Legal Research

Abbreviations Used:

 UAV- Unmanned Aerial Vehicles

RPAS- Remotely piloted Aircraft Systems

UUV- Unmanned Underwater Vehicles

AUV- Autonomous Underwater Vehicles

CASA- Civil Aviation Safety Authority

CASR- Commonwealth Civil Aviation Act

ReOC- Remote Piloted Aircraft Operator’s Certificate

RePL- Remote Pilot Licence

UASSC- Unmanned Aircraft Systems Standards sub-committee

Introduction to Use of Drone Technology

Queensland stands as one of the leading countries in the field of drone technology and its application. The industry caters to job growth in the state and also attracts high investments. The term ‘drone’ is used to refer to ‘Unmanned Aerial Vehicles (UAV)’, ‘Remotely piloted Aircraft Systems (RPAS)’, ‘Unmanned Underwater Vehicles (UUV)’ or ‘Autonomous Underwater Vehicles (AUV)’. It is usually used for civil purposes and hasn’t been inducted for major military use, yet. There are huge developments in this field and new technologies are being invented each day. The Australian Civil Aviation Safety Authority (CASA) has recognised aerial drones as aircrafts and the drones are also liable to follow the provisions of Commonwealth Civil Aviation Act, 1998 (CASR)[1]. The drones used under-water are also governed by the appropriate statute and authority. Due to increasing developments in science and technology, the regulations to govern the working of drones has to be updated from time to time. The Unmanned Aircraft Systems Standards sub-committee (UASSC) is a body that was established as a joint body with the forum for aviation community and is entrusted with the regular changes in regulations governing drones. Drones come in all shapes and sizes varying from the ones that can fly outside a window and would not be noticed by the inmates or ones that are able to carry people.

Drone technology was invented by the military for survey purposes, but it gained quick popularity and was soon released in the public market with limited capabilities for civil use. CASA is the Authority that has been empowered with regulating powers with regard to drones. The Part 101- Unmanned aircraft and rockets of CASR consists of regulations for the use of drones for civil purposes.[2] Earlier, a Remote Piloted Aircraft Operator’s Certificate (ReOC) or a Remote Pilot Licence (RePL) was required for the purposes of flying a drone for commercial uses. This requirement has partially been removed after the amendment of the CASA Part-101. The use of medium weight drones (25-150 kg) above the private lands of the owner still require a RePL.

Statement of Problem

The use of drones over the owner’s private property does not infringe any rights. However, when the drone is flown over public lands and private properties belonging to other, their rights may be infringed. It is an accepted norm that the ground below the property and the air and sky above the property belongs to the owner of the land. The drone may not be in infringement when it flies at a high altitude, so as to not create issues with regard to enjoyment of the land, but when it flies low over the privately owned property, it can take evidence and can record voice as well as video as evidence. This was a serious issue at hand as the right to privacy is recognised by statute law. Recreational drones are largely available and used for recreational purposes such as creating vlogs. CASA is not empowered to deal with issues of infringement of privacy when a drone is flown low over properties in residential areas. The statutes that deal with such infringement of right to enjoy property are:

  • Audio can be recorded by low-flying drones- Invasion of Privacy Act, 1971
  • Criminal Code, 1899 for trespass against property.
  • Commonwealth Privacy Act, 1988
  • Crime and Corruption Act, 2001

On July, 2014, the Parliament’s House of Representatives Standing Committee of Australia on Social Policy and Legal Affairs came up with the Eyes in the Sky report.[3]It was recommended in the report that the Government of Australian should present a statute that offers safety against technologies that invade the privacy of a person’s private affairs. It was also recommended that the Government should co-ordinate with CASA to see that adequate measures were being taken to keep the privacy issues due to drone flight in check.

Research Questions

  • What is understood by privacy?
  • Does the use of drones create issues with privacy? How can it be dealt with?

Hypothesis

Drones were majorly used for recreational purposes by teens or vloggers who needed to shoot for content, but the uses of drones grew with time. It started being used to spray pesticide on farms and crops, to track animals in nature parks, Hollywood and Bollywood also found ways to take more creative shot, the real use began with the onset of the pandemic. With human contact being prohibited, drones started being used to deliver medicines, food and other essential stuff. This changed dynamics and the market for drones started booming. The uses of Drones by the different Departments of the Government have been mentioned below, but they cannot be understood to be exhaustive. With the increased use of drones for surveillance, other departments may decide to use the technology for better results. The departments are as follows:

  • Department of State Development: uses drones to identify acts of illegal fishing off the coast.
  • Department of Agriculture and Fisheries: used for application of chemicals on forest areas to cater to the weed issues, detection of forest fires, theft of timer.
  • Department of National Parks, Sport and Racing- used to monitor conditions in protected areas, asset identification.
  • Department of Transport and Main Roads: used to assess and inspect the safety and maintenance of bridges and roads, monitor construction progress

Objective of Research

The use of drones has become very common in day-to-day lives. The saying “advancement of technology is a boon and a bane at the same time” may be considered to be true in this scenario. Where on one hand, the invention of drones has led to so many tasks becoming manageable, is the cost of privacy too much to pay for these advantages? The study at hand shall compare the advantages by the use of drones to the issue of privacy and then, the readers can decide for themselves. Although the right to privacy has been recognised as a complementary right to life, what limitations can be imposed on the same?

Methodology

This is a Qualitative/Doctrinal Research project. The relevant material for this project has been collected from the primary as well as secondary sources. Qualitative Research is a research that is based on the principles or the propositions made earlier as well as first hand data collected from sources. It is based on the sources like books of the library, and through various websites and data collected personally. This project is totally based on doctrinal research.

Data Collection is Primary as well as Secondary. Mostly, in Doctrinal research the secondary mode of data collection is used. The source of data collections includes: 

* Personal Data Collection

* Resources available in the library

* Sources available on the internet

* International Conventions and Treaties

* Statutes

* Journals

* Judgments

Privacy

The Oxford dictionary defines the term ‘privacy’ as: “The state or condition of being alone, undisturbed, or free from public attention, as a matter of choice or right; seclusion; freedom from interference or intrusion.”[4] There is no accepted definition of the term ‘privacy’ as each individual has an understanding of it which is different from the rest. However, it can mean that the individual has to give consent before any matter related to him/her is disclosed to the world. The International Human Rights recognise the Right to privacy in the Human Rights Bill, 2018. The Right to privacy has also been recognised as a fundamental right in few countries like India and they claim that the Right to Life is inclusive of certain other rights like the Right to live with Dignity and the Right to Privacy. Every individual should be allowed to spend time with himself without the forced intrusion of being watched. The concept of privacy may even be applicable in public areas and not just on private properties. The concept of privacy also differs from person to person as the same level of privacy would not be expected by a normal citizen and a celebrity. The right to privacy is not absolute in Australia but may be understood as complementary to other rights such as confidentiality and reputation which is worthy of legal protection, but the right should always be balanced against the interest of the public.

Surveillance

The basic term comes from a French word which means to watch over. The act of watching over an individual without consent of the other party, even when done as an innocent act can infringe into a person’s privacy. Surveillance may not always fall under the ambit of infringement of privacy when the act of being watched in known to individuals. There are CCTV cameras in banks and malls, this cannot be considered to be infringement of privacy, nor can surveillance of prisoners in reform centres or prisons be maintained as infringement. Surveillance can be divided into several categories. The list is not exhaustive and more categories can always be included in the list.

  • Audio recording of conversations or sounds over the telephone or in life, as it is.
  • Visually watching over a person without consent of that individual.
  • The data of an individual may be recorded and monitored for use which may be information in relation to credit cards, debit cards, electronic communication done between the individual and some other party, use of cookies on the internet without informing the user.
  • Recording the movement or location of an individual

With the advancement in technologies, these devices are becoming lighter and smaller by the day and the cost of production is also going down. Previously, any device used for surveillance was manned by humans and needed direct commands from the human kind to function in a proper manner, along with being limited due to its high costs and bulky structures. The information collected had to be separately stored. Drones are not the only invention that has made infringement possible, the common device of smartphones that is used by almost every individual on the planet is also a potential threat to privacy as the theft of data has become easier with everybody using the internet for everyday lives. With the invention of drones, an individual can see and monitor up to hundreds of kilometres around him without letting the person being watched know.

Suggestions

With regard to the issue surveillance and privacy in residential areas, the difference remains that if it is done by any department that is attached to the government and is working for the welfare and protection of the public, then the issue of privacy may be overlooked as it is being done for the greater good. However, with respect to commercial, civil and recreational flying of drones, a minimum standard level has to be set by the statute, under which the drones shall not be allowed to fly as they could record or capture evidence that may infringe the privacy rights of an individual. Drones may be allowed to fly at any level in public places, but any recording captured by the drone shall not give rise to any court proceedings. It may be allowed to be retrieved as evidence is any other case that is being tried by the Court. If an individual is under the impression that the drones cannot ‘peer’ inside the walls of their house, then let it be known that there are drones which are equipped with ‘infra-red’ sensors. These sensors can be used to track movement within walls. 

Conclusion on Use of Drone Technology

The advancement of technology has made lives easier for this generation. We have provisions of electricity at the flick or a button and can connect with long-lost friends from high or middle school, but it brings along with all these advantages, a number of disadvantages as well. In this paper, we have focussed on privacy issues that are being violated by the use of drones for surveillance in residential areas. The technology ensures that even if an individual is inside the safety of their homes, their movements can be tracked, data stolen, acts recorded, all with the help of a drone that the individual wont even feel the presence of. To cater to the issues to such privacy issues, amendments have to be made to the existing statute provisions and it has to be seen that the civil usage of drones is not involved in illegal activities as privacy is a prized possession in this generation of increasing population.

Bibliography for Use of Drone Technology

Books

Cavoukian, A. (2012). Privacy and drones: Unmanned aerial vehicles (pp. 1-30). Ontario: Information and Privacy Commissioner of Ontario, Canada.

Thompson, R. M., & Richard, M. (2015). Domestic Drones and Privacy: a primer (Vol. 43965, p. 30). Washington, DC: Congressional Research Service.

Articles

Altawy, R., & Youssef, A. M. (2016). Security, privacy, and safety aspects of civilian drones: A survey. ACM Transactions on Cyber-Physical Systems1(2), 1-25.

Clarke, R. (2014). The regulation of civilian drones' impacts on behavioural privacy. Computer Law & Security Review30(3), 286-305.

Clothier, R. A., Greer, D. A., Greer, D. G., & Mehta, A. M. (2015). Risk perception and the public acceptance of drones. Risk analysis35(6), 1167-1183.

Gruber, R. H. (2014). Commercial Drones and Privacy: Can We Trust States with Drone Federalism. Rich. JL & Tech.21, 1.

Lin, C., He, D., Kumar, N., Choo, K. K. R., Vinel, A., & Huang, X. (2018). Security and privacy for the internet of drones: Challenges and solutions. IEEE Communications Magazine56(1), 64-69.

Liu, Z., Li, Z., Liu, B., Fu, X., Raptis, I., & Ren, K. (2015, June). Rise of mini-drones: Applications and issues. In Proceedings of the 2015 Workshop on Privacy-Aware Mobile Computing (pp. 7-12).

Luppicini, R., & So, A. (2016). A technoethical review of commercial drone use in the context of governance, ethics, and privacy. Technology in Society46, 109-119.

McKelvey, N., Diver, C., & Curran, K. (2015). Drones and privacy. International Journal of Handheld Computing Research (IJHCR)6(1), 44-57.

Schlag, C. (2013). The new privacy battle: How the expanding use of drones continues to erode our concept of privacy and privacy rights. Pittsburgh Journal of Technology Law & Policy13(2).

Takahashi, T. T. (2012). Drones and privacy. Colum. Sci. & Tech. L. Rev.14, 72.

Wang, Y., Xia, H., Yao, Y., & Huang, Y. (2016). Flying eyes and hidden controllers: A qualitative study of people’s privacy perceptions of civilian drones in the US. Proceedings on Privacy Enhancing Technologies2016(3), 172-190.

Wong, R. Y., & Mulligan, D. K. (2016). These aren't the autonomous drones you're looking for: investigating privacy concerns through concept videos. Journal of Human-Robot Interaction5(3), 26-54.

Chang, V., Chundury, P., & Chetty, M. (2017, May). Spiders in the sky: User perceptions of drones, privacy, and security. In Proceedings of the 2017 CHI conference on human factors in computing systems (pp. 6765-6776).

Yao, Y., Xia, H., Huang, Y., & Wang, Y. (2017, May). Privacy mechanisms for drones: Perceptions of drone controllers and bystanders. In Proceedings of the 2017 CHI Conference on Human Factors in Computing Systems (pp. 6777-6788).

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