Use of drones being considered by the House of Representatives Committee on Social Policy and Legal Affairs

March 1, 2014 |

The House Standing Committee on Social Policy and Legal Affairs conducted a roundtable on the use of drones and privacy on 28 February 2014.  The terms of reference are:

Inquiry into a matter arising from the 2012-13 Annual Report of the Office of the Australian Information Commissioner, namely the regulation of Unmanned Aerial Vehicles.

The press release relevantly provides:

Do drones pose a new threat to our privacy, or are they just innovative technology with benefits for governments and industry? This question will be the focus of a roundtable investigating drones and privacy being held in Canberra this week.
Almost every week the media reports on innovative uses for drones (or unmanned aerial vehicles) – such as during bushfires, to monitor cattle remotely, or to deliver medical equipment in remote areas. At the same time, there is increasing concern about drones’ potential to invade privacy and interfere with other aircraft.
The Social Policy and Legal Affairs Committee is concerned that as this emerging technology is being rapidly adopted, the regulatory framework might not be keeping up. Regulation must ensure that safety and privacy are not compromised by the expansion of drone use in Australia.
The roundtable will have three focussed sessions:
• Drone regulation;
• Drone applications; and
• Drones and privacy.
Participants include drone operators and importers, the Civil Aviation Safety Authority, the Australian Federal Police, the Minerals Council of Australia, the Australian Privacy Commissioner, drone researchers and civil society groups.
‘Unmanned aerial vehicles are no longer the realm of science fiction or the preserve of military operations. Google has used drones in mapping, and Amazon has announced that it will deliver books with drones. There are many emerging applications for drones, including in the areas of law enforcement and commerce, and recreational use is growing very quickly,’ said Committee chair Mr George Christensen MP. ‘Soon drones will be everywhere – how can we provide a safe environment for drones and ensure that individuals’ privacy is protected? This is just one of the questions we are considering at the roundtable.’

The program was:

Airspace regulation:
• Airservices Australia
• Civil Aviation Safety Authority
• VidiAir

Drone applications:
• Dr Luis Mejias Alvarez
• Australasian Fire Authorities Council
• Australian Federal Police
• Minerals Council of Australia
• Mr Mark Corcoran
• CSIRO
• Parrot ANZ P/L
• Voiceless

Drones and privacy:
• Australian Law Reform Commission
• Australian Pork Limited
• Australian Privacy Commissioner
• Australian Privacy Foundation
• Dr Reece Clothier
• Mr Geoff Holland

The roundtable generated a fair bit of coverage.  The ABC covered it with AFP using drones to investigate major crime as questions raised over privacy which provides:

The Australian Federal Police has told a federal parliamentary inquiry that drones are among the latest tools it is using in major crime investigations.

A parliamentary committee has begun examining the growing use and popularity of drone technology, as well as the privacy concerns it raises for Australians.

Drones, also known as unmanned aerial vehicles (UAVs), were used to search for the body of murdered 1970s anti-drugs campaigner, Donald Mackay, in rural New South Wales last year.

“We assisted in the imagery and the recording of that search and excavation and the UAV provided a different and unique perspective to aid and assist in that process,” AFP Commander Mark Harrison said.

It is the first time the AFP has publicly acknowledged it is using drones.

The agency says their use so far has been limited.

“We currently use UAV to image crime scenes where it’s lawfully under a warrant – so we have a lawful authority to be present there,” he said.

“It’s just a further extension of the normal imaging that we would do at that scene.”

If the AFP were to expand its use of drones to include covert surveillance, it would need to get a warrant, Mr Harrison said.

“We’d be no different to any other intrusion into that sort of area,” he said.

“The imaging is undertaken by our own staff, our own trained staff, from the forensic area and these would be the people that are trained to operate both the imaging equipment and the UAV.”

Drones are already used by the military, both to save lives and to take them.

Now the technology is being embraced by hobbyists and commercial operators, as well as real estate agents, emergency personnel and media companies.

Authorities admit they have no idea how many unmanned aerial vehicles there are in Australia, but it is believed there could be hundreds of thousands of them.

Privacy concerns under scrutiny

The Office of the Privacy Commissioner says it has started receiving more inquiries about the use of drones from concerned members of the public.

“There are cases where people have woken up in the morning, pulled their curtains open and there’s been a drone hovering outside,” Commissioner Timothy Pilgram said.

 “It’s starting to suggest to us that there’s a point in time at which we need to sit back and say: ‘do we have the right laws in place to make sure that we can regulate to the best extent possible how these devices can be used?’

“That is the challenge now facing lawmakers in Federal Parliament and across Australia.”

Mr Pilgram says law enforcement agencies must act within certain boundaries and within the law.

“For example, when they’re using certain surveillance devices they’d need to get warrants and we’d have to look at whether those warrants and the system for approving them is going to extend across to the use of drones as well,” he said.

The AM program covered broadly the same ground in AFP: drones used in major criminal investigations which provides:

ELIZABETH JACKSON: The Australian Federal Police have revealed they’re using drones to assist in major crime investigations.

A parliamentary committee has begun examining the growing use and popularity of the unmanned aerial vehicles, which are already being deployed in many areas from search and rescue to real estate.

But along with their growing popularity comes increasing concerns about privacy.

Andrew Greene reports from Canberra.

ANDREW GREENE: They’re already used to save lives, and sometimes by the military to take lives.

Now drones are increasingly being embraced by hobbyists as well as commercial operators.

Authorities admit they have no idea how many unmanned aerial vehicles there are in Australia but it’s believed there could be hundreds of thousands of them.

And they’re now used by real estate agents, emergency personnel, media companies, and even the Federal Police.

MARK HARRISON: We currently use the UAV to image crime scenes where it’s lawfully under a warrant, so we have a lawful authority to be present there. And in addition to that it’s just a further extension of the normal imaging that we would to at that scene.

ANDREW GREENE: AFP commander Mark Harrison says at present the agency’s use of UAVs is extremely limited.

MARK HARRISON: The imaging is undertaken by our own staff, our own trained staff from the forensic area, and these would be the people that are trained to operate both the imaging equipment and the UAV.

ANDREW GREENE: And commander Harrison has revealed that drones equipped with cameras have recently been used in major criminal investigations.

MARK HARRISON: The AFP, at their request assisted, New South Wales police under warrant for a search for the remains of Donald Mackay on a rural property. And we assisted in the imagery and the recording of that search and excavation, and the UAV provided a different and unique perspective to aid and assist in that process.

ANDREW GREENE: But he says if the AFP were to expand its use of drones to include covert surveillance, it would have to obtain a warrant.

MARK HARRISON: Absolutely. I mean we’d be no different to any other intrusion into that sort of area.

ANDREW GREENE: The privacy commissioner is Timothy Pilgram.

TIMOTHY PILGRAM: There are cases where people have woken up in the morning, pulled their curtains open and there’s been a drone hovering outside. Now these are few at the moment, but it’s starting to suggest to us that there is a point in time at which we need to sit back and say ‘do we have the right laws in place to make sure that we can regulate to the best extent possible how these devices can be used?’

ANDREW GREENE: And that is the challenge now facing law makers in Federal Parliament and across Australia.

ELIZABETH JACKSON: Andrew Greene reporting.

The online magazine CIO covered the roundtable in Privacy Act lacks sufficient protection against drone invasion where the gaps in the Privacy Act is made plain by the Privacy Commissioner.  It provides:

The exemptions of certain groups of people from drone surveillance is an issue that’s top of mind of Australian Privacy Commissioner Timothy Pilgrim.

Speaking at a round table discussion of the Standing Committee on Social Policy and Legal Affairs, Pilgrim said the fact that small businesses (annual turnover of $3 million or less), media and individuals are not covered under the current federal Privacy Act when it comes to drone invasion is a concern and something that needs to be reviewed more carefully.

He gave an example of where an individual would be exempt under the Act: “Where that comes into play is if you have neighbour who purchases one of the smaller drones/UAVs. If they are undertaking that purely for their own interests — shall we say in terms of filming around their local neighbourhood — there wouldn’t necessarily be a right of recourse under the Privacy Act.”

Another concern of Pilgrim are the definitions of what constitutes as personal data, and to taking into consideration how data in combination with other sources can have an impact of people’s privacy.

“There are other bits of information, which in isolation people may not think is personal information. But if you are an organisation that can join it up with other bits of information, it could become personal information. So there is a grey area around they which is why it’s important to look at the raft of different bits of legislation to see whether they cover the area, particularly with surveillance laws,” he said.

Professor Barbara McDonald from the Australian Law Reform Commission told the round table that there needs to be more unity in state laws concerning surveillance, with many people finding it a burden to wade through the different laws when operating their businesses across different states.

“It has been a very common response we’ve had from people that a uniformity across state boundaries is very highly valued,” she said.

“At the moment, a lack of uniformity means there’s insufficient protection of people’s privacy because people don’t know what’s against the law and what’s not.”

McDonald said the ALRC is due to release a discussion paper on 19 March that will make recommendations in relation to serious invasions of privacy in the digital era. She said she has received a number of submissions from people who have felt that their privacy was invaded due to surveillance technologies and drones, particularly farmers.

Dr Roger Clarke, chair of the Australian Privacy Foundation, said there was a lack of laws that protected people’s privacy from media organisations, saying that the ACMA codes that relate to media behaviour “have shown that they are a total waste of space when it comes to protecting individuals privacy against media intrusions”.

Pilgrim noted that there is a code making provision under the Privacy Act that allows him or an organisation to developed a code in regards to a specific technology such as unmanned aerial vehicles (UAVs).

“In the absence of anyone taking up that offer I could develop the code myself through office and impose it on various entities. But again it’s restricted only to those entities that are covered by the Privacy Act.”

Dr Reece Clothier, a board member of the Australian Association for Unmanned Systems, said the Privacy Act needs to move away from looking at specific technology, and become technology neutral, in a similar fashion to proposed reforms to copyright law .

“Whether its drones, whether it’s Google Glasses, whether it’s the fact that I can collect metadata on your Facebook account and marry that with your LinkedIn to track your movements,” he said.

“It’s an issue much broader than unmanned aircraft, and while unmanned aircraft has been active in this space we have served to be the call to arms for broader privacy law reform… which is needed.”

Clothier added that there needs to be a balanced approach if privacy laws were to be reformed so that they don’t suppress the opportunities that can be gained from using drones.

“As a member of an unmanned aircraft industry I would hate to see legislation put in place that hamstrings the many beneficial applications for this emerging aviation industry and its flow on effect from mining, agriculture, everything through a piece of legislation that’s chasing the 0.003 per cent of people or organisation that will misuse it.”

Drone technology moves on apace.  The regulators worldwide are flummoxed as to how to deal with it.  In the US the States have taken the lead in regulating, read limiting, the use of drones.  This can be quite counterproductive because the nature of the legislation tends to be of the banning kind.  That is poor public policy.  What is clear is the need for a considered pro active response to a gap in the law regarding the use of drones, both regarding operational usage and the privacy implications.

In the Australian context States have the power to regulate on privacy related issues.  It is not the sole domain of the Commonwealth.  That includes drone usage.  The argument may be that uniformity across the Commonwealth is necessary and that militates against a State by State response.  That of course is tosh.  The Victorian Government has enacted legislation to cover privacy relating personal information held by government bodies and health providers.  Other states have not followed suit (eg South Australia) or have not been as comprehensive (eg Queensland).  There is nothing to prevent a State government from introducing a statutory right to privacy, as was recommended by the Victorian and New South Wales Law Reform Commissions.  It is policy failure and legislative lethargy at play.  And an ideological reluctance by some governments against legislating for what is mistakenly (and often mischievously characterised by poorly informed commentators and some journalists) as a broad ranging right which will snuff out freedom of speech.  Spurious arguments with little evidence to support them but they are made fulsomely and with (in)appropriate dollops of moral outrage.

At the Commonwealth level amending the Privacy Act is one option but it would require significant expansion of the operation of the Act, including the removal of the small business threshold and the other exemptions to enable the Act to cover most if not all drone operators.  Another necessary change is to expand actions that can be taken to include individuals taking actions on their own behalf.  The current gatekeeper structure means that action taken under the Act, with the exception of section 98 and the rarely usable sections 89ff, are in the hands of the Privacy Commissioner.  That reliance has severe drawbacks if the Privacy Commissioner’s office has resource issues, differing priorities and a backlog of work.  If the Privacy Commissioner’s preferred response is to establish codes and hope users will abide by them then that is a just a prologue to policy and regulatory failure.  A more assertive approach is required to send a message when a breach is found.  That will modify behaviour.

There needs to be scope for action. There is no good policy or legal reason why the Act can’t be amended to allow individuals and the Privacy Commissioner to take action in relation to certain privacy intrusive conduct. Ultimately any effective legislative response must include a statutory right of privacy, available to individuals and the Privacy Commissioner, to deal with technology which has the potential to be privacy intrusive may be misused. How such a cause of action is formulated has been considered at length by the Australian, Victorian and New South Wales Law Reform Commissions.  It is currently under further consideration by the Australian Law Reform Commission.  It should be a stand alone piece of legislation which has appropriate defences to allow for freedom of expression.

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