The Legal and Privacy Implications of Remotely Piloted Aircraft
By By Rick Sarre
Professor of Law, University of South Australia
Remotely piloted aircraft are becoming more common in our skies as decreasing costs put them in the hands of ordinary citizens, yet legal protection against privacy invasions by airborne cameras is inconsistent between the states.
In December 2011, I arrived with my wife at an Elton John concert that was being held in the grounds of a suburban brewery in Adelaide. I noticed, about 10 metres above us, a whirring little helicopter that was zooming over the heads of the thousands of concert-goers heading to the entry gates. Later someone explained to me that this miniature model aircraft was carrying a sophisticated computer that drove a motor and a surveillance camera. The information it provided had been simultaneously relayed to the organisers of the event so that they could ensure that the crowd was being marshalled into the grounds in an orderly fashion.
In the past 3 years these “unmanned airborne vehicles” (UAVs) or “remotely piloted aircraft” (RPA) have become more common in our urban skies. These vehicles are sometimes referred to as “drones”, but they are not drones. That term is more suited to unmanned military planes that fire deadly missiles. I will thus use the term “RPA”.
Model-sized RPAs are becoming affordable, too. A sophisticated RPA like the one I saw at the Elton John concert is now available to the public for less than $10,000. It could be hired (with an operator) for as little as $1500 per hour.
RPAs can be incredibly useful. They can be deployed for crime prevention, agricultural and mining surveying, aerial photography, bushfire spotting, beach patrolling, sports webcam deployment, and for search and rescue. The President of the Organisation for Security and Cooperation in Europe said in September 2014 that they plan to use RPAs to monitor the Russia–Ukraine border in their mission to broker deals between Ukraine’s warring sides. “We want to continue to help de-escalate the crisis,” Didier Burkhalter told reporters.
Experts are now suggesting that defence force operators who have finished tours of duty in Iraq and Afghanistan are considering offering their skills to the private sector, which means that there is likely to be a rapid expansion in RPA deployment and capability in the foreseeable future. Indeed, the United States Federal Aviation Administration has recently estimated that 30,000 of them could be flying in the skies of that country by 2035.
Every new innovation tosses up questions for the law. RPAs provide yet another example of this truism.
In September 2012, Federal Privacy Commissioner Timothy Pilgrim was reported as saying that he was concerned about RPA activities and the implications that unwanted surveillance might have for citizens. He noted that we are bedevilled by a patchwork of antiquated federal and state laws that may or may not cover RPAs. At the moment we are in legal limbo.
The key legal issues are safety and privacy. Are RPAs safe, and do they threaten our privacy? Let’s deal with them in that order.
The concern for public safety arises out of the possibility of an RPA straying into airspace and colliding with other aircraft, or dropping out of the sky, as happened on 7 April this year in Geraldton, Western Australia, when an RPA landed on the head of a triathlete during an event. There is only one regulatory authority equipped to manage the phenomenon from a safety perspective: the Australian Civil Aviation Safety Authority (CASA). But CASA treats an RPA as an aircraft. This will need some rethinking, as this is surely not the place for a “one-size-fits-all” approach to regulating all airborne vehicles.
The privacy concerns are obvious, too. How many of us would want our neighbours deploying an RPA over our backyard while we were sunbaking or attending to the family barbecue? How many of us would like to see journalists from the local newspaper or television station using an RPA to get closer for a photograph of a family during a moment of private grieving?
Pleasingly, a report was released in July 2014 by the House of Representatives Standing Committee on Social Policy and Legal Affairs (chaired by Nationals backbencher George Christensen). It is entitled Eyes in the Sky: Inquiry into Drones and the Regulation of Air Safety and Privacy (http://tinyurl.com/mf867ck). The Christensen Committee’s report provides an excellent snapshot into the current and potential uses and abuses of these clever little inventions, and makes a series of well-considered recommendations regarding the policy imperatives arising from them.
The Committee recommends, for example, that CASA take the lead in determining the preferred safety regulatory model to follow, and likewise recommends that the Australian Privacy Commissioner tackle the privacy concerns as he is best equipped to deal with them.
Significantly, the Committee recommends that the Australian government consider, by July 2015, introducing legislation that provides legal protection against privacy invasions by intrusive airborne cameras. This would include consideration of a new tort of “serious invasion of privacy”, a remedy that is well-established in New Zealand and the United Kingdom.
In the UK the most famous example of a serious privacy invasion was the case of Naomi Campbell, the British model who was receiving treatment for drug dependency. The Mirror wanted to report that information, and to publish a photo of her leaving a Narcotics Anonymous meeting. The court stopped publication by an injunction, determining that the harm to Campbell and her recovery outweighed the benefits of publication. Although the court intervened to protect Campbell from a serious breach of her privacy, it attached a legal remedy to what is known as the tort of breach of confidence.
Since 2000, the law in the UK must also now be discussed with reference to the human rights legislation in force in the European Union. In one case, the European Court prohibited the publication of photos depicting the daily life (at the beach, at a restaurant) of Princess Caroline of Monaco on the basis of this legislation. One can assume that people similarly offended in the UK would now have the same remedy.
In New Zealand, the courts have formally developed a tort of serious invasion of privacy, although in the leading case (Hosking v Runting) the court decided that a threshold test was not satisfied. Hosking was a well-known TV presenter, and New Idea wanted to expose his marital breakdown and use photos of the couple’s children. The court said that such a remedy was possible if the couple could satisfy this test: would publicity given to the children be considered highly offensive to an objective reasonable person? In the end they decided it would not.
Injunctions are the main remedy. Another remedy would be damages, but remember that it is not money that celebrities are after; it is the removal of the damaging or embarrassing information from the public eye.
In contrast Australian governments, under pressure from our media moguls, have long been pussy-footing around this area, notwithstanding repeated calls from law reform bodies to enact such a tort.
Indeed, on 3 September 2014, a report by the Australian Law Reform Commission (ALRC) entitled Serious Invasions of Privacy in the Digital Era (http://tinyurl.com/lsx63p7) was tabled in Federal Parliament. Like the Christensen Committee, the ALRC has recommended that the Federal Parliament create a statutory remedy for people who have been victims of invasions of privacy that are serious, committed intentionally or recklessly, and that cannot be justified as being in the public interest. It is likely to be ignored by the parliament.
An important consideration for those maintaining and operating RPAs is the recommendation of both the Christensen Committee and the ALRC that there should be a harmonisation of the current dog’s breakfast of surveillance and listening devices legislation found around the country. Indeed, the outdated legislation in Queensland, Tasmania and the ACT makes no reference to cameras at all, let alone cameras mounted on RPAs buzzing above our heads.
A 2013 attempt by the South Australian government to update its Listening and Surveillance Devices Act 1972 (in order, among other things, to regulate new surveillance technologies) was defeated in December last year after intense lobbying from the media (with, intriguingly, the support of the Law Society of South Australia).
Moreover, the Christensen Committee has specifically asked the Council of Australian Governments to consider the rules relating to the use of RPAs by law enforcement officials in the tracking and pursuit of those suspected of having committed criminal offences. This recommendation will need to be addressed in a uniform manner around the country as a matter of priority.
There is a view that our current privacy expectations regarding surveillance will continue to reduce over time, especially as technologies such as RPAs become more widespread. It is difficult to say whether or not this is true. On the one hand there is the strong sense that people indulge in a privacy/benefit trade-off, and calculate that their lives can be enhanced by the additional surveillance that will, for example, make their beaches safer and reduce crime and traffic congestion.
As the former Labor parliamentarian and Cabinet minister Craig Emerson wrote in The Australian in November 2013, “with every new closed circuit television camera installed, every retina reader in public and private places, every deployment of face-recognition technology, a decision is being made in favour of [public protection] over privacy” (http://tinyurl.com/m2epbjt).
Indeed, who does not believe that public officials are now being held to greater standards of accountability knowing that hand-held cameras on telephones are in just about everyone’s reach? Who can forget the exposure of the appalling practices of the Los Angeles Police Department by the public filming of the Rodney King beating in 1991?
On the other hand, it may be that individuals will develop a heightened expectation of privacy, given the possibility that any one of us might be under observation by an RPA (publicly or privately operated) at any time, whether we like it or not.
I am of the opinion that it is more likely that the former view will prevail, and that future generations will be less concerned with their individual privacy, driven by ever-increasing desire for visual connectivity at a relatively minimal cost, and even with a clear understanding of what it is that they are willing to allow to be exposed.
That being the case, parliament is the place to debate the extent to which individuals can be subjected to surveillance from a camera mounted on a mini-helicopter buzzing above our heads. This is a view shared by Canadian researchers as well (http://tinyurl.com/k4l2hj7).
The courts, too, will have a role to play in limiting the most serious invasions of privacy on a case-by-case basis. Ultimately the parliaments and courts will be directed, however, by the wishes and concerns of us as citizens.
In summary, new surveillance technologies are emerging rapidly and becoming more pervasive. They will have a direct effect on our behaviour. While they will allow us to be far more connected, have far greater mobility and enhanced access to information, they will result in challenges to our privacy.
It is up to all of us to determine the appropriate legal obligations and rules that will successfully balance the competing societal interests.