Peter A Clarke

That the development of drone technology has been rapid is trite. The transformation in the use of drones from exclusively military applications, surveillance and as a weapons platform, to civilian use has been extraordinary.  I have posted on the developments here, here, here, here, here, here, here, here, here  and here. Their use has been touted in agriculture, in search and rescue, and more worryingly in border protection and policing.  Then there are the hobbyists who can easily buy a small drone which can be controlled by an iphone or ipad (see ad for Parrot A.R Drone Quadricopter at Dick Smith here ).  And of course in journalism.  Drones are ready made for journalists. Its use by everyday users and journalists presents the greatest challenge to privacy protections of members of the public.

The extent to which journalism has embraced drone technology is apparent in the Chronicle of Higher Education’s article 2 Drone-Journalism Programs Seek Federal Approval to Resume Flying.  The Lincoln College of Journalism in Nebraska and the Missouri School of Journalism have established programs to teach journalism students how to use drones in their reporting.  One would have thought it would be fairly obvious how to deploy them. Making sure a camera is properly mounted and switched on would  be an early topic one would hope. Even so the programs have fallen afoul of Federal Aviation Regulations.

The deployment of drones by journalists was entirely predictable.  With the proper legal safeguards in place the technology  can perform a legitimate function in news gathering.  The problem is that there are no proper legal safeguards in place, particularly in the area of privacy protection.  The use of drones highlights where existing privacy protections are at best inadequate in Australia.  Journalists are not covered by the Privacy Act.  So personal information collected by them is not regulated by it.  Common law protections are ineffective.  It is not a trespass to fly over another’s land and nuisance would be a difficult claim to sustain.  Relying on breach of confidence is an option but quite an artificial way to approach the issue.  It would require complex pleading.  What is required is a statutory right of privacy, with the appropriate safeguards for freedom of speech and public interest defences.  That is something the legislature has been unwilling or incapable of doing here at a state level (in Victoria and New South Wales where their respective Law Reform Commission’s have recommended a statutory right to privacy) or, as the Commonwealth government has done, foisted the issue off to another review on, at best, spurious policy grounds (with a further referral to the ALRC for Serious Invasions of Personal Privacy Inquiry. Given the ALRC’s review and recomendation for a statutory right to privacy contained in the lengthy and detailed chapter 74 of the ALRC’s 2008 report For Your Information: Australia Privacy Law and Practice it will be quite the boondoggle for all those involved ). While the common law and equity in Australia is ill suited to deal with the issue the superior courts have resisted developing a stand along tort, something that is required.

So the technology marches, nay sprints, on while the the law hobbles along well behind and the legislature looks the other way.

The article provides:

Two fledgling programs created to teach journalism students how to use drones in their reporting are applying for permits so they can resume operating unmanned aircraft outdoors, their directors said this week. Both programs received cease-and-desist letters from the Federal Aviation Administration last month.

Matt Waite, of the Drone Journalism Lab at the University of Nebraska at Lincoln’s College of Journalism and Mass Communications, and Scott Pham, of the Missouri Drone Journalism Program at the University of Missouri’s School of Journalism, said on Monday that they were in the early stages of what will probably be a process taking months to obtain a certificate of authorization, or COA. Public agencies, such as police departments, that want to fly drones outdoors are required to apply for the FAA permits.

The drone-journalism programs fall within the “public agencies” category, an FAA spokesman, Les Dorr, said on Tuesday.

“The requirement for public universities to obtain a certificate of authorization is no big secret because approximately a quarter of the applications we get for COAs come from academia,” Mr. Dorr said.

The freeze on outdoor flights triggered retooling for both university journalism programs, including the cancellation of a drone journalism class Mr. Pham had scheduled for the fall semester. It has also set in motion a re-examination of both the feasibility of drone-based reporting projects and the missions of the programs.

“In terms of journalism, we are completely on hold until the COA process is done,” Mr. Pham said. “Once the COA process is finished, it [the permit] is extremely restrictive in terms of where you can fly and how you can fly. There are questions about what kind of journalism might be practiced post-COA.”

The Nebraska and Missouri drone-journalism programs were established in 2011 and 2012, respectively. Armed with small grants, Mr. Waite and Mr. Pham have been working with students to develop the technology and skills needed to deploy drones for reporting on a broad spectrum of stories, including those about natural disasters, agricultural trends, and political protests.

During the past year, they have produced video reports on a major Midwestern drought, a prairie fire, and the migration of snow geese.

Mr. Waite and Mr. Pham previously operated their programs’ drones under rules set for hobbyists. That meant keeping the aircraft below 400 feet and well away from airports and people. Drones were always kept in the line of sight.

“I understood the COA process,” Mr. Pham said. “I had made a decision not to apply for one because I felt like it was really intended for organizations not like my own. You look up people who have COA applications, and they are largely unambiguous government agencies—fire departments, police agencies, border patrol.”

The programs’ work, chronicled via their blogs, attracted international attention as interest in the use of drones for security and commercial purposes has exploded.

It also caught the eye of the FAA. In a letter dated July 10, the agency wrote that the programs were operating drones “without proper authorization” and could face “legal enforcement action.”

Receiving the letter was a “little nerve-racking,” said Mr. Waite, adding that he had not flown any of the program’s three operational drones since it landed in his mailbox.

The COA-application process requires applicants to state what type of drone will be flown, when it will be flown, and where it will be flown, Mr. Dorr said, adding that the priority is safety.

The terms limit journalistic applicability, according to Mr. Pham and Mr. Waite.

“It is pretty restrictive,” Mr. Waite said. ”It is sort of kind of antithetical to journalism. Unless you know how to divine a news event at a location months in advance, it really is not going to work for doing the regular kind of journalism we are familiar with.”

Still, he intends to carry on with his research, and possibly conduct flights in the Cornhuskers’ indoor football-practice facility.

“It slows us down a little bit, but I am a pretty positive person and I am viewing this as a learning opportunity,” Mr. Waite said. “I feel like I have the responsibility to get one [a permit] and write about the process and share this information as far and as wide as I can so people can learn about it as I have learned about it.”

As part of his response to the FAA’s permitting requirement, Mr. Waite and the Drone Journalism Lab will also convene what they believe is the first drone-journalism conference, from October 24 to 26.

“We know from having talked to a number of professors around the country that they are interested in doing this but haven’t gone down any roads yet, and we have a lot of information to share,” Mr. Waite said. “We thought the best way to do that is to bring people out here and talk about these things.”

Surprisingly, as matters stand, it would appear there are better controls in the USA over the use of drones than in Australia.  Given the strong constitutional protections given to journalists that is a very curious state of affairs.