Drones and privacy

April 27, 2017 |

Privacy practitioners have known for some time that drone technology’s rapid development has been impacting the privacy of individuals at an increasing rate.  The common law is quite moribund and completely inadequate to meet the challenge.  The legislation, such as there is, is focused on flight safety and not the privacy intrusive nature of drones.  This could easily change.  Any of the State Governments could legislation a statutory cause of action for interference with privacy as could the Federal Government.  Or  more specific legislation regulating the use and punishing the abuse of drones when interfering with a person’s privacy.

In We’ve surrendered to the drones that invade our airspace and our privacy the author neatly sums up the problem right down to the inadequate common law and equitable options in taking action.  For all the tut tutting that goes on about the lack of privacy protections in the USA the states there have done what States should do, and legislated to fill a gap until the Federal Government  legislates for a national law.  Many states have constrained or banned the use of drones over private property.

Similarly in Backyard skinny-dippers lack effective laws to keep peeping drones at bay the author also highlights the utterly hopeless state of affairs when it comes to privacy protections and drones.

This subject was recently the subject of the Law Report which provides:

Drones produce fantastic footage and are used in all sorts of filming from nature documentaries to sporting events.

But what are the privacy and safety implications of having remotely controlled objects flying across our back yards?

Damien Carrick: Hello, welcome to the Law Report, Damien Carrick with you. Today, drones. We all know they produce fantastic footage.

But what are the privacy and safety implications of having remotely controlled objects flying across our backyards? Until last Monday evening, Darwin resident Karli Hyatt had never given drones a second thought.
Karli Hyatt: I was just finished at the gym actually, and I’d come home and decided to go for a bit of a swim between 7.30 and 8.00. As I was swimming I could hear this strange noise, and when I looked up I noticed a drone with the green and red flashing lights. It came over into my backyard and then just hovered centre above the pool, and just hovered there for about 30 to 60 seconds.
Damien Carrick: You are in your backyard swimming pool. You were nude, right?
Karli Hyatt: Yes, I was. It’s 28 degrees at that time of night up here and still quite humid. Yes, I’d just come from the gym, it was really hot, so instead of bothering going into the house and putting bikinis on I just grabbed a towel, stripped off and jumped in.
Damien Carrick: You’re in the nude and you realise that there is a drone above you. What was your response?
Karli Hyatt: My response was shock and it just probably even took me a second to register that whoever was navigating it must have been looking at me in the pool and it was just very centre, just hovering right there with a green and red flashing light.
Damien Carrick: Which presumably would indicate that there were cameras operational.
Karli Hyatt: Unfortunately. It was a really bewildering experience. I just stayed in the deep end and looked at it and sort of covered myself up a little bit, and then eventually it just buzzed away.
Damien Carrick: What are your concerns?
Karli Hyatt: I would say it’s definitely an invasion of privacy. I think images going on to social media, even just someone that could be a bit creepy or a bit of a perv, and it also opens up issues for illegal activity I suppose at well, people looking in your backyard at what property you may have.
Damien Carrick: And I take it you have absolutely no idea who the drone belongs to or where it came from.
Karli Hyatt: No.
Damien Carrick: What did it look like and how big was it? Was it, say, the size of a pizza box, how big was it?
Karli Hyatt: Yes, roughly that size I would say. I actually heard it before I’ve seen it, I heard the buzzing sound coming in from the left, and so I obviously got quite a good look at it while it was hovering above the pool. Circular, it was really dark but I could just make out the circular I suppose propeller on it and just the green and red flashing lights.
Damien Carrick: So what did you do? Did you call the police or alert any other authorities?
Karli Hyatt: No, I didn’t. At this stage I’m not really sure what the appropriate response would be.
Damien Carrick: Do you have any sense of what your legal rights are and what the legal responsibilities are of people who own drones?
Karli Hyatt: No. I mean, all I’ve really heard about a drones is that they are not allowed to go up at a certain height if you live in a flight zone area. Aside from that, I really don’t know.
Damien Carrick: Since the incident happened, I understand you’ve been doing a little bit of online research, what have you seen or read?
Karli Hyatt: There are night vision drones, which was a bit concerning, but I don’t feel as though the quality would have been anything for me to be overly concerned about. I do see that online there seems to be a bit of an attitude where it’s funny to get people agitated by invading their privacy. I did notice it was portrayed to be funny. There’s a woman that became very frustrated by a drone and she was trying to shoo it away, it was hovering on her property, looking onto her balcony and she was shooing it and getting really frustrated and angry, and then she walked into her home and came out with a rifle, and that’s when the drone flew away. And I suppose the overall attitude that I seemed to gauge from the comments and the way that it was put through was as though it was humorous, how frustrated she was. And it’s only now that I’ve had this experience, in hindsight it’s really not that funny.
Damien Carrick: Was that footage from the USA?
Karli Hyatt: Yes.
Damien Carrick: Darwin resident Karli Hyatt.
Law Professor Des Butler is based at the Queensland University of Technology. He says our privacy protection framework has not kept pace with technological change, especially given the rapid expansion in the number of drones now being sold in Australia.
Des Butler: It’s commonplace now to walk into a store like JB Hi-Fi or Harvey Norman and alongside the refrigerators and the DVDs, there are now racks with these drones with cameras mounted on them, retail for as little as…well, less than $200 in some cases, and have very clear video streaming capabilities to mobile devices like tablets.
Damien Carrick: And do we know, what are the most popular models?
Des Butler: I understand that there is a model known as a parrot that is very popular. We can expect to see many more of these flying in our skies before too long.
Damien Carrick: I’ve been speaking with a lady called Karli Hyatt from Darwin who says a drone appeared over her pool while she was skinny-dipping in the privacy of her back garden in the early evening. Assuming she could track down the owner of the drone, which is a big if, what would be her legal options?
Des Butler: Well, it all depends on what jurisdiction someone happens to be in. Quite frankly our privacy laws in Australia are a bit of a mess. When it comes to someone who’s had their privacy invaded, trying to take legal action. And as you say, the big if here is if you can track down who is operating the drone or who owns the drone. Our common laws are wholly deficient in providing any sort of meaningful remedy to someone in that kind of position, very different from overseas where the only major common-law country in fact doesn’t have laws to protect personal privacy.
Damien Carrick: You’re talking their about a statutory or a common law action where you could sue for a breach of privacy. But that’s only going to be useful if you are a really rich person and you have a lot of resources and you’re maybe a celebrity and you’re talking about paparazzi here. But what about more standard laws around surveillance. Do we have a framework along those lines?
Des Butler: A number of jurisdictions, five in fact around Australia, that have laws concerning surveillance devices that would apply to visual or optical surveillance devices. Unfortunately of those five they don’t take a consistent approach. So we’ve got three states—South Australia, Western Australia and the Northern Territory—that have similar laws, and they are probably the ones that are best suited to prohibiting the use of drones to invade someone’s privacy.
The laws in Victoria and New South Wales have problems with them. Victoria for example prohibits the use of an optical surveillance device to record private activities, but they don’t apply for anything happening outside of a building. So if someone was sunbathing in their backyard and a camera mounted drone was flown over, it would not breach those laws. In New South Wales their whole regime is based on prohibiting leaving surveillance devices on somebody’s property without their consent. So that’s not going to have any application to a camera mounted drone.
In the other places—Queensland, the ACT and Tasmania—their surveillance devices legislation are stuck in an age that is decades or a technological age that’s decades old. They’re only directed towards audio surveillance devices. So it’s a very efficient regime as a whole that we are facing. Even if you’ve got these laws prohibiting the use of these devices, there’s just no remedy that’s given to the person who has had their privacy invaded, and so you got to count on the authorities wanting to take action under those statutes.
Damien Carrick: And do you know, have there been any such actions?
Des Butler: Not to my knowledge.
Damien Carrick: Professor Des Butler from the Queensland University of Technology.
The biggest fear is that untrackable drones will beam images back to their operator and we will never know how they are used or by whom. Back in 2014, a House of Representatives committee produced a report titled Eyes in the Sky, which looked at their safety and privacy issues around drones. And currently there is a Senate committee conducting another inquiry, this one focusing on the safety of commercial drones.
Brendan Gogarty is a senior lecturer at the University of Tasmania law school. He has followed the debates around how best to regulate drones. He says Darwin’s Karli Hyatt isn’t the first person who was enjoying the privacy of their backyard who then faced an intrusion by a drone. There was a case on Victoria’s Mornington Peninsula a couple of years ago.
Brendan Gogarty: The person was sunbathing in their backyard without their top on, assuming that they were in a private space, and a drone flew overhead. And the drone was very innocently being flown by a real estate agent who was filming the property next door. And in taking photos of the property next door unintentionally captured this lady who was in her backyard, and didn’t review the photographs properly. So as a consequence the photos went up on a huge sales board out the front of the house, and when the neighbour walked past she saw herself photographed there. Luckily the real estate agent of their own volition took that sign down. But it shows you that not only can you have intentional surveillance, quite often you can be unintentionally surveilled by these airborne cameras.
Damien Carrick: So the real estate agent took it down, there wasn’t, as far as we know, any legal proceedings arising out of it?
Brendan Gogarty: I’m not aware that there was, and I think in fairness to the real estate agent they acted very quickly and in good faith, but it might not always be the case that that happens.
Damien Carrick: Eyes in the Sky was the title of a parliamentary inquiry from a few years back which was looking at this emerging area of drones and privacy. What conclusions or recommendations did that inquiry come to?
Brendan Gogarty: They were really concerned, the Commonwealth House of Representatives, about the potential for drones to intrude on a person’s private space, their business activities, either intentionally or inadvertently and, as I said, that was quite fortuitous given what happened with the real estate photo shortly after. They recommended primarily that we follow an earlier recommendation by the Australian Law Reform Commission that we bring in what’s called a tort of privacy, and we should create a tort of serious invasion of privacy.
They also recommended that the states…and I think this was of massive concern in terms of domestic violence and some of the problems around stalking, they recommended that through the COAG, through the cooperative state and Commonwealth meeting, that the states and Commonwealth sat down together and worked out their criminal laws around surveillance devices. And so the committee was quite concerned about this notion that you could follow someone back to their home, you could watch them in their home, and you can imagine some of the problems that would arise in situations of domestic violence or spousal abuse. So they made a strong recommendation around that.
Damien Carrick: What do you see as the competing interests when it comes to the restrictions we should have around the use of drones on the one hand, and the uses and the great advantages that drones offer us?
Brendan Gogarty: There are amazing, aren’t they. I’ve got to be honest, I would love to own a drone. I quite like photography, I quite like going bush and I’d love to take one with me. But like anything, it needs to be balanced. There are some really positive uses of drones, depending on where you’re coming from. Real estate agents obviously can use them to make amazing photos of properties, we can film weddings, we can do things like some of the new drones can track people as they go down hills on mountain bikes, really exciting stuff.
There’s other areas which are much more controversial. Animal liberation activists have been using them to surveil properties that have slaughterhouses on them, and of course the farmers and graziers lobby is very concerned about some of the implications of that. But of course the animal liberationists argue, well, without surveillance a lot of bad activity would go on. So some of the time these devices can be used by citizen activists in a way that may raise profiles and may give them access to areas they may not previously have had. And we need to be cognisant of that and think about freedom of speech and the right of the public to know certain information.
So I don’t think that we should be prohibiting drones at all, but we do need to have a mature conversation about what’s acceptable and what’s not, and actually have really working remedies for the public, people like Karli who feel like their privacy has been invaded, to actually stop this activity.
I think kind of like the old PlayStations, we should probably require all drones sold in Australia to have a tracking chip in them and have the data either stored on the device or uploaded to the cloud, so that way if there is a complaint like Karli’s…you know, the problem with a complaint like Karli’s is who does she complain about? She can’t find the guy, he is unlikely to be on her property, so there’s no trespass. So much better would be if all this data was on the cloud and the police can just go look and see who’s been flying a drone in that area and then go investigate them. That makes practical sense. But at the moment it’s a free-for-all, so everyone is basically passing the buck.
Damien Carrick: Brendan Gogarty from the University of Tasmania law school.
You’re listening to the Law Report on radio or via a podcast, which is available from the RN website and on iTunes.
When it comes to drones, there is no specific framework to deal with privacy issues raised by these eyes in the sky. There is however a specific comprehensive framework dealing with the safe operating of drones. So if authorities were able to identify the owner of Karli’s airborne intruder, it’s quite likely that he, possibly she, is breaching those safety rules.
Peter Gibson is a spokesperson for the Civil Aviation Safety Authority, or CASA.
Peter Gibson: The Civil Aviation Safety Regulations, part 101 of those regulations sets out the rules for the safe flying of drones, and it says things like don’t fly closer than 30 metres to people or property. If you are flying in controlled airspace, stay under 400 feet so you are not risking colliding with aircraft. Don’t fly your drone on the approach and departure paths of airports. Those regulations do have attached to them Commonwealth penalty units which interpret into infringement notices which the Civil Aviation Safety Authority can and does issue. Not a huge number of them each year but we do issue them.
Recently we had one for flying a drone in restricted airspace over Sydney Harbour, one of those fines was issued for $540. Earlier this year we issued a $900 fine to a gentleman who was flying his drone close to the New South Wales police helicopter and causing a risk to that helicopter. And of course last year there was the famous or infamous Bunnings drone video which got a lot of attraction on social and other media where a drone was flown within 30 metres of people, and we issued a $900 fine to the gentleman who flew that drone.
Damien Carrick: Was that something to do with a sausage sizzle?
Peter Gibson: What’s the gentleman did, along with his friends, is attach a bit of string to the drone with some money in it in a container, fly that across the suburb to the Bunnings carpark where there was the usual Saturday morning sausage sizzle, flew the drone down, the people at the sausage sizzle took money out, put a sausage and bread onto the drone and the drone flew back to the gentleman’s property where he received his sausage. Now, the problem there was that naturally when the drone was lowered down in the Bunnings carpark, there were plenty of people within 30 metres of that drone. If something had gone wrong with the drone or there had been a big gust of wind and that drone had hit somebody, almost certainly they would have been injured, hence the fine.
Damien Carrick: Cute but dangerous.
Peter Gibson: Absolutely, that’s right. I think that’s what people have got to bear in mind when they are flying a drone, there are some responsibilities that come with it. They’re really fun, that’s great, and we are not trying to stop people having fun with their drones, but the rules are there just to protect people, property and aircraft from drones, and they are pretty straightforward and simple rules, if you follow them, you won’t get into trouble.
Damien Carrick: Have there been, as far as you know, any injuries sustained by Australians as a result of accidents involving drones?
Peter Gibson: The only one I’m aware of so far was a number of years ago now at Geraldton in Western Australia where there was a marathon race and someone was using a drone to film the finish line at the marathon race, and what happened was that the timing equipment being used for the race, the radio signals involved in that timing equipment interfered with the radio signals of the drone, and the drone flew out of control and hit a woman on the back of the head and indeed cut her head. So that’s certainly one injury that we are aware of, and not any others in Australia. There certainly have been reports of a child in Great Britain losing an eye and other similar things around the world.
Damien Carrick: In that case in Geraldton and in the case in the UK, where there prosecutions?
Peter Gibson: In the case of Geraldton the Civil Aviation Safety Authority did put together a brief of evidence on it with the view to seeking a prosecution. But ultimately that didn’t go forward. So there was a fine involved, an infringement notice involved, but no prosecution.
Damien Carrick: If a drone comes over your land, say you’re Karli Hyatt and you have a rock handy, or if you have a gun handy, maybe you’re on a farm, can you shoot down or knock down the drone?
Peter Gibson: That’s strictly not something that our regulations talk about. But I think people have got to be mindful of the fact that there may be other laws in place that protect people’s property that could come into play. So I think before you took things into your own hands to shoot down or knock down a drone, you’d be well advised to seek some advice on what the consequences of that might be. I certainly am aware of one case where a drone was shot. It was over a rural property and it was shot down, and the person who did the shooting subsequently got a visit from the local police suggesting that perhaps compensation to the drone owner might be necessary if the matter wasn’t to go further forward. So I don’t know what transpired finally in that case, but certainly there’s a real life example of the issues that could arise if you do take the law into your own hands.
Damien Carrick: And what would be the legal situation if the drone was within 30 metres of you?
Peter Gibson: If you believe that the drone operator is breaching any of the safety rules, then yes, absolutely, that’s reported to us, and we can investigate and, if appropriate, issue an infringement notice. So yes, we certainly can act if there has been a breach of our rules, and naturally if we can prove that breach.
Damien Carrick: Ah the big problem is how do you identify who is owning and operating the drone. That’s Karli Hyatt’s problem, she has no idea. And presumably that would be the case most of the time.
Peter Gibson: Yes, that’s exactly right, it is a difficulty and we acknowledge that.
Damien Carrick: Brendan Gogarty who is a legal expert at the University of Tasmania has suggested that maybe we should have all drones registered, not just commercial drones, and then there should also be an obligation to upload any kind of footage. It wouldn’t put pressure on the regulators like you but it would give the resources to the police to then pursue any potential breaches.
Peter Gibson: Well, certainly the Americans have moved to a registration system for all their drones, and we’ve been watching how that has been progressing and how that is benefiting them. Of course the thing with a registration system would be you’d have to have some way of being able to visibly identify the registration marking, whatever that might be, on the drone. The problem here is these things are very small of course, and even if it was in reasonable sized writing, nevertheless if the drone was 20 metres away from you and it’s a very small drone it might still be very difficult to read them.
Damien Carrick: You couldn’t have some kind of electronic chip which would track the movements of them?
Peter Gibson: Well, you can…yes, that technology exists, but the cost of setting that system up and monitoring it and of course someone’s got to go through that data and look to see if there are breaches or do you only use it when complaints are made? Are there all sorts of possibilities, but depending on what to do, the more complex and more costly it is going to be.
Damien Carrick: There is currently a Senate inquiry I believe looking at issues around safety and the use of drones. I understand in September last year there was a liberalisation of the rules around the commercial use of drones. As I understand it, if a drone weighs less than two kilos, the rules have been simplified. You no longer need a certificate or licence, all you have to do is register with CASA five days before the first flight. Some politicians have been very critical of this, people like Queensland Senator Barry O’Sullivan and Senator Nick Xenophon have said that they…well, Barry O’Sullivan has said that he fears a catastrophic accident is possible if measures to govern the use of drones less than two kilos are not considered immediately. What’s your response to those assertions?
Peter Gibson: Well, as a government agency, naturally we can’t get into a political debate, that’s for the politicians to have about what the relevant laws should be, and indeed for the public to debate that as well. Naturally as the regulator we will work with whatever safety regulations the parliament and the community believe are best. What we’ve tried to do in changing the regulations for very small commercial drones was to just cut some red tape out. We looked at the risks from very small commercial drones and we calculated that they are lower than for larger commercial drones, and therefore we felt it was appropriate to have a different regulatory approach to the very small commercial drones, one which involved less cost and less red tape.
Damien Carrick: South Australian Senator Nick Xenophon and Brisbane lawyer Joseph Wheeler, they say, look, we need total regulation. They point out that you can’t buy a mobile in Australia without providing your driver’s licence or ID, but you can operate these potentially very dangerous and very intrusive drones. It could be a 12-year-old, it could be a teenager, it could be a drunk adult, we just don’t know.
Peter Gibson: Currently of course we have a certification and licensing structure in place for larger commercial drones. We have a registration process in place for the very small commercial drones. So that side of it is regulated, and we know who are operating those drones, where they are operating and what tasks they are undertaking. Of course what we don’t currently have is any sort of registration or licensing system for recreational drones. Again, that’s something I guess that the community and the politicians will want to debate, and naturally find a position that everybody believes is best for the whole nation. As the regulator, again, we will put in place whatever is needed to reflect political and community wishes.
Damien Carrick: Peter Gibson, spokesperson for the civil aviation safety authority. As mentioned, there have been two parliamentary enquiries looking at drones. The main focus of the current Senate inquiry is whether or not the recent relaxation of regulations around commercial drones under two kilos is a good or a bad development.
Brisbane-based lawyer Joseph Wheeler is head of the aviation practice with law firm Maurice Blackburn.
Joseph Wheeler: Prior to September last year, Australia had in place the oldest and most enduring drone regulation in the world, it was a leader in this area of regulation worldwide. One of the requirements that we had in place was for there to be licensing of commercial operators, so that meant there needed to be particular training, there needed to be particular experience requirements, documentary requirements and tests, so that the quality of commercial operator and their understanding of the risks of entering the aviation environment were understood and controlled.
Come September, those safety requirements, those risk mitigators were removed for drones in the two kilogram and under category. What that essentially means is now a person of any age, of any experience or lack of experience, and any level or lack of aviation or aeronautical knowledge can enter the commercial arena with a drone they pick up off the shelf at a department store or toy store.
Damien Carrick: Certainly I think just a week or so ago Queensland Senator Barry O’Sullivan said he feared a catastrophic accident might be possible if measures weren’t introduced to, if you like, re-regulate this class. Do you agree with that possibility?
Joseph Wheeler: I would absolutely agree with that. In fact in my work I deal with pilots, I deal with passengers, but I deal with many in the aviation industry, and it’s a very concerning present danger. I have heard many anecdotal reports from current Australian airline pilots talking about their experiences, their near misses, their evasive tactics to escape unidentified drones, or being informed by air traffic control that an unidentified drone is in their airspace and forcing them to move. And these are passenger-carrying operations in Australia around major cities. So it’s a present danger that will ripen into a disaster in due course.
Damien Carrick: So what kinds of rules and regulations would you like to see for both commercial and recreational users of drones?
Joseph Wheeler: Not being able to identify that drone is a huge issue. And one of the ways foreign jurisdictions have tried to deal with that is by registration. So the United States since last year requires every operator to have a form of registration on their small drone, allowing it to be identified. Regulators in Europe are considering the technological options that go along with that, and those are things that we would like to see in Australia as well. So if there is something like a sim card or a technology like that that would allow the regulator or allow enforcement authorities to see in real time where drones were and that they were flying as they were authorised to do, whether recreational, commercial or otherwise, it would be a positive step forward, especially if a drone like that was involved in an incident or an accident and caused damage or harm to people and property.
Damien Carrick: Aviation lawyer Joseph Wheeler, who works with Maurice Blackburn.

That’s the Law Report for this week. A big thanks to producer Anita Barraud and also to technical producer this week Tim Symonds. I’m Damien Carrick, talk to you next week with more law.

The former article provides:

There’s a sturdy shovel in your hand, soft soil to be turned, warm sun on the back of your neck. And then, within seconds, you’re plunged into the stuff of bad dreams. There’s a buzzing noise, growing louder by the second. First fear: you’ve hit a nest of wasps or, just as bad, there’s an armada of angry bees coming your way. But where the hell are they?

Hurl the shovel, close your eyes and wave your arms maniacally above your head to ward off the imminent attack, doing your best imitation of an extra on the set of Hitchcock’s The Birds.

And then all goes quiet. The buzzing retreats. You look up, squinting against the sun, to find the cause of your initial panic. A drone is hovering, maybe 30 to 40 metres directly above. Watching. Probably sending live video footage back to its controller. You wave your arms again, this time in frustration. Hurl abuse. The drone moves off and you race out to the front yard, driven by your anger and a growing sense of being violated.

But by the time you reach the gate the machine has disappeared behind a line of trees and the person guiding its surveillance is nowhere to be found.

Welcome to my backyard one afternoon last week, and to Australian suburban life, 21st-century style. What to do? How to overcome the outrage at such a blatant intrusion, particularly in a place where your family has traditionally been able to escape to, far from the madding crowd?

Well, short of illegally boosting your capabilities in the surface-to-air missile department to better counter that next invasion of your airspace, there’s little you can do. We’ve surrendered the Australian backyard to a group of geeky remote control enthusiasts, real estate agents and god knows how many voyeurs, perverts and good old fashioned rubber necks.

Not a great deal has been said about this in our headlong rush to embrace new forms of technology and gush over the prospect of our Jetsons-style future. Drones? Amazing things, huh? After all, doesn’t Amazon want to deliver your shopping basket directly to your back doorstep? And didn’t a pizza chain absurdly claim recently how it wants to bring your takeaway order through the skies to your home, presumably leaving a trail of melting plastic mozzarella along the way?

Three years ago a House of Representatives committee recommended it was time to introduce measures to protect the privacy of Australians against drones. Urgent action was needed, it warned, given the rapid advances in technology and the plummeting production costs that were putting “Remotely Piloted Aircraft” in the hands of anyone who wanted one.

“They can intrude on a person’s or a business’s private activities either intentionally, as in the case of deliberate surveillance, or inadvertently,” said the committee.

“As RPAs become cheaper and more capable, and as the instruments they carry become more sensitive, they will provide governments, companies and individuals with the cost-effective capability to observe and collect information on Australians, potentially without their knowledge or consent.”

The Australian Law Reform Commission called for a “tort of privacy” to protect us from these scrutineers in the sky. And even the Australian Association for Unmanned Systems – surely a group of experts who know their way around a remote control – recommended a ban on drones recording private activity of individuals.

What happened? Nothing. Despite warnings that our current mishmash of vague surveillance devices acts, unbalanced federal privacy regulations and various laws against trespass, breach of confidence or acts of public nuisance do not provide Australians with reliable protection from being filmed or observed by a drone, the government sat by and allowed anyone to send a craft over your backyard.

It’s all too easy. You can buy one of these devices for as little as $100 and unless it weighs more than 2 kilograms and travels no higher than 121 metres, it does not need to be registered with the civil aviation authority. So there’s really nothing preventing that weirdo living in the next street from getting his rocks off by examining your backyard, or having his stand-in eyes hovering in front of your bedroom window.

Of course many will simply shrug and ask what the big deal is. Hasn’t your smart phone kept track of your movements and uploaded massive loads of data to multinational companies, anyway? Didn’t we surrender this notion of privacy years ago when we embraced new technology?

Maybe we did. But isn’t it more than a little creepy – not to say an outrageous intrusion into your life – that someone is allowed to watch and film you in your home?

If we can hear the buzzing of an overhead drone, surely it won’t be long before we start hearing footsteps, too.

The skinny dipping article provides:

Recent advances in technology mean we can no longer rely on fences or barriers around our homes to protect our privacy. This was certainly the case for Darwin resident Karli Hyatt, who on Tuesday explained to the ABC’s Law Report how a drone invaded the security and privacy of her suburban backyard.

Hyatt had returned home last week from an evening gym session, undressed and jumped into her secluded backyard pool. She thought she was “skinny-dipping” in private. Within minutes, though, a small camera-mounted quadcopter drone was hovering close overhead. Hyatt is certain it was watching her, although there was no operator to be seen.

She describes the experience as initially shocking and has ongoing concerns about who might have been flying the drone and why. The result is an erosion of trust and cohesion in her neighbourhood and a feeling of insecurity in her own home. You can listen to the ABC interview here.

What laws might apply to this case?

The Civil Aviation Safety Authority (CASA) relaxed rules on privately operated drones last year, although some restrictions remain. However, flying a drone over private property isn’t illegal under CASA rules, nor is filming someone from it. Aircraft are generally permitted overflight of properties; otherwise they could fly only over public land.

In fact, most Australian states have barred home owners from suing aircraft operators for causing “nuisance” by overflight.

Although the Northern Territory is one of the few exceptions, the courts are still resistant to claims of nuisance against aircraft without proof of persistent and continuing interference with the property. One or two overflights (even on the same day) are unlikely to be enough to establish this.

Unlike its common-law cousins, Australia lacks a tort of privacy. This is based on the conventional view that it would effectively prohibit people looking over each other’s fences. If you don’t like that happening – the old reasoning goes – you should build a higher fence.

Although most common-law countries have moved past this view, Australia hasn’t. This means Karli Hyatt couldn’t sue the drone operator (if she could find them) for a breach of privacy.

What all Australian jurisdictions have criminalised is harassment and stalking, however conducted. But these laws generally require a “pattern of behaviour”.

In the NT, for instance, it would have to be proved that the activity involved intentionally watching Hyatt “on at least two separate occasions” with the “intention of causing harm” to her or causing her to “fear harm”. Given she doesn’t know who was flying the drone or why, this will be hard to prove.

That said, this case does appear to involve a breach of the relaxed CASA flight rules; the drone was being flown at night, within 30 metres of her and out of sight of the operator. But because she doesn’t know who was flying the drone she can’t identify someone to report to CASA.

If it happens again she can’t prove it is the same drone – as would be needed to apply nuisance, harassment and stalking laws – nor the intentions of the operator.

One of the reasons drone rules were relaxed is that CASA simply cannot monitor every privately operated drone. CASA also insists it cannot be responsible for policing privacy breaches by drones. But there isn’t another agency that can effectively do this.

With no regulatory agency, no tort of privacy, (nearly) no nuisance and inapplicable harassment and stalking laws, there isn’t much law when it comes to peeping Toms using drones around our homes and private spaces.

Technology has left law behind

Critics of increased protections against “privacy-invasive technologies” such as drones argue that we are already subject to surveillance by CCTV and satellites. They also point out that neighbouring properties often overlook modern dwellings.

In those situations, however, the person being observed is put on reasonable notice or can easily identify the observer. We can build a higher fence, plant a hedge, or install a blind. If someone has filmed us from a neighbouring apartment, the footage will likely reveal who was doing it or from where. If we are accidentally recorded on Google Earth, there is a single company to negotiate with or put pressure on.

However, technologies like drones really do seem to change the privacy landscape. The sheer number of them, their mobile nature and the inability to identify who is operating them limit our ability to protect ourselves from prying eyes.

As Karli Hyatt’s case shows, simply expecting home owners to build higher fences is no longer really applicable, so it might be time for the law to step in.

What can be done to protect privacy?

In 2014, a Commonwealth parliamentary committee delivered a report, Eyes in the Sky. It recommended reforming laws on harassment and stalking and introducing a tort of privacy for unreasonable interference into private spaces – as did the Australian Law Reform Commission the same year. Yet such rules depend on proving who was operating the drone in the first place.

Commercial operators must notify CASA of their intention to fly a drone. Untrained non-commercial operators do not, which means there is no record of who is flying drones and where.

Almost all off-the-shelf drones contain GPS and flight recorders. One technical/legal solution might be to require that they also be fitted with a mobile SIM card (just as your tablet can have a cloned SIM card from your mobile). Flight data would then be automatically uploaded to the cloud-based government database whenever the drone was within reach of a mobile network.

Tampering with the recorder would be illegal. This would allow CASA, the police or private citizens to establish who was flying a drone.

While there might be some technical or logistical obstacles, and some infrastructure costs for government, this proposal would not overwhelm CASA with the burden of directly regulating the increasing number of drones.

Most drone owners act in good faith and respect others, but a few rogue ones misusing the technology may turn the public tide. Drones have many socially positive uses, but spying on people in their own homes is not one of them. The law needs to help residents protect themselves against such invasions.


One Response to “Drones and privacy”

  1. Drones and privacy | Australian Law Blogs

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