data across the globe. Companies do not want to have to deal with a myriad of legal regimes to develop applications from the data. There is a real convergence when it is necessary to determine what sensor collected the data; where it was collected; what legal regimes apply to it.

Res Communis: What was your undergraduate degree?

Pomfret: I was a Political Science major with a Russian minor. When I went to work for the U.S. Central Intelligence Agency (CIA), I had written a thesis on arms control and my work with the CIA as an imagery analyst was associated with arms control.

Res Communis: It sounds like you had a Cold War education and now you are evolving into a Globalization Era career.

Pomfret: I certainly had a Cold War undergrad. The interesting thing for me in regards to geospatial technology and spatial data is that it has so many different uses. When I was doing the satellite work at the CIA we were using it for arms control and national security. It is still being used for that but now it is also being used for scientific work; research and development; commercial purposes; and, for humanitarian purposes. Even back when I was working on Soviet issues with the data and technology, it was clear it could be used for different things. It just had not been commercialized to the point that it could have the broader global application.

Res Communis: How do you see the next generation or the emerging generation of lawyers that are so technology aware interacting or changing the practice of law?

Pomfret: They will be more mobile. In a lot of industries there is telecommuting and other ways of doing business, virtual companies if you will. Law firms are less willing to do that. They tend to be more traditional and it is harder for them to make that change; but I think that the younger generation is coming along and requiring or looking at law firms, as to whether they allow that flexibility. This generation thinks they can do the work at places outside of the office just as well as in the office because of technology.

The one area that I think is going to be very interesting from a legal standpoint is privacy. I have children 14 and 17 who use things like FaceBook, MySpace, and other sites. I think they have a real different sense of communicating and privacy. They are not as worried about those things as our generation is. Partly because they are younger and they feel safer. They are not as concerned and haven’t been burned so they don’t worry about those things. But I think they also just understand things differently than we do. They have grown up in a different generation and realize that technology provides both good applications and uses; but in exchange every now and then it may be necessary to give up personal data. Our generation is a little concerned about that. How that affects the law will be interesting over the next twenty years or so.

Res Communis: Last summer there was discussion in Washington about changing the Civil Applications Committee to the National Applications Office. Can you bring us up to date on that?

Pomfret: I have heard various things. I have heard that they have almost worked out some of the privacy concerns that Congress had; that any day now it will be up and running. I have also heard that it is a nonstarter and that there are certain folks in Congress that say there is no way they will let it happen. So I really don’t know, but I believe there has been some talk of trying to create some Foreign Intelligence Surveillance Act (FISA) type court that might consider privacy and civil rights issues.

Res Communis: We are coming close to the end of our time. Are there any subjects, issues, or comments you would like to raise that I may not have thought of?

Pomfret: Technology and applications have grown and developed so quickly that the legal and policy community have simply been unable to keep up in terms of liability, privacy, data ownership. It’s not clear how the old laws and statutes apply to this technology. I wonder if at some point the lack of a relevant legal regime is going to affect the development of technology. That is part of what I’m trying to do, to educate both the industry and legal community on some of the issues that I see arising. They need to be thinking about these issues if not for now, then for a contract that is in force 5 years from now, what they may be facing 5 years from now. I like to tell businesses I don’t want to sound like that if you don’t do this you are going to get sued, be out of business and lose all your money. That is certainly not the case and I understand that the businesses have a lot of concerns on a day-to-day basis. Legal terms may not be the most important focus at any given time. But by the same token, as the industry matures, makes more money, is more successful, and as companies enter a different market, then the legal issues will become increasingly important. This has happened to many other industries. Microsoft had to deal with it; Internet companies had to deal with it; and spatial technology companies will have to deal with it as well.

Res Communis: That brings us to the end of our time. Thank you very much.