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Eyes in the sky – drones and privacy

On 14 July 2014, the House of Representatives’ Standing Committee on Social Policy and Legal Affairs (Committee) published a report on the impact of drones on privacy in Australia. Titled Eyes in the Sky: Inquiry into the Regulation of Air Safety and Privacy (Drones Report), the paper discusses many of the issues that arise from the increased prevalence of drone (or ‘remotely piloted aircraft’ (RPA)) technology within Australia’s current air safety and privacy frameworks.

The Drones Report was developed after considering a number of roundtable discussions with a range of interested government, commercial and industry groups. It considers the civil, commercial and recreational applications of RPAs and is primarily focused on the implications of RPA use in the areas of air safety and privacy. No reference is made to military RPAs or their uses throughout the Drones Report.

Content of the Report

Applications of RPA technology

Chapter 2 of the Drones Report discusses the current and future applications of RPA technology in a broad range of areas. These include law enforcement, media, journalism, science and agriculture.

Air safety

Chapter 3 of the Drones Report examines the risks to air safety posed by RPA usage.

Particular emphasis is given to the Committee’s discussions with the Civil Aviation Safety Authority (CASA).  Due to safety concerns, CASA does not currently permit RPAs to use shared airspace and has imposed substantial restrictions on commercial RPA operators. These restrictions, represented within the Civil Aviation Safety Regulations 1998 (Cth) (Regulations), are discussed throughout Chapter 3.

The Regulations distinguish between commercial and recreational RPA use. Unlike commercial users, those who use RPAs recreationally do not require CASA approval. Recreational RPA use is governed by the same regulations that apply to model aircraft. The only extent to which the Regulations apply to recreational RPA use is in regards to ‘standard operating conditions’, which include requirements that RPAs only be operated below 400 feet, at least three nautical miles from populous areas, and within a visual line of sight.

CASA identified two specific safety concerns regarding RPA technology: the quality and durability of the materials from which RPAs are constructed, and the technology that controls their behaviour. Safety issues based upon roundtable discussions held with CASA and other stakeholders are identified and explained in detail throughout Chapter 3. A recurring theme of these discussions was the availability of RPAs to members of the general public who often do not understand how to operate them safely, or are not conscious of their risks.

Additionally, the Drones Report observes the role of the International Civil Aviation Organisation (ICAO) in regulating RPA use. ICAO is currently in the process of developing a regulatory framework and, while the precise content of this framework is unclear, CASA has indicated it will be taken into account when future reviews of the Regulations are conducted.
CASA has stated it does not plan to extend the rules governing commercial RPA use to recreational drones.

Privacy

Chapter 4 focuses on privacy issues.

The Committee acknowledges RPAs have the potential to pose a serious threat to Australians’ privacy. Accordingly, the Drones Report examines Australia’s existing regulation of RPAs in relation to privacy issues and looks at ways by which Australian privacy laws can be enhanced to adequately address the risks posed by RPAs.

Despite the existence of broad privacy protections within the Privacy Act 1988 (Cth) (Privacy Act), the Committee states that these protections do not apply to the collection and use of personal information by private citizens and do not therefore provide overarching privacy protection for the individual. Additionally, the Privacy Act does not operate to protect against intrusions into Australians’ private seclusion.

While some states and territories have also established privacy laws of their own, they are also restricted in that they tend only to relate to the activities of government agencies. These limitations, at both the federal and state (and territorial) levels, highlight the shortcomings of existing privacy laws in protecting individuals against the invasive use of RPAs.

Other major issues pertaining to privacy discussed within the Drones Report include:

  • uncertainty of the law of privacy’s scope and effect
  • limited avenues of redress for breaches of privacy
  • the increased burden placed on industry (particularly the media)
  • new issues regarding the legality of surveillance by RPAs.

Recommendations

The Committee reported roundtable participants continually emphasised RPAs represent just one of the many emerging technologies with the potential to seriously affect privacy in Australia. Additionally, the Drones Report acknowledges regulation of RPA usage in itself is likely to be extremely difficult.

Accordingly, the Drones Report states any changes to the existing privacy laws should be broad and all-encompassing.

The recommendations made by the Drones Report are as follows:

Recommendation 1 – The Australian Government, through CASA, should broaden future consultation processes it undertakes in relation to RPA regulations to include industry and recreational users from a non-aviation background.

Recommendation 2 – The Australian Government, through CASA, should include information on Australia’s privacy laws with the safety pamphlet CASA currently distributes to vendors of RPA.

Recommendation 3 – The Australian Government should consider introducing legislation by July 2015 that provides protection against privacy-invasive technologies (including RPA), with particular emphasis on protecting against intrusions on a person’s seclusion or private affairs.

Recommendation 4 – The Australian Government should initiate action to simplify Australia’s privacy regime by introducing harmonised Australia-wide surveillance laws that cover the use of listening devices, optical surveillance devices, data surveillance devices and tracking devices.

Recommendation 5 – The Australian Government should consider the measures operating to regulate the use or potential use of RPAs by Commonwealth law enforcement agencies for surveillance purposes in circumstances where that use may give rise to issues regarding a person’s seclusion or private affairs.

Recommendation 6 – The Australian Government should coordinate with CASA and the Australian Privacy Commissioner to review the adequacy of the privacy and air safety regimes in relation to RPAs, highlighting any regulatory issues and future areas of action, with a view to publicly releasing the review in June 2016.

This eAlert was prepared by Dom Mollica, a final year law student at La Trobe University, during his seasonal clerkship with Maddocks.

On 14 July 2014, the House of Representatives’ Standing Committee on Social Policy and Legal Affairs (Committee) published a report on the impact of drones on privacy in Australia. Titled Eyes in the Sky: Inquiry into the Regulation of Air Safety and Privacy (Drones Report), the paper discusses many of the issues that arise from the increased prevalence of drone (or ‘remotely piloted aircraft’ (RPA)) technology within Australia’s current air safety and privacy frameworks.

The Drones Report was developed after considering a number of roundtable discussions with a range of interested government, commercial and industry groups. It considers the civil, commercial and recreational applications of RPAs and is primarily focused on the implications of RPA use in the areas of air safety and privacy. No reference is made to military RPAs or their uses throughout the Drones Report.

Content of the Report

Applications of RPA technology

Chapter 2 of the Drones Report discusses the current and future applications of RPA technology in a broad range of areas. These include law enforcement, media, journalism, science and agriculture.

Air safety

Chapter 3 of the Drones Report examines the risks to air safety posed by RPA usage.

Particular emphasis is given to the Committee’s discussions with the Civil Aviation Safety Authority (CASA).  Due to safety concerns, CASA does not currently permit RPAs to use shared airspace and has imposed substantial restrictions on commercial RPA operators. These restrictions, represented within the Civil Aviation Safety Regulations 1998 (Cth) (Regulations), are discussed throughout Chapter 3.

The Regulations distinguish between commercial and recreational RPA use. Unlike commercial users, those who use RPAs recreationally do not require CASA approval. Recreational RPA use is governed by the same regulations that apply to model aircraft. The only extent to which the Regulations apply to recreational RPA use is in regards to ‘standard operating conditions’, which include requirements that RPAs only be operated below 400 feet, at least three nautical miles from populous areas, and within a visual line of sight.

CASA identified two specific safety concerns regarding RPA technology: the quality and durability of the materials from which RPAs are constructed, and the technology that controls their behaviour. Safety issues based upon roundtable discussions held with CASA and other stakeholders are identified and explained in detail throughout Chapter 3. A recurring theme of these discussions was the availability of RPAs to members of the general public who often do not understand how to operate them safely, or are not conscious of their risks.

Additionally, the Drones Report observes the role of the International Civil Aviation Organisation (ICAO) in regulating RPA use. ICAO is currently in the process of developing a regulatory framework and, while the precise content of this framework is unclear, CASA has indicated it will be taken into account when future reviews of the Regulations are conducted.
CASA has stated it does not plan to extend the rules governing commercial RPA use to recreational drones.

Privacy

Chapter 4 focuses on privacy issues.

The Committee acknowledges RPAs have the potential to pose a serious threat to Australians’ privacy. Accordingly, the Drones Report examines Australia’s existing regulation of RPAs in relation to privacy issues and looks at ways by which Australian privacy laws can be enhanced to adequately address the risks posed by RPAs.

Despite the existence of broad privacy protections within the Privacy Act 1988 (Cth) (Privacy Act), the Committee states that these protections do not apply to the collection and use of personal information by private citizens and do not therefore provide overarching privacy protection for the individual. Additionally, the Privacy Act does not operate to protect against intrusions into Australians’ private seclusion.

While some states and territories have also established privacy laws of their own, they are also restricted in that they tend only to relate to the activities of government agencies. These limitations, at both the federal and state (and territorial) levels, highlight the shortcomings of existing privacy laws in protecting individuals against the invasive use of RPAs.

Other major issues pertaining to privacy discussed within the Drones Report include:

  • uncertainty of the law of privacy’s scope and effect
  • limited avenues of redress for breaches of privacy
  • the increased burden placed on industry (particularly the media)
  • new issues regarding the legality of surveillance by RPAs.

Recommendations

The Committee reported roundtable participants continually emphasised RPAs represent just one of the many emerging technologies with the potential to seriously affect privacy in Australia. Additionally, the Drones Report acknowledges regulation of RPA usage in itself is likely to be extremely difficult.

Accordingly, the Drones Report states any changes to the existing privacy laws should be broad and all-encompassing.

The recommendations made by the Drones Report are as follows:

Recommendation 1 – The Australian Government, through CASA, should broaden future consultation processes it undertakes in relation to RPA regulations to include industry and recreational users from a non-aviation background.

Recommendation 2 – The Australian Government, through CASA, should include information on Australia’s privacy laws with the safety pamphlet CASA currently distributes to vendors of RPA.

Recommendation 3 – The Australian Government should consider introducing legislation by July 2015 that provides protection against privacy-invasive technologies (including RPA), with particular emphasis on protecting against intrusions on a person’s seclusion or private affairs.

Recommendation 4 – The Australian Government should initiate action to simplify Australia’s privacy regime by introducing harmonised Australia-wide surveillance laws that cover the use of listening devices, optical surveillance devices, data surveillance devices and tracking devices.

Recommendation 5 – The Australian Government should consider the measures operating to regulate the use or potential use of RPAs by Commonwealth law enforcement agencies for surveillance purposes in circumstances where that use may give rise to issues regarding a person’s seclusion or private affairs.

Recommendation 6 – The Australian Government should coordinate with CASA and the Australian Privacy Commissioner to review the adequacy of the privacy and air safety regimes in relation to RPAs, highlighting any regulatory issues and future areas of action, with a view to publicly releasing the review in June 2016.

This eAlert was prepared by Dom Mollica, a final year law student at La Trobe University, during his seasonal clerkship with Maddocks.