Tuesday, January 10, the Haines Borough Assembly will have the opportunity to introduce an ordinance that will classify as confidential the global position data (GPS) submitted by heli ski tour operators. The data is required by ordinance and as a condition of the permit.
If the ordinance is introduced, there will be public hearings (opportunity for public comment) during the next two Assembly meetings (January 24 and February 14).
The status of the GPS information was a topic of discussion in the heli ski work group sessions last year. At least two operators requested that the data be held as "proprietary." The ordinance was drafted last year and I requested the Clerk to include it on the January 10 agenda.
The introduction of the ordinance will initiate the public discussion of whether the GPS data is or is not proprietary. The Alaska Supreme Court has held that trade screts and confidential business information are protected under both the Alaska and the United States Constitutions.
In determining whether something is a trade secret the court has relied on Alaska's Uniform Trade Secrets Act. That statute defines "trade secret" as information that derives independent value from not being generally known. The Alaska Supreme Court has inferred that the party would have to show that the party would be competitively disadvantaged by disclosure of the information and how the harm will come about. Introduction and subsequent public hearings will offer heli ski permit holders the opportunity to demonstrate how they will be harmed by public disclosure of the GPS information.
The permit holders have made a reasonable request of the Borough Assembly; it is time, or even slightly past time, for the Borough Assembly to respond. That's why I have asked that this ordinance be offered to the Assembly for introduction.
Thanks for posting the information, Stephanie. Your blog is very much appreciated.
ReplyDeleteI believe that there are two issues that are debatable here. The most obvious issue is, as you point out, whether this data is proprietary. As you say, on the one hand the industry must prove harm by the disclosure of this information. On the other side, the people of Haines, as THE ultimate authority in this borough, may argue that this information provides necessary oversight of the industry to protect the overall interests of the citizenry from harm. This, no doubt, could be a very interesting debate.
I feel, however, that the deeper debate is whether business entities and corporations have rights and protections under the US and AK Constitutions - documents intended solely for individual, living human beings. Corporate "personhood", in my opinion, is THE over-riding issue that has robbed the American people of its ability for self-governance.
As living, breathing human beings, "We the People" have been endowed our "rights and protections" through either the original intent of the Constitution (rights only for white, property-owning males), or through very long and hard-fought battles for constitutional amendments (extending rights to women and people of color) - battles rightly expanding the "inalienable rights" in the constitution to include all human beings.
Corporations and businesses, however, were granted these constitutional "rights and protections" not by "We the People", but by a handful of radical judges in the Supreme Court. Radical rulings giving corporations "personhood" and allowing "money as speech" have left us with a bastardized democracy where large corporate interests have now secured more access to government, more influence in government, and more protection from government. One must wonder that if it were put to a vote today, would the American People vote to grant businesses and corporations these constitutional rights and protections? After all, as THE ultimate authority over government, We the People, not the courts, are the only ones who truly have the power to grant these privileges.
"We the People" were intended to be THE ultimate authority in this democratic society. Radical judicial rulings have elevated businesses and corporations to a pedestal of sovereignty never intended by our Founders, or never granted through amendments to the constitution by the People of this nation. Some may say that this larger debate is outside the authority or scope of this local issue, and we should not bother with it. I say, however, that at some point the People of this nation must rise and say, "Enough! We want our country back". This will start, and may already have started in other regions of the country, at the local, grassroots level. Should we start this larger dialogue today here in Haines with this local issue?
I have to ask, if not now, when?
Respectfully
Mike Denker
Hi Mike,
ReplyDeleteTo your first point, the people will continue to be able to monitor the performance of the heliski operators, though indirectly, even if the GPS data is held by the Borough as proprietary. It might work like this: an inquiry is made or a complaint levied. Since staff will be routinely consulting the data, they ought to be able to field the inquiry easily: GPS data will indicate if the operator was in or out of bounds. The public will have access through staff, but not to the specific coordinates. That's all.
As to your second point relative to corporations compared to people, let me ask this: if the heliski operator were Joe Smith d/b/a Heliski Haines, would Joe's appeal to have the GPS data proprietary be acceptable? In other words, I don't think the case of proprietary information relates directly to the status of the information holder as corporate or not. It is a classification that can be attributed to a "trade secret" held by anyone pursuing commerce.
I think one of the key elements in this issue is that we are dealing with a government permit to operate on public lands. In this regard, the public has the right to know how that their commonly-held land is being used, and this would seem to include all data collected on permittee usage of the land.
ReplyDeleteIt's hard for me to conclude that a business that is granted the use of lands that belong to all of the people can legitimately claim that the areas of land they are using should be kept a secret from those who own the land.
Yes, the public lands are directly managed by our elected representatives and their employees. But in a democracy don't public officials have a duty to provide access to needed information to the citizenry in order to demonstrate that their lands are being managed responsibly?
Hello, Stephanie.
ReplyDeleteRegarding your question: "if the heliski operator were Joe Smith d/b/a Heliski Haines, would Joe's appeal to have the GPS data proprietary be acceptable?"
No. This type of classification of convenience is part of the overall problem with this society. On the one hand, "Joe Smith d/b/a Heliski Haines" is an entity seeking to avoid individual risk, responsibility and liability. On the other hand, this entity seeks full constitutional rights and protections as "Joe Smith" the individual.
Hmmm. Seeking individual reward with no individual risk, responsibility or liability. Why does the 2008 Financial Crisis come to mind here?
To fully assess the entity we are dealing with here, I think one must assess where the responsibility and liability lie.
I feel you partly hit on the answer to your own question with this statement: "I don't think the case of proprietary information relates directly to the status of the information holder as corporate or not. It is a classification that can be attributed to a "trade secret" held by anyone pursuing commerce."
The key word you identify is: anyONE.
As I stated in my previous comment, the Constitution, and all its rights and protections, was intended for individual, living, breathing human beings. Initially, these rights and protections were reserved solely for white, property-owning males. Over time, these rights and protections were expanded to include all human beings, through hard-fought battles for constitutional amendments.
That the courts have taken it upon themselves to extend these rights and privileges to corporations, businesses and other group entities is wrong. The American People have not voted, nor have been offered the opportunity to vote, to extend constitutional rights and protections to businesses, corporations, or group entities.
It may be argued that even so, we are compelled to follow the decisions of the court. But I must ask, where would we be as a country if we blindly followed court decisions we knew in our hearts to be wrong?
Would women have the right to vote today?
Would people of color have full constitutional rights and protections?
It took ordinary people, with extra-ordinary courage and the desire to stand on principle, to stand up and say "No! This is not right!" They stood up and challenged decisions by the courts that they knew were wrong.
Well, the courts were wrong to extend constitutional rights and protections to companies, corporations, businesses, unions, and other group entities without the consent of the American People. If we truly feel these decisions to be wrong, are we not compelled to challenge them?
Rosa Parks thought so.
Mike
I was browsing through blogs and got hold of yours. I think this is a much sorted text and I would like to follow up on this. There are people who want to experience different ways to doing the same thing and when you find that someone is doing heli-ski you must understand it is all about skiing in a natural habitat without any regular gear for skiing or the usual effort. The skiing is done from helicopter on any off trail and mostly it is downhill skiing. The people who indulge in these activities seek out more pleasurable condition for skiing and that is why they do not select the usual and manipulated skiing ground of regular ski. The descents for the special skiing are long and often have powdered snow for the experience.
ReplyDeleteFor more information related to this please visit: heli-ski