Drones continue to cause issues and regulation continues to lag

August 30, 2015 |

The Wall Street Journal in Rogue drones a growing nuisance across the U.S. and today’s FAA records detail hundreds of close calls between airplanes and drones highlights the near exponential use of drones (unmanned aerial vehicles for the more technically minded). Similarly the BBC raises a similar issue in Can technology keep our skies safe from nuisance drones? The use of drones in the USA, UK and in Australia is far outpacing the ability of regulators to establish a coherent set of regulations that balances the benefits of using this technology. At the Federal level in Australia and the US the focus has been on aviation safety, not privacy.

The Interestingly in the US the response to the privacy invasive impact of drones has been at a state level.  Most recently the California legislature passed a bill on 27 August 2015 to create no fly zones over properties and creates a trespass violation for flying below 350 feet over private property without consent.   This is reported in the Guardian’s Drone no-fly zone in California will stifle innovation, say industry advocates.

The amendments to the Civil Code provides:

SECTION 1. Section 1708.83 is added to the Civil Code, to read:

 (a) A person wrongfully occupies real property and is liable for damages pursuant to Section 3334 if, without express permission of the person or entity with the legal authority to grant access or without legal authority, he or she operates an unmanned aircraft or unmanned aircraft system less than 350 feet above ground level within the airspace overlaying the real property.
(b) For purposes of this section:
(1) “Unmanned aircraft” means an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.
(2) “Unmanned aircraft system” means an unmanned aircraft and associated elements, including communication links and the components that control the unmanned aircraft, that are required for the pilot in command to operate safely and efficiently in the national airspace system.
(c) This section shall not be construed to impair or limit any otherwise lawful activities of law enforcement personnel or employees of governmental agencies or other public or private entities that may have the right to enter land by operating an unmanned aircraft or unmanned aircraft system within the airspace overlaying the real property of another, including the right to use private lands acquired pursuant to subdivision (d) of Section 1009.
(d) Nothing in this section is intended to limit the rights and defenses available at common law under a claim of liability for wrongful occupation of real property.

SEC. 2. Section 21012 of the Public Utilities Code is amended to read:

 “Aircraft” means any manned contrivance used or designed for navigation of, or flight in, the air requiring certification and registration as prescribed by federal statute or regulation. Notwithstanding the foregoing provisions of this section, manned lighter-than-air balloons and ultralight vehicles as defined in the regulations of the Federal Aviation Administration (14 C.F.R. Part 103), whether or not certificated by the Federal Aviation Administration, shall not be considered to be aircraft for purposes of this part. “Aircraft” shall not include an unmanned aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.

Australian legislation is woefully inadequate in providing any sort of privacy protections from misuse of drones.  The Australian Law Reform Commission has recommended a statutory right to privacy (most recently in 2014 but more notably in its huge report of 2008) as has the Victorian and New South Wales Law Reform Commissions.  The Commonwealth House of Representatives Standing Committee on Social Policy and Legal Affairs, through its report Eyes in the Sky, called for privacy protections relating to drone use.  Its media release of 14 July 2014 provided:

New privacy laws might be needed to protect against a wave of ‘eyes in the sky,’ according to a Federal Parliamentary Committee.
Australia’s drone industry is booming thanks to rapidly improving technology that has made drones cheaper, more capable and easier to operate. Even as drones are poised to revolutionise the farming, mining, science, media and other industries, they also pose a real threat to privacy. Drone safety has also become a prominent concern, with numerous injuries and near-misses reported across Australia.
The House Standing Committee on Social Policy and Legal Affairs says that Australia’s existing privacy laws do not protect Australians’ privacy from drones. The Committee’s new report Eyes in the sky: Inquiry into drones and the regulation of air safety and privacy calls on the Australian government to modernise and simplify Australia’s privacy laws to protect against potentially invasive new technologies like drones. Current plans to update airspace regulation will improve safety, but the Committee calls for frequent review of regulations to keep pace with the rapid development of drone technology.
The Committee’s report, tabled today in Parliament, draws on evidence from industry groups, privacy experts and government agencies heard at two roundtable discussions and a number of public hearings earlier this year. The report makes six recommendations, calling for:
• the Australian government to consider legislating for a tort of privacy, as proposed in the discussion paper of the Australian Law Reform Commission’s Inquiry into Serious Invasions of Privacy in the Digital Era
• modernised and nationally-uniform laws regulating the use of surveillance devices, including drones
• a review of the laws regulating police use of surveillance drones
• an education campaign to inform drone users about privacy and air safety laws
• improved consultation regarding the effectiveness of air safety laws, and
• future reviews of privacy and air safety laws to keep up with developments in technology.
Committee Chair Mr George Christensen MP said that the inquiry had revealed gaps in Australia’s privacy laws leaving Australians at risk. ‘Drones are coming – the technology is here and it is only a matter of time before they become widespread,’ Mr Christensen said. ‘Drones will revolutionise some industries, with a wide range of beneficial uses. All the same, we must set out clear rules that govern how the police, governments, businesses and members of the public use drones

And since then there has been a lot of nothing done.  A fairly typical response in the privacy sphere. Privacy regulation of existing laws by the Privacy Commissioner has been insipid when there has been activity, and there has been not much of that.  The pressing need for further reform has been ignored.  A statutory tort of privacy remains a distant prospect even though the gap in the law is huge and the need is obvious.  The other proposed recommendations have fallen on barren ground.  To be fair there has been bipartisan neglect in this area for a considerable period of time.  The previous government did not nearly enough to implement all the necessary reforms recommended by the Australian Law Reform Commission.   The problem is that technology waits for no one.

As BBC reports in Zano drones struggle to achieve lift-off drones are still some way from overcoming the problems with short life of batteries and improving photo quality.

One Response to “Drones continue to cause issues and regulation continues to lag”

  1. Drones continue to cause issues and regulation continues to lag | Australian Law Blogs

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