Drones interview

April 6, 2013 |

Last Wednesday, 3 April 2013, the stand in presenter on the ABC morning shift in Melbourne, Sally Warhurst interviewed Hai Tran of Coptercam regarding the civilian use of drones.  It is found here.  It is worth a close listen. It was a fairly soft interview but the privacy issue came up quickly and became a focus of discussion.  Tran confirmed that the main regulation is through CASA.  CASA quite rightly says it regulates safety so privacy issues are not in its bailiwick.  Tran, typical of many private operators who use new technology focused on the ethical uses by the established players.  Needless to say he identified himself as an ethical operator who can be trusted with this technology.  He emphasised this point by way of example, recounting  job requests which would have involved potentially egregious breaches of privacy.  He solemnly stated that he refused these jobs.  All well and good but the practical and real examples he gave merely highlights the potential infringements on personal privacy with drones by other less ethical operators who might comply with CASA regulations.

It is poor policy and very naive to assume the drone operating community will always, or even often, be ethically minded.  There are ethically dubious doctors, solicitors, engineers, architects, real estate agents (yes really!) as well as the legion of business people and members of the public who have the yen to operate a drone but are not subject to any professional oversight.  Absent controls or sanctions for bad behaviour some individuals will drift from the ethical path.  Others won’t even start on it.  It has happened already overseas and it is just a matter of time before some significant act of stupidity involving an interference with someone’s privacy will occur.  Hugh De Kretzer called in and highlighted the lack of privacy protections for those who will transgress.

The reality is that regulation by CASA will always be about safety.  The operators’ focus will always be about having good safety regulation and maintaining the technical standards of the operators.  The operators have little to no interest in having regulation dealing with privacy.  All of that is fair enough as far as it goes.  Some operators will push the limits until they reach the boundaries.  Of which there are effectively none in the privacy context. Where the market won’t or can’t regulate its members, in particular the outliers, the legislature should do so.  If the legislature doesn’t then the courts often step in, often to the hue and cry of those obsessed about “judicial activism” but who have little understanding of the term.

The current privacy protections, common law and statute, at both a Federal and State level, do not provide any coherent easily enforceable legal protections, when they exist at all.

The attitude of CASA is set out in the transcript of an interview conducted in April last year (found here).  The issue of privacy was front and centre then, almost 12 months ago.  Since then the Commonwealth Government wasted an opportunity to incorporate protections in the amendments to the Privacy Act, by route of a statutory right of privacy or by other means, or by amendment to other legislation or even a stand alone act.  It did nothing.  The technology moves on, becomes more effective and cheaper and its use more pervasive.  And the legislature hopes for the best.

The transcript of interview provides:

TIM HOLT: Well a little more high-tech in the region this morning. If you’ve noticed some strange objects buzzing around the skies over your place lately, you’ve most likely seen a UAV, that is, an unmanned aerial vehicle. Perhaps better known as drones.

These remote-controlled aircraft are on the increase.

On the Monaro yesterday around 70 people turned up to watch a remote-controlled helicopter demonstrate spraying noxious weeds. Real estate agents are putting them into the skies to get aerial shots of properties for sale; also, an increasing number of media outlets are using them, too. Their use does, however, raise a few questions. Safety, of course. There are privacy issues.

Peter Gibson, from the Civil Aviation Safety Authority on the line this morning.

Peter, good morning.

PETER GIBSON: Good morning.

TIM HOLT: Look, good to catch up with you Peter, and I spoke to you briefly yesterday. And you were telling me there is a great deal of interest in this new technology.

PETER GIBSON: Yes. Certainly is a developing area of aviation. And we identified that a few years ago, and in fact we appointed our first unmanned aerial aircraft systems expert, a specialist to Civil Aviation Safety Authority, because we realised we needed the resources to develop the rules to give the approvals to the people who operate these unmanned aircraft; and issue certificates to the pilots.

We think it’s an area that will continue to grow into the future.

TIM HOLT: What sort of uses are you hearing about at the moment? What sort of applications are you receiving for these things?

PETER GIBSON: They are largely being used for things like aerial photography, aerial surveillance, as you say agricultural uses such as spraying, power line inspections – there are a number of them being used for power line inspections. Mining surveys, those sorts of things – activities where you don’t need a large payload, essentially, because most of these aircraft, at this stage, are relatively small – although the ones that are doing the crop-spraying are up there with a boom on them of about 1.5 metres. And obviously, carrying quite a bit of chemical.

TIM HOLT: And I understand that there are people like Queensland Surf Life Saving who are looking to use this technology.

PETER GIBSON: An application is coming from Queensland Surf Life Saving to undertake a trial on one of the Stradbroke Islands. And their idea is, and it sounds like a pretty good one, that they can be set up on a base on one beach, and use a fixed-wing, remotely piloted aircraft with a camera on board to be able to look at several other beaches nearby without actually having surf lifesavers on them, and being able to respond quickly if they see people in trouble.

So they’ll have trained and authorised surf lifesavers operating the remotely piloted aircraft on one beach, carrying out surveillance over a number of others.

So it’d be like sitting on Merimbula Beach and being able to keep a watch on Pambula Beach and Tura Beach and whatever else.

TIM HOLT: I can imagine these, the applications of these in search and rescue situations down the track, it’ll just be part and parcel of how we operate.

PETER GIBSON: As the technology develops, gets more reliable, as the aircraft can stay up longer, and got greater range. You can see all sorts of applications where you can get these things into more difficult areas where piloted aircraft are going to be you know restricted in their operations, and search and rescue absolutely could be one of them.

TIM HOLT: Without putting a pilot and personnel at risk as well so that there are certainly some advantages, one would think.

What sort of regulation is in place, and is being developed, I guess, Peter?

PETER GIBSON: We’ve certainly got rules in place.

In fact Australia was the first country in the world to put rules in place for remotely piloted aircraft about 10 years ago. We are looking at those right now in terms of needing to update them to reflect the improving technology.

But essentially yes, if you’re going to operate one of these aircraft commercially or for a task such as policing or fire fighting you need an approval from the Civil Aviation Safety Authority. So you must tell us what you want to do, and make an application for that. We will make sure that it can be operated safely, that the people who are actually flying remotely piloted aircraft are properly trained, that they understand the aviation rules; and obviously understand how to interact with other aircraft. So they don’t pose any other dangers to aviation.

TIM HOLT: Because we’re hearing, and there’ve been some reports in the local press for instance of people seeing these things in the sky and it seems like there are people like real-estate agents that are using them to get aerial shots of properties. In fact, one report I read in the paper a resident said a drone appeared. It was about six feet in diameter. She said it came extremely close to her home, and to her bedroom window where she was resting at the time.

I mean there are probably a number of issues, safety obviously. But also privacy issues that are around this as well.

PETER GIBSON: Yeah, there are, that’s right. And some really haven’t been looked at a lot yet, and they strictly fall outside the area of the Civil Aviation Safety Authority’s responsibilities because our focus is on safety. But I think there’s going to need to be some community debate about the privacy issues, because it’s quite obvious that many of these remotely-piloted aircraft will be fitted with cameras to carry out various tasks. And you can see what the privacy issues might be there. There’ll probably need to be some debate at some point about that. And governments, the aviation industry and community will need to come to some views on that.

But certainly we’ll make sure that people operate these aircraft safely. And a very important reminder to anybody, including real estate agents, that if you’re going to use one of these remotely piloted aircraft commercially or for any activity that is not recreational – if for example you’re going to use it to take photographs of a property, and then sell that property – then you do need an approval from the Civil Aviation Safety Authority.

So you should contact us.

TIM HOLT: Because these generally speaking are different to the hobby-sized remote controlled air vehicles too, aren’t they.

PETER GIBSON: They can be larger but they can be interchangeable in fact.

They can be the same aircraft.

But if you’re using it commercially the law does require you to have an approval from the Civil Aviation Safety Authority. So even if you’re operating it – operating a remotely piloted aircraft that also can be used as a hobby aircraft – if you’re using it commercially or for what we call aerial work – you do need an approval. And it’s important, too, that if you’re going to be using it anywhere near other people, obviously there are lots of safety issues there. And you should talk to us first so that you get good appreciation of what you can and cannot do – and of the safety issues, because the last thing we want is posing any risk to people on the ground, or indeed other aviation.

TIM HOLT: Peter Gibson, good to hear from you this morning.

Peter Gibson from the – from CASA, the Civil Aviation Safety Authority.

Where matters stand is that the non recreational ( a nice broad vague term) use of a drone must be approved by CASA, for example by businesses, real estate agents and journalists just to name three.  But CASA’s writ does not run to issues of privacy breaches, nuisance or trespass claims, all of which are a distinct possibility in the hands of a properly qualified and appropriately accredited operator who may be under financial or work pressures to get a result and worry about the fall out later.  Some recreational users won’t be too troubled about invading another’s privacy in their pursuit of whatever drives them to drive a drone.

Traditionally the law establishes boundaries so such corners will not be cut and if they are there are consequences where it effects the rights of others. That is good policy as it allows individuals liberty to operate while protecting the rights of others.  Better policy is to establish that framework either ahead of or in tandem with the changes wrought by the technology.  What is happening here is legislature inertia while the technology moves apace.  Not that Australia is an exception. In the USA the response is patchy and slow.

The wide open sky is just waiting for the aerial cowboy and his drone! Then watch the knee jerk reactions begin.  Followed by either poorly drafted legislation or confused inertia.  There is a dreary predictability to this issue. But it does not have to be so.

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